Vol. 77 Thursday, No. 202 October 18, 2012

Pages 64023–64220

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 77, No. 202

Thursday, October 18, 2012

Agency for International Development See Navy Department NOTICES Privacy Act; Systems of Records, 64095–64096 Drug Enforcement Administration RULES Agriculture Department Schedules of Controlled Substances: See Forest Service Extension of Temporary Placement of Methylone Into See Rural Business-Cooperative Service Schedule I, 64032–64033 NOTICES Alcohol and Tobacco Tax and Trade Bureau Applications: RULES Jose Gonzalo Zavaleta, M.D.; Denial, 64128–64131 Establishment of Ancient Lakes of Columbia Valley Decisions and Orders: Viticultural Area, 64033–64036 Zvi H. Perper, M.D., 64131–64142 Antitrust Division Importers of Controlled Substances; Applications: NOTICES Noramco, Inc., 64142 Membership Changes Under the National Cooperative Importers of Controlled Substances; Registrations: Research and Production Act: Akorn, Inc., 64143 Advanced Media Workflow Association, Inc., 64128 ISP Freetown Fine Chemicals, 64142 Network Centric Operations Industry Consortium, Inc., Manufacturers of Controlled Substances; Applications: 64128 Noramco, Inc., 64143 Wireless Industrial Technology Konsortium Inc., 64128 Manufacturers of Controlled Substances; Registrations: Cambridge Isotope Lab, 64143 Antitrust Chattem Chemicals, Inc., 64143–64144 See Antitrust Division Chemica, 64144 Lin Zhi International, Inc., 64144 Army Department See Engineers Corps Education Department NOTICES Arts and Humanities, National Foundation Agency Information Collection Activities; Proposals, See National Foundation on the Arts and the Humanities Submissions, and Approvals: Children and Families Administration Annual Performance Report for the Gaining Early Awareness for Undergraduate Programs, 64111– NOTICES 64112 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Data Collection Plan for Follow-up Survey with Child Energy Department Welfare Information Gateway Customers, 64116 See Energy Efficiency and Renewable Energy Office NOTICES Coast Guard Meetings: RULES Environmental Management Site-Specific Advisory Drawbridge Operations: Board, Hanford, 64112 Long Island, New York Inland Waterway from East Rockaway Inlet to Shinnecock Canal, Hempstead, Energy Efficiency and Renewable Energy Office NY, 64036 NOTICES PROPOSED RULES Nationwide Categorical Waivers of American Recovery and Vessel Traffic Service Updates: Reinvestment Act, 64112–64113 Establishment of Vessel Traffic Service Requirements for Port Arthur, Texas and Expansion of VTS Special Engineers Corps Operating Area in Puget Sound, 64076–64077 NOTICES Applications; Solicitations: Commerce Department Stakeholder Representative Members of Missouri River See International Trade Administration Recovery Implementation Committee, 64109–64110 See Patent and Trademark Office Commodity Futures Trading Commission Environmental Protection Agency RULES NOTICES Meetings; Sunshine Act, 64108 Determinations of Attainment of 1-Hour Ozone National Ambient Air Quality Standards: Consumer Product Safety Commission Sacramento Metro Nonattainment Area in California, PROPOSED RULES 64036–64039 Safety Standard for Bassinets and Cradles, 64055–64076 Limited Approvals and Disapprovals of Air Quality Implementation Plans: Defense Department Clark County, NV; Stationary Source Permits, 64039– See Engineers Corps 64050

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NOTICES Fish and Wildlife Service Requests for Nominations: NOTICES National Drinking Water Advisory Council, 64113–64114 Endangered Species; Receipt of Applications for Permit, 64121–64123 Executive Office of the President See Presidential Documents Forest Service NOTICES Export-Import Bank Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Advertised Timber for Sale, 64096–64097 Submissions, and Approvals: Environmental Impact Statements; Availability, etc.: Application for Medium Term Insurance or Guarantee, Leasing and Underground Mining of Greens Hollow 64114–64115 Federal Coal Lease Tract, 64097–64099 Application for Special Buyer Credit Limit under Multi- Meetings: Buyer Credit Insurance Policies, 64114 Snohomish County Resource Advisory Committee, 64099 Health and Human Services Department Federal Aviation Administration See Children and Families Administration RULES See Health Resources and Services Administration Special Conditions: See National Institutes of Health Airbus Model A318, A319, A320, and A321 Series Airplanes; Design Dive Speed, 64029–64031 Health Resources and Services Administration Airbus Model A318, A319, A320, and A321 Series NOTICES Airplanes; Design Roll Maneuver Conditions, 64023– Meetings: 64024 Advisory Committee on Training in Primary Care Airbus Model A318, A319, A320, and A321 Series Medicine and Dentistry, 64116–64117 Airplanes; Interaction of Systems and Structures, 64025–64029 Homeland Security Department PROPOSED RULES See Coast Guard Airworthiness Directives: See U.S. Citizenship and Immigration Services EADS CASA (Type Certificate Previously Held by See U.S. Customs and Border Protection Construcciones Aeronauticas, S.A.) Airplanes, 64053–64055 Interior Department See Fish and Wildlife Service Federal Deposit Insurance Corporation See Land Management Bureau NOTICES Terminations of Receiverships: Internal Revenue Service Carteret Federal Savings Bank, Newark, NJ and Carteret RULES Savings Bank, F.A., 64115 Discharge of Liens; Redemption by United States; CFR Correction, 64033 NOTICES Federal Motor Carrier Safety Administration Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 64186 Policy on Suspension of Operating Authority for Hostage Agency Information Collection Activities; Proposals, Load Violations, 64050–64051 Submissions, and Approvals: PROPOSED RULES Form 637 Questionnaires, 64187 Hours of Service of Drivers: Form 990–W, 64187–64188 Public Listening Session, 64093–64094 NOTICES Forms 8288 and 8288–A, 64188 Qualifications of Drivers; Exemption Applications: International Trade Administration Diabetes Mellitus, 64181–64183 NOTICES Antidumping Duty Administrative Reviews; Results, Federal Railroad Administration Extensions, Amendments, etc.: PROPOSED RULES Frozen Warmwater Shrimp from Socialist Republic of National Highway–Rail Crossing Inventory Reporting Vietnam, 64102–64106 Requirements, 64077–64093 Glycine from People’s Republic of China, 64100–64101 NOTICES Renewable Energy and Energy Efficiency Trade Policy Final General Conformity Determination; Availability: Mission to Chile, 64106–64108 California High-Speed Train System Merced to Fresno Section, 64183–64184 International Trade Commission NOTICES Federal Reserve System Five-Year Reviews: NOTICES Steel Concrete Reinforcing Bar from Belarus, China, Changes in Bank Control: Indonesia, Latvia, Moldova, Poland, and Ukraine, Acquisitions of Shares of a Bank or Bank Holding 64127 Company, 64115 Formations of, Acquisitions by, and Mergers of Bank Justice Department Holding Companies, 64115–64116 See Antitrust Division

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See Drug Enforcement Administration Nuclear Regulatory Commission NOTICES Labor Department Advisory Committee on Reactor Safeguards Procedures for See Mine Safety and Health Administration Meetings, 64146–64147 Meetings: Land Management Bureau Advisory Committee on Reactor Safeguards NOTICES Subcommittee on Fukushima, 64147–64148 Agency Information Collection Activities; Proposals, Advisory Committee on Reactor Safeguards Submissions, and Approvals, 64123 Subcommittee on Regulatory Policies and Practices, Environmental Assessments; Availability, etc.: 64148 Bruneau, Four Rivers Field Offices, Idaho; Intent to Amend Cascade Resource Management Plan, etc., Patent and Trademark Office 64124–64125 PROPOSED RULES Plats of Surveys: Changes to Representation of Others before United States Montana, 64125 Patent and Trademark Office, 64190–64215 Proposed Withdrawal Extensions and Public Meetings: East Fork Elk Winter Range, WY, 64125–64126 Postal Regulatory Commission Proposed Withdrawals of Public Land: NOTICES Buffalo Bill Dam and Reservoir Modification Project Postal Rate and Classification Changes, 64148–64150 Recreation Site, WY; Opportunity for Public Meeting, 64126–64127 Postal Service NOTICES Maritime Administration Product Changes: NOTICES Express Mail and Priority Mail Negotiated Service Requested Administrative Waivers of Coastwise Trade Agreement, 64150 Laws: Priority Mail Negotiated Service Agreement, 64150 Vessel FINALLY ENOUGH, 64184 Vessel FIRE BELLE, 64184–64185 Presidential Documents PROCLAMATIONS Mine Safety and Health Administration Special Observances: Blind Americans Equality Day (Proc. 8889), 64217–64220 NOTICES Petitions for Modifications: Rural Business-Cooperative Service Affirmative Decisions, 64144–64146 NOTICES Agency Information Collection Activities; Proposals, National Foundation on the Arts and the Humanities Submissions, and Approvals, 64099–64100 NOTICES Meetings: Securities and Exchange Commission Arts and Artifacts Indemnity Panel Advisory Committee, NOTICES 64146 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 64150–64151 National Highway Traffic Safety Administration Self-Regulatory Organizations; Proposed Rule Changes: RULES BATS Y-Exchange, Inc., 64180 2017 and Later Model Year Light-Duty Vehicle Greenhouse NASDAQ OMX BX, Inc., 64151–64153 Gas Emissions and Corporate Average Fuel Economy NASDAQ OMX PHLX LLC, 64170–64178 Standards, 64051–64052 NASDAQ Stock Market LLC, 64167–64170, 64179–64180 NYSE Arca, Inc., 64153–64167 National Institutes of Health NOTICES Surface Transportation Board Meetings: NOTICES Center for Scientific Review, 64118–64119 Acquisition and Operation Exemptions: Center for Scientific Review; Amended, 64119 BNSF Railway Co.; Nebraska Northeastern Railway Co., National Institute of Mental Health, 64117, 64119 64185 National Institute on Alcohol Abuse and Alcoholism, Railroad Revenue Adequacy—2011 Determination, 64185– 64117–64118 64186 National Institute on Drug Abuse; Correction, 64117 Transportation Department National Transportation Safety Board See Federal Aviation Administration NOTICES See Federal Motor Carrier Safety Administration Meetings; Sunshine Act, 64146 See Federal Railroad Administration See Maritime Administration Navy Department See National Highway Traffic Safety Administration NOTICES See Surface Transportation Board Environmental Impact Statements; Availability, etc.: Disposal and Reuse of the former Naval Air Station Joint Treasury Department Reserve Base Willow Grove, Horsham, PA, 64110– See Alcohol and Tobacco Tax and Trade Bureau 64111 See Internal Revenue Service

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RULES Separate Parts In This Issue United States–Peru Trade Promotion Agreement, 64031– 64032 NOTICES Part II Appointments of Members of Legal Division to Performance Commerce Department, Patent and Trademark Office, Review Board, Internal Revenue Service, 64186 64190–64215

U.S. Citizenship and Immigration Services Part III NOTICES Presidential Documents, 64217–64220 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Petition for CNMI-Only Nonimmigrant Transition Worker, 64120–64121 Reader Aids Refugee/Asylee Adjusting Status, 64119–64120 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, U.S. Customs and Border Protection and notice of recently enacted public laws. RULES To subscribe to the Federal Register Table of Contents Special Classes of Merchandise; CFR Correction, 64032 LISTSERV electronic mailing list, go to http:// United States–Peru Trade Promotion Agreement, 64031– listserv.access.gpo.gov and select Online mailing list 64032 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: 8889...... 64218 14 CFR 25 (3 documents) ...... 64023, 64025, 64029 Proposed Rules: 39...... 64053 16 CFR Proposed Rules: 1112...... 64055 1218...... 64055 19 CFR 10...... 64031 12...... 64032 24...... 64031 162...... 64031 163...... 64031 178...... 64031 21 CFR 1308...... 64032 26 CFR 301...... 64033 27 CFR 9...... 64033 33 CFR 117...... 64036 Proposed Rules: 161...... 64076 37 CFR Proposed Rules: 1...... 64190 2...... 64190 7...... 64190 10...... 64190 11...... 64190 41...... 64190 40 CFR 52 (2 documents) ...... 64036, 64039 49 CFR 365...... 64050 371...... 64050 375...... 64050 536...... 64051 Proposed Rules: 234...... 64077 395...... 64093

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Rules and Regulations Federal Register Vol. 77, No. 202

Thursday, October 18, 2012

This section of the FEDERAL REGISTER • Mail: Send comments to Docket FAA therefore finds that good cause contains regulatory documents having general Operations, M–30, U.S. Department of exists for making these special applicability and legal effect, most of which Transportation (DOT), 1200 New Jersey conditions effective upon issuance. are keyed to and codified in the Code of Avenue SE., Room W12–140, West Comments Invited Federal Regulations, which is published under Building Ground Floor, Washington, DC 50 titles pursuant to 44 U.S.C. 1510. 20590–0001. We invite interested people to take • The Code of Federal Regulations is sold by Hand Delivery or Courier: Take part in this rulemaking by sending the Superintendent of Documents. Prices of comments to Docket Operations in written comments, data, or views. The new books are listed in the first FEDERAL Room W12–140 of the West Building most helpful comments reference a REGISTER issue of each week. Ground Floor at 1200 New Jersey specific portion of the special Avenue SE., Washington, DC, between 8 conditions, explain the reason for any a.m. and 5 p.m., Monday through recommended change, and include DEPARTMENT OF TRANSPORTATION Friday, except federal holidays. supporting data. • Fax: Fax comments to Docket We will consider all comments we Federal Aviation Administration Operations at 202–493–2251. receive by the closing date for Privacy: The FAA will post all comments. We may change these special 14 CFR Part 25 comments it receives, without change, conditions based on the comments we [Docket No. FAA–2012–1120; Special to http://www.regulations.gov/, receive. Conditions No. 25–471–SC] including any personal information the Background commenter provides. Using the search Special Conditions: Airbus Model function of the docket Web site, anyone On April 8, 2010, Airbus applied for A318, A319, A320, and A321 Series can find and read the electronic form of a change to Type Certificate No. A28NM Airplanes; Design Roll Maneuver all comments received into any FAA to include modification 160500 on Conditions docket, including the name of the Airbus Model A318, A319, and A320 series airplanes and modification AGENCY: Federal Aviation individual sending the comment (or signing the comment for an association, 160023 on Model A321 series airplanes Administration (FAA), DOT. for the installation of a ‘‘Sharklet,’’ a business, labor union, etc.). DOT’s ACTION: Final special conditions; request large wingtip device. The Model A318, complete Privacy Act Statement can be for comments. A319, A320, and A321 series airplanes found in the Federal Register published are short to medium-range, twin on April 11, 2000 (65 FR 19477–19478), SUMMARY: These special conditions are turbofan, transport category airplanes as well as at http:// issued for the Airbus Model A318, with a maximum seating capacity of 136 DocketsInfo.dot.gov/. A319, and A320 series airplanes with to 220 passengers, a maximum takeoff modification 160500 and Model A321 Docket: Background documents or comments received may be read at weight of 130,071 to 205,027 pounds, series airplanes with modification and a maximum operating altitude of 160023 (Sharklet). These airplanes will http://www.regulations.gov/ at any time. Follow the online instructions for 39,800 feet. have novel or unusual design features FAA issued special conditions 25– accessing the docket or go to the Docket when compared to the state of ANM–23, effective December 15, 1988, Operations in Room W12–140 of the technology envisioned in the originally applicable to Airbus Model West Building Ground Floor at 1200 airworthiness standards for transport A320 series airplanes and later to the New Jersey Avenue SE., Washington, category airplanes. These design Model A318, A319, and A321 series DC, between 9 a.m. and 5 p.m., Monday features include electronic flight airplanes. Those special conditions through Friday, except federal holidays. controls that affect maneuvering. The included requirements for design roll applicable airworthiness regulations do FOR FURTHER INFORMATION CONTACT: maneuver conditions. The FAA has not contain adequate or appropriate Todd Martin, FAA, Airframe/Cabin determined that new special conditions safety standards for this design feature. Safety Branch, ANM–115, Transport are needed for the Airbus Model A318, These special conditions contain the Airplane Directorate, Aircraft A319, and A320 series airplanes with additional safety standards that the Certification Service, 1601 Lind Avenue modification 160500 and Model A321 Administrator considers necessary to SW., Renton, Washington 98057–3356; series airplanes with modification establish a level of safety equivalent to telephone 425–227–1178; facsimile 160023 (Sharklet) and later derivatives that established by the existing 425–227–1232. because the existing special conditions airworthiness standards. SUPPLEMENTARY INFORMATION: The FAA have evolved over the years and need to DATES: The effective date of these has determined that notice of, and be updated for this derivative program. special conditions is October 11, 2012. opportunity for prior public comment We must receive your comments by on, these special conditions are Type Certification Basis December 3, 2012. impracticable because these procedures Under the provisions of Title 14, Code ADDRESSES: Send comments identified would significantly delay issuance of of Federal Regulation (14 CFR) 21.101, by docket number FAA–2012–1120 the design approval and thus delivery of Airbus must show that the Model A318, using any of the following methods: the affected aircraft. In addition, the A319, A320, and A321 series airplanes, • Federal eRegulations Portal: Go to substance of these special conditions as changed, continue to meet the http://www.regulations.gov/ and follow has been subject to the public comment applicable provisions of the regulations the online instructions for sending your process in several prior instances with incorporated by reference in Type comments electronically. no substantive comments received. The Certificate No. A28NM or the applicable

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regulations in effect on the date of Discussion The authority citation for these application for the change. The Current part 25 airworthiness special conditions is as follows: regulations incorporated by reference in regulations account for control laws for Authority: 49 U.S.C. 106(g), 40113, 44701, the type certificate are commonly which aileron deflection is proportional 44702, 44704. referred to as the ‘‘original type to control stick deflection. They do not certification basis.’’ The regulations address any nonlinearities or other The Special Conditions incorporated by reference in Type effects on aileron actuation that may be Accordingly, pursuant to the Certificate No. A28NM are 14 CFR part caused by electronic flight controls. 25, as amended by Amendments 25–1 authority delegated to me by the Since this type of system may affect Administrator, the following special through 25–56, and special conditions flight loads, and therefore the structural 25–ANM–23. In addition, the conditions are issued as part of the type capability of the airplane, specific certification basis for Airbus Model certification basis includes certain regulations are needed to address these A318, A319, and A320 series airplanes special conditions, exemptions, or later effects. with modification 160500 and Model amended sections of the applicable part These proposed special conditions A321 with modification 160023 that are not relevant to these special differ from current requirements in that conditions. they require that the roll maneuver be (Sharklet) series airplanes. If the Administrator finds that the performed by actuation of the cockpit Design Roll Maneuver Conditions. applicable airworthiness regulations roll control as opposed to the aileron The following conditions, speeds, and (i.e., 14 CFR part 25) do not contain itself. Also, the proposed special cockpit roll control motions (except as adequate or appropriate safety standards conditions require an additional load the motions may be limited by pilot for the Model A318, A319, A320, and condition at VA, in which the cockpit effort) must be considered in A321 series airplanes because of a novel roll control is returned to neutral combination with an airplane load or unusual design feature, special following the initial roll input. factor of zero and of two-thirds of the conditions are prescribed under the provisions of § 21.16. Applicability positive maneuvering factor used in Special conditions are initially design. In determining the resulting As discussed above, these special control surface deflections, the torsional applicable to the model for which they conditions are applicable to the Airbus are issued. Should the type certificate flexibility of the wing must be Model A318, A319, A320 series considered in accordance with for that model be amended later to airplanes with modification 160500 and § 25.301(b): include any other model that Model A321 series airplanes with incorporates the same novel or unusual modification 160023 (Sharklet). Should 1. Conditions corresponding to steady design feature, or should any other Airbus apply at a later date for a change rolling velocities must be investigated. model already included on the same to the type certificate to include another In addition, conditions corresponding to type certificate be modified to model incorporating the same novel or maximum angular acceleration must be incorporate the same novel or unusual unusual design feature, the special investigated for airplanes with engines design feature, the special conditions conditions would apply to that model as or other weight concentrations outboard would also apply to the other model. well. of the fuselage. For the angular In addition to the applicable Conclusion acceleration conditions, zero rolling airworthiness regulations and special velocity may be assumed in the absence conditions, the Model A318, A319, This action affects only certain novel of a rational time history investigation A320, and A321 series airplanes must or unusual design features on the model of the maneuver. comply with the fuel vent and exhaust series of airplanes listed above. It is not emission requirements of 14 CFR part a rule of general applicability. 2. At VA, sudden movement of the 34 and the noise certification The substance of these special cockpit roll control up to the limit is requirements of 14 CFR part 36. conditions has been subjected to the assumed. The position of the cockpit The FAA issues special conditions, as notice and comment period in several roll control must be maintained until a defined in 14 CFR 11.19, in accordance prior instances and has been derived steady roll rate is achieved and then with § 11.38, and they become part of without substantive change from those must be returned suddenly to the the type-certification basis under previously issued. It is unlikely that neutral position. § 21.101. prior public comment would result in a 3. At VC, the cockpit roll control must Novel or Unusual Design Features significant change from the substance be moved suddenly and maintained so contained herein. Therefore, because a as to achieve a roll rate not less than The Airbus Model A318, A319, and delay would significantly affect the that obtained in paragraph 2. A320 series airplanes with modification certification of the airplane, which is 160500 and Model A321 series airplanes imminent, the FAA has determined that 4. At VD, the cockpit roll control must with modification 160023 (Sharklet) prior public notice and comment are be moved suddenly and maintained so will incorporate the following novel or unnecessary and impracticable, and as to achieve a roll rate not less than one unusual design feature: Electronic flight good cause exists for adopting these third of that obtained in paragraph 2. controls that affect maneuvering. special conditions upon issuance. The Issued in Renton, Washington, on October The current design roll maneuver FAA is requesting comments to allow 11, 2012. requirement in 14 CFR part 25 is interested persons to submit views that Ali Bahrami, inadequate for addressing an aircraft may not have been submitted in Manager, Transport Airplane Directorate, with electronic flight controls that affect response to the prior opportunities for Aircraft Certification Service. maneuvering. Special conditions are comment described above. needed to adjust the current roll [FR Doc. 2012–25606 Filed 10–17–12; 8:45 am] maneuver requirement in § 25.349(a) to List of Subjects in 14 CFR Part 25 BILLING CODE 4910–13–P take into account the effects of an Aircraft, Aviation safety, Reporting electronic flight control system. and recordkeeping requirements.

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DEPARTMENT OF TRANSPORTATION including any personal information the 160023 on Model A321 series airplanes commenter provides. Using the search for the installation of a ‘‘Sharklet,’’ a Federal Aviation Administration function of the docket Web site, anyone large wingtip device. The Model A318, can find and read the electronic form of A319, A320, and A321 series airplanes 14 CFR Part 25 all comments received into any FAA are short to medium-range, twin [Docket No. FAA–2012–1118; Special docket, including the name of the turbofan, transport category airplanes Conditions No. 25–469–SC] individual sending the comment (or with a maximum seating capacity of 136 signing the comment for an association, to 220 passengers, a maximum takeoff Special Conditions: Airbus Model business, labor union, etc.). DOT’s weight of 130,071 to 205,027 pounds, A318, A319, A320, and A321 Series complete Privacy Act Statement can be and a maximum operating altitude of Airplanes; Interaction of Systems and found in the Federal Register published 39,800 feet. Structures on April 11, 2000 (65 FR 19477–19478), FAA issued special conditions 25– as well as at http://DocketsInfo.dot.gov/. ANM–23, effective December 15, 1988, AGENCY: Federal Aviation Docket: Background documents or originally applicable to Airbus Model Administration (FAA), DOT. comments received may be read at A320 series airplanes and later to the ACTION: Final special conditions; request http://www.regulations.gov/ at any time. Model A318, A319, and A321 series for comments. Follow the online instructions for airplanes. Those special conditions included requirements for interactions SUMMARY: These special conditions are accessing the docket or go to the Docket Operations in Room W12–140 of the of systems and structures. Airbus issued for the Airbus Model A318, requested, and FAA agrees, that these A319, and A320 series airplanes with West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, special conditions be updated for the modification 160500 and Model A321 Airbus Model A318, A319, and A320 series airplanes with modification DC, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. series airplanes with modification 160023 (Sharklet). These airplanes will 160500 and Model A321 series airplanes FOR FURTHER INFORMATION CONTACT: have novel or unusual design features with modification 160023 (Sharklet) and Todd Martin, FAA, Airframe/Cabin when compared to the state of later derivatives to be consistent with Safety Branch, ANM–115, Transport technology envisioned in the the latest European Aviation Safety Airplane Directorate, Aircraft airworthiness standards for transport Standards (EASA) standards and the category airplanes. The design features Certification Service, 1601 Lind Avenue latest versions of the FAA special are associated with the systems that SW., Renton, Washington 98057–3356; conditions issued on this subject. affect the structural performance of the telephone 425–227–1178; facsimile airplane. The applicable airworthiness 425–227–1232. Type Certification Basis regulations do not contain adequate or SUPPLEMENTARY INFORMATION: The FAA Under the provisions of Title 14, Code appropriate safety standards for these has determined that notice of, and of Federal Regulation (14 CFR) 21.101, design features. These special opportunity for prior public comment Airbus must show that the Model A318, conditions contain the additional safety on, these special conditions are A319, A320, and A321 series airplanes, standards that the Administrator impracticable because these procedures as changed, continue to meet the considers necessary to establish a level would significantly delay issuance of applicable provisions of the regulations of safety equivalent to that established the design approval and thus delivery of incorporated by reference in Type by the existing airworthiness standards. the affected aircraft. In addition, the Certificate No. A28NM or the applicable DATES: The effective date of these substance of these special conditions regulations in effect on the date of special conditions is October 11, 2012. has been subject to the public comment application for the change. The We must receive your comments by process in several prior instances with regulations incorporated by reference in December 3, 2012. no substantive comments received. The the type certificate are commonly ADDRESSES: Send comments identified FAA therefore finds that good cause referred to as the ‘‘original type by docket number FAA–2012–1118 exists for making these special certification basis.’’ The regulations using any of the following methods: conditions effective upon issuance. incorporated by reference in Type • Certificate No. A28NM are 14 CFR part Federal eRegulations Portal: Go to Comments Invited http://www.regulations.gov/ and follow 25, as amended by Amendments 25–1 the online instructions for sending your We invite interested people to take through 25–56, and special conditions comments electronically. part in this rulemaking by sending 25–ANM–23. In addition, the • Mail: Send comments to Docket written comments, data, or views. The certification basis includes certain Operations, M–30, U.S. Department of most helpful comments reference a special conditions, exemptions, or later Transportation (DOT), 1200 New Jersey specific portion of the special amended sections of the applicable part Avenue SE., Room W12–140, West conditions, explain the reason for any that are not relevant to these special Building Ground Floor, Washington, DC recommended change, and include conditions. 20590–0001. supporting data. If the Administrator finds that the • Hand Delivery or Courier: Take We will consider all comments we applicable airworthiness regulations comments to Docket Operations in receive by the closing date for (i.e., 14 CFR part 25) do not contain Room W12–140 of the West Building comments. We may change these special adequate or appropriate safety standards Ground Floor at 1200 New Jersey conditions based on the comments we for the Model A318, A319, A320, and Avenue SE., Washington, DC, between 8 receive. A321 series airplanes because of a novel a.m. and 5 p.m., Monday through or unusual design feature, special Background Friday, except federal holidays. conditions are prescribed under the • Fax: Fax comments to Docket On April 8, 2010, Airbus applied for provisions of § 21.16. Operations at 202–493–2251. a change to Type Certificate No. A28NM Special conditions are initially Privacy: The FAA will post all to include modification 160500 on applicable to the model for which they comments it receives, without change, Airbus Model A318, A319, and A320 are issued. Should the type certificate to http://www.regulations.gov/, series airplanes and modification for that model be amended later to

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include any other model that series of airplanes listed above. It is not considered in isolation but should be incorporates the same novel or unusual a rule of general applicability. included in the overall safety evaluation design feature, or should any other The substance of these special of the airplane. These criteria may in model already included on the same conditions has been subjected to the some instances duplicate standards type certificate be modified to notice and comment period in several already established for this evaluation. incorporate the same novel or unusual prior instances and has been derived These criteria are only applicable to design feature, the special conditions without substantive change from those structure whose failure could prevent would also apply to the other model. previously issued. It is unlikely that continued safe flight and landing. In addition to the applicable prior public comment would result in a Specific criteria that define acceptable airworthiness regulations and special significant change from the substance limits on handling characteristics or conditions, the Model A318, A319, contained herein. Therefore, because a stability requirements when operating A320, and A321 series airplanes must delay would significantly affect the in the system degraded or inoperative comply with the fuel vent and exhaust certification of the airplane, which is mode are not provided in these special emission requirements of 14 CFR part imminent, the FAA has determined that conditions. 34 and the noise certification prior public notice and comment are (b) Depending upon the specific requirements of 14 CFR part 36. unnecessary and impracticable, and characteristics of the airplane, The FAA issues special conditions, as good cause exists for adopting these additional studies may be required that defined in 14 CFR 11.19, in accordance special conditions upon issuance. The go beyond the criteria provided in these with § 11.38, and they become part of FAA is requesting comments to allow special conditions in order to the type-certification basis under interested persons to submit views that demonstrate the capability of the § 21.101. may not have been submitted in airplane in meeting other realistic response to the prior opportunities for Novel or Unusual Design Features conditions such as alternative gust or comment described above. maneuver descriptions for an airplane The Airbus Model A318, A319, and List of Subjects in 14 CFR Part 25 equipped with a load alleviation system. A320 series airplanes with modification (c) The following definitions are 160500 and Model A321 series airplanes Aircraft, Aviation safety, Reporting applicable to these special conditions: with modification 160023 (Sharklet) and recordkeeping requirements. Structural performance: Capability of will incorporate the following novel or The authority citation for these the airplane to meet the structural unusual design features: Systems that, special conditions is as follows: requirements of 14 CFR part 25. directly or as a result of failure or Authority: 49 U.S.C. 106(g), 40113, 44701, Flight limitations: Limitations that malfunction, affect structural 44702, 44704. can be applied to the airplane flight performance. These systems include conditions following an in-flight The Special Conditions flight control systems, autopilots, occurrence and that are included in the stability augmentation systems, load Accordingly, pursuant to the flight manual (e.g., speed limitations, alleviation systems, fuel management authority delegated to me by the avoidance of severe weather conditions, systems, and other sytems. Administrator, the following special etc.). conditions are issued as part of the type Operational limitations: Limitations, Discussion certification basis for Airbus Model including flight limitations, that can be These airplanes are equipped with A318, A319, and A320 series airplanes applied to the airplane operating systems that, directly or as a result of with modification 160500 and Model conditions before dispatch (e.g., fuel, failure or malfunction, affect its A321 with modification 160023 payload and Master Minimum structural performance. Current (Sharklet) series airplanes. Equipment List limitations). regulations do not take into account 1. General Probabilistic terms: The probabilistic loads for the aircraft due to the effects terms (probable, improbable, extremely of systems on structural performance For airplanes equipped with systems improbable) used in these special including normal operation and failure that affect structural performance, either conditions are the same as those used in conditions with strength levels related directly or as a result of a failure or § 25.1309. to probability of occurrence. These malfunction, the influence of these Failure condition: The term failure special conditions define criteria to be systems and their failure conditions condition is the same as that used in used in the assessment of the effects of must be taken into account when § 25.1309, however, these special these systems on structures. showing compliance with the conditions apply only to system failure requirements of 14 CFR part 25 subparts conditions that affect the structural Applicability C and D. The following criteria must be performance of the airplane (e.g., system As discussed above, these special used for showing compliance with these failure conditions that induce loads, conditions are applicable to the Airbus special conditions for airplanes change the response of the airplane to Model A318, A319, A320 series equipped with flight control systems, inputs such as gusts or pilot actions, or airplanes with modification 160500 and autopilots, stability augmentation lower flutter margins). Model A321 series airplanes with systems, load alleviation systems, fuel modification 160023 (Sharklet). Should management systems, and other systems 2. Effects of Systems on Structures Airbus apply at a later date for a change that either directly or as a result of The following criteria will be used in to the type certificate to include another failure or malfunction affect structural determining the influence of a system model incorporating the same novel or performance. If these special conditions and its failure conditions on the unusual design features, the special are used for other systems, it may be airplane structure. conditions would apply to that model as necessary to adapt the criteria to the (a) System fully operative. With the well. specific system. system fully operative, the following (a) The criteria defined herein only apply: Conclusion address the direct structural (1) Limit loads must be derived in all This action affects only certain novel consequences of the system responses normal operating configurations of the or unusual design features on the model and performances and cannot be system from all the limit conditions

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specified in Subpart C (or defined by specified factors to derive ultimate loads shown to be extremely improbable, the special condition or equivalent level of from the limit loads defined above. The following apply: safety in lieu of those specified in effect of nonlinearities must be (1) At the time of occurrence, starting Subpart C), taking into account any investigated beyond limit conditions to from 1-g level flight conditions, a special behavior of such a system or ensure the behavior of the system realistic scenario, including pilot associated functions or any effect on the presents no anomaly compared to the corrective actions, must be established structural performance of the airplane behavior below limit conditions. to determine the loads occurring at the that may occur up to the limit loads. In However, conditions beyond limit time of failure and immediately after particular, any significant nonlinearity conditions need not be considered when failure. (rate of displacement of control surface, it can be shown that the airplane has thresholds, or any other system design features that will not allow it to (i) For static strength substantiation, nonlinearities) must be accounted for in exceed those limit conditions. these loads, multiplied by an a realistic or conservative way when (3) The airplane must meet the appropriate factor of safety that is deriving limit loads from limit related to the probability of occurrence conditions. aeroelastic stability requirements of § 25.629. of the failure, are ultimate loads to be (2) The airplane must meet the considered for design. The factor of strength requirements of part 25 (static (b) System in the failure condition. safety (FS) is defined in Figure 1. strength, residual strength), using the For any system failure condition not

(ii) For residual strength loads that could result in detrimental (B) The limit gust and turbulence substantiation, the airplane must be able deformation of primary structure. conditions specified in § 25.341 and in to withstand two thirds of the ultimate (2) For the continuation of the flight. § 25.345. loads defined in subparagraph 2(b)(1)(i). For the airplane, in the system failed (C) The limit rolling conditions For pressurized cabins, these loads must state and considering any appropriate specified in § 25.349 and the limit unsymmetrical conditions specified in be combined with the normal operating reconfiguration and flight limitations, § 25.367 and § 25.427(b) and (c). differential pressure. the following apply: (D) The limit yaw maneuvering (iii) Freedom from aeroelastic (i) The loads derived from the conditions specified in § 25.351. instability must be shown up to the following conditions (or defined by (E) The limit ground loading speeds defined in § 25.629(b)(2). For special condition or equivalent level of conditions specified in §§ 25.473 and failure conditions that result in speeds safety in lieu of the following 25.491. beyond VC/MC, freedom from conditions) at speeds up to V /M , or (ii) For static strength substantiation, aeroelastic instability must be shown to C C the speed limitation prescribed for the each part of the structure must be able increased speeds, so that the margins remainder of the flight, must be to withstand the loads in paragraph intended by § 25.629(b)(2) are determined: 2(b)(2)(i) of the special conditions maintained. (A) The limit symmetrical multiplied by a factor of safety (iv) Failures of the system that result depending on the probability of being in maneuvering conditions specified in in forced structural vibrations this failure state. The factor of safety is § 25.331 and in § 25.345. (oscillatory failures) must not produce defined in Figure 2.

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Qj = (Tj)(Pj) (iii) For residual strength fatigue or damage tolerance then their Where: substantiation, the airplane must be able effects must be taken into account. Tj = Average time spent in failure condition to withstand two thirds of the ultimate (v) Freedom from aeroelastic j (in hours) loads defined in paragraph 2(b)(2)(ii) of instability must be shown up to a speed Pj = Probability of occurrence of failure mode the special conditions. For pressurized determined from Figure 3. Flutter j (per hour) cabins, these loads must be combined clearance speeds V′ and V″ may be ¥3 with the normal operating differential Note: If Pj is greater than 10 per flight based on the speed limitation specified hour, then a 1.5 factor of safety must be pressure. for the remainder of the flight using the applied to all limit load conditions specified (iv) If the loads induced by the failure in Subpart C. condition have a significant effect on margins defined by § 25.629(b).

V′ = Clearance speed as defined by criteria other than those specified in this certification maintenance requirements § 25.629(b)(2). paragraph may be used for structural must be limited to components that are ″ V = Clearance speed as defined by substantiation to show continued safe not readily detectable by normal § 25.629(b)(1). flight and landing. detection and indication systems and Q = (T )(P ) where: j j j where service history shows that Tj = Average time spent in failure condition (c) Failure indications. For system j (in hours) failure detection and indication, the inspections will provide an adequate Pj = Probability of occurrence of failure mode following apply: level of safety. j (per hour) (1) The system must be checked for (2) The existence of any failure ¥3 Note: If Pj is greater than 10 per flight failure conditions, not extremely condition, not extremely improbable, hour, then the flutter clearance speed must improbable, that degrade the structural during flight that could significantly ″ not be less than V . capability below the level required by affect the structural capability of the (vi) Freedom from aeroelastic part 25 or significantly reduce the airplane and for which the associated instability must also be shown up to V′ reliability of the remaining system. As reduction in airworthiness can be in Figure 3 above, for any probable far as reasonably practicable, the flight minimized by suitable flight limitations, system failure condition combined with crew must be made aware of these must be signaled to the flight crew. For any damage required or selected for failures before flight. Certain elements example, failure conditions that result investigation by § 25.571(b). of the control system, such as in a factor of safety between the airplane (3) Consideration of certain failure mechanical and hydraulic components, strength and the loads of subpart C ″ conditions may be required by other may use special periodic inspections, below 1.25, or flutter margins below V , sections of 14 CFR part 25 regardless of and electronic components may use must be signaled to the crew during calculated system reliability. Where daily checks, in lieu of detection and flight. analysis shows the probability of these indication systems to achieve the (d) Dispatch with known failure failure conditions to be less than 10¥9, objective of this requirement. These conditions. If the airplane is to be

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dispatched in a known system failure appropriate safety standards for this SUPPLEMENTARY INFORMATION: The FAA condition that affects structural design feature. These special conditions has determined that notice of, and performance, or affects the reliability of contain the additional safety standards opportunity for prior public comment the remaining system to maintain that the Administrator considers on, these special conditions are structural performance, then the necessary to establish a level of safety impracticable because these procedures provisions of these special conditions equivalent to that established by the would significantly delay issuance of must be met, including the provisions of existing airworthiness standards. the design approval and thus delivery of paragraph 2(a) for the dispatched DATES: The effective date of these the affected aircraft. In addition, the condition, and paragraph 2(b) for special conditions is October 11, 2012. substance of these special conditions subsequent failures. Expected We must receive your comments by has been subject to the public comment operational limitations may be taken December 3, 2012. process in several prior instances with into account in establishing P as the j ADDRESSES: Send comments identified no substantive comments received. The probability of failure occurrence for by docket number FAA–2012–1119 FAA therefore finds that good cause determining the safety margin in Figure using any of the following methods: exists for making these special 1. Flight limitations and expected • Federal eRegulations Portal: Go to conditions effective upon issuance. operational limitations may be taken http://www.regulations.gov/ and follow Comments Invited into account in establishing Qj as the the online instructions for sending your combined probability of being in the comments electronically. We invite interested people to take dispatched failure condition and the • Mail: Send comments to Docket part in this rulemaking by sending subsequent failure condition for the Operations, M–30, U.S. Department of written comments, data, or views. The safety margins in Figures 2 and 3. These Transportation (DOT), 1200 New Jersey most helpful comments reference a limitations must be such that the Avenue SE., Room W12–140, West specific portion of the special probability of being in this combined Building Ground Floor, Washington, conditions, explain the reason for any failure state and then subsequently DC, 20590–0001. recommended change, and include encountering limit load conditions is • Hand Delivery or Courier: Take supporting data. extremely improbable. No reduction in comments to Docket Operations in these safety margins is allowed if the We will consider all comments we Room W12–140 of the West Building receive by the closing date for subsequent system failure rate is greater Ground Floor at 1200 New Jersey than 10¥3 per hour. comments. We may change these special Avenue SE., Washington, DC, between 8 conditions based on the comments we Issued in Renton, Washington, on October a.m. and 5 p.m., Monday through receive. 11, 2012. Friday, except Federal holidays. Ali Bahrami, • Fax: Fax comments to Docket Background Manager, Transport Airplane Directorate, Operations at 202–493–2251. Aircraft Certification Service. Privacy: The FAA will post all On April 8, 2010, Airbus applied for [FR Doc. 2012–25604 Filed 10–17–12; 8:45 am] comments it receives, without change, a change to Type Certificate No. A28NM BILLING CODE 4910–13–P to http://www.regulations.gov/, to include modification 160500 on including any personal information the Airbus Model A318, A319, and A320 commenter provides. Using the search series airplanes and modification DEPARTMENT OF TRANSPORTATION function of the docket Web site, anyone 160023 on Model A321 series airplanes can find and read the electronic form of for the installation of a ‘‘Sharklet,’’ a Federal Aviation Administration all comments received into any FAA large wingtip device. The Model A318, docket, including the name of the A319, A320, and A321 series airplanes 14 CFR Part 25 individual sending the comment (or are short to medium-range, twin [Docket No. FAA–2012–1119; Special signing the comment for an association, turbofan, transport category airplanes Conditions No. 25–470–SC] business, labor union, etc.). DOT’s with a maximum seating capacity of 136 complete Privacy Act Statement can be to 220 passengers, a maximum takeoff Special Conditions: Airbus Model found in the Federal Register published weight of 130,071 to 205,027 pounds, A318, A319, A320, and A321 Series on April 11, 2000 (65 FR 19477–19478), and a maximum operating altitude of Airplanes; Design Dive Speed as well as at http:// 39,800 feet. AGENCY: Federal Aviation DocketsInfo.dot.gov/. FAA issued special conditions 25– Administration (FAA), DOT. Docket: Background documents or ANM–23, effective December 15, 1988, comments received may be read at ACTION: Final special conditions; request originally applicable to Airbus Model http://www.regulations.gov/ at any time. for comments. A320 series airplanes and later to the Follow the online instructions for Model A318, A319, and A321 series SUMMARY: These special conditions are accessing the docket or go to the Docket airplanes. Those special conditions issued for the Airbus Model A318, Operations in Room W12–140 of the included revised requirements for dive A319, and A320 series airplanes with West Building Ground Floor at 1200 speed based on incorporation of high- modification 160500 and Model A321 New Jersey Avenue SE., Washington, speed protection in the fight control series airplanes with modification DC, between 9 a.m. and 5 p.m., Monday laws. The FAA has determined that new 160023 (Sharklet). These airplanes will through Friday, except Federal holidays. special conditions are needed for the have novel or unusual design features FOR FURTHER INFORMATION CONTACT: Airbus Model A318, A319, and A320 when compared to the state of Todd Martin, FAA, Airframe/Cabin series airplanes with modification technology envisioned in the Safety Branch, ANM–115, Transport 160500 and Model A321 series airplanes airworthiness standards for transport Airplane Directorate, Aircraft with modification 160023 (Sharklet) and category airplanes. These design Certification Service, 1601 Lind Avenue later derivatives because the existing features include a high-speed protection SW., Renton, Washington 98057–3356; special conditions have evolved over system. The applicable airworthiness telephone 425–227–1178; facsimile the years and need to be updated for regulations do not contain adequate or 425–227–1232. this derivative program.

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Type Certification Basis pilot authority at speeds above VC/MC. Model A318, A319, A320 series Under the provisions of Title 14, Code This system prevents the airplane from airplanes with modification 160500 and of Federal Regulation (14 CFR) 21.101, performing the maneuver required Model A321 series airplanes with Airbus must show that the Model A318, under § 25.335(b)(1). modification 160023 (Sharklet). Should Airbus apply at a later date for a change A319, A320, and A321 series airplanes, Discussion to the type certificate to include another as changed, continue to meet the Section 25.335(b)(1) is an analytical applicable provisions of the regulations model incorporating the same novel or envelope condition that was originally unusual design feature, the special incorporated by reference in Type adopted in part 4b of the Civil Air Certificate No. A28NM or the applicable conditions would apply to that model as Regulations in order to provide an well. regulations in effect on the date of acceptable speed margin between design application for the change. The cruise speed and design dive speed. Conclusion regulations incorporated by reference in Flutter clearance design speeds and This action affects only certain novel the type certificate are commonly airframe design loads are impacted by or unusual design features on the model referred to as the ‘‘original type the design dive speed. While the initial series of airplanes listed above. It is not certification basis.’’ The regulations condition for the upset specified in the a rule of general applicability. incorporated by reference in Type rule is 1g level flight, protection is The substance of these special Certificate No. A28NM are 14 CFR part afforded for other inadvertent overspeed 25, as amended by Amendments 25–1 conditions has been subjected to the conditions as well. Section 25.335(b)(1) notice and comment period in several through 25–56, and special conditions is intended as a conservative enveloping 25–ANM–23. In addition, the prior instances and has been derived condition for potential overspeed without substantive change from those certification basis includes certain conditions, including non-symmetric special conditions, exemptions, or later previously issued. It is unlikely that ones. To establish that potential prior public comment would result in a amended sections of the applicable part overspeed conditions are enveloped, the that are not relevant to these special significant change from the substance applicant should demonstrate that any contained herein. Therefore, because a conditions. reduced speed margin, based on the If the Administrator finds that the delay would significantly affect the high-speed protection system in the certification of the airplane, which is applicable airworthiness regulations Model A318, A319, and A320 series (i.e., 14 CFR part 25) do not contain imminent, the FAA has determined that airplanes with modification 160500 and prior public notice and comment are adequate or appropriate safety standards Model A321 series airplanes with for the Model A318, A319, A320, and unnecessary and impracticable, and modification 160023 (Sharklet), will not good cause exists for adopting these A321 series airplanes because of a novel be exceeded in inadvertent, or gust- or unusual design feature, special special conditions upon issuance. The induced, upsets resulting in initiation of FAA is requesting comments to allow conditions are prescribed under the the dive from non-symmetric attitudes; provisions of § 21.16. interested persons to submit views that or that the airplane is protected by the may not have been submitted in Special conditions are initially flight control laws from getting into applicable to the model for which they response to the prior opportunities for non-symmetric upset conditions. The comment described above. are issued. Should the type certificate applicant should conduct a for that model be amended later to demonstration that includes a List of Subjects in 14 CFR Part 25 include any other model that comprehensive set of conditions, as Aircraft, Aviation safety, Reporting incorporates the same novel or unusual described below. and recordkeeping requirements. design feature, or should any other These special conditions are proposed The authority citation for these model already included on the same in lieu of § 25.335(b)(1). Section special conditions is as follows: type certificate be modified to 25.335(b)(2), which also addresses the incorporate the same novel or unusual design dive speed, is applied separately. Authority: 49 U.S.C. 106(g), 40113, 44701, design feature, the special conditions Advisory Circular (AC) 25.335–1A 44702, 44704. would also apply to the other model. provides an acceptable means of The Special Conditions In addition to the applicable compliance to § 25.335(b)(2)). airworthiness regulations and special Special conditions are necessary to Accordingly, pursuant to the conditions, the Model A318, A319, address the high-speed protection authority delegated to me by the A320, and A321 series airplanes must system on the Model A318, A319, and Administrator, the following special comply with the fuel vent and exhaust A320 series airplanes with modification conditions are issued as part of the type emission requirements of 14 CFR part 160500 and Model A321 series airplanes certification basis for Airbus Model 34 and the noise certification with modification 160023 (Sharklet). A318, A319, and A320 series airplanes requirements of 14 CFR part 36. The proposed special conditions with modification 160500 and Model The FAA issues special conditions, as identify various symmetric and non- A321 with modification 160023 defined in 14 CFR 11.19, in accordance symmetric maneuvers that will ensure (Sharklet) series airplanes. with § 11.38, and they become part of that an appropriate design dive speed, 1. Design Dive Speed. In lieu of the type-certification basis under VD/MD, is established. compliance with § 25.335(b)(1), if the § 21.101. These special conditions contain the flight control system includes functions that act automatically to initiate Novel or Unusual Design Features additional safety standards that the Administrator considers necessary to recovery before the end of the 20 second The Airbus Model A318, A319, and establish a level of safety equivalent to period specified in § 25.335(b)(1), VD/ A320 series airplanes with modification that established by the existing MD must be determined from the greater 160500 and Model A321 series airplanes airworthiness standards. of the speeds resulting from conditions with modification 160023 (Sharklet) (a) and (b) below. The speed increase will incorporate the following novel or Applicability occurring in these maneuvers may be unusual design feature: A high-speed As discussed above, these special calculated if reliable or conservative protection system that limits nose-down conditions are applicable to the Airbus aerodynamic data are used.

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(a) From an initial condition of 5. Dispatch of the airplane with the Legal Aspects: Karen Greene, stabilized flight at VC/MC, the airplane high-speed protection system Regulations and Rulings, Office of is upset so as to take up a new flight inoperative could be allowed under an International Trade, (202) 325–0041. path 7.5 degrees below the initial path. approved minimum equipment list that SUPPLEMENTARY INFORMATION: Control application, up to full authority, would require flight manual is made to try and maintain this new instructions to indicate reduced Background flight path. Twenty seconds after maximum operating speeds, as On November 3, 2011, CBP published initiating the upset, manual recovery is described in paragraph (4). In addition, CBP Dec. 11–22 in the Federal Register made at a load factor of 1.5 g (0.5 the cockpit display of the reduced (76 FR 68067) setting forth interim acceleration increment), or such greater operating speeds, as well as the amendments to implement the load factor that is automatically applied overspeed warning for exceeding those preferential tariff treatment and other by the system with the pilot’s pitch speeds, must be equivalent to that of the customs-related provisions of the control neutral. Power, as specified in normal airplane with the high-speed United States-Peru Trade Promotion § 25.175(b)(1)(iv), is assumed until protection system operative. Also, it Agreement (PTPA). Please refer to that recovery is initiated, at which time must be shown that no additional document for further background power reduction and the use of pilot hazards are introduced with the high- information. In order to provide controlled drag devices may be used. speed protection system inoperative. transparency and facilitate their use, the (b) From a speed below VC/MC, with majority of the PTPA implementing power to maintain stabilized level flight Issued in Renton, Washington, on October 11, 2012. regulations set forth in that interim rule at this speed, the airplane is upset so as and adopted as final in this document Ali Bahrami, to accelerate through VC/MC at a flight have been included within Subpart Q in path 15 degrees below the initial path Manager, Transport Airplane Directorate, Part 10 of the CBP regulations (19 CFR (or at the steepest nose-down attitude Aircraft Certification Service. Part 10). However, in those cases in that the system will permit with full [FR Doc. 2012–25605 Filed 10–17–12; 8:45 am] which PTPA implementation is more control authority if less than 15 BILLING CODE 4910–13–P appropriate in the context of an existing degrees). The pilot’s controls may be in regulatory provision, the PTPA the neutral position after reaching VC/ regulatory text has been incorporated in MC and before recovery is initiated. DEPARTMENT OF HOMELAND an existing Part within the CBP Recovery may be initiated three seconds SECURITY regulations. CBP Dec. 11–22 also set after operation of high-speed warning forth a number of cross-references and system by application of a load of 1.5g U.S. Customs and Border Protection other consequential changes to existing (0.5 acceleration increment), or such regulatory provisions to clarify the greater load factor that is automatically DEPARTMENT OF THE TREASURY relationship between those existing applied by the system with the pilot’s provisions and the new PTPA pitch control neutral. Power may be 19 CFR Parts 10, 24, 162, 163, and 178 implementing regulations. reduced simultaneously. All other [USCBP–2011–0043; CBP Dec. 12–18] Although the interim regulatory means of decelerating the airplane, the amendments were promulgated without use of which is authorized up to the RIN 1515–AD79 prior public notice and comment highest speed reached in the maneuver, procedures and took effect on November United States-Peru Trade Promotion may be used. The interval between 3, 2011, CBP Dec. 11–22 provided for Agreement successive pilot actions must not be less the submission of public comments than one second. AGENCIES: U.S. Customs and Border which would be considered before 2. The applicant must also Protection, Department of Homeland adoption of the interim regulations as a demonstrate that the speed margin, Security; Department of the Treasury. final rule, and the prescribed public established as above, will not be comment closed on January 3, 2012. ACTION: Final rule. exceeded in inadvertent or gust-induced CBP received no comments. upsets resulting in initiation of the dive SUMMARY: This document adopts as a Conclusion from non-symmetric attitudes, unless final rule, with one change, interim the airplane is protected by the flight amendments to the U.S. Customs and After further review of the matter, and control laws from getting into non- Border Protection (CBP) regulations in light of the fact that no comments symmetric upset conditions. The upset which were published in the Federal were submitted in response to CBP’s maneuvers described in AC 25–7B, Register on November 3, 2011, as CBP solicitation of public comment, CBP has Change 1, section 32, paragraphs c(3)(a) Dec. 11–22, to implement the determined to adopt as final, with a and (c) may be used to comply with this preferential tariff treatment and other technical correction, the interim rule requirement. customs-related provisions of the published in the Federal Register (76 3. Detected loss of the high-speed United States-Peru Trade Promotion FR 68067) on November 3, 2011. The protection function must be less than Agreement. technical correction is made to 10¥3 per flight hour. § 10.918(c)(1)(ii) to reflect amendments 4. Failures of the system must be DATES: Final rule effective November 19, to additional U.S. Note 4(d) to annunciated to the pilots. Flight manual 2012. subchapter XXI of chapter 98 of the instructions must be provided that FOR FURTHER INFORMATION CONTACT: Harmonized Tariff Schedule of the reduce the maximum operating speeds. Textile Operational Aspects: Nancy United States (HTSUS) effected by The new operating speeds, Vmax/Mmax, Mondich, Trade Policy and Programs, Presidential Proclamation 8240 of April must be reduced to a value that Office of International Trade, (202) 863– 17, 2008, whereby the tariff numbers of maintains a speed margin between these 6524. subheading ‘‘5402.19.30,’’ and speeds and VD/MD that is consistent Other Operational Aspects: Katrina subheading ‘‘5402.19.60’’ were added. with showing compliance with Chang, Trade Policy and Programs, As CBP Dec. 11–22 inadvertently § 25.335(b) without the benefit of the Office of International Trade, (202) 863– omitted inclusion of these two tariff high-speed protection system. 6532. numbers within 19 CFR 10.918(c)(1)(ii),

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the technical correction is necessary to Border Protection, 799 9th Street NW., United States), 1321, 1481, 1484, 1498, 1508, conform the CBP regulations to the 5th Floor, Washington, DC 20229–1179. 1623, 1624, 3314; current version of the HTSUS. Under the Paperwork Reduction Act, an * * * * * agency may not conduct or sponsor, and Sections 10.901 through 10.934 also issued Executive Order 12866 an individual is not required to respond under 19 U.S.C. 1202 (General Note 32, This document is not a regulation to, a collection of information unless it HTSUS), 19 U.S.C. 1520(d), and Pub. L. 110– subject to the provisions of Executive displays a valid OMB control number. 138, 121 Stat. 1455 (19 U.S.C. 3805 note). Order 12866 of September 30, 1993 (58 § 10.918 [Amended] FR 51735, October 1993), because it Signing Authority ■ 2. In § 10.918, paragraph (c)(1)(ii) is pertains to a foreign affairs function of This document is being issued in amended by adding, in numerical order, the United States and implements an accordance with § 0.1(a)(1) of the CBP a reference to ‘‘5402.19.30, 5402.19.60,’’. international agreement, as described regulations (19 CFR 0.1(a)(1)) pertaining above, and therefore is specifically to the authority of the Secretary of the David V. Aguilar, exempted by section 3(d)(2) of Treasury (or his/her delegate) to Deputy Commissioner, U.S. Customs and Executive Order 12866. approve regulations related to certain Border Protection. Regulatory Flexibility Act CBP revenue functions. Approved: October 15, 2012. Timothy E. Skud, CBP Dec. 11–22 was issued as an List of Subjects Deputy Assistant Secretary of the Treasury. interim rule rather than a notice of 19 CFR Part 10 proposed rulemaking because CBP had [FR Doc. 2012–25668 Filed 10–17–12; 8:45 am] determined that the interim regulations Alterations, Bonds, Customs duties BILLING CODE 9111–14–P involve a foreign affairs function of the and inspection, Exports, Imports, United States pursuant to section Preference programs, Repairs, Reporting DEPARTMENT OF HOMELAND 553(a)(1) of the APA. Because no notice and recordkeeping requirements, Trade SECURITY of proposed rulemaking was required, agreements. the provisions of the Regulatory 19 CFR Part 24 U.S. Customs and Border Protection Flexibility Act, as amended (5 U.S.C. Accounting, Customs duties and 601 et seq.), do not apply. Accordingly, 19 CFR Part 12 this final rule is not subject to the inspection, Financial and accounting procedures, Reporting and regulatory analysis requirements or Special Classes of Merchandise other requirements of 5 U.S.C. 603 and recordkeeping requirements, Trade 604. agreements, User fees. CFR Correction In Title 19 of the Code of Federal Paperwork Reduction Act 19 CFR Part 162 Administrative practice and Regulations, Parts 0 to 140, revised as of The collections of information April 1, 2012, on page 441, in § 12.112 contained in these regulations have procedure, Customs duties and inspection, Penalties, Trade agreements. (a), the words ‘‘(Index of Pesticide previously been reviewed and approved Products located in the Environmental by the Office of Management and 19 CFR Part 163 Protection Agency’s handbook entitled Budget in accordance with the Administrative practice and Recognition and Management of requirements of the Paperwork procedure, Customs duties and Pesticide Poisonings, found at http:// Reduction Act (44 U.S.C. 3507) under inspection, Exports, Imports, Reporting www.epa.gov)’’ are corrected to read control number 1651–0117. The and recordkeeping requirements, Trade ‘‘(Environmental Protection Agency collections of information in these agreements. Form 3540–1)’’. regulations are in §§ 10.903 and 10.904. [FR Doc. 2012–25792 Filed 10–17–12; 8:45 am] This information is required in 19 CFR Part 178 BILLING CODE 1505–01–D connection with claims for preferential Administrative practice and tariff treatment under the PTPA and the procedure, Exports, Imports, Reporting Act and will be used by CBP to and recordkeeping requirements. determine eligibility for tariff preference DEPARTMENT OF JUSTICE Amendments to the CBP Regulations under the PTPA and the Act. The likely Drug Enforcement Administration respondents are business organizations Accordingly, the interim rule including importers, exporters and amending Parts 10, 24, 162, 163, and 21 CFR Part 1308 manufacturers. 178 of the CBP regulations (19 CFR Parts The estimated average annual burden 10, 24, 162, 163, and 178), which was [Docket No. DEA–357] associated with the collection of published at 76 FR 68067 on November Schedules of Controlled Substances: information in this final rule is 0.2 3, 2011, is adopted as a final rule with hours per respondent or recordkeeper. Extension of Temporary Placement of one change as discussed above and set Methylone Into Schedule I of the Comments concerning the accuracy of forth below. this burden estimate and suggestions for Controlled Substances Act reducing this burden should be directed PART 10—ARTICLES CONDITIONALLY AGENCY: Drug Enforcement to the Office of Management and FREE, SUBJECT TO A REDUCED Administration, Department of Justice. Budget, Attention: Desk Officer for the RATE, ETC. ACTION: Final order. Department of Homeland Security, Office of Information and Regulatory ■ 1. The general authority citation for SUMMARY: This Final Order is issued by Affairs, Washington, DC 20503. A copy Part 10 and the specific authority for the Administrator of the Drug should also be sent to the Trade and new Subpart Q continue to read as Enforcement Administration (DEA) to Commercial Regulations Branch, follows: extend the temporary scheduling of Regulations and Rulings, Office of Authority: 19 U.S.C. 66, 1202 (General methylone (3,4-methylenedioxy-N- International Trade, U.S. Customs and Note 3(i), Harmonized Tariff Schedule of the methylcathinone) including its salts,

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isomers, and salts of isomers whenever The DEA has gathered and reviewed DEPARTMENT OF THE TREASURY the existence of such salts, isomers, and the available information regarding the salts of isomers is possible, into pharmacology, chemistry, trafficking, Internal Revenue Service Schedule I of the Controlled Substances actual abuse, pattern of abuse and the Act (CSA). The temporary scheduling of relative potential for abuse for these 26 CFR Part 301 methylone is due to expire on October three synthetic cathinones. On March 20, 2012. This document will extend the Discharge of Liens; Redemption by 30, 2012, the Administrator of the DEA United States temporary scheduling of methylone to submitted a letter to the Assistant April 20, 2013, or until rulemaking Secretary for Health of the Department CFR Correction proceedings are completed, whichever of Health and Human Services, occurs first. In Title 26 of the Code of Federal requesting scientific and medical DATES: Effective Date: October 18, 2012. Regulations, Parts 300 to 499, revised as evaluations and scheduling of April 1, 2012, on page 563, in FOR FURTHER INFORMATION CONTACT: recommendations for these three Alan G. Santos, Associate Deputy § 301.7425–4, in paragraph (b)(5) synthetic cathinones. In response to this Example 1, at the end of the third Assistant Administrator, Office of letter, on August 14, 2012, the Assistant Diversion Control, Drug Enforcement sentence, ‘‘$1,000’’ is corrected to read Secretary provided to DEA a scientific Administration; Mailing Address: 8701 ‘‘$100,000’’. Morrissette Drive, Springfield, Virginia and medical evaluation and [FR Doc. 2012–25795 Filed 10–17–12; 8:45 am] recommendation that methylone be 22152; Telephone: (202) 307–7165. BILLING CODE 1505–01–D placed in Schedule I.3 Proceedings SUPPLEMENTARY INFORMATION: On October 21, 2011, the Administrator of regarding methylone have been initiated the DEA published a Final Order in the in accordance with 21 U.S.C. 811(a)(1). DEPARTMENT OF THE TREASURY Federal Register (76 FR 65371) Therefore, pursuant to 21 U.S.C. 811(h)(2), the Administrator of the DEA Alcohol and Tobacco Tax and Trade amending 21 CFR 1308.11(g) to Bureau temporarily place three synthetic hereby orders that the temporary scheduling of methylone, including its cathinones, namely mephedrone (4- 27 CFR Part 9 methyl-N-methylcathinone), MDPV (3,4- salts, isomers, and salts of isomers methylenedioxypyrovalerone) and whenever the existence of such salts, [Docket No. TTB–2012–0003; T.D. TTB–108; methylone, into Schedule I of the CSA isomers, and salts of isomers is possible, Ref: Notice No. 128] pursuant to the temporary scheduling is extended to April 20, 2013, or until RIN 1513–AB85 provisions of 21 U.S.C. 811(h). That rulemaking proceedings are completed, Final Order, which became effective on whichever occurs first. Establishment of the Ancient Lakes of the date of publication, was based on In accordance with this Final Order, Columbia Valley Viticultural Area findings by the Administrator of the the Schedule I requirements for DEA that the temporary scheduling of AGENCY: Alcohol and Tobacco Tax and handling methylone including its salts, Trade Bureau, Treasury. these three synthetic cathinones was isomers, and salts of isomers whenever necessary to avoid an imminent hazard ACTION: Final rule; Treasury decision. the existence of such salts, isomers, and to the public safety pursuant to 21 salts of isomers is possible, will remain U.S.C. 811(h)(1). At the time the Final SUMMARY: The Alcohol and Tobacco Tax Order took effect, section 201(h)(2) of in effect until April 20, 2013, or until and Trade Bureau (TTB) establishes the the CSA (21 U.S.C. 811(h)(2) (2011)) rulemaking proceedings are completed, 162,762-acre ‘‘Ancient Lakes of required that the temporary scheduling whichever occurs first. Columbia Valley’’ viticultural area in of a substance expire at the end of one Pursuant to the Small Business Douglas, Grant, and Kittitas Counties in year from the date of issuance of the Regulatory Enforcement Fairness Act of central Washington. The viticultural area lies entirely within the larger order and that during the pendency of 1996 (Congressional Review Act) (5 Columbia Valley viticultural area. TTB proceedings under 21 U.S.C. 811(a)(1) U.S.C. 801–808), DEA has submitted a designates viticultural areas to allow with respect to the substance, the copy of this Final Order to both Houses temporary scheduling of that substance vintners to better describe the origin of of Congress and to the Comptroller their wines and to allow consumers to could be extended for up to six General. months.1 Proceedings for the scheduling better identify wines they may of a substance under 21 U.S.C. 811(a) Dated: October 10, 2012. purchase. may be initiated by the Attorney Michele M. Leonhart, DATES: Effective Date: November 19, General (delegated to the Administrator Administrator. 2012. of the DEA pursuant to 28 CFR 0.100) [FR Doc. 2012–25510 Filed 10–17–12; 8:45 am] FOR FURTHER INFORMATION CONTACT: on his own motion, at the request of the BILLING CODE 4410–09–P Karen A. Thornton, Regulations and Secretary of Health and Human 2 Rulings Division, Alcohol and Tobacco Services, or on the petition of any Tax and Trade Bureau, 1310 G St. NW., interested party. Box 12, Washington, DC 20005; phone 202–453–1039, ext. 175. 1 On July 9, 2012, President Obama signed the Food and Drug Administration Safety and references to ‘‘Secretary’’ have been replaced with SUPPLEMENTARY INFORMATION: Innovation Act (Pub. L. 112–144) (FDASIA), which ‘‘Assistant Secretary.’’ amended section 201(h)(2) of the CSA to extend the Background on Viticultural Areas 3 Section 1152 of FDASIA controlled mephedrone timeframes applicable to temporary scheduling. and MDPV as Schedule I controlled substances, but 2 Because the Secretary of the Department of TTB Authority it did not similarly control methylone. Accordingly, Health and Human Services has delegated to the Section 105(e) of the Federal Alcohol Assistant Secretary for Health of the Department of HHS provided a Scientific and Medical Evaluation Health and Human Services the authority to make and Scheduling Recommendation for methylone, Administration Act (FAA Act), 27 domestic drug scheduling recommendations, for recommending that methylone be placed in U.S.C. 205(e), authorizes the Secretary purposes of this Final Order, all subsequent Schedule I. of the Treasury to prescribe regulations

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for the labeling of wine, distilled spirits, areas. Such petitions must include the distinguishing features of the proposed and malt beverages. The FAA Act following: viticultural area include climate, provides that these regulations should, • Evidence that the area within the topography, and soils. The proposed among other things, prohibit consumer proposed viticultural area boundary is rule contained a comparison of the deception and the use of misleading nationally or locally known by the distinguishing features of the proposed statements on labels, and ensure that viticultural area name specified in the viticultural area with the surrounding labels provide the consumer with petition; regions. Notice No. 128 also contained adequate information as to the identity • An explanation of the basis for a comparison of the proposed and quality of the product. The Alcohol defining the boundary of the proposed viticultural area with the existing and Tobacco Tax and Trade Bureau viticultural area; Columbia Valley viticultural area (TTB) administers the FAA Act • A narrative description of the detailing how the distinguishing pursuant to section 1111(d) of the features of the proposed viticultural area features of the proposed viticultural area Homeland Security Act of 2002, that affect viticulture, such as climate, are consistent with, and distinct from, codified at 6 U.S.C. 531(d). The geology, soils, physical features, and the established Columbia Valley Secretary has delegated various elevation, and that make the proposed viticultural area. For a description of the authorities through Treasury viticultural area distinctive and evidence relating to the name, Department Order 120–01 (Revised), distinguish it from adjacent areas boundary, and distinguishing features of dated January 21, 2003, to the TTB outside the proposed viticultural area the proposed viticultural area, see Administrator to perform the functions boundary; Notice No. 128. and duties in the administration and • A copy of the appropriate United In Notice No. 128, TTB solicited enforcement of this law. States Geological Survey (USGS) map(s) comments on the accuracy of the name, Part 4 of the TTB regulations (27 CFR showing the location of the proposed boundary, climatic, and other required part 4) allows the establishment of viticultural area, with the boundary of information submitted in support of the definitive viticultural areas and the use the proposed viticultural area clearly petition. In addition, given the proposed of their names as appellations of origin drawn thereon; and viticultural area’s location within the on wine labels and in wine • A detailed narrative description of existing Columbia Valley viticultural advertisements. Part 9 of the TTB the proposed viticultural area boundary area, TTB also solicited comments on regulations (27 CFR part 9) sets forth based on USGS map markings. whether the evidence submitted in the standards for the preparation and petition regarding the distinguishing Ancient Lakes of Columbia Valley submission of petitions for the features of the proposed viticultural area Petition establishment or modification of sufficiently differentiates the proposed American viticultural areas and lists the TTB received a petition from Joan R. viticultural area from the existing approved American viticultural areas. Davenport, a professor of soil sciences at Columbia Valley viticultural area. TTB Washington State University, and also asked for comments on whether the Definition Cameron Fries of White Heron Cellars, geographical features of the proposed Section 4.25(e)(1)(i) of the TTB on behalf of the vintners and grape viticultural area are so distinguishable regulations (27 CFR 4.25(e)(1)(i)) defines growers in the Ancient Lakes region of from the surrounding Columbia Valley a viticultural area for American wine as central Washington, proposing the viticultural area that the proposed a delimited grape-growing region having establishment of the ‘‘Ancient Lakes of Ancient Lakes of Columbia Valley distinguishing features as described in Columbia Valley’’ viticultural area. The viticultural area should no longer be part 9 of the regulations and a name and proposed viticultural area contains part of the existing viticultural area. The a delineated boundary as established in 162,762 acres, with 1,399 acres comment period closed on July 9, 2012. part 9 of the regulations. These dedicated to 6 commercially-producing In response to Notice No. 128, TTB designations allow vintners and vineyards. The petition states that there received a total of three comments consumers to attribute a given quality, are also six wineries located within the regarding the proposed viticultural area: reputation, or other characteristic of a proposed viticultural area. The petition One from Cameron Fries, one of the wine made from grapes grown in an area includes a map showing that the original petitioners; one from the to its geographic origin. The vineyards and wineries are dispersed executive director of a Washington State establishment of viticultural areas throughout the proposed viticultural non-profit wine tourism promotion allows vintners to describe more area. association; and one from the City accurately the origin of their wines to TTB notes that the proposed Ancient Administrator of Quincy, Washington, consumers and helps consumers to Lakes of Columbia Valley viticultural commenting on his own behalf. All identify wines they may purchase. area lies completely within the existing three commenters supported the Establishment of a viticultural area is Columbia Valley viticultural area (27 establishment of the Ancient Lakes of neither an approval nor an endorsement CFR 9.74). The proposed viticultural Columbia Valley viticultural area as by TTB of the wine produced in that area does not overlap with any other proposed in Notice No. 128. TTB area. existing or proposed viticultural areas. received no comments in opposition of the Ancient Lakes of Columbia Valley Requirements Notice of Proposed Rulemaking and viticultural area as proposed. In regards Comments Received Section 4.25(e)(2) of the TTB to the question of whether the Ancient regulations outlines the procedure for TTB published Notice No. 128 in the Lakes of Columbia Valley viticultural proposing an American viticultural area Federal Register on May 8, 2012 (77 FR area was so distinct that it should be and provides that any interested party 27001), proposing to establish the separated from the existing Columbia may petition TTB to establish a grape- Ancient Lakes of Columbia Valley Valley viticultural area, TTB received growing region as a viticultural area. viticultural area. In the proposed rule, no comments. Section 9.12 of the TTB regulations (27 TTB summarized the evidence from the CFR 9.12) prescribes standards for petition regarding the name, boundary, TTB Determination petitions for the establishment or and distinguishing features for the After careful review of the petition modification of American viticultural proposed viticultural area. The and the comments received in response

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to Notice No. 128, TTB finds that the from grapes grown within the area § 9.227 Ancient Lakes of Columbia Valley. evidence provided by the petitioner represented by that name or term, and (a) Name. The name of the viticultural supports the establishment of the the wine must meet the other conditions area described in this section is 162,762-acre Ancient Lakes of Columbia listed in 27 CFR 4.25(e)(3). If the wine ‘‘Ancient Lakes of Columbia Valley’’. Valley viticultural area within the is not eligible to use the viticultural area For purposes of part 4 of this chapter, Columbia Valley viticultural area. name as an appellation of origin and ‘‘Ancient Lakes of Columbia Valley’’ is Accordingly, under the authority of the that name or other term of viticultural a term of viticultural significance. FAA Act, section 1111(d) of the significance appears in the brand name, (b) Approved maps. The 12 United Homeland Security Act of 2002, and then the label is not in compliance and States Geological Survey (USGS) part 4 of the TTB regulations, TTB the bottler must change the brand name 1:24,000 scale topographic maps used to establishes the ‘‘Ancient Lakes of and obtain approval of a new label. determine the boundary of the Ancient Columbia Valley’’ viticultural area in Similarly, if the viticultural area name Lakes of Columbia Valley viticultural Douglas, Grant, and Kittitas Counties, or other term of viticultural significance area are titled: Washington, effective 30 days from the appears in another reference on the (1) West Bar, Washington, 1966; publication date of this document. label in a misleading manner, the bottler (2) Rock Island Dam, Washington, 1966; Boundary Description would have to obtain approval of a new label. (3) Appledale, Washington, 1966, See the narrative boundary Different rules apply if a wine has a photoinspected 1976; description of the viticultural area in the brand name containing a viticultural (4) Monument Hill, Washington— regulatory text published at the end of area name or other term of viticultural Grant County, 1966; this final rule. significance that was used as a brand (5) Ephrata SW., Washington—Grant County, 1956; Maps name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details. (6) Winchester, Washington—Grant The petitioners provided the required County, 1966; maps, and TTB lists them below in the Regulatory Flexibility Act (7) Winchester SW., Washington— regulatory text. TTB certifies that this regulation will Grant County, 1966, photorevised 1978; Impact on Current Wine Labels not have a significant economic impact (8) Royal City, Washington—Grant on a substantial number of small County, provisional edition 1986 Part 4 of the TTB regulations prohibits entities. The regulation imposes no new (formerly named Smyrna); any label reference on a wine that reporting, recordkeeping, or other (9) Beverly NE., Washington—Grant indicates or implies an origin other than administrative requirement. Any benefit County, 1965; the wine’s true place of origin. With the derived from the use of a viticultural (10) Vantage, Washington, 1965, establishment of this viticultural area, area name would be the result of a photorevised 1978; its name, ‘‘Ancient Lakes of Columbia proprietor’s efforts and consumer (11) Ginkgo, Washington, 1953, Valley,’’ is recognized as a name of acceptance of wines from that area. photorevised 1978; and viticultural significance under 27 CFR Therefore, no regulatory flexibility (12) Cape Horn SE., Washington, 4.39(i)(3), as the text of this regulation analysis is required. 1966, photoinspected 1975. makes clear. Once this regulation (c) Boundary. The Ancient Lakes of becomes effective, wine bottlers using Executive Order 12866 Columbia Valley viticultural area is ‘‘Ancient Lakes of Columbia Valley’’ in This final rule is not a significant located in Douglas, Grant, and Kittitas a brand name, including a trademark, or regulatory action as defined by Counties in central Washington. The in another label reference as to the Executive Order 12866. Therefore, no boundary of the Ancient Lakes of origin of the wine, will have to ensure regulatory assessment is required. Columbia Valley viticultural area is as that the product is eligible to use the described below: viticultural area’s name as an Drafting Information (1) The beginning point is on the West appellation of origin. Karen A. Thornton of the Regulations Bar map where the western shoreline of The establishment of the Ancient and Rulings Division drafted this final the Columbia River in Kittitas County Lakes of Columbia Valley viticultural rule. intersects with the north boundary line area will not affect any existing of section 8, T20N/R22E. Proceed east List of Subjects in 27 CFR Part 9 viticultural area, and any bottlers using along the section boundaries for ‘‘Columbia Valley’’ as an appellation of Wine. approximately 4.35 miles, over the origin or in a brand name for wines The Regulatory Amendment Columbia River and into Douglas made from grapes grown within the County, to the intersection of the line Ancient Lakes of Columbia Valley For the reasons discussed in the with the Grant and Douglas Counties viticultural area will not be affected by preamble, TTB amends title 27, chapter common boundary line (concurrent the establishment of this new I, part 9, Code of Federal Regulations, as with the R22E and R23E common line) viticultural area. The establishment of follows: at the northwest corner of section 12, the Ancient Lakes of Columbia Valley PART 9—AMERICAN VITICULTURAL T20N/R22E; then viticultural area will allow vintners to AREAS (2) Proceed north along the Grant and use ‘‘Ancient Lakes of Columbia Valley’’ Douglas Counties common boundary and ‘‘Columbia Valley’’ as appellations ■ 1. The authority citation for part 9 line for approximately 2.25 miles, onto of origin for wines made from grapes continues to read as follows: the Rock Island Dam map, to the grown within the Ancient Lakes of northwest corner of section 31, T21N/ Authority: 27 U.S.C. 205. Columbia Valley viticultural area. R23E; then For a wine to be eligible to use a Subpart C—Approved American (3) Proceed east in a straight line viticultural area name as an appellation Viticultural Areas along the section boundaries for of origin or a term of viticultural approximately 12.1 miles, over the significance in a brand name, at least 85 ■ 2. Subpart C is amended by adding Appledale and Monument Hills maps, percent of the wine must be derived § 9.227 to read as follows: onto the Ephrata SW map to the

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intersection of the line with the R24E the operation of the Wantagh State Monday through Friday the bridge and R25E common line at the northwest Parkway Bridge across the Sloop may remain closed to vessel traffic from corner of section 36, T21N/R24E; then Channel, mile 15.4, at Jones Beach, New 6:30 a.m. through 12 p.m. and from (4) Proceed south along the R24E and York. The deviation is necessary to 12:15 p.m. through 5 p.m. R25E common line for approximately install bascule girders at the bridge. This Saturday and Sunday the bridge shall 22.5 miles, over the Winchester and deviation allows the bridge to remain in open on signal between 7:30 a.m. and Winchester SW maps, onto the Royal the closed position. 8:30 p.m. after at least a thirty minute City map, passing over the West Canal DATES: This deviation is effective from advance notice is given by calling the and into the Frenchman Hills, to the October 8, 2012 through November 16, number posted at the bridge. southwest corner of section 12, T17N/ 2012. At all other times the bridge shall R24E (concurrent with the intersection ADDRESSES: Documents mentioned in open on signal after at least a thirty of the R24E and R25E common line and this preamble as being available in the minute advance notice is given by a single transmission line); then docket are part of docket USCG–2012– calling the number posted at the bridge. (5) Proceed west in a straight line 0909 and are available online at Vessels that can pass under the bridge along the section boundaries (marked www.regulations.gov, inserting USCG– during the closed periods without a for 3 sections by the single transmission 2012–0909 in the ‘‘Keyword’’ and then bridge opening may do so at all times. line) for approximately 4 miles, onto the clicking ‘‘Search’’. They are also There are no alternate routes for vessel Beverly NE map, to the southwest available for inspection or copying at traffic. corner of section 9, T17N/R24E; then the Docket Management Facility (M–30), In accordance with 33 CFR 117.35(e), (6) Proceed north in a straight line U.S. Department of Transportation, the bridge must return to its regular along the section boundary for West Building Ground Floor, Room operating schedule immediately at the approximately 1 mile to the northwest W12–140, 1200 New Jersey Avenue SE., end of the designated time period. This corner of section 9, T17N/R24E; then Washington, DC 20590, between 9 a.m. deviation from the operating regulations (7) Proceed west in a straight line and 5 p.m., Monday through Friday, is authorized under 33 CFR 117.35. along the section boundaries for except Federal holidays. Dated: October 5, 2012. approximately 7.9 miles, onto the FOR FURTHER INFORMATION CONTACT: Vantage map, crossing over Interstate If Gary Kassof, Route 90 and Columbia River, to the you have questions on this rule, call or Bridge Program Manager, First Coast Guard western shoreline of the Columbia email Ms. Judy Leung-Yee, Project District. River, at Hole in the Wall in Kittitas Officer, First Coast Guard District, [FR Doc. 2012–25542 Filed 10–17–12; 8:45 am] County, section 6, T17N/R23E; and then [email protected], telephone BILLING CODE 9110–04–P (8) Proceed north along the western (212) 668–7165. If you have questions shoreline of the meandering Columbia on viewing the docket, call Renee V. River for approximately 23.3 miles, Wright, Program Manager, Docket ENVIRONMENTAL PROTECTION crossing over the Ginkgo and Cape Horn Operations, telephone 202–366–9826. AGENCY SE maps, and onto the West Bar map, SUPPLEMENTARY INFORMATION: The returning to the beginning point. Wantagh State Parkway Bridge has a 40 CFR Part 52 vertical clearance in the closed position [EPA–R09–OAR–2011–0372; FRL–9741–8] Signed: September 18, 2012. of 20 feet at mean high water and 23 feet John J. Manfreda, at mean low water. The existing Determination of Attainment of the Administrator. drawbridge operation regulations are 1-Hour Ozone National Ambient Air Approved: September 27, 2012. listed at 33 CFR 117.5. Quality Standards in the Sacramento Timothy E. Skud, The New York Department of Metro Nonattainment Area in California Deputy Assistant Secretary, (Tax, Trade, and Transportation requested a temporary Tariff Policy). deviation to facilitate installation and AGENCY: Environmental Protection [FR Doc. 2012–25639 Filed 10–17–12; 8:45 am] painting of bascule girders at the bridge. Agency (EPA). BILLING CODE 4810–31–P The waterway has seasonal ACTION: Final rule. recreational vessels and fishing vessels of various sizes. We contacted the New SUMMARY: EPA is determining that the Sacramento Metro 1-hour ozone DEPARTMENT OF HOMELAND York Marine Trades Association and no nonattainment area (Sacramento Metro SECURITY objections were received. We did not receive 30-days advance Area) has attained the revoked National Coast Guard notice for this temporary deviation; Ambient Air Quality Standard (1-hour however, the Coast Guard is approving ozone NAAQS or standard), and to 33 CFR Part 117 this temporary deviation because this exclude certain 2008 data caused by girder installation and painting must be wildfire exceptional events. These air [USCG–2012–0909] performed during mild climate quality determinations were proposed conditions to facilitate the painting in conjunction with a proposed Drawbridge Operation Regulations; operations and allow the new bridge determination to terminate the State of Long Island, New York Inland construction to continue on schedule. California’s obligations regarding 1-hour Waterway From East Rockaway Inlet to Additional notice to the public will be ozone section 185 fee program SIP Shinnecock Canal, Hempstead, NY provided in the Local Notice to provisions for the Sacramento Metro AGENCY: Coast Guard, DHS. Mariners and via a broadcast notice to Area. In this notice, EPA is finalizing ACTION: Notice of temporary deviation mariners. only that portion of its notice of from regulations. Under this temporary deviation the proposed rulemaking that determines Wantagh State Parkway Bridge at mile that the Sacramento Metro Area has SUMMARY: The Commander, First Coast 15.4, across Sloop Channel, shall attained the 1-hour ozone standard, and Guard District, has issued a temporary operate between October 8, 2012 and that excludes certain exceedances as deviation from the regulation governing November 16, 2012, as follows: caused by ozone exceptional events.

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These air quality determinations were SUPPLEMENTARY INFORMATION: the section 185 fee requirements for the addressed separately in the proposed Throughout this document, ‘‘we,’’ ‘‘us’’ area identified certain criteria—(1) rulemaking and are severable from the and ‘‘our’’ refer to EPA. whether the area attained and (2) that any such attainment was due to other issues that relate to termination of Table of Contents section 185 1-hour ozone requirements. permanent and enforceable emissions EPA is not at this time taking final I. EPA’s Proposed Action reductions—on which to base action on other aspects of our notice of II. Public Comments termination, and addressed each of III. EPA Action these separately. With respect to the proposed rulemaking that address IV. Statutory and Executive Order Reviews termination of 1-hour ozone section 185 criterion of attainment of the 1-hour fee requirements. EPA intends to I. EPA’s Proposed Action standard, in a section titled, ‘‘1-Hour address any other issues relating to On May 18, 2011 (76 FR 28696), EPA Ozone Attainment’’ EPA stated: Sacramento Metro Area 1-hour ozone proposed to determine that the EPA proposes to determine that the section 185 requirements, and their Sacramento Metro Area attained the 1- Sacramento Metro Area has attained the 1- termination, in a separate future hour ozone standard in 2009 based on hour ozone standard; that is, the number of rulemaking. complete, quality-assured and certified expected exceedances at any site in the ambient air quality monitoring data for nonattainment area is not greater than one DATES: This rule will be effective on the 2007–2009 monitoring period, per year. [internal citation deleted] This November 19, 2012. proposed determination is based on three excluding exceedances of the 1-hour years of complete, quality-assured and ADDRESSES: EPA has established docket ozone standard that occurred due to certified ambient air quality monitoring data number EPA–R09–OAR–2011–0372 for wildfire exceptional events in 2008.1 In in AQS showing attainment of the 1-hour this action. Generally, documents in the making its proposed determination, EPA ozone standard for the 2007–2009 monitoring docket for this action are available proposed to exclude from use certain air period, and complete, quality-assured data in electronically at http:// quality monitoring data for 2008, AQS for 2008–2010 that show continued www.regulations.gov or in hard copy at because they meet the criteria for ozone attainment. As explained below, in determining the area’s attainment of the 1- EPA Region IX, 75 Hawthorne Street, exceptional events that are caused by wildfires. These air quality hour ozone standard, EPA is also proposing San Francisco, California. While all to exclude from consideration exceedances documents in the docket are listed at determinations were addressed that occurred on three days in 2008, because http://www.regulations.gov, some separately in the proposal and are they are due to wildfire exceptional events. severable from the other issues and information may be publicly available May 18, 2011, 76 FR 28700. only at the hard copy location (e.g., criteria in the May 18, 2011 notice of copyrighted material, large maps, multi- proposed rulemaking that relate to The May 18, 2011 proposal presented volume reports), and some may not be termination of section 185 1-hour ozone monitoring data for the Sacramento available in either location (e.g., requirements. Metro Area for 2007–2009, along with confidential business information EPA further proposed to determine EPA’s explication that showed the area (CBI)). To inspect the hard copy that the State of California is no longer attained the 1-hour ozone NAAQS, and materials, please schedule an required to submit or implement section continued to attain through 2010. Table appointment during normal business 185 fee program State Implementation 1 shows that the Sacramento Metro Area Plan (SIP) provisions for the Sacramento has continued to attain the 1-hour ozone hours with the contact listed in the FOR Metro Area to satisfy anti-backsliding NAAQS since that time, based on FURTHER INFORMATION CONTACT section. requirements for the revoked 1-hour complete, quality-assured and certified FOR FURTHER INFORMATION CONTACT: John ozone national ambient air quality data for 2008–2010, 2009–2011 and J. Kelly, EPA Region IX, (415) 947–4151, standard (1-hour ozone NAAQS or preliminary data available for 2010– [email protected]. standard).2 EPA’s proposal to terminate 2012.3

TABLE 1—1-HOUR OZONE DATA FOR THE SACRAMENTO METRO 1-HOUR OZONE NONATTAINMENT AREA a

Expected exceedances Expected exceedances Site (monitor ID) by year 3-yr average 2008 b 2009 2010 2011 2008–2010 2009–2011

Placerville (06–017–0010)...... 2.0 0.0 0.0 0.0 0.7 0.0 Echo Summit (06–017–0012)...... 0.0 0.0 0.0 0.0 0.0 0.0 Cool (06–017–0020)...... 2.0 0.0 0.0 0.0 0.7 0.0 Auburn (06–061–0002)...... 0.0 0.0 0.0 0.0 0.0 0.0 Colfax (06–061–0004)...... 0.0 0.0 0.0 0.0 0.0 0.0 Roseville (06–061–0006)...... 2.0 0.0 0.0 0.0 0.7 0.0 North Highlands (06–067–0002)...... 0.0 0.0 0.0 0.0 0.0 0.0 Sacramento-Del Paso Manor (06–067–0006) ...... 0.0 0.0 0.0 0.0 0.0 0.0 Sacramento-T Street (06–067–0010)...... 0.0 0.0 0.0 0.0 0.0 0.0 Elk Grove (06–067–0011)...... 0.0 0.0 0.0 0.0 0.0 0.0 Folsom (06–067–0012) ...... b 2.0 0.0 0.0 0.0 0.7 0.0 Sacramento-Airport Road c (06–067–0013) ...... 0.0 NA NA NA NA NA

1 EPA proposed that the area continued in section 185 obligation based on our concurrent 13, 2012 at the Sloughhouse Road monitoring site. attainment based on complete, quality-assured data proposal to approve a CAA section 185 termination Since there were no exceedances at this site in 2010 for 2010. determination which would remove the obligation or 2011, this one exceedances in 2012 would not 2 On the same day that EPA’s proposal was of the state to submit a section 185 SIP when by itself constitute a violation of the 1-hour ozone finalized.’’ May 18, 2011, 76 FR 28661. published in the Federal Register, EPA published NAAQS for the period 2010–2012. a separate interim final determination ‘‘to defer 3 Preliminary data on the California Air Resources CAA section 179 sanctions associated with the Board (CARB) Web site show a single exceedance Sacramento Metro Area’s 1-hour Ozone CAA (0.128 ppm) of the 1-hour ozone NAAQS on August

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TABLE 1—1-HOUR OZONE DATA FOR THE SACRAMENTO METRO 1-HOUR OZONE NONATTAINMENT AREA a—Continued

Expected exceedances Expected exceedances Site (monitor ID) by year 3-yr average 2008 b 2009 2010 2011 2008–2010 2009–2011

Sacramento-Goldenland Court (06–067–0014)...... 0.0 0.0 0.0 0.0 0.0 0.0 Sloughhouse Rd. (06–067–5003)...... 3.0 0.0 0.0 0.0 1.0 0.0 Vacaville (06–095–3003)...... 0.0 0.0 0.0 0.0 0.0 0.0 Davis (06–113–0004)...... 0.0 0.0 0.0 0.0 0.0 0.0 Woodland (06–113–1003)...... 0.0 0.0 0.0 0.0 0.0 0.0 Source: Quicklook Report, August 20, 2012 (in the docket to this action). a 40 CFR part 50, Appendix H—Interpretation of the 1-Hour Primary and Secondary National Ambient Air Quality Standards for Ozone. b Data shown exclude exceedances on June 23, June 27 and July 10, 2008 due to exceptional events. c The Airport Road site was relocated to the Goldenland Court site in August 2008. NA—Data are not available.

Two other issues in the May 18, 2011 comments disputed EPA’s proposed attainment. EPA is also finalizing its notice were addressed separately: (1) determination that the area has attained determination to exclude from use, in Whether, separate from determining the 1-hour ozone standard. No adverse determining the area has attained the 1- whether the area attained the standard comments address the component of hour ozone standard, certain air quality based on monitored air quality data, EPA’s notice of proposed rulemaking monitoring data for 2008, because they EPA could determine that such that is the sole subject of today’s final meet the criteria for ozone exceptional attainment was due to permanent and action—EPA’s determination that the events that are caused by wildfires. enforceable emissions reductions; and area has attained the 1-hour ozone These air quality determinations were (2) whether EPA’s proposed standard based on monitored air quality addressed separately and are severable determinations regarding attainment since 2009, including the determination from the other issues and criteria in the and permanent and enforceable to exclude certain monitored May 18, 2011 notice of proposed emissions reductions could support exceedances in 2008 as due to rulemaking that relate to termination of termination of the area’s 1-hour ozone exceptional wildfire events. section 185 1-hour ozone requirements. section 185 anti-backsliding As noted above, EPA intends to Apart from EPA’s determination of requirements. address in separate rulemaking the attainment based on air quality,4 EPA is II. Public Comments subject of NRDC’s comments—EPA’s not in this notice taking final action on proposed termination of the Sacramento any other aspects of its proposed EPA’s proposed action provided a 30- Metro 1-hour ozone section 185 determination to terminate the 1-hour day public comment period. During this requirements, and criteria for ozone section 185 fee program period, the following parties submitted termination other than monitored requirements for the Sacramento Metro comments: attainment. Area. 1. Paul Cort, Earthjustice, submitted on behalf of Natural Resources Defense EPA is acting today to finalize only IV. Statutory and Executive Order Council (NRDC); letter dated June 16, that portion of the proposal that Reviews determines, based on air quality 2011. This action makes a determination 2. Tim Shesteck, American Chemistry monitoring data, that the area has attained the 1-hour ozone standard, based on air quality data and does not Council (ACC); letter dated June 17, impose additional requirements beyond 2011. including determining that three exceedances in 2008 are excluded from those imposed by State law. For that 3. Zachary L. Craft, Baker Botts, LLP; reason, this action: letter dated June 17, 2011. consideration because they were caused • by exceptional wildfire events. This Is not a ‘‘significant regulatory 4. Catherine H. Reheis-Boyd, Western action’’ subject to review by the Office States Petroleum Association (WSPA); notice is not intended to address, and does not finalize, any other portion of of Management and Budget under letter dated June 17, 2011. Executive Order 12866 (58 FR 51735, 5. Leslie Sue Ritts, The National EPA’s proposal related to termination of 1-hour ozone section 185 anti- October 4, 1993); Environmental Development • Does not impose an information backsliding requirements in the Association’s Clean Air Project (NEDA– collection burden under the provisions Sacramento Metro Area. As set forth CAP); letter dated June 18, 2011. of the Paperwork Reduction Act (44 No adverse comments were directed above, EPA intends to address these U.S.C. 3501 et seq.); issues in separate, future rulemaking. at EPA’s proposal to determine, based • Is certified as not having a on complete, quality-assured air quality III. EPA Action significant economic impact on a data, that the Sacramento Metro Area substantial number of small entities EPA is determining that the has attained the 1-hour ozone standard. under the Regulatory Flexibility Act (5 Sacramento Metro 1-hour ozone Similarly, no adverse comments were U.S.C. 601 et seq.); nonattainment area has attained the 1- directed at EPA’s proposal to exclude • Does not contain any unfunded hour ozone NAAQS based on complete, certain monitored exceedances in 2008 mandate or significantly or uniquely quality-assured, and certified ambient as due to exceptional events. affect small governments, as described air quality monitoring data. Since 2009, NRDC submitted adverse comments in the Unfunded Mandates Reform Act and continuing through 2010 and 2011, relating to EPA’s proposal to terminate of 1995 (Pub. L. 104–4); 1-hour ozone section 185 requirements complete, quality-assured and certified for the area, and set forth NRDC’s air quality data show continuous 4 This includes EPA’s determination with respect contentions regarding additional criteria attainment. Preliminary data available to the 2008 exceedances caused by wildfire and legal bases for termination. No for 2012 are consistent with continued exceptional events.

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• Does not have Federalism enforce its requirements (see section limited approval and limited implications as specified in Executive 307(b)(2)). disapproval action is to update the Order 13132 (64 FR 43255, August 10, applicable SIP with current Clark List of Subjects in 40 CFR Part 52 1999); County permitting rules and to set the • Is not an economically significant Environmental protection, Air stage for remedying certain deficiencies regulatory action based on health or pollution control, Incorporation by in these rules. This limited disapproval safety risks subject to Executive Order reference, Intergovernmental relations, action triggers an obligation on EPA to 13045 (62 FR 19885, April 23, 1997); Nitrogen dioxide, Ozone, Volatile promulgate a Federal Implementation • Is not a significant regulatory action organic compounds. Plan unless the State of Nevada corrects subject to Executive Order 13211 (66 FR Dated: October 3, 2012. the deficiencies, and EPA approves the 28355, May 22, 2001); related plan revisions, within two years • Is not subject to requirements of Jared Blumenfeld, Regional Administrator, Region IX. of the final action, and for certain Section 12(d) of the National deficiencies the limited disapproval also Technology Transfer and Advancement Part 52, Chapter I, Title 40 of the Code triggers sanctions under section 179 of Act of 1995 (15 U.S.C. 272 note) because of Federal Regulations is amended as the CAA unless the State of Nevada application of those requirements would follows: submits (on behalf of Clark County) and be inconsistent with the Clean Air Act; we approve SIP revisions that correct PART 52—[AMENDED] and the deficiencies within 18 months of • Does not provide EPA with the final action. discretionary authority to address ■ 1. The authority citation for Part 52 disproportionate human health or continues to read as follows: DATES: Effective Date: This rule is environmental effects with practical, Authority: 42 U.S.C. 7401 et seq. effective on November 19, 2012. appropriate, and legally permissible ADDRESSES: EPA has established docket methods under Executive Order 12898 Subpart F—California number EPA–R09–OAR–2012–0566 for (59 FR 7629, February 16, 1994). this action. Generally, documents in the In addition, this rule does not have ■ 2. Section 52.282 is amended by docket for this action available tribal implications as specified by adding paragraph (f) to read as follows: electronically at www.regulations.gov Executive Order 13175 (65 FR 67249, § 52.282 Control strategy and regulations: and in hard copy at EPA Region IX, 75 November 9, 2000), because the SIP is Ozone. Hawthorne Street, San Francisco, not approved to apply in Indian country * * * * * California. While all documents in the located in the State, and EPA notes that (f) Determination of attainment. EPA docket are listed at www.regulations. it will not impose substantial direct has determined that, as of November 19, gov, some information may be publicly costs on tribal governments or preempt 2012, the Sacramento Metro 1-hour available only at the hard copy location tribal law. ozone nonattainment area has attained (e.g., copyrighted material), and some The Congressional Review Act, 5 the 1-hour ozone standard, based upon may not be publicly available at either U.S.C. 801 et seq., as added by the Small complete, quality-assured and certified location (e.g., CBI). To inspect the hard Business Regulatory Enforcement ambient air quality monitoring data for copy materials, please schedule an Fairness Act of 1996, generally provides 2007–2009. appointment during normal business that before a rule may take effect, the hours with the contact listed in the FOR [FR Doc. 2012–25547 Filed 10–17–12; 8:45 am] agency promulgating the rule must FURTHER INFORMATION CONTACT section. BILLING CODE 6560–50–P submit a rule report, which includes a FOR FURTHER INFORMATION CONTACT: copy of the rule, to each House of the Laura Yannayon, EPA Region IX, 75 Congress and to the Comptroller General ENVIRONMENTAL PROTECTION Hawthorne Street (AIR–3), San of the United States. EPA will submit a AGENCY Francisco, CA 94105, phone number report containing this action and other (415) 972–3534, fax number (415) 947– required information to the U.S. Senate, 40 CFR Part 52 3579, or by email at yannayon.laura@ the U.S. House of Representatives, and epa.gov. the Comptroller General of the United [EPA–R09–OAR–2012–0566; FRL–9740–3] SUPPLEMENTARY INFORMATION: States prior to publication of the rule in Limited Approval and Disapproval of Throughout this document, the terms the Federal Register. A major rule ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. cannot take effect until 60 days after it Air Quality Implementation Plans; is published in the Federal Register. Nevada; Clark County; Stationary Table of Contents Source Permits This action is not a ‘‘major rule’’ as I. Summary of Proposed Action defined by 5 U.S.C. 804(2). AGENCY: Environmental Protection II. Public Comment on Proposed Action Under section 307(b)(1) of the Clean Agency (EPA). III. Final Action Air Act, petitions for judicial review of ACTION: Final rule. IV. Statutory and Executive Order Reviews this action must be filed in the United States Court of Appeals for the SUMMARY: EPA is finalizing a limited I. Summary of Proposed Action appropriate circuit by December 17, approval and limited disapproval of On July 24, 2012 (77 FR 43206), EPA 2012. Filing a petition for revisions to the Clark County portion of proposed a limited approval and limited reconsideration by the Administrator of the applicable state implementation disapproval of revisions to the Clark this final rule does not affect the finality plan (SIP) for the State of Nevada. The County portion of the Nevada State of this action for the purposes of judicial submitted revisions include new and Implementation Plan (SIP). The review nor does it extend the time amended rules governing the issuance submittals included new and amended within which a petition for judicial of permits for stationary sources, regulations governing the issuance of review may be filed, and shall not including review and permitting of permits for stationary sources under the postpone the effectiveness of such rule major sources and major modifications jurisdiction of the Clark County or action. This action may not be under parts C and D of title I of the Department of Air Quality (Clark or challenged later in proceedings to Clean Air Act (CAA). The effect of this DAQ), including review and permitting

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of major sources and major stationary sources under DAQ preconstruction review and permitting modifications under parts C and D of jurisdiction in Clark County, including program. Specifically, EPA proposed a title I of the CAA. Collectively, the related definitions. These SIP limited approval and limited submitted regulations (referred to as submittals, referred to herein as the disapproval of the new and amended ‘‘Sections’’) comprise DAQ’s current ‘‘NSR SIP submittal’’ or ‘‘submitted NSR Clark County regulations listed in program for preconstruction review and rules,’’ represent a comprehensive Table 1. permitting of new or modified revision to Clark County’s

TABLE 1—SUBMITTED NSR RULES

Section No. Section title Adopted Submitted

0 ...... Definitions ...... 3/6/12 5/22/12 12.0 ...... Applicability, General Requirements and Transition Procedures ...... 11/3/09 2/11/10 12.1 ...... Permit Requirements for Minor Sources ...... 11/3/09 2/11/10 12.2 ...... Permit Requirements for Major Sources in Attainment Areas (Prevention of Significant De- 3/6/12 5/22/12 terioration). 12.3 ...... Permit Requirements for Major Sources in Nonattainment Areas ...... 5/18/10 9/01/10 12.4 ...... Authority to Construct Application and Permit Requirements for Part 70 Sources ...... 5/18/10 9/01/10

In our proposed rule (77 FR 43206, at County SIP rules governing NSR for 43208), we identified the existing Clark stationary sources as listed in Table 2.

TABLE 2—EXISTING SIP RULES GOVERNING NSR FOR STATIONARY SOURCES UNDER DAQ JURISDICTION

Fed. Reg. citation and EPA approval Section No. Section title date

0 ...... Definitions ...... 69 FR 54006, 9/7/04. 1 ...... Definitions (33 terms retained in SIP in 69 FR 54006, 9/7/04) ...... 46 FR 21758, 4/14/81 and 47 FR 26620, 6/21/82. 11 ...... Ambient Air Quality Standards ...... 69 FR 54006, 9/7/04. 12 ...... Preconstruction Review for New or Modified Stationary Sources ...... 69 FR 54006, 9/7/04. 16 ...... Operating Permits ...... 47 FR 26386, 6/18/82. 58 ...... Emission Reduction Credits ...... 69 FR 54006, 9/7/04. 59 ...... Emission Offsets ...... 69 FR 54006, 9/7/04. NAC 445B.22083 Construction, major modification or relocation of plants to generate electricity 69 FR 54006, 9/7/04. using steam produced by burning of fossil fuels..

As a result of today’s final action, all The most significant deficiencies that these are the most likely to affect of these rules except for Section 11, we identified in the submitted NSR pollutant emissions within Clark NAC section 445B.22083, and portions rules, as discussed in detail in the TSD, County, compared to other deficiencies of Section 1, are replaced in, or are generally as follows: (1) The absence that we do not expect would otherwise deleted from, the Nevada SIP of minor NSR provisions that ensure significantly affect emissions levels by the submitted set of rules listed in protection of the 2006 PM2.5 NAAQS (e.g., administrative requirements for Table 1. With respect to Section 1, of the and 2008 Lead (Pb) NAAQS; (2) minor permit issuance). 33 terms contained in the Nevada SIP, NSR applicability provisions that do not We proposed to approve SIP revisions the following six terms are replaced by cover stationary sources of PM2.5; (3) that exclude certain insignificant/de revised definitions contained in the deficiencies in the definitions of certain minimis activities from minor source submitted NSR rules: (1) ‘‘Air terms used in PSD and Nonattainment permitting requirements in the Clark contaminant’’ (subsection 1.3); (2) NSR (NNSR) applicability County portion of the Nevada SIP. ‘‘minor source’’ (subsection 1.50); (3) determinations; (4) definition of Under the Clark County rules that we ‘‘shutdown’’ (subsection 1.78); (4) ‘‘regulated NSR pollutant’’ that does not proposed to approve, some of these ‘‘significant’’ (unnumbered); (5) ‘‘special adequately address PSD and NNSR insignificant/de minimis activities must mobile equipment’’ (subsection 1.85); requirements for regulation of continue to comply with many of the and (6) ‘‘start up’’ (subsection 1.89).1 condensable particulate matter; (5) requirements that would apply to deficiencies in the criteria for assessing sources needing to obtain preconstruction permits. We received 1 Although our proposed rule indicated that all of the quality (or ‘‘integrity’’) of emission the Section 1 definitions in the SIP would be reduction credits used to satisfy NNSR no comments on our proposed replaced by the NSR SIP submission (see 77 FR offset requirements; and (6) the absence approvals and are finalizing those 43206, 43208), EPA has found that only these six of minor NSR or NNSR provisions to approvals as consistent with 40 CFR definitions in SIP-approved Section 1 were in fact 51.160(e). part of the existing SIP rules governing NSR for ensure that the air quality impacts of stationary sources under DAQ jurisdiction. stationary sources are not II. Public Comment on Proposed Action Therefore, in this final rule, we are clarifying that underestimated due to stack heights that only those Section 1 definitions that pertain to NSR exceed good engineering practice or EPA’s proposed action provided a 30- for stationary sources under DAQ jurisdiction and that are in fact superseded, under state law, by unacceptable air dispersion modeling day public comment period. During this revised Clark County definitions in the submitted techniques. We identified these as the period, we received two comment NSR rules, are being replaced in the Nevada SIP. ‘‘most significant’’ deficiencies because letters, one from the Nevada Division of

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Environmental Protection (NDEP), dated sources, Section 12.1 establishes 18, 2011). EPA terminated the use of the September 7, 2012, and one from the ‘‘significant’’ emission levels for these 1997 PM10 Surrogate Policy in PSD Clark County Department of Air Quality same seven pollutants and for Total permitting programs based on the (Clark or DAQ), dated September 6, Reduced Sulfur. Id. at subsection (g). Agency’s conclusion that the necessary 2012. We summarize and provide These provisions are not adequate for technical tools to conduct PM2.5 responses to these comments below. purposes of implementing the PM2.5 analyses for PSD sources had become Comment 1: Clark County disagreed NAAQS for three reasons. available and that it was therefore no with EPA’s statement that the First, the provisions do not explicitly longer appropriate to rely on the PM10 applicability provisions in Section 12.1 regulate sources of direct PM2.5 Surrogate Policy to protect the PM2.5 are deficient with respect to regulation emissions. Second, the provisions do NAAQS. Id. at 28648. Thus, PSD permit of PM2.5 precursor emissions and stated not address the condensable fraction of applications must now be reviewed that Section 12.1 addresses each of the PM2.5 or PM10, which is required to be directly against the PM2.5 requirements. pollutants identified by EPA as PM2.5 accounted for in permitting actions on Id. at 28647. For these same reasons, we precursors (NOX, SO2, and VOCs). In or after January 1, 2011. 73 FR 28321 at conclude that it is not appropriate for addition, Clark County asserted that 28334 (May 16, 2008) (‘‘Because Clark County to rely categorically on the PM2.5 emissions are a subset of PM10 condensable PM emissions exist almost PM10 provisions in Section 12.1 to emissions, which Section 12.1 also entirely in the 2.5 micrometer range and satisfy the requirements of CAA section addresses. Clark County stated that smaller, these emissions are inherently 110(a)(2)(C) with respect to the 1997 or ‘‘[a]lthough defining precursors to PM2.5 more significant for PM2.5 than for prior 2006 PM2.5 NAAQS. Consistent with more explicitly might clarify the rule, PM standards addressing larger EPA’s end to the use of the PM10 the county believes the rule currently particles’’); see also 75 FR 80118 Surrogate Policy for PSD permit provides sufficient authority to regulate (December 21, 2010) (final rule programs, minor NSR permit programs sources of these pollutants * * * .’’ establishing methods for measurement under CAA section 110(a)(2)(C) must EPA Response: We disagree. Section of filterable and condensable PM10 and require owners and operators of sources 110(a)(2)(C) of the CAA requires, among PM2.5 emissions from stationary and permitting authorities to conduct other things, that each state have a sources). Third, the provisions do not permit-related PM analyses and may permit program to provide for regulation 2.5 adequately address PM2.5 precursors. not allow the automatic use of PM10 of the construction and modification of Although we agree with Clark County analysis as a surrogate for satisfying minor stationary sources within the that these applicability provisions cover PM2.5 requirements. areas covered by the plan as necessary sources of NOX, SO2, and VOCs, which In sum, Section 12.1 does not contain to assure that the NAAQS are achieved. pollutants the EPA has defined as enforceable procedures that enable Under EPA’s implementing regulations precursors to PM2.5, those applicability Clark County to determine whether the in 40 CFR 51.160–51.164, these permit provisions in themselves do not ensure construction or modification of a programs must contain enforceable that emissions of the appropriate stationary source of direct PM procedures that enable the permitting 2.5 pollutants will be addressed as PM2.5 emissions and any emissions of PM2.5 authority to determine whether the precursors in the minor source program precursors will result in either a construction or modification of a in the same manner as included for violation of an applicable control stationary source will result in (1) a purposes of PM2.5 major NSR. strategy or interference with attainment violation of applicable portions of the In response to our proposed or maintenance of the 1997 or 2006 control strategy; or (2) interference with disapproval of Section 12.1 with respect PM NAAQS, nor does the rule contain attainment or maintenance of a NAAQS 2.5 to the requirements for PM2.5, Clark enforceable procedures for preventing in the State in which the proposed asserted that the provisions governing construction or modification of such source (or modification) is located or in PM10 emissions in Section 12.1 provide sources, as required by CAA section a neighboring State, and procedures for sufficient authority to regulate sources 110(a)(2)(C) and 40 CFR 51.160–51.164. preventing any such construction or of direct PM2.5 emissions. We disagree Consequently, we are disapproving modification. For purposes of with this assertion, particularly to the Section 12.1 with respect to the implementing the 1997 PM NAAQS, 2.5 extent that Clark County may be requirement in CAA section 110(a)(2)(C) as explained in our TSD, States were suggesting that PM10 is an effective to regulate the construction and required by EPA’s 2008 New Source surrogate for PM2.5 in all cases. Effective modification of stationary sources of Review implementing regulations for May 16, 2011, EPA ended the states’ PM2.5 emissions as necessary to assure the 1997 PM2.5 NAAQS (‘‘PM2.5 NSR ability to use, as a matter of policy, Implementation Rule’’) to revise their that the 1997 and 2006 PM2.5 NAAQS evaluation of PM10 (including the PM10 minor source programs to include direct are achieved. NAAQS) as a surrogate for evaluation of Comment 2: Clark County disagreed and condensable PM2.5 emissions and PM2.5 in Prevention of Significant with EPA’s proposal to disapprove PM precursor emissions in the same 2.5 Deterioration (PSD) permitting actions, language regarding federal manner as included for purposes of as had previously been allowed enforceability in subsection PM major NSR. See TSD at 16 (citing 2.5 pursuant to a 1997 guidance document 12.1.3.6(a)(5) and stated that it ‘‘could 73 FR 28321 at 28344, May 16, 2008). entitled ‘‘Interim Implementation for the Clark County’s minor NSR program in find no language [in the CAA or EPA New Source Review Requirements for Section 12.1 generally defines ‘‘minor regulations] that explicitly prohibits an PM ,’’ October 23, 1997 (‘‘PM source’’ as a stationary source that is not 2.5 10 applicant from specifying or declaring Surrogate Policy’’).2 76 FR 28646 (May a major source and that has a potential anything it deems appropriate in the information it submits.’’ Referencing an to emit equal to or greater than specified 2 The preamble to EPA’s PM NSR levels for the following seven 2.5 EPA guidance document addressing Implementation Rule provided that States with SIP- CAA title V (Part 70) permitting issues, pollutants: PM10, CO, VOC, NOX, SO2, approved PSD programs could continue to Lead (Pb), and H2S. See Section 12.1, implement the program for particulate matter less subsection 12.1.1 (a) and (c) than 10 micrometers (PM10) as a surrogate for rulemaking, however, EPA has ended the use of this meeting the PSD program requirements for PM2.5 policy both under the Federal PSD program and in (definitions). Similarly, for purposes of pursuant to the PM10 Surrogate Policy. See 73 FR SIP-approved PSD program areas. See 76 FR 28646 regulating modifications at minor at 28341. As confirmed in a May 18, 2011 (May 18, 2011).

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Clark County stated that ‘‘EPA indicated 52.23 (‘‘Failure to comply with * * * otherwise major sources to avoid PSD or some precedent for declaring which of any permit condition * * * issued Nonattainment NSR (also known as the conditions of an ‘authority to pursuant to approved or promulgated ‘‘synthetic minor’’ permit limits). Once construct or operate’ permit would be regulations for the review of new or a state operating permit program is federally enforceable within the context modified stationary or indirect sources approved by EPA and incorporated into of a Part 70 Operating Permit * * * shall render the person or the applicable SIP under section 110 of application.’’ The County asserted that governmental entity so failing to comply the Act, all terms and conditions EPA’s authority to disapprove a state’s in violation of a requirement of an contained in a permit issued pursuant to minor source program is extremely applicable implementation plan and such a program are considered federally limited and that EPA may only subject to enforcement action under enforceable. 40 CFR 52.21(b)(17) and disapprove such programs under CAA section 113 of the Clean Air Act.’’); see 52.23; see also 54 FR 27274 at 27281, section 110(a)(2)(C) if they ‘‘interfere also 54 FR 27274, 27282 (June 28, 1989) 27284 (June 28, 1989). with attainment of the NAAQS or other (noting that all construction permits Subsection 12.1.3.6(a)(5) of Clark applicable requirements of the Act.’’ issued under regulations approved County’s minor NSR rule states that a Clark County stated its belief that ‘‘there pursuant to 40 CFR 51.160–165 are permit applicant may, at its option, can be provisions and conditions in federally enforceable). Such permit include in its application ‘‘a declaration minor source permits that do not pertain conditions are also enforceable by that it wants the entire permit, or to SIP requirements, nor otherwise citizens under CAA section 304 of the specifically identified permit conditions relate to any of the requirements of the CAA. 42 U.S.C. 7604(a)(1), (f)(4) or applicable requirements, to be Act,’’ such as requirements addressing (authorizing citizen suit for violation of federally enforceable.’’ On its face, this noxious odors and public nuisances. ‘‘an emission standard or limitation language allows a permit applicant to Clark County stated that it had intended under [the Act],’’ including any identify those permit conditions for to ‘‘separately incorporate these ‘‘standard, limitation, or schedule which the applicant ‘‘wants’’ a federally conditions into a minor source permit established under any permit issued enforceable requirement, without regard without submitting the conditions, nor * * * under any applicable State to whether the conditions so identified the mechanism for their adoption, as implementation plan approved by the (or not identified) derive from SIP- part of the SIP permit program,’’ and Administrator. * * *’’). Thus, upon approved requirements or state-only that such conditions should not be EPA’s approval of Section 12.1 into the requirements. At minimum, this subject to federal enforcement or citizen Clark County portion of the Nevada SIP, provision is misleading to the regulated suits under CAA section 113 or 304. all of the terms and conditions of a community and the public because it EPA Response: We agree with the permit issued under Section 12.1 are suggests that an applicant may request, County that nothing in the CAA or EPA enforceable by the Administrator under and that Clark County may issue, permit regulations prohibits a state from CAA section 113 and by citizens under conditions limiting federal enforcement issuing permits for minor stationary CAA section 304. authority with respect to permit sources containing requirements that are conditions that derive from SIP- enforceable only under state law, and By contrast, title V operating permits approved requirements in Section 12.1. we understand that the County’s may contain permit conditions that are Given that all conditions of a permit intention may have been to use minor not federally enforceable. Specifically, issued pursuant to a SIP-approved NSR permits issued pursuant to Section EPA’s regulations to implement the program are enforceable under sections 12.1 both for purposes of implementing operating permit program in title V of 113 and 304 the Act, and that permit the SIP-approved minor NSR program the CAA allow states to issue operating conditions deriving only from state law and for purposes of implementing other permits containing terms and conditions are not federally enforceable, it is not state/local requirements not approved that are not federally enforceable, appropriate to suggest that permit into the SIP. We are disapproving provided those terms and conditions are applicants have such an undefined subsection 12.1.3.6(a)(5), however, specifically identified as such in the ‘‘option.’’ because the current text of this permit. See 40 CFR 70.6(b)(2) (‘‘Permit We recognize, however, that Clark provision is significantly misleading to content’’) (‘‘the permitting authority County may have intended to use minor the regulated community and the public shall specifically designate as not being NSR permits issued under Section 12.1 with respect to EPA’s enforcement federally enforceable under the Act any to implement not only the substantive authorities under the CAA, and because terms and conditions included in the requirements of Section 12.1, all of Section 12.1 as a whole does not permit that are not required under the which are federally enforceable upon provide a reliable mechanism for Act or under any of its applicable SIP approval, but also to implement distinguishing between federally- requirements’’). These regulations in 40 requirements in other state regulations enforceable permit conditions and state- CFR part 70, however, apply to state not submitted for SIP approval—e.g., only enforceable permit conditions, as operating permit programs submitted to conditions addressing noxious odors or explained further below. meet the requirements of title V of the public nuisances as defined under state Under the CAA and EPA’s CAA; they do not apply to law. To the extent that this was the implementing regulations, all preconstruction review permit programs County’s intent, we recommend that the limitations and conditions in a permit submitted to meet the requirements of County add separate provisions to issued pursuant to SIP-approved section 110(a)(2)(C) of the Act, which Section 12.1 that authorize the County regulations, including SIP-approved are, instead, subject to EPA’s regulations to include ‘‘state-only’’ terms and minor NSR permit programs, are for review of new sources and conditions in a minor source permit federally enforceable under the Act. See modifications in 40 CFR part 51, subpart issued pursuant to Section 12.1, CAA 113(a)(1), (3), 42 U.S.C. 7413(a)(1), I. We note that although EPA does not provided those terms and conditions (3); 40 CFR 52.21(b)(17) (defining require states to submit title V operating and the state/local requirements that ‘‘Federally enforceable’’ to include ‘‘any permit programs for SIP approval, states they implement are specifically permit requirements established * * * may choose to do so, e.g., to provide a identified in the permit. In this case, under regulations approved pursuant to mechanism for establishing federally Clark County may provide permit 40 CFR part 51, subpart I’’); 40 CFR enforceable permit limits that enable applicants the option of identifying

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such requirements as ‘‘state-only’’ Under EPA’s PSD and NSR you must adjust downward the average requirements, provided the rule clearly applicability provisions for ‘‘major annual emissions rate that you limits the option to those state-only modifications,’’ both the assessment of calculated from the consecutive 24- requirements. For example, subsection whether a ‘‘significant emissions month period to reflect these current 12.1.3.6(a)(5) could be revised to read as increase’’ has occurred (step 1 of the restrictions’’); see also 67 FR at 80201 follows: applicability analysis) and the (‘‘The approach that we have adopted At the option of the applicant, an assessment of creditable emissions allows you to reference plant capacity application may identify for the Control increases or decreases which occurred that has actually been used, but not Officer’s consideration those permit during a prior ‘‘contemporaneous’’ pollution levels that are not legally conditions that do not derive from period (step 2 of the applicability allowed at the time the modification is requirements of the Clean Air Act or analysis) require calculation of to occur.’’). regulations approved into the applicable ‘‘baseline actual emissions’’ (BAE). See For the calculation of BAE in step 1 Nevada SIP and that the applicant believes 40 CFR 51.165(a)(2)(ii)(B) and of the applicability analysis for a should, therefore, be identified in the permit modification at an existing non-EUSGU, as conditions enforceable only under state 51.166(a)(7)(iv)(b) (procedures for law. calculating emissions increases; 40 CFR the reference to emission limitations 51.165(a)(1)(vi) and 51.166(b)(3)(i) with which the source ‘‘must currently Comment 3: Clark County questioned (definition of ‘‘net emissions increase’’). comply, had [the] source been required EPA’s proposal to disapprove the Thus, a calculation of BAE is required to comply with such limitations during County’s definition of ‘‘baseline actual both for the project under review and the consecutive 24-month period,’’ is in emissions’’ (BAE) in Section 12.2 and reference to only one point in time—i.e., Section 12.3 in several respects. First, for any previous (‘‘contemporaneous’’) changes that resulted in creditable when the project under review occurs. the County asserted that with respect to Thus, if the average emission rate existing electric utility steam generating emissions increases or decreases. In both cases, EPA’s definition of BAE calculated for the selected 24-month units (EUSGUs), notwithstanding its use 3 requires adjustments to the emission period exceeds an emission limitation of the phrase ‘‘as of the particular date’’ that applies at the time the project in its definition of BAE, its definition is calculations to ensure that any emissions exceeding certain applicable under review occurs, the past emissions at least as stringent as the corresponding in excess of that current emission federal regulation because EPA’s requirements are not included in calculating the BAE. limitation must be excluded from the regulations ‘‘contain no requirement for calculation of BAE for the project under any adjustment of compliant emissions Generally, for existing emission units, review. See 67 FR 80186 at 80195, whatsoever’’ for EUSGUs. Second, the BAE is defined as ‘‘the average rate, in 80201. County recognized that its definition tons per year, at which the unit actually For the netting methodology in step 2 differed from EPA’s definition of BAE emitted [a regulated NSR] pollutant’’ (i.e., for purposes of calculating for existing emission units other than during any consecutive 24-month creditable increases and decreases in EUSGUs (i.e., non-EUSGUs) but stated period selected by the owner or operator emissions from changes that are that this difference was intentional and within a 5-year or 10-year period ‘‘contemporaneous’’ with the project necessary because ‘‘EPA does not immediately preceding the date that under review), the term ‘‘current’’ may interpret or implement the definition [of actual construction begins, depending have multiple defining points, BAE] consistent with its plain upon the type of unit being modified depending on the number of meaning.’’ Quoting from EPA’s and with limited exceptions. 40 CFR ‘‘contemporaneous’’ changes being explanation, in the preamble to EPA’s 51.165(a)(1)(xxxv) and 51.166(b)(47). evaluated. EPA explained the meaning 2002 final rule promulgating this For any existing emissions unit other of ‘‘current’’ in the context of a netting definition (67 FR at 80197, December than an electric utility steam generating analysis for an existing non-EUSGU in 31, 2002), of the meaning of the term unit (i.e., any existing ‘‘non-EUSGU’’), the preamble to the final rule ‘‘current’’ in the context of evaluating a EPA’s definition of BAE requires, among promulgating sections contemporaneous emissions change for other things, that the average emissions 51.165(a)(1)(xxxv)(B)(3) and netting purposes, Clark County asserted rate ‘‘be adjusted downward to exclude 51.166(b)(47), as follows: that it ‘‘implements its rule in the same any emissions that would have exceeded an emission limitation with Although we are not changing our manner EPA does’’ and that ‘‘rather than definition of ‘‘contemporaneous,’’ today’s codifying rule language inconsistent which the major stationary source must action allows existing [non-EUSGUs] to with this interpretation, the county has currently comply, had such major calculate the [BAE] for each adopted rule language consistent with stationary source been required to contemporaneous event using the 10-year both its own interpretation and practice comply with such limitations during the look back period. That is, you can select any and EPA’s interpretation and practice.’’ consecutive 24-month period.’’ 40 CFR consecutive 24-month period during the 10- EPA Response: We understand that 51.165(a)(1)(xxxv)(B)(3) and year period immediately preceding the Clark County’s definition of BAE 51.166(b)(47)(ii)(c). The purpose of this change occurring in the contemporaneous period to determine the [BAE] for each reflects an attempt to clarify the requirement is to ensure that any creditable emissions change. Generally, for methodology for calculating BAE and, emissions that are not allowed under each emissions unit at which a in response to the County’s comments, any legally enforceable limitations and we are approving the County’s that apply at the time of the project are 3 For a non-EUSGU, this may be any consecutive definitions of this term, with one not counted as part of BAE. See 67 FR 24-month period ‘‘within the 10-year period narrow exception discussed below. We 80186, 80195 (December 31, 2002) immediately preceding either the date the owner or (source owners/operators must ‘‘identify operator begins actual construction of the project, remain concerned, however, about or the date a complete permit application is ambiguities in the terms and strongly the most current legally enforceable received by the reviewing authority for a permit recommend that the County revise the limits on your emissions unit’’ and ‘‘[i]f required either under this section or under a plan definitions at the next opportunity to these legally enforceable emission approved by the Administrator, whichever is limitations and operating restrictions earlier, except that the 10-year period shall not ensure that modifications at existing include any period earlier than November 15, sources are subject to clear and are more stringent than those that 1990.’’ 40 CFR 51.165(a)(1)(xxxv)(B) and consistent criteria for calculating BAE. applied during the 24-month period, 51.166(b)(47)(ii).

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contemporaneous emissions change has month period.’’ Id. (emphasis added).4 with which the major stationary source occurred, you should use the 10-year look These definitions also contain a must currently comply had such back period relevant to that change [footnote sentence providing further direction on [source] been required to comply with omitted]. When evaluating emissions the calculation of BAE only for such limitations during the consecutive increases from multi-unit modifications, if contemporaneous projects, as follows: 24-month period’’), but refers, in the more than one emissions unit was changed as part of a single project during the ‘‘For the purposes of determining [BAE] second sentence, to language that contemporaneous period, you may select a for contemporaneous changes pursuant deviates from EPA’s definition without separate consecutive 24-month period to to [the definition of NEI], the particular explanation (‘‘For the purposes of represent each emissions unit that is part of date is the date on which the particular determining the baseline actual the project. In any case, the calculated [BAE] change occurred.’’ Id. Although these emissions for contemporaneous changes for each emissions unit must be adjusted to provisions differ from the language in pursuant to paragraph (ii)(1)(B) of the reflect the most current emission limitations EPA’s definition of BAE in 40 CFR definition of [NEI], the particular date is (including operational restrictions) applying 51.165(a)(1)(xxxv)(B) and the date on which the particular change to that unit. ‘‘Current’’ in the context of a 51.166(b)(47)(ii), the language is occurred’’). This internal inconsistency contemporaneous emissions change refers to generally consistent with EPA’s is problematic, as neither the regulatory limitations on emissions and source operation that existed just prior to the date interpretative statements in the text nor any supporting analysis of the contemporaneous change. preamble to the 2002 rulemaking, as associated with this rulemaking discussed above, and we understand the explains whether/how the phrase ‘‘the 67 FR 80186, 80197 (December 31, County intends to implement these particular date’’ in the second sentence 2002). provisions consistent with those EPA informs the phrase ‘‘currently comply’’ Thus, for each ‘‘contemporaneous’’ interpretations. Thus, we are approving in the first sentence of subsection change that is considered in a netting the definitions, with one narrow 12.2.2(c)(2)(D). Although we recognize analysis, the reference in sections exception for what appears to be a that this may simply be a drafting error 51.165(a)(1)(xxxv)(B)(3) and drafting error in the definition of BAE and that Clark County may have 51.166(b)(47)(ii)(c) to emission for non-EUSGUs in subsection intended to use the phrase ‘‘as of the limitations with which the source ‘‘must 12.2.2(c)(2)(D), as discussed further particular date’’ in this provision, we currently comply, had [the] source been below. However, we strongly encourage are disapproving the provision because required to comply with such the County to clarify the meaning of the on its face it is confusing and raises limitations during the consecutive 24- phrase ‘‘the particular date’’ for enforceability concerns. month period,’’ is in reference to purposes of calculating BAE both for the Comment 4: Clark County questioned requirements that applied just before the project under review (step 1) and for EPA’s proposal to disapprove the date of the particular any contemporaneous changes pursuant definition of ‘‘net emissions increase’’ ‘‘contemporaneous’’ change. As with to the definition of NEI (step 2). We (NEI) in Section 12.2 and strongly those ‘‘current’’ emission limits that recommend that the County provide disagreed, in particular, with the must be reflected in the BAE for the such a clarification in the regulatory text statement in EPA’s TSD that EPA’s project under review, those emission itself, so that the definition is clear on regulatory definition of NEI ‘‘does not limits that applied to a particular unit its face and consistent with EPA’s call for any assessment of actual just before it underwent a prior interpretative statements in the emissions after a contemporaneous ‘‘contemporaneous’’ change (i.e., the preamble to the final rule promulgating project.’’ The County stated that the most ‘‘current’’ applicable requirements these definitions (67 FR 80186). federal definition of NEI expressly at the time of the change) must be Alternatively, Clark County may requires that NEI be calculated using the reflected in the BAE for that particular adopt BAE definitions that track EPA’s difference between baseline actual change before any emissions increases regulatory language in 40 CFR emissions before a contemporaneous or decreases associated with it may be 51.165(a)(1)(xxxv)(B)(3) and project and the new level of actual credited in the netting analysis. 51.166(b)(47)(ii)(c). Although we emissions resulting from that project recognize that EPA’s regulatory text and asserted that ‘‘[t]he only sensible Clark County’s definitions of BAE for does not specify the meaning of interpretation of the phrase ‘new level non-EUSGUs in Section 12.2 and 12.3 ‘‘currently’’ in the context of assessing of actual emissions’ in this context is require downward adjustments in either the project under review or prior ‘the actual emissions after the average emission rates to exclude contemporaneous changes, EPA contemporaneous project.’ ’’ The County emissions that exceed applicable provided an interpretation of this term suggested that EPA clarify what it emission limitations but use the phrase in the preamble to the 2002 rulemaking means by ‘‘does not call for any ‘‘the particular date’’ instead of (67 FR 80186). assessment of actual emissions after a ‘‘currently’’ to define the point in time With respect to Clark County’s contemporaneous project.’’ that governs the identification of definition of BAE for non-EUSGUs in EPA Response: EPA agrees that our applicable emission limitations. See subsection 12.2.2(c)(2)(D), we are explanation of this issue in our TSD was Section 12.2, subsection disapproving this provision because the not entirely accurate or clear. For 12.2.2(c)(1)(B)(i) and (2)(D); Section definition is internally inconsistent and example, our statement that EPA’s 12.3, subsection 12.3.2(c)(1)(C) and confusing. Subsection 12.2.2(c)(2)(D) definition of ‘‘net emissions increase’’ (2)(D). Specifically, the County’s uses language consistent with EPA’s (NEI) ‘‘does not call for any assessment definitions of BAE require downward definition in the first sentence (‘‘The of actual emissions after a adjustments to average emission rates to average rate shall be adjusted downward contemporaneous project’’ was ‘‘exclude any emissions that would have to exclude any emissions that would incorrect. As the County correctly notes, exceeded an emission limitation with have exceeded an emission limitation for purposes of identifying creditable which the major stationary source must increases and decreases in emissions comply as of the particular date, had 4 Subsection 12.2.2(c)(2)(D) does not contain this occurring prior to the particular such major stationary source been language and instead contains language tracking physical or operational change under required to comply with such EPA’s definition in 40 CFR 51.166(b)(47)(ii)(c), but this appears to be a drafting error, as discussed review, during a period that is limitations during the consecutive 24- further below. ‘‘contemporaneous’’ with that particular

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change, EPA’s definition of NEI requires 51.166(b)(21)(ii) 5 shall not apply in contemporaneous change, such decrease an assessment of ‘‘baseline actual determining post-project actual is creditable only when three specific emissions’’ before and ‘‘actual emissions. Those sections define ‘‘actual criteria are met: (1) The old level of emissions’’ after the prior emissions’’ based on actual operating actual emissions or the old level of ‘‘contemporaneous’’ project. See, e.g., 40 hours, production rates, and types of allowable emissions, whichever is CFR 51.166(b)(3)(vi)(a) (‘‘[a] decrease in materials processed, stored, or lower, exceeds the new level of actual actual emissions is creditable only to combusted during a previous 24-month emissions; (2) it is enforceable as a the extent that: (a) The old level of period that is ‘‘representative of normal practical matter at and after the time actual emissions or the old level of source operation.’’ See 40 CFR that actual construction on the allowable emissions, whichever is 51.165(a)(1)(vi)(G) and 51.166(b)(3)(viii). particular change begins; and (3) it has lower, exceeds the new level of actual Thus, only ‘‘source-specific allowable approximately the same qualitative emissions * * *.’’). However, although emissions’’ or ‘‘potential to emit’’ may significance for public health and we understand that Clark County’s be used to calculate the actual emissions welfare as that attributed to the increase definition of NEI reflects an attempt to after (i.e., resulting from) a prior from the particular change. 40 CFR clarify the term, we are disapproving it contemporaneous project in the netting 51.165(a)(1)(vi)(E) and 51.166(b)(3)(vi). because the County has not analysis. See 40 CFR The second of these three criteria demonstrated that its definition is more 51.165(a)(1)(xii)(C), (D) and essentially requires the use of stringent than or at least as stringent in 51.166(b)(21)(iii), (iv). EPA regulations ‘‘allowable emissions’’ or ‘‘potential to all respects as EPA’s corresponding specifically provide that the ‘‘actual emit’’ to define the ‘‘actual emissions’’ definition. See 40 CFR 51.165(a)(1), emissions’’ of an emissions unit that has of a unit after a prior 51.166(a)(7)(iv). Specifically, the not begun operations as of a particular ‘‘contemporaneous’’ change in order to definition of NEI in Section 12.2 is date must be equal to its ‘‘potential to credit an associated emissions decrease deficient because it does not establish emit’’ on that date. 40 CFR in the netting evaluation. an appropriate method for calculating 51.165(a)(1)(xii)(D) and 51.166(b)(21)(iv) The three additional paragraphs the ‘‘actual emissions’’ after a previous (‘‘For any emissions unit that has not contained in the Section 12.2 definition contemporaneous project, as explained begun normal operations on the of NEI (under subsection further below, and the substantively particular date, actual emissions shall 12.2.2(ii)(1)(C)), which are not included identical definition of NEI in Section equal the potential to emit of the unit on in EPA’s definition of NEI in 40 CFR 12.3 is also deficient for the same that date.’’) 51.166(b)(3), state as follows: reasons. Consistent with these regulations, (i) For the purposes of calculating Under EPA’s PSD and NSR EPA’s longstanding policy provides that increases under paragraph (1)(B) of this regulations, a determination as to where a ‘‘contemporaneous’’ project definition, actual emissions after the whether a significant emissions increase ‘‘will affect the normal operations of an contemporaneous project shall be is a ‘‘major modification’’ requires a existing emissions unit (as in the case of determined as provided in the determination as to whether the change a change which could result in definition of actual emissions, except as has resulted in a significant ‘‘net increased use of the unit), ‘actual provided in paragraph (1)(C)(iii) of this emissions increase.’’ See 40 CFR emissions’ after the change must be definition. 51.165(a)(1)(v) and 51.166(b)(2) assumed to be equal to ‘potential to (ii) For the purposes of calculating (defining ‘‘major modification’’); 40 CFR emit.’’’ Memorandum dated September increases under paragraph (1)(B) of this 51.165(a)(1)(vi) and 51.166(b)(3) 18, 1989, from John Calagni, Director, definition, if the Control Officer (defining NEI). EPA’s definition of NEI Air Quality Management Division, to determines that there is no sufficiently in 40 CFR 51.165(a)(1)(vi) and William B. Hathaway, Director, Air, representative time period of actual 51.166(b)(3), in turn, requires a Pesticides, and Toxics Division, emissions after a contemporaneous calculation of all creditable increases ‘‘Request for Clarification of Policy project, pursuant to Section 12.2.2(a)(1), and decreases which occurred during a Regarding the ‘Net Emissions Increase’’’ actual emissions after the previous period that is (1989 NEI Policy Memo) at 3 (quoting 40 contemporaneous project shall be ‘‘contemporaneous’’ with the particular CFR 52.21(b)(21)(iv)). Alternatively, determined as provided in the project under review. The definition of where ‘‘allowable emissions’’ are the definition of projected actual emissions. NEI requires that ‘‘[b]aseline actual same as or less than the ‘‘potential to (iii) For the purposes of calculating emissions for calculating increases and emit’’ for an emissions unit, ‘‘allowable decreases under paragraph (1)(B) of this decreases’’ associated with a emissions’’ may be used to define the definition, actual emissions after the contemporaneous project be determined ‘‘actual emissions’’ of that unit after the contemporaneous project shall be as provided in EPA’s definition of change. Id. determined as provided in the ‘‘baseline actual emissions’’ (40 CFR Finally, with respect to a decrease in definition of actual emissions. 51.165(a)(xxxv) and 51.166(b)(47)), with actual emissions associated with a Section 12.2, subsection limited exceptions. See 40 CFR 12.2.2(ii)(1)(C)(i)–(iii).6 51.165(a)(1)(vi)(A)(2) and 5 These two provisions, which are identical, state These three provisions are 51.166(b)(3)(i)(b). as follows: In general, actual emissions as of a inconsistent with EPA regulations and particular date shall equal the average rate, in tons longstanding interpretations, for the EPA’s definition of NEI does not per year, at which the unit actually emitted the specify how the actual emissions after pollutant during a consecutive 24-month period following reasons. (i.e., resulting from) a prior which precedes the particular date and which is contemporaneous project must be representative of normal source operation. The 6 The applicable definition of ‘‘actual emissions’’ reviewing authority shall allow the use of a in this context is in subsection 12.2.2(a), which calculated. Id. Importantly, however, for different time period upon a determination that it contains language identical to EPA’s definition of purposes of determining creditable is more representative of normal source operation. ‘‘actual emissions’’ in 40 CFR 51.166(b)(21)(ii). See increases and decreases in a netting Actual emissions shall be calculated using the Section 12.2, subsection 12.2.2 (Definitions) evaluation, EPA’s definition of NEI unit’s actual operating hours, production rates, and (‘‘Unless the context otherwise requires, the types of materials processed, stored, or combusted following terms shall have the meanings set forth provides that paragraphs 40 CFR during the selected time period. [in subsection 12.2.2] for the purposes of Section 51.165(a)(1)(xii)(B) and 40 CFR 51.165(a)(1)(xii)(B), 51.166(b)(21)(ii). 12.2 * * * .’’)

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First, subsection 12.2.2(ii)(1)(C)(i) actual applicability test should be used identical language in Clark County’s states that for the purposes of only for purposes of determining definition of NEI in Section 12.3, calculating creditable increases that are whether a proposed modification results subsections 12.3.2(aa)(1)(B)(ii), (iii), and contemporaneous with a particular in a significant emissions increase (i.e., (iv). See 40 CFR 51.165(a)(1)(vi)(E) and change, ‘‘actual emissions after the step 1 of the applicability analysis) and (G). Clark County may address these contemporaneous project shall be ‘‘should not be used when determining deficiencies by adopting language determined as provided in the a source’s actual emissions on a consistent with EPA’s prohibition on definition of actual emissions’’ with particular date as may be used for other use of ‘‘actual emissions’’ as defined in limited exceptions (emphasis added), NSR-related requirements’’). As EPA 51.165(a)(1)(xii)(B) and 40 CFR but it does not prohibit use of ‘‘actual explained in April 2011, EPA revised 51.166(b)(21)(ii), so that the definitions emissions’’ as defined in subsection the PSD and NNSR rules in 2002 by of NEI in both Section 12.3 and Section 12.2.2(a)(1) (i.e., using the unit’s ‘‘actual adding provisions to implement the new 12.2 track EPA’s corresponding operating hours, production rates, and ‘‘actual-to-projected-actual’’ test for definitions in 40 CFR 51.165(a)(1)(vi) types of materials processed, stored, or certain projects in step one of the and 51.166(b)(3). Alternatively, should combusted during’’ a previous 24-month applicability analysis but left the Clark County seek to further clarify the period that is ‘‘representative of normal existing regulatory structure in place for methodology for calculating the source operation’’). This is problematic implementing step two. See letter dated emissions increases or decreases because the language defining ‘‘actual April 4, 2011, from Cheryl L. Newton, resulting from a contemporaneous emissions’’ in subsection 12.2.2(a)(1) is Director, Air and Radiation Division, project, we recommend that the County substantively identical to EPA’s EPA Region 5, to Keith Baugues, replace the three paragraphs discussed language defining ‘‘actual emissions’’ in Assistant Commissioner, Office of Air above with the following language: 40 CFR 51.166(b)(21)(ii), which as noted Quality, Indiana Department of For the purposes of calculating emissions above EPA’s definition of BAE explicitly Environmental Management (2011 NEI increases or decreases under paragraph (1)(B) prohibits source owners/operators from Letter) at 3 (citing, e.g., 40 CFR of this definition, actual emissions after the 8 using for purposes of determining 52.21(a)(2)(iv)(b)). Neither the contemporaneous project shall be equal to creditable increases and decreases in a definition of significant NEI in 40 CFR the ‘‘potential to emit’’ or ‘‘allowable netting evaluation. See 40 CFR 51.166(b)(3) nor any of the definitions emissions’’ of the project, whichever is 51.165(a)(1)(vi)(G) and 51.166(b)(3)(viii). used to calculate a significant NEI use lower. For purposes of determining ‘‘actual ‘‘projected actual emissions.’’ 2011 NEI Comment 5: With respect to the emissions’’ immediately after a Letter at 3. Nevada Division of Environmental Finally, subsection 12.2.2(ii)(1)(C)(iii) contemporaneous physical or Protection’s (NDEP) obligation to submit is substantively identical to subsection operational change, use of this NSR SIP revisions meeting the 12.2.2(ii)(1)(C)(i), except that it applies definition of ‘‘actual emissions’’ is not applicable requirements of subpart 2 of to calculating emission decreases appropriate because there is no relevant part D, title I of the Act, for the portion data regarding operating hours, instead of increases associated with a contemporaneous change. This of Clark County that is designated and production rates, and types of materials classified as ‘‘marginal’’ nonattainment processed, stored, or combusted. Rather, provision is problematic because it calls for the use of ‘‘actual emissions’’ as for the 1997 8-hour ozone standard, ‘‘actual emissions’’ in this context must NDEP expressed concern about EPA’s be equal to the new or modified unit’s defined in 40 CFR 51.166(b)(21)(ii) for purposes of calculating creditable suggestion that the State could address ‘‘potential to emit’’ (PTE) or ‘‘allowable the regulatory gap by submitting a emissions,’’ where allowable emissions decreases in a netting analysis, which as discussed above is inconsistent with revised rule extending the existing are the same as or less than PTE. See 40 construction prohibition in NAC section CFR 51.166(b)(21)(iv) and 1989 NEI EPA’s definition of NEI. See 40 CFR 51.166(b)(3)(viii). The use of ‘‘actual 445B.22083 to cover the entire Clark Policy Memo at 3. County ozone nonattainment area. Second, subsection 12.2.2(ii)(1)(C)(ii) emissions’’ as defined in section NDEP stated that such an expansion of states that ‘‘if the Control Officer 51.166(b)(21)(ii) for this purpose also the existing construction prohibition is determines that there is no sufficiently conflicts with EPA’s criteria in 40 CFR not a viable option given current representative time period of actual 51.166(b)(3)(vi) for crediting emission economic conditions and stated that emissions after a contemporaneous decreases associated with a there are ‘‘two equally obvious and project, pursuant to Section 12.2.2(a)(1), contemporaneous change, because such significantly less harmful options’’ for actual emissions after the ‘‘actual emissions’’ generally are not addressing this requirement. contemporaneous project shall be enforceable as a practical matter. First, NDEP emphasized that EPA has determined as provided in the For all of these reasons, we are made a clean data finding for the 1997 definition of projected actual disapproving subsections 8-hour ozone nonattainment area within emissions.’’ 7 As discussed above, for 12.2.2(ii)(1)(C)(i), (ii), and (iii) in Clark Clark County and that the State is purposes of a netting analysis, EPA County’s definition of NEI, because awaiting EPA action on Clark County’s regulations require that the ‘‘actual these provisions are inconsistent with redesignation request and maintenance emissions’’ following a EPA’s definition of NEI in 40 CFR plan for this standard. Both NDEP and contemporaneous change be calculated 51.166(b)(3) and relevant policy. For the Clark County urged EPA to take action based on PTE or ‘‘allowable emissions,’’ same reasons, we are also disapproving soon on this redesignation request and not projected actual emissions. 40 CFR 8 EPA purposefully did not extend the actual-to- maintenance plan. 51.165(a)(1)(xii)(C), (D) and projected-actual test to the netting evaluation in Second, NDEP stated that it has 51.166(b)(21)(iii), (iv); see also 67 FR step two of the applicability test, because the nonattainment provisions in its SIP and 80186, 80191 (December 31, 2002) Agency believed it was ‘‘appropriate [for] projects that NDEP ‘‘is not required to adopt a (noting that the actual-to-projected that will result in a significant emissions increase under step one of the process, and, thus, are more program if it has adequate, equivalent- likely to adversely impact air quality, to undergo a performing regulatory provisions.’’ 7 We assume that Clark County intended here to more conservative examination using the actual-to- reference the definition of ‘‘projected actual potential methodology under step two of the NDEP stated that EPA has not provided emissions’’ in subsection 12.2.2(nn) of Section 12.2. analysis.’’ 2011 NEI Letter at 3. specific guidance on the NSR

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deficiencies but that NDEP is currently NDEP in evaluating the relevant SIP emissions,’’ ‘‘baseline actual reviewing its nonattainment provisions. provisions to determine whether they emissions,’’ ‘‘net emissions increase,’’ EPA Response: As an initial matter, adequately address the State’s current ‘‘major modification,’’ and ‘‘regulated we note that comments regarding NSR obligations with respect to NSR pollutant’’ that are not entirely NDEP’s NSR obligations with respect to stationary sources under NDEP consistent with EPA’s definitions in 40 stationary sources under its jurisdiction jurisdiction for the 1997 8-hour ozone CFR 51.166; (2) a provision governing within the Clark County ozone NAAQS in Clark County. adjustment of PALs to incorporate nonattainment area are outside the requirements that become effective III. Final Action scope of today’s action on Clark during the term of a PAL that is not County’s NSR SIP submission. Our For the reasons provided in our entirely consistent with EPA’s proposed rule identified this issue not proposed rule and above in response to requirements; and (3) the absence of as a current program deficiency but comments, pursuant to sections 110(k) provisions to ensure that approval of rather as a courtesy to remind the State and 301(a) of the Clean Air Act, EPA is any construction or modification must of upcoming NSR obligations for the finalizing a limited approval and not affect the responsibility of the owner 1997 8-hour ozone standard. Given our limited disapproval of new and or operator to comply with applicable proposed action on Clark County’s NSR amended regulations that govern portions of the control strategy. SIP submission highlighted this applications for, and issuance of, Finally, our limited disapproval of the upcoming obligation on NDEP’s part, permits for stationary sources under the nonattainment NSR program in Section however, we respond below to the jurisdiction of the Clark County 12.3 is based on the following State’s and Clark County’s comments on Department of Air Quality. Specifically, deficiencies: (1) Provisions governing this issue. EPA is finalizing a limited approval and offsets and calculation of emission EPA appreciates NDEP’s concerns limited disapproval of the new and reduction credits that do not ensure the about expanding the existing amended regulations listed in table 1 integrity of offset calculations and that construction prohibition in NAC section above as a revision to Clark County reference a separate rule that is not SIP- 445B.22083 and agrees that several portion of the Nevada SIP. approved (Section 12.7) for important other options are available to address EPA is taking this action because, criteria governing these calculations; (2) the State’s NSR obligations with respect although we find that the new and definitions for the terms ‘‘net emissions to ozone precursor emissions from fossil amended rules meet most of the increase,’’ ‘‘major modification,’’ and fuel-fired steam-powered power plants applicable requirements for such NSR ‘‘regulated NSR pollutant’’ that are not within Clark County. First, as both programs and that the SIP revisions entirely consistent with EPA’s NDEP and Clark County correctly note, improve the existing SIP, we have also definitions in 40 CFR 51.165; (3) in April 2011 the State submitted a found certain deficiencies that prevent provisions governing interpollutant redesignation request and maintenance full approval. trades that do not satisfy EPA’s criteria plan for the 1997 8-hour ozone Specifically, our limited disapproval for approval of such trades; (4) the standard, which became complete by of the minor NSR permit program in absence of provisions to ensure that the operation of law in October 2011. EPA Section 12.1 is based on the following air quality impacts of stationary sources is currently reviewing this submission deficiencies: (1) The absence of a means are not underestimated due to stack and commits to work with both agencies for determining whether the heights that exceed good engineering to address the State’s request for construction or modification of a practice or unacceptable air dispersion redesignation to attainment. As NDEP stationary source will result in a modeling techniques; and (5) the correctly notes, EPA determined based violation of applicable portions of the absence of provisions to ensure that on ambient air monitoring data that the control strategy or interference with approval of any construction or ozone nonattainment area within Clark attainment or maintenance of the 2006 modification must not affect the County has attained the 1997 8-hour 24-hour PM2.5 NAAQS and the 2008 responsibility of the owner or operator ozone NAAQS (76 FR 17343, March 29, Lead NAAQS; (2) inappropriate to comply with applicable portions of 2011), which is a prerequisite to language regarding federal the control strategy. redesignation to attainment under enforceability of permits issued under The intended effect of this limited section 107(d)(3)(E) of the CAA. A final Section 12.1; (3) the absence of approval and limited disapproval action rule redesignating the Clark County provisions to ensure that approval of is to update the applicable state ozone nonattainment area to attainment any construction or modification must implementation plan with current State for the 1997 8-hour ozone NAAQS not affect the responsibility of the owner rules for permitting of stationary consistent with section 107(d)(3)(E) of or operator to comply with applicable sources,9 and to set the stage for the CAA would eliminate the State’s portions of the control strategy; (4) remedying deficiencies in these NSR obligations for purposes of the inappropriate exemptions for sources permitting rules. With respect to those 1997 8-hour ozone NAAQS. identified in a separate rule that is not deficiencies that relate to the Second, with respect to NDEP’s SIP-approved (Section 12.5); (5) the nonattainment NSR requirements of part statement that the existing Nevada SIP absence of applicability provisions that D, title I of the Act, mandatory sanctions contains nonattainment provisions and cover sources of PM2.5 or PM2.5 will apply to the Clark County that NDEP is not required to adopt an precursor emissions; and (6) the absence nonattainment area under section 179 of NSR program if it has adequate, of provisions to ensure that the air the Clean Air Act unless Nevada equivalent regulatory provisions, we are quality impacts of stationary sources are submits, and EPA approves, SIP aware of several nonattainment NSR not underestimated due to stack heights revisions correcting the deficiencies provisions in the existing Nevada SIP, that exceed good engineering practice or within 18 months of the effective date including certain provisions in Article unacceptable air dispersion modeling of this final rule. See 40 CFR 52.31. In 13 of the Nevada Air Quality techniques. addition, this limited disapproval action Regulations (‘‘Point Sources’’) and in Our limited disapproval of the PSD the Utility Environmental Protection permit program in Section 12.2 is based 9 Final approval of the rules in table 1 supersedes Act in title 58 of the Nevada Revised on the following deficiencies: (1) the rules listed in table 2, above, in the existing Statutes. We stand ready to work with Definitions for the terms ‘‘allowable Nevada SIP.

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triggers an obligation on EPA to (‘‘Unfunded Mandates Act’’), signed State and local officials early in the promulgate a Federal Implementation into law on March 22, 1995, EPA must process of developing the proposed Plan addressing the deficient SIP prepare a budgetary impact statement to regulation. elements unless Nevada submits, and accompany any proposed or final rule This rule will not have substantial EPA approves, SIP revisions correcting that includes a Federal mandate that direct effects on the States, on the the deficiencies within two years of the may result in estimated costs to State, relationship between the national effective date of this final rule. We stand local, or tribal governments in the government and the States, or on the ready to work with Clark County to aggregate; or to the private sector, of distribution of power and ensure that its upcoming rulemaking $100 million or more. Under section responsibilities among the various processes result in permit programs that 205, EPA must select the most cost- levels of government, as specified in fully satisfy CAA requirements. effective and least burdensome Executive Order 13132, because it alternative that achieves the objectives merely takes a limited approval/limited IV. Statutory and Executive Order of the rule and is consistent with disapproval action on State rules Reviews statutory requirements. Section 203 implementing a Federal standard, and A. Executive Order 12988, Regulatory requires EPA to establish a plan for does not alter the relationship or the Planning and Review informing and advising any small distribution of power and The Office of Management and Budget governments that may be significantly responsibilities established in the Clean (OMB) has exempted this regulatory or uniquely impacted by the rule. Air Act. Thus, the requirements of action from Executive Order 128665, EPA has determined that this limited section 6 of the Executive Order do not entitled ‘‘Regulatory Planning and approval/limited disapproval action apply to this rule. Review.’’ does not include a Federal mandate that may result in estimated costs of $100 F. Executive Order 13175, Coordination B. Paperwork Reduction Act million or more to either State, local, or With Indian Tribal Governments This action does not impose an tribal governments in the aggregate, or Executive Order 13175, entitled information collection burden under the to the private sector. This Federal action ‘‘Consultation and Coordination with provisions of the Paperwork Reduction takes a limited approval/limited Indian Tribal Governments’’ (65 FR Act, 44 U.S.C. 3501 et seq. Burden is disapproval action on pre-existing 67249, November 9, 2000), requires EPA defined at 5 CFR 1320.3(b). requirements under State or local law, to develop an accountable process to and imposes no new requirements. ensure ‘‘meaningful and timely input by C. Regulatory Reduction Act Accordingly, no additional costs to tribal officials in the development of The Regulatory Flexibility Act (RFA) State, local, or tribal governments, or to regulatory policies that have tribal generally requires an agency to conduct the private sector, result from this implications.’’ This rule does not have a regulatory flexibility analysis of any action. tribal implications, as specified in Executive Order 13175. It will not have rule subject to notice and comment E. Executive Order 13132, Federalism rulemaking requirements unless the substantial direct effects on tribal agency certifies that the rule will not Federalism (64 FR 43255, August 10, governments, on the relationship have a significant economic impact on 1999) revokes and replaces Executive between the Federal government and a substantial number of small entities. Orders 12612 (Federalism) and 12875 Indian tribes, or on the distribution of Small entities include small businesses, (Enhancing the Intergovernmental power and responsibilities between the small not-for-profit enterprises, and Partnership). Executive Order 13132 Federal government and Indian tribes. small governmental jurisdictions. requires EPA to develop an accountable Thus, Executive Order 13175 does not This rule will not have a significant process to ensure ‘‘meaningful and apply to this rule. impact on a substantial number of small timely input by State and local officials entities because SIP approvals or in the development of regulatory G. Executive Order 13045, Protection of disapprovals under section 110 of the policies that have federalism Children From Environmental Health Clean Air Act do not create any new implications.’’ ‘‘Policies that have Risks and Safety Risks requirements but simply approve or federalism implications’’ is defined in EPA interprets Executive Order 13045 disapprove requirements that the State the Executive Order to include (62 FR 19885, April 23, 1997) as is already imposing. Therefore, because regulations that have ‘‘substantial direct applying only to those regulatory this limited approval/limited effects on the States, on the relationship actions that concern health or safety disapproval action does not create any between the national government and risks, such that the analysis required new requirements, I certify that this the States, or on the distribution of under section 5–501 of the Executive action will not have a significant power and responsibilities among the Order has the potential to influence the economic impact on a substantial various levels of government.’’ Under regulation. This rule is not subject to number of small entities. Moreover, due Executive Order 13132, EPA may not Executive Order 13045, because it takes to the nature of the Federal-State issue a regulation that has federalism a limited approval/limited disapproval relationship under the Clean Air Act, implications, that imposes substantial action on State rules implementing a preparation of flexibility analysis would direct compliance costs, and that is not Federal standard. constitute Federal inquiry into the required by statute, unless the Federal H. Executive Order 13211, Actions That economic reasonableness of State government provides the funds Significantly Affect Energy Supply, action. The Clean Air Act forbids EPA necessary to pay the direct compliance Distribution, or Use to base its actions concerning SIPs on costs incurred by State and local such grounds. Union Electric Co., v. governments, or EPA consults with This rule is not subject to Executive U.S. EPA, 427 U.S. 246, 255–66 (1976); State and local officials early in the Order 13211, ‘‘Actions Concerning 42 U.S.C. 7410(a)(2). process of developing the proposed Regulations That Significantly Affect regulation. EPA also may not issue a Energy Supply, Distribution, or Use’’ (66 D. Unfunded Mandates Reform Act regulation that has federalism FR 28355, May 22, 2001) because it is Under section 202 of the Unfunded implications and that preempts State not a significant regulatory action under Mandates Reform Act of 1995 law unless the Agency consults with Executive Order 12866.

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I. National Technology Transfer and of itself create any new requirements. List of Subjects in 40 CFR Part 52 Advancement Act Accordingly, it does not provide EPA Environmental protection, Air with the discretionary authority to Section 12 of the National Technology pollution control, Incorporation by address, as appropriate, Transfer and Advancement Act reference, Intergovernmental relations, disproportionate human health or (NTTAA) of 1995 requires Federal Ozone, Volatile organic compounds, environmental effects, using practicable agencies to evaluate existing technical Nitrogen dioxide, Sulfur oxides, and legally permissible methods, under standards when developing a new Particulate matter, Lead, Reporting and Executive Order 12898. regulation. To comply with NTTAA, recordkeeping requirements. EPA must consider and use ‘‘voluntary K. Congressional Review Act Dated: September 28, 2012. consensus standards’’ (VCS) if available and applicable when developing The Congressional Review Act, 5 Jared Blumenfeld, programs and policies unless doing so U.S.C. 801 et seq., as added by the Small Regional Administrator, Region IX. would be inconsistent with applicable Business Regulatory Enforcement 40 CFR Part 52 is amended as follows: law or otherwise impractical. Fairness Act of 1996, generally provides EPA believes that VCS are that before a rule may take effect, the PART 52—[APPROVAL AND inapplicable to this action. Today’s agency promulgating the rule must PROMULGATION OF action does not require the public to submit a rule report, which includes a IMPLEMENTATION PLANS] perform activities conducive to the use copy of the rule, to each House of the of VCS. Congress and to the Comptroller General ■ 1. The authority citation for part 52 of the United States. EPA will submit a continues to read as follows: J. Executive Order 12898: Federal report containing this rule and other Authority: 42 U.S.C. 7401 et seq. Actions To Address Environmental required information to the U.S. Senate, Justice in Minority Populations and the U.S. House of Representatives, and Subpart DD—Nevada Low-Income Population the Comptroller General of the United Executive Order (EO) 12898 (59 FR States prior to publication of the rule in ■ 2. In § 52.1470 in paragraph (c), Table 7629 (Feb. 16, 1994)) establishes federal the Federal Register. A major rule 3 is amended by: executive policy on environmental cannot take effect until 60 days after it ■ a. Revising the entry for ‘‘Section 0.’’ justice. Its main provision directs is published in the Federal Register. ■ b. Adding in numerical order entries federal agencies, to the greatest extent This action is not a ‘‘major rule’’ as for ‘‘Section 12.0,’’ ‘‘Section 12.1,’’ practicable and permitted by law, to defined by 5 U.S.C. 804(2). ‘‘Section 12.2,’’ ‘‘Section 12.3,’’ and make environmental justice part of their L. Petitions for Judicial Review ‘‘Section 12.4.’’ mission by identifying and addressing, ■ c. Removing the entries for ‘‘Section 1 as appropriate, disproportionately high Under section 307(b)(1) of the Clean (‘‘Definitions’’): Subsection 1.3,’’ and adverse human health or Air Act, petitions for judicial review of ‘‘Section 1 (‘‘Definitions’’): Subsection environmental effects of their programs, this action must be filed in the United 1.50,’’ ‘‘Section 1 (‘‘Definitions’’): policies, and activities on minority States Court of Appeals for the Subsection 1.78,’’ ‘‘Section 1 populations and low-income appropriate circuit by December 17, (‘‘Definitions’’): [unnumbered],’’ populations in the United States. 2012. Filing a petition for ‘‘Section 1 (‘‘Definitions’’): Subsection EPA lacks the discretionary authority reconsideration by the Administrator of 1.85,’’ ‘‘Section 1 (‘‘Definitions’’): to address environmental justice in this this final rule does not affect the finality Subsection 1.89,’’ ‘‘Section 12 rulemaking. In reviewing SIP of this rule for the purposes of judicial (excluding subsections 12.2.18 and submissions, EPA’s role is to approve or review nor does it extend the time 12.2.20),’’ ‘‘Section 16: Subsections disapprove state choices, based on the within which a petition for judicial 16.1–16.9,’’ ‘‘Section 58’’ and ‘‘Section criteria of the Clean Air Act. review may be filed, and shall not 59 [excluding subsection 59.2 (‘‘Local Accordingly, this action merely takes a postpone the effectiveness of such rule Offset Requirements’’]’’. limited approval/limited disapproval or action. This action may not be action on certain State requirements for challenged later in proceedings to § 52.1470 Identification of plan. inclusion into the SIP under section 110 enforce its requirements (see section * * * * * of the Clean Air Act and will not in-and- 307(b)(2)). (c) * * *

TABLE 3—EPA-APPROVED CLARK COUNTY REGULATIONS

County County citation Title/subject effective EPA approval date Additional explanation date

Section 0 ...... Definitions ...... 5/18/10 [Insert Federal Register page number Submitted on 5/22/12. where the document begins], 10/18/ 12.

******* Section 12.0...... Applicability, General Requirements 11/3/09 [Insert Federal Register page number Submitted on 2/11/10. and Transition Procedures. where the document begins], 10/18/ 12. Section 12.1...... Permit Requirements for Minor 11/3/09 [Insert Federal Register page number Submitted on 2/11/10. Sources. where the document begins], 10/18/ 12. Section 12.2...... Permit Requirements for Major 3/6/12 [Insert Federal Register page number 5/22/12. Sources in Attainment Areas (Pre- where the document begins], 10/18/ vention of Significant Deterioration). 12.

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TABLE 3—EPA-APPROVED CLARK COUNTY REGULATIONS—Continued

County County citation Title/subject effective EPA approval date Additional explanation date

Section 12.3...... Permit Requirements for Major 5/18/10 [Insert Federal Register page number Submitted on 9/01/10. Sources in Nonattainment Areas. where the document begins], 10/18/ 12. Section 12.4 ...... Authority to Construct Application and 5/18/10 [Insert Federal Register page number Submitted on 9/01/10. Permit Requirements For Part 70 where the document begins], 10/18/ Sources. 12.

*******

* * * * * responsibility for regulating the HHG includes any carrier or broker having [FR Doc. 2012–25545 Filed 10–17–12; 8:45 am] industry in 1996 from the Interstate the same ownership or operational BILLING CODE 6560–50–P Commerce Commission (ICC). Congress control as the suspended carrier or terminated the ICC in the ICC broker. Termination Act of 1995 (Pub. L. 104– FMCSA may suspend a carrier’s or DEPARTMENT OF TRANSPORTATION 88, 109 Stat. 803). Consequently, DOT broker’s registration upon a inherited the responsibility of handling determination by FMCSA that the Federal Motor Carrier Safety consumer complaints regarding carrier or broker knowingly and Administration deceptive business practices and willfully failed, in violation of a hostage shipments. In 2000, FMCSA contract, to deliver or unload at the 49 CFR Parts 365, 371, and 375 was delegated the responsibility for destination of a shipment of HHG for which charges have been estimated and [Docket No. FMCSA–2012–0322] enforcement of HHG consumer protection in the Motor Carrier Safety for which payment has been tendered. FMCSA Policy on the Suspension of Improvement Act of 1999 (MCSIA), Pursuant to 49 U.S.C. 13707(b)(3)(A), Operating Authority for Hostage Load Public Law 106–159, 113 Stat. 1748. payment is tendered when a shipper Violations However, FMCSA lacked the authority pays: (1) 100 percent of the charges to fully address brokers and motor contained in a binding estimate AGENCY: Federal Motor Carrier Safety carriers engaged in the practice of provided by the carrier; (2) not more Administration (FMCSA), DOT. holding HHG shipments hostage in than 110 percent of the charges ACTION: Notice of enforcement policy. violation of a contract. Congress contained in a nonbinding estimate responded by including the ‘‘Household provided by the carrier; (3) or in the SUMMARY: FMCSA provides notice of the Goods Movers Oversight Enforcement case of a partial delivery of the Agency’s new policy concerning and Reform Act of 2005’’ in the Safe, shipment, the prorated percentage of the enforcement of its household goods Accountable, Flexible, Efficient charges. (HHG) motor carrier and broker Transportation Equity Act: A Legacy for FMCSA will take action to suspend a regulations. FMCSA may take Users (SAFETEA–LU). In SAFETEA– carrier’s or broker’s registration for enforcement action when a HHG motor LU, Congress specifically addressed hostage load violations in accordance carrier or broker knowingly and (codified at 49 U.S.C. 14915) the with the procedures in 49 U.S.C. 13905. willfully fails, in violation of a contract, problem of persons, including, but not FMCSA may determine that a hostage to deliver or unload at the destination limited to, brokers and motor carriers, load violation has occurred based on the a shipment of HHG for which charges who hold HHG shipments hostage. The results of an investigation, an Agency determination as stated in a final order, have been estimated and for which statute defines a hostage shipment, or admission by the motor carrier or payment has been tendered. A motor establishes civil and criminal penalties, broker. FMCSA initiates a proceeding to carrier or broker found holding a HHG and permits the suspension of the suspend the carrier’s or broker’s shipment hostage may be subject to operating authority registration of a registration by issuing an order to the suspension of registration for a period of motor carrier or broker from 12 to 36 carrier or broker to show good cause not less than 12 months to not more months when it holds a shipment why the registration should not be than 36 months. hostage. DATES: This decision is effective October suspended in accordance with 49 U.S.C. 18, 2012. Policy 13905. The order provides notice of the alleged violation, explains how to FOR FURTHER INFORMATION CONTACT: Pursuant to 49 U.S.C. 14915, any submit a written response with Brodie Mack, Jr., Commercial person, including a motor carrier or supporting documentation, and informs Enforcement and Investigations broker, that holds a HHG shipment the registered entity that failure to Division, Federal Motor Carrier Safety hostage is subject to a $10,000 civil respond and demonstrate good cause Administration, 1200 New Jersey penalty for each violation. Each day the will result in suspension of its Avenue SE., Washington, DC 20590, goods are held hostage may constitute a registration. (202) 366–8045; email separate violation. In addition with the The Agency Official who issued the [email protected]. publication of this policy statement order reviews the registered entity’s SUPPLEMENTARY INFORMATION: FMCSA may suspend a broker or motor response. After reviewing the response, carrier’s registration for a period of not the Agency Official issues a written Background less than 12 months or more than 36 decision and may take one of three The U.S. Department of months. The suspension of a carrier’s or actions. First, he or she may enter an Transportation (DOT) assumed broker’s registration extends to and order suspending the entity’s

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registration, if the registered entity DEPARTMENT OF TRANSPORTATION Need for Correction failed to show good cause why its registration should not be suspended. National Highway Traffic Safety As published, the final regulations Second, the Agency Official may enter Administration inadvertently misprinted one of the an order directing the registered entity values for ‘‘VMTu,’’ which represents to come into compliance, if the Agency 49 CFR Part 536 lifetime vehicle miles traveled for the Official determines that corrective model year and compliance category in action is more appropriate than [NHTSA–2010–0131; EPA–HQ–OAR–2010– which a traded or transferred credit is suspension. The compliance order 0799; FRL–9706–5] used for compliance in 49 CFR part 536. informs the carrier or broker that willful The value printed for passenger cars in failure to comply may result in RIN 2127–AK79; RIN 2060–AQ54 model year 2011 was ‘‘152,922,’’ when suspension or revocation of registration. the value intended to be printed, Third, the Agency Official may 2017 and Later Model Year Light-Duty consistent with prior rulemakings, is determine that suspension is not Vehicle Greenhouse Gas Emissions ‘‘150,922.’’ To correct the mistake, appropriate and enter an order and Corporate Average Fuel Economy NHTSA is replacing the value in the terminating the proceeding. This Standards table to alleviate any confusion. mirrors the procedure the Agency follows when taking action under 49 AGENCY: National Highway Traffic List of Subjects in 49 CFR Part 536 U.S.C. 13905 to suspend, amend or Safety Administration (NHTSA), revoke operating authority registration Department of Transportation (DOT). Fuel economy, Reporting and generally, for non-HHG motor carriers as ACTION: Correcting amendment. recordkeeping requirements. well as HHG carriers. See 77 FR 46147, Accordingly, 49 CFR part 536 is 46149 (Aug. 2, 2012). SUMMARY: This document contains corrected by making the following In determining whether to initiate a corrections to the final rule regulation registration suspension for hostage load which was published in the Federal correcting amendments: Register of Monday, October 15, 2012 violations FMCSA generally considers a PART 536—TRANSFER AND TRADING motor carrier’s six-year compliance (77 FR 62624). The final rule established OF FUEL ECONOMY CREDITS history. The six-year period is fuel economy standards for light-duty consistent with FMCSA’s penalty vehicles under the Energy Policy and assessment policies regarding ‘‘history Conservation Act (EPCA), as amended ■ 1. The authority citation for part 536 of prior offenses’’ under 49 U.S.C. by the Energy Independence and continues to read as follows: 521(b)(2)(D) and ‘‘pattern of violations’’ Security Act (EISA), 49 U.S.C. 32901 et Authority: 49 U.S.C. 32903, delegation of warranting assessment of maximum seq. authority at 49 CFR 1.50. civil penalties under section 222 of DATES: Effective Date: This correcting ■ 2. Revise § 536.4(c) to read as follows: MCSIA, see 69 FR 77828 (Dec. 28, 2004) amendment is effective on December 14, and 74 FR 14184 (Mar. 30, 2009), and 2012. § 536.4 Credits. its determinations under 49 U.S.C. FOR FURTHER INFORMATION CONTACT: * * * * * 13902 and 13905 on willingness and Rebecca Yoon, Office of Chief Counsel, ability to comply with applicable National Highway Traffic Safety (c) Adjustment factor. When traded or regulations. See 77 FR 46147, 46144– Administration, 1200 New Jersey transferred and used, fuel economy 46149 (Aug. 2, 2012). Accordingly, Avenue SE., Washington, DC 20590. credits are adjusted to ensure fuel oil FMCSA may suspend the registration of Telephone: (202) 366–2992. savings is preserved. For traded credits, a carrier or broker found holding a the user (or buyer) must multiply the SUPPLEMENTARY INFORMATION: shipment hostage for a first time for no calculated adjustment factor by the less than 12 months pursuant to 49 Background number of its shortfall credits it plans to U.S.C. 14915. If a carrier or broker offset in order to determine the number commits a second hostage load violation NHTSA and EPA published in the Federal Register of October 15, 2012, of equivalent credits to acquire from the within 6 years of the first violation, earner (or seller). For transferred credits, FMCSA may suspend its registration for final rules to establish coordinated the user of credits must multiply the 24 months. If a carrier or broker standards to improve fuel economy and calculated adjustment factor by the commits a third violation within 6 years reduce greenhouse gas emissions for of the first violation, FMCSA may vehicles manufactured for sale in the number of its shortfall credits it plans to suspend its registration for 36 months. United States in model years 2017 and offset in order to determine the number beyond. The final rules, consistent with of equivalent credits to transfer from the Issued on: September 18, 2012. President Obama’s directive to the compliance category holding the William A. Bronrott, agencies on May 21, 2010, respond to available credits. The adjustment factor Deputy Administrator. the country’s critical need to reduce oil is calculated according to the following [FR Doc. 2012–25678 Filed 10–17–12; 8:45 am] consumption and address global climate formula: BILLING CODE 4910–EX–P change.

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Where: VMTe = Lifetime vehicle miles traveled as VMTu = Lifetime vehicle miles traveled as A = Adjustment factor applied to traded and provided in the following table for the provided in the following table for the transferred credits. model year and compliance category in model year and compliance category in which the credit was earned; which the credit is used for compliance;

Lifetime vehicle miles traveled (VMT) Model year 2011 2012 2013 2014 2015 2016 2017–2025

Passenger Cars...... 150,922 177,238 177,366 178,652 180,497 182,134 195,264 Light Trucks...... 172,552 208,471 208,537 209,974 212,040 213,954 225,865

MPGse = Required fuel economy standard for MPGsu = Required fuel economy standard for model year in which the credit is used the originating (earning) manufacturer, the user (buying) manufacturer, for compliance. compliance category, and model year in compliance category, and model year in Daniel C. Smith, which the credit was earned; which the credit is used for compliance; Senior Associate Administrator for Vehicle MPGae = Actual fuel economy for the and originating manufacturer, compliance Safety, National Highway Traffic Safety MPG = Actual fuel economy for the user category, and model year in which the au Administration, Department of manufacturer, compliance category, and credit was earned; Transportation. [FR Doc. 2012–25641 Filed 10–17–12; 8:45 a.m.] BILLING CODE 4910–59–P

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Proposed Rules Federal Register Vol. 77, No. 202

Thursday, October 18, 2012

This section of the FEDERAL REGISTER W12–140, 1200 New Jersey Avenue SE., consider all comments received by the contains notices to the public of the proposed Washington, DC 20590. closing date and may amend this issuance of rules and regulations. The • Hand Delivery: U.S. Department of proposed AD based on those comments. purpose of these notices is to give interested Transportation, Docket Operations, M– We will post all comments we persons an opportunity to participate in the 30, West Building Ground Floor, Room receive, without change, to http:// rule making prior to the adoption of the final rules. W12–140, 1200 New Jersey Avenue SE., www.regulations.gov, including any Washington, DC, between 9 a.m. and 5 personal information you provide. We p.m., Monday through Friday, except will also post a report summarizing each DEPARTMENT OF TRANSPORTATION Federal holidays. substantive verbal contact we receive For service information identified in about this proposed AD. Federal Aviation Administration this proposed AD, contact EADS–CASA, Discussion Military Transport Aircraft Division 14 CFR Part 39 (MTAD), Integrated Customer Services The European Aviation Safety Agency (ICS), Technical Services, Avenida de (EASA), which is the Technical Agent [Docket No. FAA–2012–1102; Directorate Arago´n 404, 28022 Madrid, Spain; for the Member States of the European Identifier 2012–NM–062–AD] telephone +34 91 585 55 84; fax +34 91 Community, has issued EASA RIN 2120–AA64 585 55 05; email Airworthiness Directive 2012–0045, [email protected]; dated March 21, 2012 (referred to after Airworthiness Directives; EADS CASA Internet http://www.eads.net. You may this as ‘‘the MCAI’’), to correct an unsafe (Type Certificate Previously Held by review copies of the referenced service condition for the specified products. Construcciones Aerona´uticas, S.A.) information at the FAA, Transport The MCAI states: Airplanes Airplane Directorate, 1601 Lind Avenue Reports have been received of finding SW., Renton, WA. For information on wrong electrical polarity connections of AGENCY: Federal Aviation the availability of this material at the engine fire extinguishing discharge cartridges Administration (FAA), DOT. FAA, call 425–227–1221. on CASA CN–235 aeroplanes. The results of ACTION: Notice of proposed rulemaking the subsequent investigation showed that the Examining the AD Docket (NPRM). incorrect discharge cartridge assembly was You may examine the AD docket on caused by production line errors. SUMMARY: We propose to adopt a new the Internet at http:// This condition, if not detected and airworthiness directive (AD) for all www.regulations.gov; or in person at the corrected, could prevent the actuation of the EADS CASA (Type Certificate discharge cartridge in case of automatic fire Docket Operations office between 9 a.m. detection or manual initiation in case of Previously Held by Construcciones and 5 p.m., Monday through Friday, engine fire, possibly resulting in damage to Aerona´uticas, S.A.) Model CN–235, CN– except Federal holidays. The AD docket the aeroplane and injury to occupants. 235–100, CN–235–200, and CN–235– contains this proposed AD, the To address this potential unsafe condition, 300 airplanes. This proposed AD was regulatory evaluation, any comments EADS CASA (Airbus Military) developed prompted by reports of incorrect received, and other information. The instructions to identify erroneous wiring electrical polarity connections on street address for the Docket Operations polarity installation. engine fire extinguishing discharge office (telephone (800) 647–5527) is in For the reasons described above this [EASA] AD requires a one-time inspection to cartridges. This proposed AD would the ADDRESSES section. Comments will require a one-time inspection to identify verify proper electrical polarity of wiring of be available in the AD docket shortly each engine fire extinguisher discharge the correct polarity for each pair of after receipt. cartridge and, depending on findings, electrical connectors on each engine fire FOR FURTHER INFORMATION CONTACT: corrective action [accomplish the repair]. extinguisher cartridge, and repair if Shahram Daneshmandi, Aerospace necessary. We are proposing this AD to You may obtain further information by Engineer, International Branch, ANM– examining the MCAI in the AD docket. detect and correct incorrect polarity 116, Transport Airplane Directorate, connections, which could prevent the FAA, 1601 Lind Avenue SW., Renton, Relevant Service Information actuation of the discharge cartridge in WA 98057–3356; telephone (425) 227– EADS CASA has issued Airbus case of automatic fire detection or 1112; fax (425) 227–1149. Military All Operator Letter 235–020, manual initiation during a potential SUPPLEMENTARY INFORMATION: dated March 9, 2012. The actions engine fire, and could result in damage described in this service information are to the airplane and injury to passengers. Comments Invited intended to correct the unsafe condition DATES: We must receive comments on We invite you to send any written identified in the MCAI. this proposed AD by December 3, 2012. relevant data, views, or arguments about ADDRESSES: You may send comments by this proposed AD. Send your comments FAA’s Determination and Requirements any of the following methods: to an address listed under the of This Proposed AD • Federal eRulemaking Portal: Go to ADDRESSES section. Include ‘‘Docket No. This product has been approved by http://www.regulations.gov. Follow the FAA–2012–1102; Directorate Identifier the aviation authority of another instructions for submitting comments. 2012–NM–062–AD’’ at the beginning of country, and is approved for operation • Fax: (202) 493–2251. your comments. We specifically invite in the United States. Pursuant to our • Mail: U.S. Department of comments on the overall regulatory, bilateral agreement with the State of Transportation, Docket Operations, M– economic, environmental, and energy Design Authority, we have been notified 30, West Building Ground Floor, Room aspects of this proposed AD. We will of the unsafe condition described in the

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MCAI and service information 3. Will not affect intrastate aviation in compliance times specified, unless the referenced above. We are proposing this Alaska; and actions have already been done. AD because we evaluated all pertinent 4. Will not have a significant (g) Inspection information and determined an unsafe economic impact, positive or negative, Within 30 days after the effective date of condition exists and is likely to exist or on a substantial number of small entities this AD, do a one-time inspection to identify develop on other products of the same under the criteria of the Regulatory the correct polarity for each pair of electrical type design. Flexibility Act. connectors on each engine fire extinguisher We prepared a regulatory evaluation cartridge, in accordance with the Instructions Costs of Compliance of the estimated costs to comply with of Airbus Military All Operator Letter 235– Based on the service information, we this proposed AD and placed it in the 020, dated March 9, 2012. estimate that this proposed AD would AD docket. (h) Corrective Action affect about 6 products of U.S. registry. List of Subjects in 14 CFR Part 39 If, during the inspection required by We also estimate that it would take paragraph (g) of this AD, erroneous wiring about 4 work-hours per product to Air transportation, Aircraft, Aviation polarity is detected: Before further flight, comply with the basic requirements of safety, Incorporation by reference, repair in accordance with a method approved this proposed AD. The average labor Safety. by the Manager, International Branch, ANM– rate is $85 per work-hour. Based on 116, Transport Airplane Directorate, FAA; or The Proposed Amendment these figures, we estimate the cost of the European Aviation Safety Agency (EASA) (or proposed AD on U.S. operators to be Accordingly, under the authority its delegated agent). $2,040, or $340 per product. delegated to me by the Administrator, (i) Other FAA AD Provisions We have received no definitive data the FAA proposes to amend 14 CFR part The following provisions also apply to this that would enable us to provide cost 39 as follows: AD: estimates for the on-condition actions (1) Alternative Methods of Compliance specified in this proposed AD. PART 39—AIRWORTHINESS (AMOCs): The Manager, International DIRECTIVES Branch, ANM–116, FAA, has the authority to Authority for This Rulemaking approve AMOCs for this AD, if requested 1. The authority citation for part 39 using the procedures found in 14 CFR 39.19. Title 49 of the United States Code continues to read as follows: In accordance with 14 CFR 39.19, send your specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. request to your principal inspector or local rules on aviation safety. Subtitle I, Flight Standards District Office, as section 106, describes the authority of § 39.13 [Amended] appropriate. If sending information directly the FAA Administrator. ‘‘Subtitle VII: to the International Branch, send it to ATTN: 2. The FAA amends § 39.13 by adding Shahram Daneshmandi, Aerospace Engineer, Aviation Programs,’’ describes in more the following new AD: detail the scope of the Agency’s International Branch, ANM–116, Transport authority. EADS CASA (Type Certificate Previously Airplane Directorate, FAA, 1601 Lind ´ Avenue SW., Renton, WA 98057–3356; We are issuing this rulemaking under Held by Construcciones Aeronauticas, S.A.): Docket No. FAA–2012–1102; telephone (425) 227–1112; fax (425) 227– the authority described in ‘‘Subtitle VII, Directorate Identifier 2012–NM–062–AD. 1149. Information may be emailed to: 9- Part A, Subpart III, Section 44701: [email protected]. General requirements.’’ Under that (a) Comments Due Date Before using any approved AMOC, notify section, Congress charges the FAA with We must receive comments by December 3, your appropriate principal inspector, or promoting safe flight of civil aircraft in 2012. lacking a principal inspector, the manager of air commerce by prescribing regulations the local flight standards district office/ (b) Affected ADs certificate holding district office. The AMOC for practices, methods, and procedures None. approval letter must specifically reference the Administrator finds necessary for this AD. safety in air commerce. This regulation (c) Applicability (2) Airworthy Product: For any requirement is within the scope of that authority This AD applies to all EADS CASA (Type in this AD to obtain corrective actions from because it addresses an unsafe condition Certificate previously held by Construcciones a manufacturer or other source, use these that is likely to exist or develop on Aerona´uticas, S.A.) Model CN–235, CN–235– actions if they are FAA-approved. Corrective products identified in this rulemaking 100, CN–235–200, and CN–235–300 actions are considered FAA-approved if they action. airplanes, certificated in any category, all are approved by the State of Design Authority serial numbers. (or their delegated agent). You are required Regulatory Findings to assure the product is airworthy before it (d) Subject is returned to service. We determined that this proposed AD Air Transport Association (ATA) of would not have federalism implications America Code 26, Fire protection. (j) Related Information under Executive Order 13132. This (1) Refer to MCAI EASA Airworthiness (e) Reason proposed AD would not have a Directive 2012–0045, dated March 21, 2012; substantial direct effect on the States, on This AD was prompted by reports of and Airbus Military All Operator Letter 235– the relationship between the national incorrect electrical polarity connections on 020, dated March 9, 2012; for related engine fire extinguishing discharge information. Government and the States, or on the cartridges. We are issuing this AD to detect (2) For service information identified in distribution of power and and correct incorrect polarity connections, this AD, contact EADS–CASA, Military responsibilities among the various which could prevent the actuation of the Transport Aircraft Division (MTAD), levels of government. discharge cartridge in case of automatic fire Integrated Customer Services (ICS), For the reasons discussed above, I detection or manual initiation during a Technical Services, Avenida de Arago´n 404, certify this proposed regulation: potential engine fire, and could result in 28022 Madrid, Spain; telephone +34 91 585 1. Is not a ‘‘significant regulatory damage to the airplane and injury to 55 84; fax +34 91 585 55 05; email passengers. [email protected]; action’’ under Executive Order 12866; Internet http://www.eads.net. You may 2. Is not a ‘‘significant rule’’ under the (f) Compliance review copies of the referenced service DOT Regulatory Policies and Procedures You are responsible for having the actions information at the FAA, Transport Airplane (44 FR 11034, February 26, 1979); required by this AD performed within the Directorate, 1601 Lind Avenue SW., Renton,

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WA. For information on the availability of comments, the Commission is no longer than the voluntary standard if the this material at the FAA, call 425–227–1221. directly accepting comments submitted Commission concludes that more Issued in Renton, Washington, on October by electronic mail (email), except stringent requirements would further 5, 2012. through www.regulations.gov. The reduce the risk of injury associated with Ali Bahrami, Commission encourages you to submit the product. The term ‘‘durable infant or Manager, Transport Airplane Directorate, electronic comments by using the toddler product’’ is defined in section Aircraft Certification Service. Federal eRulemaking Portal, as 104(f)(1) of the CPSIA as a durable [FR Doc. 2012–25673 Filed 10–17–12; 8:45 am] described above. product intended for use, or that may be BILLING CODE 4910–13–P Written Submissions: Submit written reasonably expected to be used, by submissions in the following way: Mail/ children under the age of 5 years. Hand delivery/Courier (for paper, disk, Bassinets and cradles are specifically or CD–ROM submissions), preferably in identified in section 104(f)(2)(L) as a CONSUMER PRODUCT SAFETY five copies, to: Office of the Secretary, durable infant or toddler product. COMMISSION Consumer Product Safety Commission, In April 2010, the Commission issued a notice of proposed rulemaking (NPR) 16 CFR Parts 1112 and 1218 Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) for bassinets and cradles. (75 FR 22303, [CPSC Docket No. CPSC–2010–0028] 504–7923. April 28, 2010). Through ongoing Instructions: All submissions received consultation and assessment of the RIN 3041–AC81 must include the agency name and standard, both the ASTM standard and the Commission’s proposals have Safety Standard for Bassinets and docket number for this rulemaking. All evolved since publication of the April Cradles comments received may be posted without change, including any personal 2010 NPR, such that the Commission AGENCY: Consumer Product Safety identifiers, contact information, or other believes a supplemental notice and Commission. personal information provided, to opportunity for the public to comment ACTION: Supplemental notice of http://www.regulations.gov. Do not would be beneficial. Thus, in this proposed rulemaking. submit confidential business document, the Commission is proposing information, trade secret information, or a safety standard for bassinets and SUMMARY: The Consumer Product Safety other sensitive or protected information cradles in a supplemental notice of Improvement Act of 2008 (CPSIA that you do not want to be available to proposed rulemaking. Pursuant to requires the United States Consumer the public. If furnished at all, such Section 104(b)(1)(A), the Commission Product Safety Commission information should be submitted in consulted with manufacturers, retailers, (Commission or CPSC) to promulgate writing. trade organizations, laboratories, consumer product safety standards for Docket: For access to the docket to consumer advocacy groups, consultants, durable infant or toddler products. read background documents or and members of the public in the These standards are to be ‘‘substantially comments received, go to http:// development of this proposed standard, the same as’’ applicable voluntary www.regulations.gov, and insert the largely through the ASTM process. The standards or more stringent than the docket number, CPSC 2010–0028, into proposed standard is based on the voluntary standard if the Commission the ‘‘Search’’ box and follow the voluntary standard developed by ASTM concludes that more stringent prompts. International (formerly the American Society for Testing and Materials), requirements would further reduce the FOR FURTHER INFORMATION CONTACT: risk of injury associated with the ASTM F2194–12, ‘‘Standard Consumer Patricia Edwards, Project Manager, Safety Specification for Bassinets and product. The Commission is proposing Directorate for EngineeringSciences, a safety standard for bassinets and Cradles’’ (ASTM F2194–12), with Consumer Product Safety Commission, additions and modifications to cradles in response to the CPSIA. This 5 Research Place, Rockville, MD 20850; constitutes a second round of notice and strengthen the standard. The ASTM telephone 301–987–2244; email standard is copyrighted but can be comment, or supplemental notice of [email protected]. proposed rulemaking, for bassinets and viewed as a read-only document, only cradles. SUPPLEMENTARY INFORMATION: during the comment period on this proposal, at: http://www.astm.org/ DATES: A. Background and Statutory Authority Submit comments by January 2, cpsc.htm, by permission of ASTM. 2013. The Consumer Product Safety ADDRESSES: Comments related to the Improvement Act of 2008, (CPSIA, Pub. B. The Product Paperwork Reduction Act aspects of the L. 110–314), was enacted on August 14, ASTM F2194–12 defines a ‘‘bassinet/ marking, labeling, and instructional 2008. Section 104(b) of the CPSIA, part cradle’’ as a ‘‘small bed designed literature of the proposed rule should be of the Danny Keysar Child Product exclusively to provide sleeping directed to the Office of Information and Safety Notification Act, requires the accommodations for infants supported Regulatory Affairs, OMB, Attn: CPSC Commission to: (1) Examine and assess by free standing legs, a wheeled base, a Desk Officer, FAX: 202–395–6974, or the effectiveness of voluntary consumer rocking base, or which can swing emailed to product safety standards for durable relative to a stationary base’’ and [email protected]. infant or toddler products, in provides that a bassinet/cradle is Other comments, identified by Docket consultation with representatives of ‘‘intended to provide sleeping No. CPSC–2010–0028, may be consumer groups, juvenile product accommodations only for an infant up submitted electronically or in writing: manufacturers, and independent child to approximately 5 months in age or Electronic Submissions: Submit product engineers and experts, and (2) when the child begins to push up on electronic comments to the Federal promulgate consumer product safety hands and knees, whichever comes eRulemaking Portal at: http:// standards for durable infant and toddler first.’’ ASTM F2194–12 defines a www.regulations.gov. Follow the products. These standards are to be ‘‘bassinet/cradle accessory’’ as ‘‘a instructions for submitting comments. ‘‘substantially the same as’’ applicable supported sleep surface that attaches to To ensure timely processing of voluntary standards or more stringent a crib or play yard designed to convert

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the product into a bassinet/cradle 13. Requirements for the side height suffocation death of a 1-month-old intended to have a horizontal sleep of the bassinet/cradle. infant. The remaining fatality associated surface while in a rest (non-rocking) 14. Requirements and test method for with the design of the product occurred position.’’ The Commission is proposing protective components of bassinet/ when the bassinet bed fell off its stand modifications to the scope and cradle. and allowed the 3-month-old decedent definition of a bassinet/cradle and 15. Fabric-sided enclosed openings to get pinned between the bassinet and bassinet/cradle accessory, as further requirement and test method involving a nearby dresser. discussed herein. a torso probe to protect against Eighty-two of the deaths were entrapment in bounded openings in the asphyxiations due to the presence of C. The Voluntary Standard—ASTM bassinet/cradle. soft or extra bedding in the bassinet, F2194 16. Performance requirements and test prone placement of the infant, and/or The voluntary standard for bassinets methods for the rock/swing feature of the infant getting wedged between the and cradles was first approved and bassinets or cradles. side of the bassinet and an added published by ASTM in 2002, as ASTM 17. Marking, labeling, and mattress or pillow. All but two of the 82 2194, Standard Consumer Safety instructional literature requirements. decedents were 5 months old or younger Specification for Bassinets and Cradles. D. Incident Data in age; one infant was 7 months old and The standard has been revised a number another was 8 months old. There were The CPSC’s Directorate for of times since then. The Commission’s four fatalities with not enough Epidemiology reports that there have April 2010 NPR assessed the information to allow the CPSC to been 335 incidents reported to the effectiveness of ASTM F2194–07aε1. determine the hazard scenario. Commission regarding bassinets/cradles Since publication of the 2010 NPR, the from November 2007 through December 2. Nonfatal Injuries standard has been revised three times: 2011. The data is drawn from the In 2010, 2011, and, most recently, in A total of 241 bassinet-related, CPSC’s ‘‘Early Warning System’’ (EWS), 2012. The 2012 version, ASTM F2914– nonfatal incidents were reported from a pilot project initiated in 2007, which 12, was approved on June 1, 2012. The November 2007 through December draws all data entered into the CPSC’s 2012 voluntary standard contains 2011. Fifty-two of these incidents epidemiology databases on a weekly requirements addressing a number of reported an injury to an infant using the basis. The 335 incidents involved 94 bassinet or cradle. The majority of the hazards. The requirements include: fatalities and 241 nonfatal incidents. injuries (30 out of 52), were identified 1. Compliance with CPSC’s (Because the number of emergency as resulting from falls out of the regulations at 16 CFR part 1303 (ban of department-treated injuries associated bassinets. Because 28 of the 30 falls lead in paint), 16 CFR 1500.48 and 16 with bassinets and cradles was were reported through the emergency CFR 1500.49 (sharp points and sharp insufficient to derive any reportable department-treated injury surveillance edges), and 16 CFR part 1501 (small national estimates, injury estimates are system, little or no circumstantial parts), both before and after the product not presented separately but are instead information is available on how the fall is tested according to the standard. included within the category ‘‘nonfatal occurred. However, the reports do 2. Exposed wood parts on bassinet/ incidents.’’). indicate that 76 percent of the injured cradles, prior to testing, must be smooth 1. Fatalities infants who fell out of bassinets were and free of splinters. older than the ASTM-recommended 3. Bassinets/cradles must not present A total of 94 bassinet-related fatalities maximum age limit of 5 months, with scissoring, shearing, or pinching have been reported from early four infants as old as 9 months of age hazards. November 2007 through December falling out of bassinets. All of the falls 4. Requirements and test method to 2011. Eight of the 94 deaths are resulted in head and facial injuries. prevent unintentional folding. associated with the design aspects of the Overall, there were six bassinet- 5. Requirements for the permanency product. Three of these deaths were due related injuries that reportedly required of labels and warnings. to entrapment and/or hanging that hospitalization. Four of them, all serious 6. Prohibition against using wood resulted after an infant’s body, but not head injuries, resulted from a fall out of screws in the assembly of any head, slipped through the fabric the bassinet. One injury, a leg fracture, components that must be removed by covering and underlying structural resulted from a caregiver unknowingly the consumer in the normal disassembly components of a particular brand of attempting to lift an infant out of the of a bassinet/cradle. convertible bassinets/bedside sleeper bassinet while the infant’s leg was 7. Limits on how far a corner post that was subsequently recalled for this caught in a structural opening. The assembly may extend. defect. Two of these three infants were remaining hospitalized injury was due 8. Prohibition against containing an 6 months old, while the third infant was to a moldy bassinet pad that caused occupant restraint system when the a 4-month-old. Three of the eight deaths respiratory illness to the infant. product is used in the bassinet/cradle are associated with problems dealing Two additional serious injuries were mode. with the flatness of the mattress pads reported, but neither of these infants 9. Performance requirements for the used in a bassinet accessory of a play was hospitalized. There was a report of spacing of rigid sided bassinet/cradle yard. All three of these decedents were a second-degree burn suffered by an components. 5 months old or younger. One of the infant from the bassinet’s overheated 10. Performance requirements for the three decedents suffocated in the corner mobile and a report of an arm fracture openings of mesh/fabric sided bassinet/ of the bassinet when he rolled into that from an infant’s arm getting caught in cradles to prevent entrapment. position due to the unlevel mattress the bassinet. The remaining injuries 11. Performance requirements and test pad; the other two decedents were were limited mostly to contusions and methods for static load and stability of found face down in a dip in the center abrasions. the bassinet/cradle. of the unlevel mattress pad. The rocking The remaining 189 reports either 12. Requirements regarding the feature of a bassinet, which contributed indicated that no injury had occurred or thickness and dimensions of the to its non-level resting position, was provided no information about any sleeping pad. associated with an additional injury. However, many of the

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descriptions indicated the potential for • Problems with bassinet mobiles, bassinet bed onto the metal frame/stand a serious injury or even death. where components overheated, smoked, could appear to be locked in place but or sparked. This issue was reported in still remain unlocked. This allowed the 3. Hazard Analysis 13 (about 4 percent) of the incidents. bassinet bed to become detached from Based on the incident data, the • Miscellaneous other product-related the metal frame/stand, causing the Commission identified hazard patterns problems, ranging from a tear in the bassinet bed to fall and the infant to be associated with bassinet and cradle bassinet fabric, to odors, to product injured. There were seven incidents incidents. The incidents were grouped assembly/quality issues. Twenty-seven reported to CPSC and the manufacturer. into four broad categories: (about 8 percent) of the incidents One infant received a bruised cheek • Product-related issues; reported these issues. when the bassinet bed detached from • Non-product-related issues; (2) Non-product-related issues: the metal frame/stand and landed • Recalled product-related issues; and Eighty-three of the 335 reports (25 sideways on the floor with the infant • Miscellaneous other issues. percent) were about incidents that inside. (The proposed Removable (1) Product-related issues: The hazard involved no product defect or failure. Bassinet Bed Attachment test, discussed scenarios in 209 of the 335 incidents (62 This category consisted of 82 fatalities, in Sections F and G, would address this percent) reported were attributed to most of which were associated with the hazard.) some sort of failure/defect or a potential use of soft/extra bedding or prone Another recall, conducted on design flaw in the product itself. This positioning. There was also one nonfatal February 16, 2011, involved all category includes five fatalities and 46 injury incident that did not involve any bassinets manufactured by the company injuries, five of which involved product-related issues. before June 2010. The cross-bracing rails hospitalization. Listed below are the (3) Recalled product-related issues: on the bassinet stands were misinstalled, and thus, were not fully reported problems, beginning with the There were 26 reports (8 percent) that locked into position, resulting in the most frequently reported concerns: involved recalled products. Some of the bassinet collapsing, which caused the • Lack of structural integrity, which reports were received by CPSC staff infant to fall to the floor or fall within includes issues such as instability, loose prior to the recalls being published. the bassinet and suffer injuries. The hardware, collapse of the product, and There were three fatalities and two manufacturer received 10 reports of loose wheels. This issue was reported in injuries due to entrapment and/or incidents in which two infants received 64 (about 19 percent) of the incidents. hanging of an infant between structural minor injuries as a result of the One death is associated with this issue. components of the bassinet. Most of the collapses, including bruises to the head • Reports of infants falling or remaining reports were complaints or inquiries from consumers regarding a and shoulder. Consumers were supplied climbing out of bassinets/cradles. This with better instructions and guidance on category accounted for most of the recalled product. (4) Miscellaneous other issues: The how to install the cross-braces properly. bassinet-related injury reports that were remaining 17 (5 percent) incident This was a very design-specific hazard, received from emergency departments reports were related to miscellaneous and CPSC staff has not seen similar around the United States. While little other or unspecified issues. Some of incidents from other manufacturers. product-/scenario-specific information these reported concerns from consumers The third recall was conducted in was available in these reports, a about perceived safety hazards; others December 2009 and involved five majority indicated that the victims were described incidents with insufficient models that were bassinet accessories to over the ASTM-recommended upper age specificity for CPSC staff to identify the play yards. This recall involved metal limit of 5 months. This issue was hazard scenario. There were four bars used to support the floorboard of reported in 32 (about 10 percent) of the fatalities (unknown circumstances) and the bassinet accessory that came out of incidents. three injuries, including a hospitalized the fabric sleeves and created an uneven • Problems with mattress flatness in injury, reported in this category. sleeping surface, posing a risk of bassinet attachments to play yards. In summary, there are five product- suffocation or positional asphyxiation. Examples include mattresses that would related issues associated with incident The manufacturer received no reports of not remain level horizontally because of deaths and/or significant injuries: injuries. (The proposed mattress flatness poorly designed metal rods/other • Structural integrity/instability, requirement, discussed in Sections F structures that are meant to be • Mattress flatness, and G, would address this hazard.) positioned underneath the mattress; • Rocking, A fourth recall, conducted in May lack of rigid mattress support; and • Falling or climbing out, and 2009 by the same manufacturer as in the failure of straps/hooks/bars designed to • Entrapment in fabric sided products third recall, also involved portable play hold the bassinet attachment inside the (recalled product-related). yards. The convertible play yard play yard. This issue was reported in 31 In addition, there are multiple deaths included a bassinet accessory and (about 9 percent) of the incidents and associated with the use of soft/extra changing station feature and was was associated with three deaths. bedding or prone positioning of the manufactured before December 1, 2008. • Problems with rocking bassinets child that are considered non-product This recall involved the play yard’s and cradles, with locking or tilting related. rocking bassinet accessory that was issues that caused the infant to roll/ tilting, even when secured by straps in press up against the side/corner of the 4. Recalls the non-rocking mode, or that stayed product and posed a suffocation hazard. There have been a total of five tilted without returning to a level This issue was reported in 23 (about 7 consumer-level recalls involving sleeping surface while in the rocking percent) of the incidents, including one bassinets from October 2006 through mode. These conditions could cause an death. June 2012. infant to roll to the corner or side of the • Problems with packaging of the One recall, involving 46,000 bassinets bassinet and become wedged in the product that resulted in broken/ manufactured from July 2008 through corner or pressed against the side or damaged products during delivery. This May 2010, pertained to the latching bottom of the bassinet, posing a risk of issue was reported in 19 (about 6 system between the bassinet bed and the suffocation or positional asphyxiation. percent) of the incidents. frame/stand. The latches that attach the The manufacturer and CPSC received 10

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reports of infants rolling to one side, Many of the changes proposed in the commenters recommended a maximum including six that had their faces April 2010 NPR have been incorporated rock/swing angle of 20 degrees and a pressed against the side or the bottom of in some capacity into ASTM F2194–12. maximum rest angle of 7 degrees for the bassinet. One child reportedly was Other changes to ASTM F 2194–12 have rocking cradles. The 5-degree angle was turning purple and was out of breath come about in response to comments to based on the Australian standard for when discovered. No other injuries were the April 2010 NPR. The Commission rocking cradles. In the Australian reported. (The rock/swing angle test, proposes to revise two of the proposed standard, the angle is measured with the proposed in the 2010 NPR and added to changes to the 2010 NPR (involving CAMI infant dummy placed in the the ASTM standard in its 2012 iteration, hammocks and the mattress-flatness center of the cradle. The intent is to would address this hazard.) requirement), based on review of public ensure that the rocking cradle returns to The fifth recall, conducted in comments, further testing and analysis, a level position and provides a flat September 2008, involved 3-in-1 and 4- and discussions with the ASTM task sleeping surface for the infant. In ASTM in-1 convertible bassinets that contained group on bassinets. F2194–12, the angle is measured with metal bars covered by an adjustable the CAMI dummy placed to one side of 1. Proposed Changes in April 2010 NPR fabric flap attached with Velcro®. The the cradle. The Commission believes Incorporated Into ASME F2194–12 fabric was folded down when the that the placement of the CAMI to one bassinet was converted into a bedside Restraints side results in a more stringent ® sleeper position. If the Velcro was not The 2010 NPR proposed to prohibit requirement than the Australian resecured properly when the flap is bassinets with restraints that require standard. For this reason, a 7-degree rest adjusted, an infant could slip through action on the part of the caregiver to angle is a reasonable and achievable the opening and become entrapped in secure the restraint. A commenter requirement for bassinets that will the metal bars and suffocate. CPSC requested that bassinets be allowed to address suffocation hazards associated 1 learned that on August 21, 2008, a 6 ⁄2- have restraints and provided several with an angled sleep surface. Therefore, month-old girl died when she became reasons why they should be allowed. the Commission is not making any entrapped and strangled between the The primary reason that the recommendations with respect to this bassinet’s metal bars. This is the second Commission believes restraints should issue. strangulation death that the CPSC not be allowed in bassinets is that most Fabric-Sided Enclosed Openings Test learned of involving the co-sleeper bassinet uses do not require a restraint, bassinets. On September 29, 2007, a 4- so consumers have a strong motivation The performance requirements for month-old girl became entrapped in the to avoid using restraints, if they are fabric-sided products included in metal bars of the bassinet and died. (The provided. When unused, restraints have F2194–12 to address entrapment fabric-sided openings test, proposed in been known to entrap and strangle incidents are the same as in the 2010 the 2010 NPR and added to the ASTM children in similar products, like NPR, except for editorial changes made standard in its 2012 iteration, would swings, handheld infant carriers, and to clarify the requirement and test address this hazard.) bouncers. While none of the bassinet procedure. E. April 2010 NPR and Subsequent incidents was associated with restraint Stability Changes to the ASTM Voluntary harness strangulation, this is probably Standard due to the fact that restraints are rare on The stability requirements are bassinets and not because they would intended to ensure that the product does In April 2010, the Commission not pose a hazard if they were present. not tip over when pulled on by a 2-year- approved a proposed rule on bassinets/ The 2012 version of F2194 contains a old male. The 2010 NPR clarified that cradles that referenced the requirements stronger requirement than that proposed the stability requirement applies to all specified in ASTM F2194–07aε1 as a in the April 2010 NPR that prohibits all manufacturer-recommended use mandatory standard for bassinets and restraints in bassinets. The Commission positions, including the position where cradles, with several modifications to supports this change to the standard, the locks are engaged to prevent further reduce injuries and deaths. The and notes that it is more conservative rocking/swinging motion. ASTM modifications and edits included the than the restraints requirement incorporated this change in ASTM following: proposed in the 2010 NPR. F2194–11; therefore, it is included in • Updated warnings; the latest version, ASTM F2194–12. • Stability requirements; The Prominence of Warnings About Soft • Performance requirements for Bedding 2. Changes to ASTM F2194 That Arose fabric-sided products to address The 2010 NPR proposed a stronger Out of a Response to Comments entrapment incidents; warning label to address suffocation Received on the April 2010 NPR • Performance requirements to limit hazards. The current ASTM standard for Baby Size Limits the rocking/swinging angle to 20 bassinets, F2194–12, includes an degrees and the rest angle of certain enhancement of the soft bedding In response to the 2010 NPR, one rocking/swinging cradles to 5 degrees; commenter noted that because • warnings by: (1) Increasing the font size Requirement to eliminate active for the suffocation warning label to 0.4 ‘‘bassinets provide an important tool for restraints; inches or higher; and (2) adding parents to monitor premature babies,’’ a • Changes to scope and terminology; emphasis by stating that ‘‘Infants have target age range for infant occupants and suffocated * * *,’’ rather than stating may be necessary to enhance the • Performance requirements ‘‘Infants can suffocate * * *.’’ understanding of the developmental specifying a mattress flatness angle of 5 milestones used in the warnings. They degrees to address suffocation incidents Maximum Rock/Swing and Rest Angles also suggested that if there is ‘‘a size at on segmented mattresses. The Commission’s 2010 NPR which a bassinet becomes unsafe for a The April 2010 NPR also proposed to proposed a maximum rock/swing angle baby,’’ then that factor should be listed include hammocks within in the scope of 20 degrees and a maximum rest angle in the product’s instructions and of the standard. of 5 degrees for rocking cradles. Several warnings.

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The 2012 version of the ASTM to use them instead of cribs, bassinets, edges/sharp points, small parts, wood standard includes a reference to the or other common juvenile products part splinters, scissoring/shearing/ maximum recommended weight in the intended for sleep. pinching, openings/entrapments, FALL HAZARD warning label. The An inclined sleeper differs from a warning labels, and toys. The standard Commission supports this addition to bassinet in that it is intended to have an also includes specific requirements for the standard. inclined sleep surface and it conforms tip stability, unintentional folding of the to the contour of the occupant. Most product, and static load. Static Load hammocks have mattresses that are also From the incident data and hazard The static load test is intended to inclined in a manner that elevates the patterns associated with bassinets and ensure structural integrity even when a head, as well as conforming to the body cradles (as discussed in Section C), the child three times the recommended (or contours of the infant. They are also Commission identified six addressable 95th percentile) weight uses it. This has intended to allow swinging or bouncing hazards: (1) Suffocation due to the been modified following publication of motions. These special features, addition of soft bedding; (2) suffocation/ the April 2010 NPR to also test play especially elevating the head, are positional asphyxia due to excess yard bassinet accessories at all four sometimes intended to help prevent mattress pad angle; (3) entrapments in corners to ensure structural integrity of reflux. Features that allow head fabric-sided openings; (4) suffocation the product. elevation, swinging, and bouncing due to excess rock/swing angles; (5) motions distinguish these products from misassembly of removable bassinet Side Height Requirement common bassinets and cradles, which beds; and (6) falls and climb-outs. This requirement, which is intended generally have flat mattresses with solid Following is an analysis of the adequacy to prevent falls, was added to F2194–12 or fabric-covered framed sides. The of ASTM F2194–12 in addressing these in response to comments to the 2010 Commission believes that a separate hazards. NPR. The side height requirement in standard targeted specifically to these 1. Suffocation Due to the Addition of F2914–12 requires that the bassinet/ products will more effectively address Soft Bedding. The majority of the deaths cradle side height be at least 71⁄2; inches any hazards associated with them. Due associated with bassinets and cradles from the top of the uncompressed to the significant progress in the were asphyxiations due to the presence mattress surface. development of a separate voluntary of soft or extra bedding in the bassinet, standard to address hammocks and prone placement of the infant, and/or 3. Revisions to Proposed Changes in inclined sleeping products, the the infant getting wedged between the 2010 NPR Commission is not including them side of the bassinet and an added Hammocks within the scope of this proposed rule. mattress or pillow. As mentioned in Section E of this The Commission’s 2010 NPR Mattress Flatness preamble, since publication of the 2010 proposed to include infant hammocks in In the 2010 NPR, a mattress flatness NPR, ASTM F2194 has been revised to the scope of the standard. The voluntary performance test for all types of strengthen the suffocation warning. standard for bassinets and cradles does bassinets and cradles was included. The Specifically, ASTM F2194–12, includes not state explicitly whether infant performance requirement specified a an enhancement of the soft bedding hammocks are included within the mattress flatness angle of 5 degrees to warnings by: (1) Increasing the font size scope of the standard. However, the address suffocation incidents on for the suffocation warning label to 0.4 Juvenile Products Manufacturers mattresses. The mattress flatness inches or higher; and (2) adding Association (JPMA) historically has performance requirement that the emphasis by stating: ‘‘Infants have certified some infant hammocks to the Commission is proposing in this suffocated * * *,’’ rather than bassinet standard because there was not document only applies to segmented indicating: ‘‘Infants can suffocate a separate standard for infant hammocks mattresses because the CPSC’s review of * * *.’’ and other inclined sleep products. the data showed that only segmented The Commission supports the Including infant hammocks in the scope mattresses used in play yards were strengthening of the suffocation warning would effectively ban most infant involved in incidents. In addition, the label as included in the latest revision hammocks currently on the market Commission determined that an angle of of the ASTM voluntary standard and because, by their nature, they would be 10 degrees or less would still provide does not believe that there are unable to meet the performance criteria protection; allow for testing variances; additional requirements that can be put in the bassinet standard addressing rest and also address design and in place in the standard to address angle, segmented mattress flatness manufacturability concerns with unsafe sleep environments and unsafe angle, and rock/swing angle. segmented mattress pads. The sleep practices. The Commission will Several comments were received Commission’s new proposal has continue information and education regarding the inclusion of infant additional requirements for two- efforts, such as the Safe Sleep campaign, hammocks and other inclined sleeping occupant bassinets. The test method to address suffocation and other serious products in the scope of the 2010 NPR. now uses a rigid cylinder to simulate sleep hazards. The comments were universally against the infant, rather than a soft/deformable 2. Suffocation/Positional Asphyxia such inclusion, asserting that this would CAMI dummy. This change provides Due to Excess Mattress Pad Angle. effectively ban a product that has utility. more consistent test results. The Bassinets that are commonly sold as The comments also opined that banning mattress flatness test is discussed in accessories to play yards use the floor of them might increase hazardous sleeping more detail in Section F. the play yard (a segmented mattress arrangements, causing consumers to pad) as the floor of the bassinet. Seams resort to a substitute product such as a F. Assessment of ASTM Voluntary between segments of folding play yard car seat or makeshift soft bedding to Standard and International Standards bassinet accessory mattress pads have prop up an infant. The Commission The Commission believes that ASTM been known to create a valley shape in agrees that alternative products or F2194–12 addresses many of the general a bassinet sleeping surface in the crease makeshift products would present hazards associated with durable nursery between adjoining segments of the additional hazards if consumers chose products, such as lead in paints, sharp mattress.

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An inclined sleeping surface (on a component requirement to prevent associated with the same hazard. In this product not intended to provide a installation/use of a bassinet accessory incident, a child in a bassinet accessory contour or other means to contain the that has a key component missing; and of a play yard was observed rolling into child) can contribute to an infant (2) a flatness requirement to ensure seams on the sleep surface, but the child rolling, increasing the likelihood that segmented mattresses, like those found was not injured. The incident report they will be found face down and in bassinet accessories, are flat when states: become trapped in a significant V- assembled according to manufacturer’s No injury occurred to a five-month-old shaped crease. When lying prone in a instructions. female, who while asleep in the bassinet valley (or V-shaped crease), infants may In another IDI, the victim was in a section of a portable and collapsible play have more difficulty keeping their bassinet accessory to a play yard that yard rolled into a seam of the removable changing pad used with the bassinet. The airways unobstructed than they would was also misassembled. The incident on a flat surface because their faces are mother of the five-month old noticed that the summary states: five month old had a tendency to roll into trapped in the juncture between seams of the mattress pad when it was used adjacent surfaces. Their heads cannot A two month old male was found unresponsive in his * * * play yard with no with the bassinet. rotate to the side as much as when the signs of trauma. The child had rolled in the There is no requirement for mattress sleeping surface is flat. Immature head bassinet section causing his face to be placed control and weak neck muscles may not flatness in ASTM 2194. The 2010 NPR in the corner of the bassinet. He was lying on proposed a mattress flatness allow them to free their airways. Thus, a blanket with another blanket on top of him. requirement that specified a 5-degree infant sleeping surfaces need to be as Investigators who initially measured the firm, flat, and level as possible because bassinet at the scene reported that one side maximum tilt angle for segmented sleeping surfaces, like those found in soft, uneven and non-level surfaces may was five inches higher than the other. I play yard bassinet accessories. The create a higher risk of suffocation than observed during my investigation that depending on weight and movement that ASTM subcommittee for bassinets a level surface. there will be a variance in height within the believed that the 5-degree maximum The Commission has identified unit. angle was not achievable within the incidents associated with a sleeping tolerances necessary to manufacture surface (segmented mattress) that is not Other risk factors also may have play yard bassinet accessories; level or flat. The data include fatal and contributed to the incident (e.g., the accordingly, they considered alternative nonfatal incidents involving play yard placement of the infant to sleep in the test methods and requirements for attachment bassinets with insufficient prone position and the presence of a sleeping surface flatness in products mattress support. blanket under the infant), but the case nonetheless illustrates the potential for with segmented mattresses. In one in-depth investigation (IDI), the In lieu of the 5 degrees proposed in product was apparently assembled non-level sleeping surfaces to contribute to bassinet occupants getting into fatal the 2010 NPR for segmented mattresses, without two key structural support bars the ASTM subcommittee sent out to beneath the mattress pad of a bassinet positions from which they may not be able to remove themselves. ballot a requirement that allowed up to accessory that was intended by the 14 degrees on either side of a valley manufacturer to be mounted from the A third fatality involved a victim with serious physical challenges who was formed at a seam, with higher inclines top rails of the play yard. The incident possible if the sum of the two angles on summary states: placed face down to sleep (both of these are additional risk factors) and was either side of the valley did not exceed A 3 month and 26 day old male victim was found in a sagging bassinet accessory to 28 degrees in total. The 14-degree angle found deceased inside a play yard. The ME a play yard. The incident report states: was based on an extrapolation of angles determined that the cause of the death was formed by dimensions of average infant asphyxia. The victim was found face down in The mother was using the elevated playpen faces. By combining an infant’s a crease produced by the mattress. He was platform for her 5 month old male baby’s mandible width with dimensions of pronounced deceased at the hospital. sleeping area. He was born with multiple physical complications including the nasal protrusion, an isosceles triangle The Commission notes that inability to swallow and would drool can be created that represents a cross- requirements to ensure that key constantly. The parents placed the infant in section of the volume of space beneath structural supports are properly the playpen at night face down and awoke the nose. From this cross-section, one installed by consumers would have to find he had expired in the middle of the can extrapolate both the angle of the helped prevent this incident from night. The playpen elevated platform showed valley and the angle of the incline of the occurring. The Bassinet Misassembly sagging in the center possibly due to surface that would contact a prone Provision NPR, published on August 29, incorrect assembly of the playpen. infant’s face. The angle resulting from 2012, is a Commission-directed NPR to In the fourth incident involving a the combination of the average facial amend the play yard mandatory fatality, a baby died in the corner of a dimensions is 15 degrees, from which standard to include a provision to tilted bassinet accessory on a play yard. the ASTM subcommittee subtracted a address the hazards associated with A rod intended to be placed in a pocket single degree for a factor of safety. This play yard bassinet accessories that can at the end of the accessory was left out. ASTM ballot item received many be misassembled. (77 FR 52272). When a clip on the corner of the negative votes and was not approved for However, there has never been a bassinet came off for unknown reasons, the standard. requirement for sleeping surfaces to be the sleeping surface tilted downward, The Commission is uncomfortable flat or even nearly flat, which is the allowing the infant’s head to become using the average infant facial critical feature of the product that entrapped. While the incident was dimension as the basis for this constitutes a hazard. A play yard could included in data used for the final rule requirement. A product that has a 14- be designed to position the occupant in briefing package for play yards, it is degree angle in the valley formed at the a valley, and it would still pass the play included here because the manner of seam of the mattress would leave about yard standard and the misassembly death is related to a non-level, one-half of the potential occupant provision. The Commission believes segmented mattress. population unprotected from both requirements are necessary to In addition to the fatal incidents, a suffocation. While the ASTM address these hazards: (1) A missing nonfatal incident was found to be Committee used an angle resulting from

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the combination of average facial replica of the human form is not various reasons, the bed portion fell or dimensions, the Commission generally necessary for this type of screening, and tilted off of its stand. In one case, a 3- recommends using the smallest users’ the benefits of using standardized, month-old infant was killed. The anthropometrics for justifying readily available test methods are Commission was also informed by requirements of this nature. If the facial appreciated by industry. As previously Health Canada of a second death. In measurements of the smallest (5th mentioned, the test procedure that the email correspondence from Health percentile) infants are used to form the Commission is proposing is identical to Canada staff, the following was isosceles triangle, the resulting valley is what ASTM recently balloted. reported: 158 degrees, which yields an 11-degree 3. Entrapments in fabric-sided It strongly appears the bassinet was not angle of sleep surface incline from the openings. Three deaths associated with attached to the base when the infant was put horizontal on each side. If a single bassinets and cradles were due to down for a nap. When the infant was found, degree is subtracted from this incline entrapment and/or hanging that resulted the bassinet was perpendicular to the base angle for a minor factor of safety, the after an infant’s body, but not head, and had fallen into the base opening at an requirement becomes a 10-degree slipped through the fabric covering and angle suspending the infant. The straps and maximum incline from the horizontal. underlying structural components of a hooks attaching the bassinet to the base were not snapped in. In the Commission’s proposed test, each particular brand of convertible seam of a folding bassinet sleeping bassinets/bedside sleepers of a There have also been nonfatal surface is tested with a pass/fail particular brand of convertible incidents involving bassinet beds that criterion of 10 degrees maximum for bassinets/bedside sleepers. These tipped over or fell off their base/stand either side of the valley formed by a incidents occurred in one when they were not properly locked/ weighted cylinder. manufacturer’s bassinet that was latched to their base/stand, or the latch In August 2012, ASTM reballoted the recalled on August 28, 2008. failed to engage as intended. In May mattress flatness test. Several As discussed in Section E, since 2012, there was a recall of 46,000 modifications were made to the test publication of the 2010 NPR, ASTM has bassinets that could appear to latch to procedure, and CPSC staff was involved revised the bassinet standard to include the stand when they actually had not throughout the development of this a fabric-sided enclosed openings test. latched. (http://www.cpsc.gov/cpscpub/ requirement. The actual test procedure The test, as added to the 2012 version prerel/prhtml12/12173.html). that was reballotted by ASTM is of the standard, is very close to what The reason that removable bassinet identical to the Commission’s was included in the 2010 NPR. Thus, designs need inherent stability (or recommendation. However, the test the Commission is not recommending obvious instability) is consumers will requirement (the pass/fail criteria) is any further changes relating to this sometimes avoid activating lock or latch different. In the test procedure, a hazard. mechanisms if it appears that the measurement is taken on each side of 4. Suffocation due to excess rock/ bassinet bed is stable when placed on its each seam of the mattress (for a total of swing angles. Bassinets and cradles with stand/base. Consumers may do this 6 or 8 measurements per bassinet). As locking or tilting issues that caused the because the locks or latches seem mentioned, the Commission is infant to roll/press up against the side/ redundant or because they are worried proposing a test requirement of 10 corner of the product pose a suffocation about making noise when activating degrees maximum for each hazard. There have been several locks or latches around a sleeping measurement taken. Under the ASTM nonfatal incidents and one fatality infant. Locks and latches also ballot, 10 degrees or less for all associated with a rocking bassinet. In accidentally may give feedback that they measurements would pass, more than the fatal incident, a 1-month-old was are locked when they are not. This 14 degrees for one or more found pressed up against the fabric side constitutes a ‘‘false latching’’ situation. measurements would fail, and any angle of a bassinet. It is not known whether Because of these foreseeable use measurements between 10 and 14 the lock, which was designed to prevent patterns, this requirement will make degrees would require a two-step rocking, was engaged properly, or bassinets with a removable bed portion process where the test lab would take wasn’t functioning correctly. inherently stable or have visible two additional measurements, average As discussed in Section E, since indicators to show when the bassinet them, and then use 10 degrees as the publication of the Commission’s 2010 bed is not properly attached to the final pass/fail delineator. NPR, ASTM has included a rock/swing stand. With regard to the test method itself, angle requirement in its standard. The Commission staff has been actively the 2010 NPR’s method for testing requirement specifies a maximum of 20 involved in an ASTM task group that is flatness used a CAMI dummy to weight degrees for the swing angle and 7 currently developing requirements to the surface prior to measuring the side degrees for the rest angle. The address the hazards associated with angles of the valley formed in the Commission believes that this bassinets with removable bed portions. sleeping surface. However, the CPSC requirement adequately addresses the To date, the language that the task group and the ASTM subcommittee prefer a hazard. Thus, the Commission is not drafted has yet to be balloted. The rigid cylinder to help increase the proposing any further changes to the Commission proposes adding a new reliability of the test across test standard relating to this hazard. requirement for the NPR, based on what laboratories. This is because CAMI 5. False latching/stability of the ASTM task group has developed to dummies tend to vary slightly with age removable bassinet beds. The date. The proposed requirement allows because of the nature of their Commission is aware of several multiple options to pass. These options construction. CPSC staff tested a variety incidents involving bassinets beds that will either ensure that the bed portion of cylinder diameters and lengths and were designed to be removed from their of the unit is inherently stable when it found that small differences in the stand, four of which have IDIs. During is placed on the stand unlatched, or it footprint of the test cylinder were not the incidents, the bed portion of the unit will give obvious feedback that the unit critical to differentiating hazardous from was not completely locked or properly is not latched or stable. One option nonhazardous products. The most attached to its stand. The bed portion of allows the unit to give an extreme critical factor was the design of the the unit appeared to be stable, giving the appearance of instability by being tilted mattress support structure. An exact caregivers a false sense of security. For 20 degrees or more. The 20-degree

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minimum is twice the allowable standard and to ensure more complete requirements address hazards associated deviation from horizontal that staff coverage of sleep products, the with cribs intended for use with older recommends for sleeping surface Commission is proposing the following children (in excess of the 5-month flatness. This angle was extrapolated with respect to the scope of the ASTM recommended maximum age for from an IDI report involving a caregiver standard. The scope would encompass bassinets). Thus, they are not applicable who noticed that a bassinet was tilted. products with an incline of 10 degrees to bassinets. From photographs of the incident or less, but not products with a greater The scope of the European Standard, product, the ASTM task group assigned than 10-degree angle. This would EN 12790–2009, ‘‘Child Use and Care to examine the problem estimated that include cradle swings within the scope, Articles—Reclined Cradles,’’ includes the unit produced about a 17-degree which, by definition, recline less than inclined bassinets/cradles, car seat angle, which they felt would be 10 degrees. The Commission proposes carriers, hammocks, and bouncers. reasonable to round up to 20 degrees for including products that can be Some of the general requirements could the standard. A sleeping surface at 20 supported by a stationary frame/ apply, but because the scope of the degrees from the horizontal seems standard, such as carriage attachments product is not the same, most of the severe enough that consumers would to strollers and Moses baskets, only requirements are not applicable to notice that it was not level. This when they are used with a stationary or bassinets. proposed requirement is slightly less rocking stand. (A Moses basket is a The Australian/New Zealand standard than the angle proposed to address portable cradle, typically made from (AS/NZS 4385:1996) contains similar hazards in the play yard wicker or cloth, with no legs or a stand.) requirements for rocking and swinging standard (i.e., 30 degrees from the Finally, the Commission proposes to angles that were used to develop some horizontal), but the ASTM specify that the standard covers of the requirements in ASTM F2194. subcommittee reasoned that bassinets products primarily used to provide The ASTM rock/swing rest angle are different in structural design and sleeping accommodations. This would performance requirement, while based materials and will appear to be expand the scope beyond products only on AS/NZS 4385:1996, contains a more misassembled more easily than the used to provide sleeping severe test method than that in AS/NZS suspended and segmented mattress accommodations. This would ensure, 4385:1996, due to the placement of the supports used in play yards. for example, that a bassinet sold with a CAMI dummy. This is discussed more In addition to the aforementioned toy mobile that is meant to entertain an fully in Section E. options, a bassinet that has a removable infant who is lying in the bassinet The Canadian standard (SOR 86–962: bed would also pass the requirement if would still fall within the scope of the 2010) includes requirements for cribs it has a visual indicator to alert a standard. and non-full-size cribs. This standard caregiver that the bassinet bed is not does not distinguish between a bassinet Stability Test Dummy properly locked onto the stand. Or, the and non-full-size cribs. As a result, bassinet would also pass the During evaluations of the test many of the requirements are not requirement if it can pass the standard’s methods for removable bassinet beds, applicable for this NPR. However, the stability test while in an unlocked Commission staff made comparisons of Canadian standard was used to develop position. the stability of products weighted with the ASTM requirement for bassinet side 6. Falls and Climb-Outs. The majority the newborn CAMI dummy (7.45 lbs) as height. of the nonfatal injuries (30 out of 52, or opposed to the infant CAMI dummy The Commission believes that the 58 percent) were identified as falls from (17.4 lbs). ASTM F2194–12 contains a current ASTM F2194–12 standard is the the bassinets. Because 28 of the 30 falls stability requirement that uses the most comprehensive of the standards to were reported through the emergency heavier infant CAMI dummy. There is address the incident hazards. There are department-treated injury surveillance no rationale included in the ASTM some individual requirements in system, little or no information is standard for why the heavier dummy various foreign standards that are more available on how the falls occurred. was specified in the stability stringent than ASTM; however, many of However, the reports do indicate that 76 requirement. Use of the newborn CAMI, these requirements do not address the percent of the injured infants who fell which is readily available to test labs identified hazards in the incident data out of bassinets were older than the and represents the 50th percentile reported to the CPSC. ASTM-recommended maximum age newborn, would result in a more G. Description of Proposed Changes to limit of 5 months, with four infants as conservative stability test. In addition, ASTM Standard old as 9 months of age. All of the falls bassinets are intended for use with resulted in head and facial injuries. newborns. For these reasons, the The proposed rule would create a new The Commission believes the new Commission is proposing a revised test part 1218 titled, ‘‘Safety Standard for side height requirement in ASTM procedure for bassinet stability, which Bassinets and Cradles.’’ The proposal F2194–12, which requires a bassinet uses a newborn CAMI instead of an would establish ASTM F2194–12, side to be at least 7.5 inches above the infant CAMI. ‘‘Standard Consumer Safety mattress surface, as well as the proposed Specification for Bassinets and International Standards removable bassinet requirements, will Cradles,’’ as a consumer product safety help address fall hazards. The Commission reviewed Canadian, standard, but with certain changes. In addition to the requirements for European, and Australian standards for These proposed changes include a mattress flatness and removable bassinet bassinets and/or cradles. Many of the revision to an existing test method (the bed attachments, the Commission is requirements found in the 2012 ASTM bassinet stability test method), two proposing changes to the scope of the standard can also be found in some of additional new requirements and standard and a revised test method for these international standards. associated test methods (for mattress stability. The European Standard, EN 1130–1: flatness and removable bassinet bed 1996, ‘‘Furniture—Cribs and Cradles for attachments), and a revised scope and Scope Domestic Use,’’ has several associated definitions or references to In order to clarify which products are requirements not found in ASTM support these additions. They are covered under the scope of the proposed F2194–12. Most of these additional detailed herein.

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1. Clarifying the Scope of the Standard segmented mattress surfaces. This final rule in the Federal Register. The and Associated Definitions (Sections requirement applies only to segmented Commission invites comment on how 1.3, 3.1.1, and 3.1.2) mattresses, such as those seen in a long it will take bassinet and cradle The Commission is proposing to bassinet accessory to a play yard. The manufacturers to come into compliance revise the scope of ASTM F2194–12 and Commission recommends that the with the rule. segmented mattresses commonly used corresponding terminology to better I. Regulatory Flexibility Act define which products fall within or in play yards shall not create an angle outside the scope of the standard. The greater than 10 degrees when tested Introduction current text of ASTM F2194–12 using a 17-pound cylinder to simulate The Regulatory Flexibility Act (RFA), provides that the ‘‘consumer safety the weight of a 6-month-old infant. 5 U.S.C. 601–612, requires agencies to performance specification covers 3. New Performance Requirement and consider the impact of proposed rules products intended to provide sleeping Associated Definitions To Address on small entities, including small accommodations only for an infant up Hazards Associated With the Stability of businesses. Section 603 of the RFA to approximately 5 months in age, or Removable Bassinet Beds (Sections requires that the Commission prepare an when the child begins to push up on 3.1.3, 3.1.17, 3.1.18, 3.1.19, 3.1.20, 6.10, initial regulatory flexibility analysis and hands and knees, whichever comes 7.11) make it available to the public for first.’’ The Commission is proposing to comment when the notice of proposed In order to address hazards associated change the scope and definition of a rulemaking is published. The initial with misassembly of removable bassinet ‘‘bassinet/cradle’’—from products meant regulatory flexibility analysis (IRFA) bed and falls, the Commission is exclusively for sleeping—to those must describe the impact of the recommending performance intended primarily for sleeping. This proposed rule on small entities and requirements and a test method for would ensure that a bassinet sold with identify any alternatives that may products that have bassinet beds that a toy mobile that is meant to entertain reduce the impact. Specifically, the attach to an elevated stand. The an infant who is lying in the bassinet, IRFA must contain: requirements apply to removable for instance, would still fall within the • A description of, and where bassinet beds that are designed to scope of the standard. feasible, an estimate of the number of separate from the stand/base without The Commission is also proposing to small entities to which the proposed the use of tools. The Commission is amend the definitions of ‘‘bassinet/ rule will apply; proposing that if a removable bassinet cradle’’ and ‘‘bassinet/cradle • A description of the reasons why bed is not properly attached or accessories’’ to specify that the sleeping action by the agency is being assembled to its base, it must meet one surface of these products, while in a rest considered; of the following requirements: • (non-rocking or swinging) position, is • The base/stand shall not support A succinct statement of the intended to be less than or equal to 10 the bassinet (i.e., the bassinet bed falls objectives of, and legal basis for, the degrees from horizontal. This change proposed rule; from the stand so that it is in contact • would complement the definition of with the floor); or A description of the projected ‘‘inclined sleeper’’ in the draft ASTM • The lock/latch shall automatically reporting, recordkeeping, and other inclined sleeper standard, which engage under the weight of the bassinet compliance requirements of the defines the ‘‘inclined sleeper’’ as having bed (without any other force or action); proposed rule, including an estimate of more than a 10-degree sleep surface or the classes of small entities subject to incline. Thus, the following are covered • The stand/base shall not be capable the requirements, and the type of under the standard: Cradle swings with of supporting the bassinet bed within 20 professional skills necessary for the inclines less than or equal to 10 degrees preparation of reports or records; and degrees of horizontal; or • from horizontal while in rest position; • The bassinet shall contain a visual An identification, to the extent carriage baskets/bassinets that are indicator mechanism that shall be possible, of all relevant federal rules removable from the stroller base, when visible on both sides of the product; or that may duplicate, overlap, or conflict the carriage basket/bassinet meets the • The bassinet bed shall not tip over with the proposed rule. definition of ‘‘bassinet/cradle’’ found in and shall retain the CAMI newborn In addition, the IRFA must contain a the standard; bassinet/cradle dummy when subjected to the stability description of any significant attachments to cribs or play yards, when test outlined in the standard. alternatives to the proposed rule that in bassinet/cradle-use mode. The would accomplish the stated objectives following would not fall under the 4. Revised Test Procedure for Bassinet of the proposed rule and, at the same scope of the bassinet/cradle standard: Stability (Sections 2.3 and 7.4.4) time, reduce the economic impact on Products used in conjunction with an For the reasons described in the small businesses. inclined infant swing or stroller and previous Section, the Commission is The Market products that are intended to provide an proposing a revised test procedure for inclined sleep surface (defined as bassinet stability that uses a newborn Bassinets and cradles are typically greater than 10 degrees from horizontal CAMI instead of an infant CAMI. produced and/or marketed by juvenile while in the rest (non-rocking) position). product manufacturers and distributors, H. Effective Date or by furniture manufacturers and 2. Segmented Mattress Flatness The Administrative Procedure Act distributors, some of which have Requirement and Test Method (Sections (APA) generally requires that the separate divisions for juvenile products. 6.9 and 7.10) effective date of the rule be at least 30 The Commission believes that there are In order to address the hazard of days after publication of the final rule. currently at least 55 suppliers of suffocation/positional asphyxia due to 5 U.S.C. 553(d). To allow time for bassinets and/or cradles to the U.S. an excess mattress pad angle, the bassinets and cradles to come into market; 24 are domestic manufacturers, Commission is recommending compliance, the Commission proposes and 11 are domestic importers. An performance requirements and a test that the standard would become additional 14 domestic firms have method for the minimum flatness of effective 6 months after publication of a unknown bassinet/cradle supply

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sources; three of those firms are retailers existing stability test. The first new (includes testing with locks/latches and nine specialize in bedding, some of requirement would address suffocation engaged). which is sold with bassinets or cradles. and positional asphyxia hazards that • Sleeping pad thickness and There are also six foreign firms have occurred as a result of problems dimensions—intended to minimize gaps supplying the U.S. market: Five with segmented mattress flatness in play and the possibility of suffocation due to manufacturers and one importer who yard bassinet accessories. The second excessive padding. F2194–12 allows imports from foreign companies and would address the stability of bassinets thicker mattresses for rigid-sided distributes from outside of the United with removable bassinet beds, products because a thicker mattress States. particularly the attachment does not pose the same suffocation Bassinets and cradles from 12 of the mechanisms. The Commission also hazard when used in rigid-sided, rather 55 firms have been certified as proposes modifying the scope (and than soft-sided, products. compliant by the JPMA, the major U.S. some of the terminology) to ensure that • Tests of locking and latching trade association that represents inclined sleepers (including infant mechanisms—these are intended to juvenile product manufacturers and hammocks) would no longer be covered prevent unintentional folding while in importers. Firms supplying bassinets or under the bassinet/cradle standard, use. cradles would be certified to the ASTM unless they recline to 10 degrees or less. • Suffocation warning label— voluntary standard F2194–10, while The expanded scope would also include intended to help prevent soft bedding firms supplying play yards with Moses baskets and stroller carriage incidents. F2194–12 requires the bassinet/cradle attachments would also accessories when used in conjunction warning to use a larger font than the have to meet F406–11b. Nine additional with a stationary stand. These 2010 NPR. firms claim compliance with the modifications would also help eliminate • Fabric-sided openings test— relevant ASTM standard for at least gaps in product coverage (i.e., most intended to prevent entrapments. This some of their bassinets and cradles. products that may be used for infant test was included in the 2010 NPR and According to a 2005 survey conducted sleep will be included under at least one has been adopted in F2194–12 with a by the American Baby Group (2006 durable nursery product standard). few editorial changes. Baby Products Tracking Study), 64 Finally, the Commission proposes that • Rock/swing angle requirement— percent of new mothers own bassinets; the CAMI newborn dummy be used for intended to address suffocation hazards 18 percent own cradles; and 39 percent stability testing because it more closely that can occur when latch/lock own play yards with bassinet resembles the characteristics of bassinet problems and excessive rocking or attachments. Approximately 50 percent users than the CAMI infant dummy in swinging angles press children into the of bassinets, 56 percent of cradles, and F2194–12. side of the bassinet/cradle. The 2010 18 percent of play yards were handed 4. Requirements of the Proposed Rule NPR recommended a maximum rocking down or purchased second-hand. Thus, angle of 20 degrees and a maximum rest about 50 percent of bassinets, 44 percent The Commission proposes adopting angle of 5 degrees. ASTM F2194–12 of cradles, and 82 percent of play yards the voluntary ASTM standard for adopts the maximum deflection angle of were acquired new. This suggests bassinets and cradles (F2194–12) with a 20 degrees, but includes a maximum annual sales of about 1.3 million new mattress flatness requirement, a rest angle of 7 degrees with a more bassinets (.5 × .64 × 4.1 million births new stability requirement for bassinets severe test condition where the CAMI per year); 325,000 cradles (.44 × .18 × with removable beds, a revised scope, doll is positioned at the side, rather 4.1 million); and 1.3 million play yards and a modified CAMI dummy for the than the center, of the bassinet/cradle. with bassinet attachments (.82 × .39 × existing stability requirement. Some of • Occupant restraints—intended to 4.1 million). This yields a total of the more significant requirements of the prevent incidents where unused approximately 3 million units sold per current voluntary standard for bassinets restraints have entrapped and strangled year that could be affected by the and cradles (ASTM F2194–12) are listed children. The 2010 NPR proposed that proposed bassinet/cradle standard. below. The requirements that were only passive restraints be allowed. added to the ASTM voluntary standard Reason for Agency Action and Legal ASTM F2194–12 is even stricter, or modified since the 2010 NPR are Basis for Proposed Rule. allowing no restraints to be used in a italicized. The Danny Keysar Child Product • bassinet/cradle configuration. Spacing of rigid-side components— • Safety Notification Act, section 104 of intended to prevent child entrapment Side height requirement—intended the CPSIA, requires the CPSC to between both uniformly and non- to prevent falls. This requirement, which promulgate a mandatory standard for uniformly spaced components, such as is new to F2194–12, arose from the bassinets/cradles that is substantially comments to the 2010 NPR. A bassinet/ slats. This has been modified for clarity 1 the same as, or more stringent than, the to remove duplicative test references. cradle side height of 7 ⁄2 inches from the voluntary standard. CPSC worked • Openings for mesh/fabric— top of the uncompressed mattress is closely with ASTM to develop the new intended to prevent the entrapment of now required. requirements and test procedures that children’s fingers and toes, as well as The voluntary standard also includes: have been added to the voluntary button ensnarement. (1) Torque and tension tests to ensure standard since 2010. These new • Static load test—intended to ensure that components cannot be removed; (2) requirements address several known structural integrity even when a child requirements for several bassinet/cradle hazard patterns that will help to reduce three times the recommended (or 95th features to prevent entrapment and cuts injuries and deaths in bassinets and percentile) weight uses it. This has been (minimum and maximum opening size, cradles, and they have resulted in the modified to also test play yard bassinets small parts, hazardous sharp edges or current voluntary standard, F2194–12, in all four corners. points, and edges that can scissor, shear, upon which the proposed rule is based. • Stability requirements—intended to or pinch); (3) requirements for the However, the Commission proposes ensure that the product does not tip permanency and adhesion of labels; (4) adding two new requirements to F2194– over when pulled on by a 2-year-old requirements for instructional literature; 12, as well as modifying the scope and male. ASTM adopted the revised test and (5) corner post extension the test CAMI dummy used in the requirements included in the 2010 NPR requirements intended to prevent

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pacifier cords, ribbons, necklaces, or therefore, are intended to be used example, by retrofitting their play yard clothing that a child may be wearing together. Firms that supply bassinet/ bassinets to use longer rods or a better- from catching on a projection. cradle stands, as well as either Moses fitting mattress shell. The cost of such The Commission proposes modifying baskets or carriage attachments for a retrofit is unknown and would likely the scope, using the more appropriate strollers, would need to ensure that vary from product to product; however, infant CAMI dummy for stability their Moses baskets and/or carriage it should be less expensive than a testing, and adding new mattress attachments meet the bassinet/cradle product redesign. Based on this flatness and attachment of removable standard when attached to the stand(s). information, it appears that at least a bassinet bed requirements to ASTM This would likely require some few play yard bassinets may require F2194–12. As part of these changes, redesign, most notably to meet the side modifications, which could include there would also be several new or height and stability requirements, and it product redesign. However, it is revised definitions, including ‘‘bassinet/ would affect 10 known firms. believed that most firms would opt for cradle,’’ ‘‘bassinet/cradle accessory,’’ Alternatively, they could stop supplying the less expensive option of retrofitting and ‘‘bassinet bed.’’ Following is a the stands. their existing designs. discussion of the impact of each of these changes. b. Stability Testing With Newborn d. Removable Bassinet Beds CAMI Dummy Finally, the Commission proposes a. Scope Because bassinets and cradles are adding a new requirement and test There are three major proposed intended to be used by very young method to address the attachment of changes to the scope of the bassinet/ children, it is appropriate that the removable bassinet beds. There are cradle standard: smaller newborn CAMI dummy be used several manufacturers with bassinet 1. Specification that it is to cover for stability testing. The heavier (17.5 designs that allow for the bassinet bed products primarily used to provide pound) infant CAMI currently used for to be removed from the stand easily (i.e., sleeping accommodations. This expands stability testing in F2194–12 could make without the use of tools) and used the scope beyond products only used to these products more stable when tested separately. In many cases, the bassinet provide sleeping accommodations. than they actually would be in a real- bed sits securely on the stand without 2. Products with an incline of 10 world situation. Based on preliminary any attachment mechanism. In other degrees or less would be included, Commission testing, it appears that most cases, clips or locks may be used to while products with a greater than 10 bassinet/cradles will be able to pass this ensure that the stand retains the degree incline would not. ASTM and revised test procedure without bassinet bed during use. Incidents have CPSC have developed this demarcation modification. However, at least one arisen where the attachments have across product standards to help ensure product failed stability testing with the either failed or have not been used, complete coverage of sleep products. newborn CAMI and passed with the rendering the bassinet bed unstable. This would include cradle swings infant CAMI. It is possible that a few Therefore, CPSC, in conjunction with an which, by definition, recline less than products may require modifications to ASTM task group, has developed a 10 degrees from horizontal. meet the revised stability test procedure. requirement and test methods to address 3. Specification that it includes It is likely to affect only a few the potential instability of some products that can be supported by a manufacturers, but it is unlikely to removable bassinet beds when used stationary frame/stand. This would require product redesign. Affected firms with a stand. bring in carriage attachments to strollers would most likely increase the stability There are several firms supplying and Moses baskets only when used with of their product by widening the bassinets with removable bassinet beds a stationary or rocking stand. structure, making the bassinet bed to the U.S. market. The majority will not These scope changes may affect deeper, or making the base heavier. If need modifications to meet the suppliers in several ways. First, they meeting the modified requirement proposed requirement. However, at least would provide additional clarity to necessitates a change to the hard tools four firms will need to make changes to suppliers regarding which products used to manufacture the bassinet, the one or more of their bassinets. would be covered under what cost could be more significant. Essentially, the products will need to be standards. Reduced confusion means modified so that they are either c. Mattress Flatness less time reviewing, testing, and making inherently stable (automatically lock or necessary modifications. Second, The Commission is proposing the stable even without the locks) or ‘‘cradle swings,’’ defined by the infant addition of a mattress flatness obviously unstable (unsupportable or swings standard, F2088–11a, as an requirement and test method to the obviously tilted without locks or a infant swing intended for use by a child standard, as well. The mattress flatness visual indicator that locks not in use). lying flat (i.e., horizontal), would be requirement is primarily aimed at There are numerous ways that firms covered under both the bassinet incidents involving bassinet/play yard could meet this new requirement if their standard and the infant swings combination products that tend to use product(s) required modification, standard. The Commission believes that segmented mattresses. These incidents including redesigning the product cradle swings currently on the market suggest that products with mattresses entirely. However, it seems likely that should be able to meet the proposed that have multiple seams could pose a many firms would opt for less expensive standard for bassinets without suffocation hazard. Based on alternatives, such as more sensitive additional modifications. Third, Moses Commission testing, it appears that the locks that activate with little pressure baskets and carriage attachments to play yard bassinet attachments of many (i.e., with just the weight of the strollers would now be subject to the suppliers (both compliant and bassinet). bassinet/cradle standard when used in noncompliant with F2194–10) would conjunction with a separate stand. pass this requirement without any Other Federal or State Rules However, this would apply only to modifications. Those that do require The Commission is in the process of Moses baskets and carriages that are modifications would need to increase implementing sections 14(a)(2) and produced and sold by the same the mattress support in their bassinets. 14(i)(2) of the Consumer Product Safety company that makes the stand, and This could be accomplished, for Act (CPSA), as amended by the CPSIA.

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Section 14(a)(2) of the CPSA requires standard is part of an established Commission believes that a bassinet every manufacturer of a children’s business practice. Therefore, it is likely redesign would tend to be comparable. product that is subject to a children’s that firms supplying bassinets and Consequently, the proposed rule could product safety rule to certify, based on cradles that comply with ASTM F2194– potentially have a significant direct third party testing, that the product 10 (which went into effect for JPMA impact on small manufacturers whose complies with all applicable safety certification purposes in November products do not conform to F2194–10. rules. Section 14(i)(2) of the CPSA 2010) would also likely comply with However, any direct impact might be requires the Commission to establish F2194–12 by January 2013, even in the mitigated if costs are treated as new protocols and standards (i) for ensuring absence of a mandatory standard. product expenses that can be amortized. that a children’s product is tested It is possible that the direct impact for It is possible that some firms supply periodically and when there has been a manufacturers whose products are bassinets/cradles that are compliant material change in the product, (ii) for likely to meet the requirements of with F2194–10, even though they are the testing of representative samples to ASTM F2194–12 (10 of 19 firms) could not certified or marketed as compliant. ensure continued compliance, (iii) for be significant for one or more firms if The Commission has identified many verifying that a product tested by a they must redesign their bassinets to such cases with other products. To the conformity assessment body complies meet the proposed rule. While none of extent that some of these firms may with applicable safety rules, and (iv) for these manufacturers would be newly supply compliant bassinets/cradles and safeguarding against the exercise of covered due to the proposed change in have developed a pattern of compliance undue influence on a conformity scope, seven would be affected by the with the voluntary standard, the direct assessment body by a manufacturer or mattress flatness requirement (i.e., they impact of the proposed standard will be private labeler. produce play yards with bassinet less significant than described above. Because bassinets/cradles will be attachments), and at least two (and There are also two small firms with subject to a mandatory standard, they possibly four) may be affected by the unknown supply sources, none of will also be subject to the third party removable bassinet bed stability which appear to comply with F2194–10 testing requirements of section 14(a)(2) requirement. For the most part, the (one is covered by the proposed rule of the CPSA when the mandatory bassinets/cradles and bassinet cradle due to the expanded scope). If these standard and the notice of requirements attachments supplied by these firms firms are manufacturers, they may also become effective. will be able to meet the staff- require redesign to meet the proposed recommended changes to ASTM F2194– Impact on Small Businesses standard. 12, without modification. In cases In addition to the direct impact of the There are approximately 55 firms where modifications are necessary, they proposed standard described above, currently known to be marketing would most likely opt to retrofit their there are indirect impacts. These bassinets and/or cradles in the United products, rather than undertake an impacts are considered indirect because States. Under U.S. Small Business expensive redesign. However, it is they do not arise directly as a Administration (SBA) guidelines, a possible that some products may require consequence of the bassinet/cradle manufacturer of bassinets or cradles is redesign, particularly to meet the new rule’s requirements. Nonetheless, they small if it has 500 or fewer employees, removable bassinet bed stability could be significant. Once the rule and importers and wholesalers are requirement; therefore, costs could be becomes final and the notice of considered small if they have 100 or significant in some cases. requirements is in effect, all fewer employees. Based on these Meeting ASTM F2194–12’s manufacturers will be subject to the guidelines, 38 are small firms—19 requirements could necessitate product additional costs associated with the domestic manufacturers, 8 domestic redesign for at least some bassinets/ third party testing and certification importers, and 11 firms with unknown cradles that are believed not to be requirements. This will include any supply sources (including 9 specializing compliant with F2194–10 (9 of 19 physical and mechanical test in bedding). The remaining firms are firms). Two of these firms produce requirements specified in the final rule; five large domestic manufacturers, three either Moses baskets or carriage stroller lead and phthalates testing is already large domestic importers, three large attachments along with separate stands, required, and hence, not included here.1 retailers with unknown supply sources, and therefore, they are included only One manufacturer estimated that and six foreign firms. There may be because of the proposed change in testing to the ASTM voluntary standard additional unknown small bassinet/ scope. (Since no Moses baskets or runs around $1,000 per model sample, cradle suppliers operating in the U.S. carriage attachments for strollers are although they noted that the costs could market. currently tested to the ASTM bassinets/ be lower for some models where the Small manufacturers. The expected cradles standard, it is assumed that impact of the proposed standard on none would meet ASTM F2194–12 primary difference is fabric rather than small manufacturers will differ based on without modifications). The remaining structure. Testing overseas could whether their bassinets/cradles are seven firms could require redesign, potentially reduce some testing costs, already compliant with F2194–10. regardless of the staff-recommended but this may not always be practical. Firms whose bassinets and cradles meet modifications. A redesign would be On average, each small domestic the requirements of F2194–10 are likely minor if most of the changes involve manufacturer supplies eight different to continue to comply with the adding straps and fasteners or using models of bassinets/cradles and/or play voluntary standard as new versions are different mesh or fabric, but it could be yards with bassinet/cradle accessories to published. In addition, they are likely to more significant if changes to the frame the U.S. market annually. Therefore, if meet any new standard within 6 months are required, including changes to side third party testing were conducted every because this is the amount of time JPMA height. One manufacturer estimated that year on a single sample for each model, allows for products in their certification a complete play yard redesign, third party testing costs for each program to shift to a new standard. including engineering time, prototype 1 Bassinet and cradle suppliers already must third Many of these firms are active in the development, tooling, and other party test their products to the lead and phthalate ASTM standard development process, incidental costs, would cost requirements. Therefore, these costs are left out of and compliance with the voluntary approximately $500,000. The the analysis above.

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manufacturer would be about $8,000 unclear whether they purchase them bassinets/cradles and spread the annually. Based on a review of firm domestically or overseas. Regardless, associated costs over a longer period of revenues, the impact of third party these firms will be affected by the time. testing to ASTM F2194–12 is unlikely to proposed rule in a manner similar to The Commission invites comments be significant if only one bassinet/cradle importers. describing the possible impact of this sample per model is required. However, Because none of these firms is rule on manufacturers and importers, as if more than one sample would be believed to supply bassinets or cradles well as comments containing other needed to meet the testing requirements, in compliance with F2194–10, they information describing how this rule third party testing costs could have a would need to find an alternate source will affect small businesses. significant impact on a few of the small if their existing supplier does not come manufacturers. into compliance with the requirements J. Environmental Considerations of the proposed rule. Unlike most Small Importers The Commission’s regulations address importers, however, they would not whether we are required to prepare an As with manufacturers of compliant have the option of replacing a environmental assessment or an bassinets/cradles, the four small noncompliant bassinet/cradle with environmental impact statement. If our importers of bassinets/cradles currently another product. While they could opt rule has ‘‘little or no potential for in compliance with F2194–10 could to sell the bedding without the affecting the human environment’’ it experience significant direct impacts as associated bassinet/cradle, this is the will be categorically exempted from this a result of the proposed rule, if product standard method of sale, and it might requirement. 16 CFR 1021.5(c)(1). The redesign is necessary. In the absence of make it more difficult to compete in the proposed rule falls within the regulation, these firms would likely bassinet/cradle market. categorical exemption. continue to comply with the voluntary As with manufacturers and importers, standard as it evolves and likely the these firms will also be subject to third K. Paperwork Reduction Act final mandatory standard as well. Any party testing and certification This proposed rule contains increase in production costs requirements, and they will experience information collection requirements that experienced by their suppliers may be costs similar to those for manufacturers are subject to public comment and passed on to them. if their supplying firm(s) does not review by the Office of Management and Importers of bassinets/cradles would perform third party testing. The Budget (OMB) under the Paperwork need to find an alternate source if their resulting costs could have a significant existing supplier does not come into impact on some of these small bassinet/ Reduction Act of 1995 (44 U.S.C. 3501– compliance with the requirements of the cradle suppliers who must perform the 3521). In this document, pursuant to 44 proposed rule, which may be the case testing themselves. U.S.C. 3507(a)(1)(D), we set forth: with the four importers of bassinets/ • A title for the collection of cradles believed not to be in compliance Alternatives information; with F2194–10 (two of which are Under the Danny Keysar Child • A summary of the collection of covered by the proposed rule due to the Product Safety Notification Act, section information; expanded scope). Some could respond 104 of the CPSIA, one alternative that • A brief description of the need for to the rule by discontinuing the import would reduce the impact on small the information and the proposed use of of their noncompliant bassinets/cradles, entities is to make the voluntary the information; possibly discontinuing the product line standard mandatory with no • A description of the likely altogether. However, the impact of such modifications. Doing so would respondents and proposed frequency of a decision could be mitigated by eliminate the impact on the six small response to the collection of replacing the noncompliant bassinets/ firms that would be newly covered information; cradles with compliant bassinets/ under the bassinet/cradle standard due • An estimate of the burden that shall cradles. Deciding to import an to the proposed change in scope. These result from the collection of alternative product would be a firms all supply Moses baskets or information; and carriages, along with stationary stands; reasonable and realistic way to offset • Notice that comments may be the Commission believes that these any lost revenue. submitted to the OMB. As is the case with manufacturers, all products require additional safety importers will be subject to third party features when used for sleeping Title: Safety Standard for Bassinets testing and certification requirements, purposes. Adopting the voluntary and Cradles. and consequently, they will experience standard without modifications could Description: The proposed rule would costs similar to those for manufacturers also reduce the impact on other small require each bassinet and cradle to if their supplying foreign firm(s) does manufacturers and importers whose comply with ASTM F 2194–12, not perform third party testing. The ASTM-compliant bassinets/cradles ‘‘Standard Consumer Safety resulting costs could have a significant would require modifications due to the Specification for Bassinets and impact on a few small importers who proposed changes. However, because of Cradles.’’ Sections 8 and 9 of ASTM F must perform the testing themselves if the severity of the incidents associated 2194–12 contain requirements for more than one sample per model were with instability and mattress tilt, the marking, labeling, and instructional required. Commission does not recommend this literature. These requirements fall Bedding Suppliers. There are nine alternative. within the definition of ‘‘collection of known small firms specializing in the A second alternative would be to set information,’’ as defined in 44 U.S.C. supply of bedding, including bedding an effective date later than the proposed 3502(3). for bassinets and cradles. Each firm sells 6 months that is generally considered Description of Respondents: Persons basic bassinet or cradle shells, covered sufficient time for suppliers to come who manufacture or import bassinets/ with their bassinet and cradle bedding. into compliance with a proposed rule. cradles. While it is clear that these firms do not Setting a later effective date would Estimated Burden: We estimate the manufacture the structural parts of the allow suppliers additional time to burden of this collection of information bassinets or cradles themselves, it is modify and/or develop compliant as follows:

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TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN

Total Total 16 CFR Section Number of Frequency of annual Hours per burden respondents responses responses response hours

1218 ...... 55 5 275 1 275

Our estimates are based on the Therefore, because we are unaware of of injury, unless the state requirement is following: bassinets or cradles that generally identical to the federal standard. Section Section 8.1.1 of ASTM F 2194–12 require some installation, but lack any 26(c) of the CPSA also provides that requires that the name of the instructions to the user about such states or political subdivisions of states manufacturer, distributor, or seller and installation, we tentatively estimate that may apply to the Commission for an either the place of business (city, state, there are no burden hours associated exemption from this preemption under and mailing address, including zip with section 9.1 of ASTM F2194–12 certain circumstances. Section 104(b) of code) or telephone number, or both, be because any burden associated with the CPSIA refers to the rules to be marked clearly and legibly on each supplying instructions with bassinets issued under that section as ‘‘consumer product and its retail package. Section and cradles would be ‘‘usual and product safety rules,’’ thus implying 8.1.2 of ASTM F 2194–12 requires a customary’’ and not within the that the preemptive effect of section code mark or other means that identifies definition of ‘‘burden’’ under the OMB’s 26(a) of the CPSA would apply. the date (month and year, at a regulations. Therefore, a rule issued under section minimum) of manufacture. Based on this analysis, the proposed 104 of the CPSIA will invoke the There are 55 known entities standard for bassinets would impose a preemptive effect of section 26(a) of the supplying bassinets to the U.S. market. burden to industry of 275 hours at a cost CPSA when it becomes effective. All 55 firms are assumed to use labels of $7,576.25 annually. already on both their products and their M. Certification and Notice of In compliance with the Paperwork Requirements (NOR) packaging, but they might need to make Reduction Act of 1995 (44 U.S.C. some modifications to their existing § 3507(d)), we have submitted the Section 14(a) of the CPSA imposes the labels. The estimated time required to information collection requirements of requirement that products subject to a make these modifications is about 1 this rule to the OMB for review. consumer product safety rule under the hour per model. Each entity supplies an Interested persons are requested to CPSA, or to a similar rule, ban, average of eight different models of submit comments regarding information standard, or regulation under any other bassinets; therefore, the estimated collection by November 19, 2012, to the act enforced by the Commission, must burden associated with labels is 1 hour Office of Information and Regulatory be certified as complying with all × × per model 55 entities 5 models per Affairs, OMB (see the ADDRESSES section applicable CPSC-enforced requirements. entity = 275 hours. We estimate the at the beginning of this notice). 15 U.S.C. 2063(a). Section 14(a)(2) of the hourly compensation for the time Pursuant to 44 U.S.C. 3506(c)(2)(A), CPSA requires that certification of required to create and update labels is we invite comments on: children’s products subject to a $27.55 (U.S. Bureau of Labor Statistics, • Whether the collection of children’s product safety rule be based ‘‘Employer Costs for Employee information is necessary for the proper on testing conducted by a CPSC- Compensation,’’ March 2012, Table 9, performance of the CPSC’s functions, accepted third party conformity total compensation for all sales and including whether the information will assessment body. Section 14(a)(3) of the office workers in goods-producing have practical utility; CPSA requires the Commission to private industries: http://www.bls.gov/ • The accuracy of the CPSC’s estimate publish a notice of requirements (NOR) ncs/). Therefore, the estimated annual of the burden of the proposed collection for the accreditation of third party cost to industry associated with the of information, including the validity of conformity assessment bodies (or labeling requirements is $7,576.25 the methodology and assumptions used; laboratories) to assess conformity with a ($27.55 per hour × 275 hours = • Ways to enhance the quality, utility, children’s product safety rule to which $7,576.25). There are no operating, and clarity of the information to be a children’s product is subject. The maintenance, or capital costs associated collected; proposed rule for 16 CFR part 1218, with the collection. • Ways to reduce the burden of the ‘‘Safety Standard for Bassinets and Section 9.1 of ASTM F2194–12 collection of information on Cradles,’’ when issued as a final rule, requires instructions to be supplied respondents, including the use of will be a children’s product safety rule with the product. Bassinets and cradles automated collection techniques, when that requires the issuance of an NOR. are products that generally require appropriate, and other forms of On May 24, 2012, the Commission assembly, and products sold without information technology; and published in the Federal Register the such information would not be able to • The estimated burden hours proposed rule, Requirements Pertaining compete successfully with products associated with label modification, to Third Party Conformity Assessment supplying this information. Under the including any alternative estimates. Bodies, 77 FR 331086, which, when OMB’s regulations (5 CFR 1320.3(b)(2)), finalized, would establish the general the time, effort, and financial resources L. Preemption requirements and criteria concerning necessary to comply with a collection of Section 26(a) of the CPSA, 15 U.S.C. testing laboratories. These include the information that would be incurred by 2075(a), provides that where a consumer requirements and procedures for CPSC persons in the ‘‘normal course of their product safety standard is in effect and acceptance of the accreditation of a activities’’ are excluded from a burden applies to a product, no state or political laboratory to test children’s products in estimate, where an agency demonstrates subdivision of a state may either support of the certification required by that the disclosure activities required to establish or continue in effect a section 14(a)(2) of the CPSA. The comply are ‘‘usual and customary.’’ requirement dealing with the same risk proposed rule at 16 CFR part 1112,

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Requirements Pertaining to Third Party bed is dangerously unstable as opposed June 1, 2012. The Director of the Federal Conformity Assessment Bodies, lists the to intentionally designed to rest at an Register approves this incorporation by children’s product safety rules for angle. Comments should be submitted reference in accordance with 5 U.S.C. which the CPSC has published NORs for in accordance with the instructions in 552(a) and 1 CFR part 51. You may laboratories. In this document, the the ADDRESSES section at the beginning obtain a copy from ASTM International, Commission is proposing to amend the of this notice. 100 Bar Harbor Drive, P.O. Box 0700, list in 16 CFR part 1112, once that rule West Conshohocken, PA 19428; http:// List of Subjects becomes final, to include the bassinet www.astm.org/cpsc.htm. You may standard, once finalized, along with the 16 CFR Part 1112 inspect a copy at the Office of the other children’s product safety rules for Administrative practice and Secretary, U.S. Consumer Product which the CPSC has issued NORs. procedure, Audit, Consumer protection, Safety Commission, Room 820, 4330 Laboratories applying for acceptance Reporting and recordkeeping East West Highway, Bethesda, MD as a CPSC-accepted third party 20814, telephone 301–504–7923, or at conformity assessment body to test to requirements, Third party conformity assessment body. the National Archives and Records the new standard for bassinets and Administration (NARA). For cradles would be required to meet the 16 CFR Part 1218 information on the availability of this third party conformity assessment body Consumer protection, Imports, material at NARA, call 202–741–6030, accreditation requirements in 16 CFR Incorporation by reference, Infants and or go to: http://www.archives.gov/ part 1112, Requirements Pertaining to Children, Labeling, Law Enforcement, federal_register/code_of_federal Third Party Conformity Assessment and Toys. regulations/ibr_locations.html. Bodies, once that rule becomes final. For the reasons discussed in the (b) Comply with the ASTM F 2194– When a laboratory meets the 12 standard with the following requirements as a CPSC-accepted third preamble, the Commission proposes to amend Title 16 of the Code of Federal additions or exclusions: party conformity assessment body it can (1) Instead of complying with section Regulations Chapter II as follows: apply to the CPSC to have 16 CFR part 1.3 of ASTM F 2194–12, comply with 1218, Safety Standard for Bassinets and PART 1112—REQUIREMENTS the following: Cradles included in its scope of PERTAINING TO THIRD PARTY (i) 1.3 This consumer safety accreditation of CPSC safety rules listed CONFORMITY ASSESSMENT BODIES performance specification covers for the laboratory on the CPSC Web site products primarily intended to provide at www.cpsc.gov/labsearch. 1. The authority citation for part 1112 sleeping accommodations for an infant The final NOR will base the CPSC continues to read as follows: up to approximately 5 months in age, or laboratory accreditation requirements Authority: Pub. L. 110–314, section 3, 122 when the child begins to push up on on the performance standard set forth in Stat. 3016, 3017 (2008); 15 U.S.C. 2063. hands and knees, whichever comes first. the final rule for the safety standard for Products used in conjunction with an 2. In § 1112.15, add paragraph (b)(33) bassinets and cradles and the test inclined infant swing or stroller, or to read as follows: methods incorporated within that products that are intended to provide an standard. The Commission may § 1112.15 When can a third party inclined sleep surface (head-to-toe recognize limited circumstances in conformity assessment body apply for direction) of greater than 10° from which the Commission will accept CPSC acceptance for a particular CPSC rule horizontal, while in the rest (non- certification based on product testing and/or test method? rocking) position, are not covered by conducted before the Commission’s * * * * * this specification. acceptance of accreditation of (b) * * * laboratories for testing bassinets and Note to Paragraph (b)(1)(i): Cradle swings, (33) 16 CFR part 1218, Safety with an incline less than or equal to 10° from cradles (also known as retrospective Standard for Bassinets and Cradles. horizontal while in the rest (non-rocking) testing) in the final NOR. The 3. Add part 1218 to read as follows: position, are covered under the scope of this Commission seeks comments on any standard. A sleep product that has an issues regarding the testing PART 1218—SAFETY STANDARD FOR inclined sleeping surface (intended to be requirements of the proposed rule for BASSINETS AND CRADLES greater than 10° from horizontal while in the bassinets and cradles and the rest (non-rocking) position) does not fall accompanying proposed NOR. Sec. under the scope of this standard. Strollers 1218.1 Scope. that have a carriage/bassinet feature are N. Request for Comments 1218.2 Requirements for bassinets and covered by the stroller/carriage standard cradles. This proposed rule is part of a when in the stroller use mode. Carriage rulemaking proceeding under section Authority: The Consumer Product Safety baskets/bassinets that are removable from the stroller base are covered under the scope of 104(b) of the CPSIA to issue a consumer Improvement Act of 2008, Pub. L. 110–314, section 104, 122 Stat. 3016 (August 14, 2008). this standard when the carriage basket/ product safety standard for bassinets bassinet meets the definition of a bassinet/ and cradles. We invite all interested § 1218.1 Scope. cradle found in 3.1.1. Bassinet/cradle persons to submit comments on any This part establishes a consumer attachments to cribs or play yards, as defined aspect of the proposed rule. In product safety standard for bassinets in 3.1.2 or 3.1.12, are included in the scope of the standard when in the bassinet/cradle particular, the Commission invites and cradles. comments regarding the reliability of use mode. proposed 16 CFR 1218.2(b)(7)(ii)(C) § 1218.2 Requirements for bassinets and (ii) [Reserved] (allowing the option of making the sleep cradles. (2) Add ‘‘CAMI Newborn Dummy (see surface of the bassinet bed at least 20 (a) Except as provided in paragraph Fig. 1A). Drawing numbers 126–0000 degrees off from a horizontal plane (b) of this section, each bassinet and through 126–0015 (sheets 1 through 3), when the bassinet bed is in an unlocked cradle must comply with all applicable 126–0017 through 126–0027, a parts list position as a means of meeting the provisions of ASTM F 2194–12, entitled ‘‘Parts List for CAMI Newborn stability requirement) with respect to Standard Consumer Safety Specification Dummy,’’ and a construction manual notifying consumers that the bassinet for Bassinets and Cradles, approved on entitled ‘‘Construction of the Newborn

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Infant Dummy’’ (July 1992). Copies of Street SW., Room 5109, Washington, suite 700, Washington, DC.’’ to ‘‘2.3 the materials may be inspected at DC, or at the Office of the Federal Other References’’ and use the following NHTSA’s Docket Section, 400 Seventh Register, 800 North Capitol Street NW., figure:

(3) Instead of complying with section (ii) 3.1.18 removable bassinet bed, from a horizontal plane when the 3.1.1 of ASTM F 2194–12, comply with n—A bassinet bed that is designed to bassinet bed is in an unlocked position. the following: separate from the base/stand without (D) 6.10.4 The bassinet shall provide (i) 3.1.1 Bassinet/cradle, n—small the use of tools. a false latch/lock visual indicator(s) that bed designed primarily to provide (iii) 3.1.19 false lock/latch visual is conspicuous, at a minimum, on the sleeping accommodations for infants, indicator, n—a warning system, using two longest sides of the product. supported by free-standing legs, a contrasting bright colors, lights, or other (E) 6.10.5 The bassinet bed shall not stationary frame/stand, a wheeled base, similar means designed to visually alert tip over and shall retain the CAMI a rocking base, or which can swing caregivers when a removable bassinet newborn dummy. relative to a stationary base; while in a bed is not properly locked onto its (8) Instead of complying with section rest (non-rocking or swinging) position, stand/base. 7.4.4 of ASTM F 2194–12, comply with a bassinet/cradle is intended to have a (iv) 3.1.20 intended use orientation, the following: sleep surface less than or equal to 10° n—The bassinet bed orientation (i.e., the (i) 7.4.4 Place the CAMI Newborn from horizontal. position where the head and foot ends Dummy on the sleeping pad in the (ii) [Reserved] of the bassinet bed are located), with center of the product face up with the (4) Instead of complying with section respect to the base/stand, as arms and legs straightened. 3.1.2 of ASTM F 2194–12, comply with recommended by the manufacturer for (A) Rationale. The newborn CAMI the following: intended use. dummy represents a 50th percentile (i) Bassinet/cradle accessory, n—a (7) In addition to complying with newborn infant, which is a more supported sleep surface that attaches to section 6.8 of ASTM F 2194–12, comply appropriate user of a bassinet than the a crib or play yard designed to convert with the following: CAMI infant dummy, which represents a 50th percentile 6-month-old infant. the product into a bassinet/cradle (i) 6.9 Segmented Mattress (B) [Reserved]. intended to have a sleep surface less Flatness—If the bassinet or bassinet ° (ii) [Reserved]. than or equal to 10 from horizontal accessory has a folding and/or while in a rest (non-rocking or (9) In addition to complying with segmented mattress, any angle when section 7.9 of ASTM F 2194–12, comply swinging) position. measured in section 7.10 shall be less (ii) [Reserved] with the following: (5) Instead of complying with section than or equal to 10 degrees. (i) 7.10 Segmented Mattress Flatness 3.1.3 of ASTM F 2194–12, comply with (ii) 6.10 Removable Bassinet Bed Test. the following: Attachment—Any product containing a (A) 7.10.1 Angle measurement for (i) 3.1.3 conspicuous, adj—describes removable bassinet bed with a latching bassinets intended for a single occupant. a label or indicator that is visible, when or locking device intended to secure the (B) 7.10.1.1 Establish a horizontal the bassinet/cradle is in a bassinet bed to the stand/base, shall reference plane by placing an manufacturer’s recommended use comply with 6.10.1, 6.10.2, 6.10.3, inclinometer, with an accuracy capable position, to a person standing near the 6.10.4 or 6.10.5 when tested in of 0.5° minimum resolution, on the floor bassinet/cradle at any one position accordance with 7.11. of the testing area and zeroing it. around the bassinet/cradle but not (A) 6.10.1 The base/stand shall not (C) 7.10.1.2 Assemble the product necessarily visible from all other support the bassinet bed (i.e., the according to the manufacturer’s positions. bassinet bed collapses from the stand instructions. If the product has more (ii) [Reserved] and contacts the floor). than one mode, assemble in the bassinet (6) In addition to complying with (B) 6.10.2 The lock/latch shall mode(s). Disable the rocking/swinging section 3.1.16 of ASTM F 2194–12, automatically engage under the weight feature if the product is equipped with comply with the following: of the bassinet bed (without any other such a feature. (i) 3.1.17 bassinet bed, n—the force or action). (D) 7.10.1.3 Place the infant test sleeping area of the bassinet, containing (C) 6.10.3 The sleep surface of the cylinder, as shown in Fig. 13, in the the sleep surface and side walls. bassinet bed shall be at least 20° off center of the 1st seam (the seam

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between an end panel and its adjacent Note to Paragraph (b)(9)(i)(D): If the shall not influence the angle measurement panel), as shown in Fig. 14, and allow cylinder begins to roll out of the seam, place and shall have a total weight no greater than the cylinder to come to rest in the seam. a stop(s) on the mattress surface against the 0.25 lbs. cylinder to prevent movement. The stop(s) (E) Figure 13. Infant Test Cylinder.

(F) Figure 14. Cylinder placement on mattress seam.

(G) 7.10.1.4 Place a 6″ x 4″ x 1⁄2″ (152 for placement of the steel block in front Note to Paragraph (b)(9)(i)(I): If needed, an x 101.6 x 12.7 mm) nominal thickness of the cylinder, move the cylinder off additional level block of negligible mass, no steel block weighing 3.3 lbs. (+/¥ 0.2 center, enough to allow placement of greater than 0.2 lb, may be placed atop the pounds) on the mattress panel in front the block, as outlined above in 7.10.1.4. steel block in order to elevate the of the cylinder with the 6″ length of the (I) 7.10.1.5 Place the inclinometer in inclinometer, such that it does not touch the block in line with the center line of the the center of the block, and measure the mattress surface. cylinder as shown in Fig. 15. Place the angle formed with the horizontal along (J) Figure 15. Steel block in front of block within 1⁄2″; (12.7 mm) of the the line that is perpendicular to the cylinder. If the block slides and touches longitudinal axis of the cylinder, as the cylinder for a single occupant the cylinder, this is allowable. shown in Fig. 16. Ensure the bassinet. (H) 7.10.1.4.1 Where the play yard inclinometer does not touch the bassinet size constraints do not allow mattress surface.

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(K) Figure 16. Inclinometer on steel block in front of the cylinder for a single occupant bassinet.

(L) 7.10.1.6 Record the angle (P) 7.10.2 Angle measurement for retention areas, as shown in Fig. 18, and measurement. bassinets intended for two occupants: allow them to come to rest in the seam. (M) 7.10.1.7 Repeat 7.10.1.4–7.10.1.5 (Q) 7.10.2.1 Establish a horizontal Note to Paragraph (b)(9)(i)(R): If the on the opposite side of the seam and reference plane by placing an cylinder begins to roll out of the seam place record the measurement. inclinometer, with an accuracy capable a stop(s) on the mattress surface against the (N) 7.10.1.8 Remove the cylinder of 0.5° minimum resolution, on the floor cylinder to prevent movement. The stop(s) from the bassinet. of the testing area and zeroing it. shall not influence the angle measurement (O) 7.10.1.9 Repeat 7.10.1.3–7.10.1.8 (R) 7.10.2.2 Place one at a time, two and shall have a total weight no greater than on each remaining seam of the mattress identical newborn test cylinders (A and 0.25 lbs. and record the angles. B), as shown in Fig. 17 in the occupant (S) Figure 17. Newborn Test Cylinder

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(T) Figure 18. Placement of cylinders for a 2 occupant bassinet.

(U) 7.10.2.3 Apply a 10.0 ± 0.5 lb cylinder. If the block slides and touches longitudinal axis of cylinder A, as compression force simultaneously with the cylinder, this is allowable. shown in Fig. 20. Ensure that the a force gauge onto the center of each (W) 7.10.2.4.1 Where the play yard inclinometer does not touch the cylinder, and hold for 10 seconds. bassinet size constraints do not allow mattress surface. (V) 7.10.2.4 Place a 6″ x 4″ x 1⁄2″ (152 for placement of the steel block in front Note to Paragraph (b)(9)(i)(X): If needed, x 101.6 x 12.7 mm) nominal thickness of the cylinder, move the cylinder off an additional level block of negligible mass, steel block weighing 3.3 lbs. (+/¥ 0.2 center enough to allow placement of the no greater than 0.2 lb, may be placed atop the pounds) on the mattress panel in front block as outlined above in 7.10.2.4. steel block in order to elevate the of cylinder A with the 6″ length of the (X) 7.10.2.5 Place the inclinometer inclinometer, such that it does not touch the block in line with the center line of the on the block, and measure the angle mattress surface. cylinder, as shown in Fig. 19. Place the formed with the horizontal along the (Y) Figure 19. Steel block in front of block within 1⁄2″ (12.7 mm) of the line that is perpendicular to the the cylinder for a 2-occupant bassinet.

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(Z) Figure 20. Inclinometer on Steel block in front of the cylinder for a 2- occupant bassinet.

(AA) 7.10.2.6 Record the angle (DD) 7.10.2.9 Remove both cylinders a force gauge onto the center of each measurement. and then place them in the occupant cylinder and hold for 10 seconds. (BB) 7.10.2.7 Repeat 7.10.2.4– retention areas such that the side of the (FF) Figure 21. Two cylinders (A and 7.10.2.5 on the opposite side of the cylinders are in contact with the inside B) in contact with the inside wall. cylinder and record the measurement. wall as shown in Fig. 21. (CC) 7.10.2.8 Repeat the angle ± measurements 7.10.2.4–7.10.2.7 for (EE) 7.10.2.10 Apply a 10.0 0.5 lb cylinder B and record the measurement. compression force simultaneously with

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(GG) 7.10.2.11 Place 6″ x 4″ x 1⁄2″ and measure the angle formed with the block within 1⁄2″ (12.7 mm) of the (152 x 101.6 x 12.7 mm) nominal horizontal along the line that is cylinder. If the block slides and touches thickness steel block weighing 3.3 lbs. perpendicular to the longitudinal axis of the cylinder, this is allowable. ¥ (+/ 0.2 pounds) on the mattress panel cylinder A as shown in Fig. 22. (KK) 7.10.12.15 Place the on one side perpendicular to the (II) 7.10.2.13 Record the angle inclinometer in the center of the block, longitudinal axis of the cylinder, with measurement. and measure the angle formed with the (JJ) 7.10.12.14 Place a 6″ x 4″ x 1 2″ the centerline of the block adjacent to ⁄ horizontal along the line that is the midpoint of the cylinder. Place the (152 x 101.6 x 12.7 mm) nominal perpendicular to the longitudinal axis of 1 ″ block within ⁄2 (12.7 mm) of the thickness steel block weighing 3.3 lbs. cylinder B, as shown in Fig. 23. cylinder. If the block slides and touches (+/¥ 0.2 pounds) on the mattress panel either the inside wall or the cylinder, on one side perpendicular to the (LL) 7.10.2.16 Record the angle this is allowable. longitudinal axis of the cylinder, with measurement. (HH) 7.10.2.12 Place the the centerline of the block adjacent to (MM) Figure 22. Angle measure in inclinometer in the center of the block, the midpoint of the cylinder. Place the front of Cylinder A.

(NN) Figure 23. Angle measure in front of Cylinder B.

(OO) Rationale. (1) The cylinder used (10) In addition to the changes to Note to Paragraph (b)(10)(i)(D): For in 7.10.1 was copied from a European ASTM F 2194–12 in paragraph (b)(10) of mattresses that are integral with the mattress standard for baby walkers (EN this section comply with the following: support, do not remove the mattress and perform all angle measurements for 7.11 on 1273:2005) and appears to be based on (i) 7.11 Removable Bassinet Bed 3 a 6 by 6 by ⁄8-in. nominal aluminum block the weight and torso dimensions of a Attachment Tests. placed on the center of the mattress. child between 6 and 8 months old. This (A) 7.11.1 Assemble the bassinet/ (E) 7.11.5 Place the bassinet bed on represents the heaviest intended cradle base/stand only, in accordance the base/stand in the intended use occupant, which will result in a more with manufacturer’s instructions. conservative test. orientation without engaging any latch (2) Because bassinet accessories (B) 7.11.2 Place the base/stand in or lock mechanism. If the bassinet bed intended for multiple births will have a one of the manufacturer’s recommended can rest on the base/stand in its shorter useful range of utility, the larger use positions. intended use orientation in more than cylinder used in 7.10.2 was too heavy to (C) 7.11.3 Place the base/stand and one lateral unlocked position (see represent the intended user population. the inclinometer on a flat level Figure 24), the unit shall be evaluated ¥ ° The smaller cylinder used in 7.10.2 was horizontal surface (0 +/ 0.5 ) to in the lateral position most likely to fail based on the weight of an infant, establish a test plane. Zero the the requirements outlined in 6.10. matched to the height of the test inclinometer. (F) Figure 24: Bassinet Bed Resting on cylinder in 7.10.1. (D) 7.11.4 Remove the mattress pad Stand, Showing Possible Alternate (ii) [Reserved]. from the bassinet bed. Lateral Positions.

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(G) 7.11.5.1 If the base/stand when the lock or latch is not properly Dated: October 4, 2012. supports the bassinet bed, place the engaged can create a false sense of Todd A. Stevenson, inclinometer on the mattress support at security by appearing to be stable. Secretary, Consumer Product Safety the approximate center of the mattress Unsecured or mis-aligned lock/latch Commission. support. Care should be taken to avoid systems are a hidden hazard because [FR Doc. 2012–24896 Filed 10–17–12; 8:45 am] seams, snap fasteners, or other items they not easily seen by consumers due BILLING CODE 6355–01–P that may affect the measurement to being located beneath the bassinet or reading. Record the angle measurement. covered by decorative skirts. In (H) 7.11.5.2 If the base/stand addition, consumers will avoid DEPARTMENT OF HOMELAND supports the bassinet bed and the angle activating lock/latch mechanisms for SECURITY of the mattress support surface is less numerous reasons if a bassinet bed than 20 degrees of horizontal, evaluate appears stable when placed on a stand/ Coast Guard whether the bassinet has a visual base. Because of these foreseeable use indicator per 6.10.4. conditions, this requirement has been 33 CFR Part 161 (I) 7.11.5.3 If the base/stand added to ensure that bassinets with a [Docket No. USCG–2011–1024] supports the bassinet bed, and the angle removable bassinet bed feature will be of the mattress support surface is less inherently stable or it is obvious that RIN 1625–AB81 than 20 degrees of horizontal, and the they are not properly secured. bassinet does not contain a false latch/ (2) Section 6.10 allows bassinet bed Vessel Traffic Service Updates, lock indicator, test the unit in designs that: Including Establishment of Vessel accordance with sections 7.4.2–7.4.7. (i) Cannot be supported by the base/ Traffic Service Requirements for Port (J) 7.11.6 Repeat 7.11.3 through stand in an unlocked configuration, Arthur, Texas and Expansion of VTS 7.11.5.3 for all of the manufacturer’s Special Operating Area in Puget Sound base/stand positions. (ii) Automatically lock and cannot be (K) 7.11.7 If the product design placed in an unlocked position on the AGENCY: Coast Guard, DHS. allows, repeat 7.11.2 through 7.11.6 base/stand, ACTION: Proposed rule; correction. with the bassinet bed rotated 180° from (iii) Are clearly and obviously the normal use orientation. unstable when the lock/latch is SUMMARY: This document contains a (1) Rationale. This test requirement misaligned or unused, correction to the notice of proposed addresses fatal and nonfatal incidents (iv) Provide a visual warning to rulemaking published in the Federal involving bassinet beds that tipped over consumers when the product is not Register on September 10, 2012 (77 FR or fell off their base/stand when they properly locked onto the stand/base, or 55439), which proposes to revise and were not properly locked/latched to (v) Have lock/latch mechanisms that update the Vessel Traffic Service their base/stand or the latch failed to are not necessary to provide needed regulations in 33 CFR part 161. engage as intended. Products that stability. DATES: Comments and related material appear to be in an intended use position (ii) [Reserved]. must either be submitted to our online

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docket via http://www.regulations.gov subject of a separate rulemaking DEPARTMENT OF TRANSPORTATION on or before December 10, 2012, or project.1 reach the Docket Management Facility Federal Railroad Administration Need for Correction by that date. Although the Coast Guard highly ADDRESSES: You may submit comments 49 CFR Part 234 encourages the use of AIS in U.S. identified by docket number USCG– navigable waters, it was not the Coast [Docket No. FRA–2011–0007, Notice No. 1] 2011–1024 using any one of the Guard’s intention, through this following methods: RIN 2130–AC26 proposed rulemaking, to apply the AIS (1) Federal eRulemaking Portal: carriage requirements that are set forth http://www.regulations.gov. National Highway-Rail Crossing in § 164.46 to vessels operating within Inventory Reporting Requirements (2) Fax: 202–493–2251. VTS Louisville and Los Angeles/Long (3) Mail: Docket Management Facility Beach waters. Currently, under existing AGENCY: Federal Railroad (M–30), U.S. Department of Part 161, Note 1 to Table 161.12(c), the Administration (FRA), Department of Transportation, West Building Ground AIS broadcast and carriage requirements Transportation (DOT). Floor, Room W12–140, 1200 New Jersey set forth in §§ 161.21 and 164.46 apply ACTION: Notice of proposed rulemaking Avenue SE., Washington, DC 20590– to each VTS location identified in Table (NPRM). 0001. 161.12(c) that are denoted with an (4) Hand delivery: Same as mail MMSI number. Because the addition of SUMMARY: FRA is proposing to require address above, between 9 a.m. and 5 VTS Louisville’s and Los Angeles/Long railroads to submit information to the p.m., Monday through Friday, except Beach MMSI numbers to Table 161.12(c) U.S. DOT National Highway-Rail Federal holidays. The telephone number would inadvertently impose AIS Crossing Inventory about highway-rail is 202–366–9329. carriage requirements to certain crossings and pathway crossings over To avoid duplication, please use only categories of vessels operating in these which they operate. These amendments, one of these four methods. See the VTS areas, the Coast Guard is making a which are required by the Rail Safety ‘‘Public Participation and Request for conforming correction to Note 1 to Table Improvement Act of 2008 (RSIA), would Comments’’ portion of the 161.12(c) by adding, at the end of Note require railroads to submit information SUPPLEMENTARY INFORMATION section in 1, the words ‘‘except for Louisville and about previously unreported and new the notice of proposed rulemaking Los Angeles/Long Beach.’’ public and private highway-rail published in the Federal Register on The following correction is issued crossings and pathway crossings to the September 10, 2012 (77 FR 55439) for based on authority under 33 U.S.C. U.S. DOT National Highway-Rail instructions on submitting comments. 1223, 1231; 46 U.S.C. 70114, 70119; Crossing Inventory and to periodically FOR FURTHER INFORMATION CONTACT: Public Law 107–295, 116 Stat. 2064; update the Inventory. Lieutenant Commander Patricia Department of Homeland Security DATES: Written comments must be Springer, CG–7413, U.S. Coast Guard, Delegation No. 0170.1. received by December 17, 2012. telephone 202–372–2576; email Correction Comments received after that date will [email protected]. If you have The proposed regulatory text of the be considered to the extent possible questions on viewing or submitting notice of proposed rulemaking entitled without incurring additional expense or material to the docket, call Ms. Renee V. ‘‘Vessel Traffic Service Updates, delay. FRA anticipates being able to Wright, Program Manager, Docket Including Establishment of Vessel resolve this rulemaking without a public Operations, telephone 202–366–9826. Traffic Service Requirements for Port hearing. However, if FRA receives a SUPPLEMENTARY INFORMATION: Arthur, TX and Expansion of VTS specific request for a public hearing prior to November 19, 2012, a hearing Background Special Operating Area in Puget Sound,’’ published September 10, 2012, will be scheduled and FRA will publish On September 10, 2012, the Coast is corrected as follows: a supplemental notice in the Federal Guard published a notice of proposed Register to inform interested parties of rulemaking (NPRM) (77 FR 55439) § 161.12 [Corrected] the date, time, and location of any such which proposes to revise certain Vessel In proposed rule FR Doc. 2012–22164 hearing. Traffic Service (VTS) regulations in 33 published on September 10, 2012 (77 FR FRA intends to hold a technical CFR part 161. The proposed revisions 55439), make the following correction: symposium during this comment include adding the Maritime Mobile On page 55446, in the last sentence of period, in order to facilitate discussion Service Identifiers (MMSI) for Louisville Note 1 of Table 161.12(c), remove the on the technical implications associated and Los Angeles/Long Beach. period, and add, in its place, the words with the electronic submission of data In the Regulatory Analysis of the ‘‘except for Louisville and Los Angeles/ to the Crossing Inventory. The date and NPRM, we said that we do not expect Long Beach.’’ location of the technical symposium these revisions to result in additional Dated: October 9, 2012. will be announced through issuance of a separate notice in the Federal costs to the public or industry (77 FR Kathryn A. Sinniger, Register. 55441). After publication of that NPRM, Chief, Office of Regulations and however, the Coast Guard realized that Administrative Law, U.S. Coast Guard. ADDRESSES: Interested parties may revising Table 161.12(c) for the purpose [FR Doc. 2012–25239 Filed 10–17–12; 8:45 am] submit comments identified by docket of adding an MMSI number for VTS BILLING CODE 9110–04–P number FRA–2011–0007 by any of the Louisville and Los Angeles/Long Beach following methods: • would impose Automatic Identification 1 On December 16, 2008, the Coast Guard Fax: 202–493–2251; System (AIS) equipment costs for published a Notice of Proposed Rulemaking entitled • Mail: U.S. Department of owners and operators of the vessel type ‘‘Vessel Requirements for Notices of Arrival and Transportation, Docket Operations, M– identified in § 164.46(a)(3) and that Departure, and Automatic Identification System.’’ In this NPRM, the Coast Guard proposes to expand 30, West Building Ground Floor, Room operate in either of these two VTS areas. AIS applicability to all U.S. navigable waters. (73 W12–140, 1200 New Jersey Avenue SE., That action was not intended, and is the FR 76295). Washington, DC 20590;

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• Hand Delivery: U.S. Department of F. Environmental Impact records and will improve the Crossing Transportation, Docket Operations, G. Unfunded Mandates Reform Act of 1995 Inventory. This would allow FRA to West Building Ground Floor, Room H. Energy Impact identify highway-rail crossings and W12–140, 1200 New Jersey Avenue SE., I. Privacy Act pathway crossings not currently Washington, DC 20590, between 9 a.m. I. Executive Summary recorded in the existing voluntary and 5 p.m., Monday through Friday, FRA is proposing amendments to 49 crossing inventory. FRA believes that except Federal holidays; or such clarification in the inventory • CFR Part 234 which would require Online: Comments may be filed railroads to submit information to the would help offset costs associated with through the Federal eRulemaking Portal, U.S. DOT National Highway-Rail the rulemaking by simplifying the http://www.regulations.gov. Follow the Crossing Inventory (Crossing Inventory) reporting process. FRA conducted a online instructions for submitting about both public and private highway- break-even analysis of the rule and comments. rail crossings and pathway crossings believes that potential benefits from the Instructions: All submissions must over which they operate. These proposal would likely equal or exceed include the agency name, docket name proposed amendments are intended to total costs. and docket number or Regulatory further FRA’s efforts to improve existing II. Statutory Background Identifier Number (RIN) for this data on the characteristics of the rulemaking (2130–AC26). Note that all The proposed rule is intended Nation’s public, private, and pathway specifically to implement Section 204(a) comments received will be posted crossings and are intended to without change to http:// of RSIA, Public Law 110–432, Division implement section 204(a) of the RSIA. A, which was enacted October 16, 2008, www.regulations.gov, including any Consistent with the statute, FRA is personal information provided. Please and generally to increase safety at proposing to require that railroads highway-rail crossings and pathway see the Privacy Act heading in the submit initial reports to the Crossing SUPPLEMENTARY INFORMATION section of crossings. See 49 U.S.C. 20160. Inventory, including current (National crossing inventory). Section this document for Privacy Act information about warning devices and information related to any submitted 20160 of title 49 of the United States signage, for each previously unreported Code (Section 20160) requires the comments or materials. and new public and private highway- Docket: For access to the docket to Secretary of Transportation (Secretary) rail crossing and pathway crossing, and to establish reporting requirements for read background documents or that railroads periodically update that comments received, go to http:// railroad carriers related to public and information, including the submission private highway-rail grade crossings and www.regulations.gov at any time or visit of updated ownership information after the Docket Management Facility, U.S. pathway crossings. Specifically, Section the sale of a crossing. 20160 mandates that the Secretary issue Department of Transportation, West FRA has estimated the costs of this Building Ground Floor, Room W12–140, regulations requiring railroad carriers to rule, evaluated over a 20-year period report certain information, including 1200 New Jersey Avenue SE., and using a discount rate of 7 percent. Washington, DC, between 9 a.m. and 5 current information about warning For the 20-year period analyzed, the devices and signage, related to new and p.m., Monday through Friday, except estimated quantified cost that would be Federal holidays. previously unreported public, private, imposed on industry totals $2.1 million and pathway crossings to the Crossing FOR FURTHER INFORMATION CONTACT: with a present value (PV, 7 percent) of Ronald Ries, Staff Director, Grade Inventory. In addition, Section 20160 $1.5 million. FRA considered the mandates that the Secretary issue Crossing Safety and Trespass industry costs associated with requiring Prevention, Office of Safety Analysis, regulations requiring railroad carriers to railroads to establish and maintain an periodically update certain information FRA, 1200 New Jersey Avenue SE., Mail inventory for all public and private submitted to the Secretary about public, Stop 25, Washington, DC 20590 highway-rail crossings and pathway private, and pathway crossings through (telephone: 202–493–6299), crossings. Many railroads have already which they operate or public, private, [email protected]; or Kathryn Shelton, implemented components of the and pathway crossings that are located Office of Chief Counsel, FRA, 1200 New proposed rule. FRA estimates that as on trackage over which they operate. In Jersey Avenue SE., Mail Stop 13, many as 50 percent of all highway-rail accordance with Section 20160, Washington, DC 20590 (telephone: 202– crossings are currently updated in the additional updates would also be 493–6063), [email protected]. Crossing Inventory. The requirements required, pursuant to such regulations, SUPPLEMENTARY INFORMATION: that are expected to impose the largest whenever a railroad carrier sells all, or Table of Contents for Supplementary burdens relate to the collection of recent a portion of, a public, private, or Information information and to the periodic update pathway crossing. However, until these of the inventory. implementing regulations are issued, I. Executive Summary The table below presents the II. Statutory Background Section 20160 provides that the estimated costs associated with the Secretary may enforce the Crossing III. History of the U.S. DOT National proposed rulemaking. Highway-Rail Crossing Inventory Inventory policy, procedures, and Program instructions that were in effect on IV. Proposed Revisions to Inventory Guide 20-YEAR COST FOR PROPOSED RULE October 16, 2008. The Secretary and Inventory Form delegated the responsibility for carrying V. Section-by-Section Analysis Initial Update of Inventory ...... $874,280 Periodic Update of Inventory .... 646,856 out the mandates of Section 20160 to VI. Regulatory Impact and Notices the FRA Administrator. 49 CFR A. Executive Order 12866 and DOT Regulatory Policies and Procedures Total ...... 1,521,136 1.49(oo). B. Regulatory Flexibility Act and Executive Future costs are discounted to present III. History of the Crossing Inventory Order 13272; Initial Regulatory value using a 7 percent discount rate. Program Flexibility Assessment C. Paperwork Reduction Act FRA anticipates that this rulemaking In August 1972, the U.S. Department D. Federalism Implications will increase the accuracy, precision, of Transportation (DOT) submitted a E. International Trade Impact Assessment completeness, and utility of railroad Report to Congress entitled, ‘‘Railroad-

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Highway Safety Part II: implementation of crossing Crossing Inventory subject matter Recommendations for Resolving the improvement programs by public and experts representing a wide array of Problem.’’ The primary goal of this private agencies responsible for crossing safety stakeholders over several report was to provide recommendations highway-rail crossing safety, as well as years. Nonetheless, FRA seeks for actions that would lead to a the railroad industry and academia. comments on the draft revised Inventory significant reduction in accidents, However, in order for the Crossing Form (Draft Inventory Form) and draft fatalities, personal injuries, and Inventory to serve as an effective revised Inventory Guide (Draft Guide), property damage at highway-rail database, States and railroads need to both of which have been placed in the crossings. In this Report to Congress, exchange information with each other docket, from all interested parties. DOT recommended the establishment of and promptly update the crossing data FRA proposes to pare down the an information system consisting of a records as changes occur. Therefore, Inventory Guide to focus primarily on national database of all highway-rail FRA has historically acted as a providing instructions for completing crossings in the Nation. Although clearinghouse for the exchange of the Inventory Form. With respect to the various local, State, and Federal crossing data between these entities. Draft Guide, FRA specifically seeks agencies had collected and maintained The Crossing Inventory receives comment on the following items: information about highway-rail information from individual railroads • With respect to the Instructions crossings, most information systems or and States to form a composite record provided in the Header of the Draft databases were fragmented and for each crossing. This composite record Inventory Form, FRA seeks comment on incomplete because all information was has many purposes, as it can be used to whether the proposed Instructions are submitted on a voluntary basis. predict the likelihood of an accident at helpful and should be retained. It However, site-specific information was a specific crossing. Armed with this should be noted, however, that FRA needed to provide for a systematic information, States, law enforcement intends to remove the incorrect mailing approach for the planning and organizations, the Federal Government, address that is provided in the proposed evaluation of highway-rail crossing and others can focus their efforts on Instructions. safety improvement programs at both crossings that have a high risk of • With respect to item C in the the State and Federal level. collisions and implement measures, Header of the Draft Inventory Form, Therefore, DOT recommended that such as improved warning systems, Reason for Update, FRA seeks comment the FRA: (1) Issue requirements for the enhanced enforcement, and community on whether railroads and States should railroads to assign and display awareness. be given the option to select more than identification numbers at all highway- As with any information system from one reason for submitting data to the rail crossings based on a uniform which decisions are made, the Crossing Inventory. With respect to this national standard to be prescribed by incorporation of accurate and timely item, FRA also seeks comment on DOT, (2) arrange with the railroads to data into the Crossing Inventory is key. whether a separate category should be provide site-specific inventory data for If the data is suspect, then verification retained for crossings that are located on all crossings on their respective lines, is usually required before resources may an abandoned segment of track since the and (3) update the inventory be committed. Verification requires abandoned status of the underlying periodically by following the additional resources and may delay the track segment may not necessarily procedures and standards established implementation of improvements that determine whether the crossing is still jointly by FRA and the Federal Highway could reduce the probability of a in use. Administration (FHWA) in conjunction collision. Therefore, an instructions and • With respect to item D in the with railroad and State representatives. procedures manual (commonly referred Header of the Draft Inventory Form, In accordance with these to as the ‘‘Inventory Guide’’) was issued DOT Crossing Inventory Number, FRA recommendations, the Crossing and then revised over the years, as seeks comment on whether the current Inventory was developed in the early changes were made to the inventory practice of allowing railroads to assign 1970s through the cooperative efforts of form, in order to establish procedures a single Inventory Number to a group of FHWA, FRA, the Association of for submitting data to the Crossing crossings in a railroad yard or an area American Railroads, individual States, Inventory. belonging to a private company, a port, and individual railroads. Each highway- or a dock area should be retained. IV. Proposed Revisions to Inventory rail crossing was surveyed—public and • With respect to items 17 and 18 in Guide and Inventory Form private, grade-separated and at-grade— Part I of the Draft Inventory Form, box and data was recorded on an inventory As part of this rulemaking, FRA 17 (Crossing Type) has been revised by form. The resulting inventory contained proposes to make certain revisions to removing the category for pedestrian data on the location of the crossing, the the existing Inventory Guide and to the crossings, in order to draw a clear amount and type of highway and train existing Form FRA F 6180.71, which is distinction between public and private traffic, traffic control devices, and other used to report data to the Crossing crossings. However, box 18 (Crossing physical elements of the crossing. Inventory (and is commonly referred to Purpose) has been added to the Draft As a result of these efforts, the as the ‘‘Inventory Form’’). The Inventory Inventory Form, so that railroads and Crossing Inventory has become a Guide and the Inventory Form have States can identify highway-rail national database of highway-rail been placed in the docket for public crossings, pedestrian crossings located crossings, both at-grade and grade- review. For example, FRA proposes to within railway stations and other separated, that is used by railroads, require railroads to complete the entire pedestrian/pathway crossings. FRA States, and others to obtain information Inventory Form for previously seeks comment on the proposed change about the physical and operating unreported and new public crossings, in to box 17, and the addition of box 18, characteristics of individual crossings. order to satisfy the legislative intent of on the Draft Inventory Form. The Crossing Inventory is intended to Section 20160 to improve the Crossing • With respect to item 4 in Part II of provide a uniform inventory database Inventory by obtaining critical data for the Draft Inventory Form, Type and which can be merged with highway-rail public crossings. Most of the remaining Number of Tracks, FRA seeks comment crossing collision files and used to changes proposed have, however, on the definitions provided for the analyze information for planning and resulted from ongoing discussions with various types of track listed, including

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the definition for ‘‘spur/lead’’ track. Are transporting hazardous materials in intersection of a roadway with three spur/lead tracks generally used for commerce. tracks (e.g., two mainline and one spur) storage purposes? • With respect to item 11 in Part V of where the mainline tracks are equipped • With respect to item 5 in Part II of the Draft Inventory Form, Regular with flashing lights and the spur track the Draft Inventory Form, Train Emergency Services Route, FRA seeks is equipped with crossbucks would be Detection, FRA seeks comment on comment on how the term ‘‘regular considered, for purposes of the Crossing whether it would be advisable to collect emergency services route’’ should be Inventory, two crossings with two data on the number of tracks that are defined. separate crossing inventory numbers. equipped with the various types of train A copy of the Draft Guide and a Draft One highway-rail crossing would detection. Inventory Form have been placed in the consist of the mainline tracks that lie • With respect to item 2D in Part III docket for this rulemaking and FRA between the flashing lights, while the of the Draft Inventory Form, Advance seeks comment on their content. With other highway-rail crossing would Warning Signs, FRA seeks comment on respect to the Draft Guide, FRA consist of the spur track which is whether the Inventory Form should specifically seeks comment on the equipped with crossbucks. reflect the actual number of signs posted proposed Crossing Inventory ‘‘Operating railroad’’ would be at the crossing, as opposed to the Responsibility Table in Appendix B, defined to mean any railroad that number of posts or masts bearing which assigns responsibility for operates one or more trains through a advance warning signs. updating specific data fields on the highway-rail crossing or pathway • With respect to the various types of Draft Inventory Form to either the State crossing. Thus, for purposes of this train-activated warning devices listed in or Railroad. subpart, a railroad would be considered item 3 in Part III of the Draft Inventory an operating railroad even if the railroad Form, FRA seeks comment on whether V. Section-by-Section Analysis does not own the highway-rail crossing railroads should be required to submit Section 234.1 Scope or pathway crossing through which it interim updates to the Crossing travels, or the railroad is not responsible FRA proposes to expand part 234 to Inventory after implementation of one for maintaining the warning devices at include a new subpart F, entitled: or more of each type of warning device. the highway-rail or pathway crossing. Highway-Rail Crossing Inventory • With respect to item 3A in Part III As this definition implies, there may be Reporting. For this reason, FRA of the Draft Inventory Form, Gate Arms, multiple operating railroads for a single proposes to revise paragraph (a) of this FRA seeks comment from all interested highway-rail crossing or pathway section by including a reference to the parties on whether States should be crossing. assigned the responsibility for updating proposed Crossing Inventory reporting Consistent with Section 20160, a this data field. and updating requirements for railroads. ‘‘pathway crossing’’ would be defined to • With respect to item 3D in Part III Subpart F—Highway-Rail Crossing mean a pathway that has all of the of the Draft Inventory Form, Post- Inventory Reporting following characteristics: (1) Is Mounted Flashing Light Assemblies, explicitly authorized by a public Section 234.401 Definitions FRA seeks comment on whether the authority or an operating railroad; (2) is Inventory Form should be revised to This section contains proposed dedicated for the use of non-vehicular reflect the presence of side lights that definitions of terms used in this subpart, traffic, including pedestrians, bicyclists, might also have been installed on the listed alphabetically. Additional and others; (3) is not associated with a post-mounted flashing light assemblies explanation for some of the proposed public highway, road, or street, or a for the benefit of highway users on an definitions is provided below. private roadway; and (4) that crosses approaching parallel roadway. ‘‘Class I’’ would have the meaning one or more railroad tracks either at • With respect to item 3F in Part III assigned by regulations of the Surface grade or grade-separated. However, an of the Draft Inventory Form, Original Transportation Board (STB), which may area where pedestrians trespass, even Installation Date of Current Active be found at 49 CFR part 1201, General routinely, is not considered to be a Warning Devices, FRA seeks comment Instructions 1–1, Classification of pathway crossing. from all interested parties on whether carriers. To ensure that the definition of Pathways that are contiguous with, or the Crossing Inventory should collect ‘‘Class I’’ as used in this proposed separate but adjacent to, highway-rail data on the installation date of active subpart incorporates any changes that crossings are presumed to be part of the warning devices that will be installed the STB may make after the publication highway-rail crossing and are not after the effective date of any regulation of this subpart, this definition would considered separate crossings. However, that may be issued through this include any revision to the regulations pathways that are located at least 25 feet rulemaking effort. as applied by the STB, which would from the location where a highway, • With respect to item 2 in Part V of include modifications in the class road, or street intersects with one or the Draft Inventory Form, Functional threshold based on revenue deflator more railroad tracks are generally Classification of Road at Crossing, FRA adjustments. considered to be separate pathway seeks comment on whether the ‘‘Local Consistent with Section 20160’s crossings. Accordingly, separate Access’’ functional classification code definition of ‘‘crossing’’, ‘‘highway-rail Inventory Numbers should be assigned should be changed to ‘‘Local’’, in order crossing’’ would be defined to mean the to such crossings. (The proposed rule to be consistent with the official location where one or more railroad defines ‘‘Inventory Number’’ as ‘‘the functional classification codes that are tracks intersect with a public highway, number assigned to a highway-rail contained in the FHWA’s Highway road, street, or private roadway, crossing or pathway crossing in the Performance Monitoring System including associated sidewalks and Crossing Inventory’’). (HPMS) Manual. pathways, either at-grade or grade- ‘‘Primary operating railroad’’ would • With respect to item 10 in Part V of separated. For purposes of the Crossing be defined to mean the operating the Draft Inventory Form, Regularly Inventory, railroad tracks that lie within railroad responsible for submitting data used by Hazmat Vehicles, FRA seeks the same pair of crossing warning to, and/or updating data in, the Crossing comment on how to define ‘‘regular devices will be considered a single Inventory for a particular highway-rail use’’ of crossings by vehicles highway-rail crossing. For example, an crossing or pathway crossing. Generally,

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the primary operating railroad would be private, the determinations of that State necessary adjustments to their existing the operating railroad that owns the agency will govern the public/private electronic data systems in order to highway-rail crossing (or pathway classification of highway-rail crossings facilitate compatibility with the crossing) or maintains the warning in the State for purposes of the Crossing proposed electronic file formats and devices at the highway-rail crossing (or Inventory. data specifications contained in the pathway crossing). In the event that ‘‘Temporary crossing’’ would be draft Electronic Submission there is more than one operating defined to mean a highway-rail crossing Instructions. Therefore, FRA intends to railroad that owns the highway-rail created to serve a specific activity for a hold a technical symposium during this crossing (or pathway crossing) or temporary time period not to exceed six NPRM’s comment period for all maintains the warning devices at the months. For example, highway-rail interested parties, particularly those highway-rail crossing (or pathway crossings that provide access to involved in the technical aspects of the crossing), the largest operating railroad construction sites would fall into this actual electronic submission of data to with the most rail traffic over the category. Given their temporary nature, the Crossing Inventory, to discuss the crossing at issue should accept the Inventory Numbers are not assigned to technical implications of using only primary operating railroad designation. temporary crossings and FRA is not these formats (.xml, .mdb, .xls, and Absent an agreement between or among proposing to require railroads to report .xlsx). FRA will publish a separate operating railroads delineating each such crossings to the Crossing notice in the Federal Register providing railroad’s respective reporting and/or Inventory. the logistics of such a meeting once the updating responsibilities pursuant to Section 234.403 Submission of Data to details are finalized. The proposed the requirements set forth in proposed the Crossing Inventory, Generally changes include changes to the content § 234.405, FRA proposes to hold each of the form (new field and expanded operating railroad liable for the Proposed paragraph (a) of this section codes) and to the specified type of file reporting and updating requirements set would require use of the Inventory Form allowed for submission. forth in this subpart. to submit data to the Crossing Inventory, Proposed paragraph (b) of this section ‘‘Private crossing’’ would be defined in accordance with the requirements of would require completion of the to mean a highway-rail crossing that is proposed § 234.405. Prior to the Inventory Form, in accordance with the not a public crossing. Therefore, private effective date of this subpart, FRA will instructions contained within the Draft crossings would include intersections of continue to accept hard copy Guide. As explained in the Draft Guide, roadways and railroads that are not submissions of the current Inventory one Inventory Form should be open to public travel or not maintained Form from all railroads and States. submitted to the Crossing Inventory for by a public authority. Typical types of However, as of the effective date of any each public, private or pathway private crossings include farm crossings, final rule issued as a result of this crossing. The Draft Guide contains industrial plant crossings, and rulemaking effort, FRA proposes to exceptions to this general rule related to residential access crossings. allow only Class II and Class III crossings located in railroad yards or ‘‘Public crossing’’ would be defined to railroads, as well as States, to either use areas belonging to private companies, mean a highway-rail crossing where the the Draft Inventory Form (a draft form ports, or dock areas and crossings roadway is under the jurisdiction of and has been placed in the docket for review located within railroad stations. Where maintained by a public authority and and comment) or to submit data there is more than one crossing in a open to public travel. All roadway electronically to the Crossing Inventory. railroad yard or a private railroad yard approaches must be under the Proposed instructions for submitting belonging to a private company, a port, jurisdiction of the public roadway hard copies of the Inventory Form can or a dock area, the primary operating authority and no roadway approach may be found in the Draft Guide, while railroad may choose to submit one be on private property. FRA proposed instructions for submitting Inventory Form that would assign one acknowledges that this proposed data electronically to the Crossing Inventory Number to all (or a group) of definition contains different criteria for Inventory can be found in the draft the crossings within the private determining the public nature of a Electronic Submission Instructions. The property limits. Alternatively, the highway-rail crossing than the existing Draft Guide and the draft Electronic primary operating railroad may submit definition of ‘‘public highway-rail grade Submission Instructions have been one Inventory Form that would assign crossing’’, contained in 49 CFR part 222 placed in the public docket for this one Inventory Number to each related to the use of locomotive horns rulemaking. FRA seeks comment on the individual crossing located within and quiet zones. However, this content of both of these documents. private property limits. (See Draft Guide proposed definition is consistent with As explained in the Draft Guide, FRA discussion of item D in the Header of the definition of the term ‘‘public grade intends to discontinue use of the GX32 the Draft Inventory Form, DOT Crossing crossing’’ in 23 CFR 924.3, which is software program for submitting Inventory Number.) FRA believes this widely used by States for Highway electronic data to the Crossing approach is consistent with current Safety Improvement Program planning Inventory. FRA proposes to replace the generally accepted practice in the and funding purposes. Based on the GX32 software program with a secure industry, but seeks comment on generally accepted usage of this web-based application. FRA also whether this exception should be definition by States, FRA believes it is proposes to allow railroads and states to retained, as the decision to assign one logical to use this definition for Crossing use multiple submission formats (.xml, Inventory Number to a group of Inventory reporting purposes as well. .mdb, .xls, and .xlsx), in addition to the crossings instead of a single crossing With respect to crossings in States web-based application. (Please refer to cannot be revised once the Inventory where a State agency (such as a State the draft Electronic Submission Number has been assigned. Department of Transportation, State Instructions that have been placed in The Draft Guide contains a similar Highway Department, Public Utility the public docket for more information.) exception for multiple pathway Commission, or State Commerce Since FRA proposes to require that crossings that are contained within a Commission) has been empowered to Class I railroads submit crossing data to railroad station. Therefore, the primary make determinations as to whether the Crossing Inventory electronically, operating railroad may choose to submit individual crossings are public or Class I railroads would need to make the one Inventory Form that would assign

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one Inventory Number to all (or a group) proposed in § 234.405 for reporting has been placed on an Inventory Form of the pathway crossings at a railway previously unreported and new (or its electronic equivalent) and station. Alternately, the primary highway-rail crossings and pathway submitted to the Crossing Inventory, the operating railroad may submit one crossings. Inventory Number will be permanently Inventory Form that would assign one As noted above, FRA intends to hold assigned to the crossing. Inventory Number to each individual a technical symposium during this Historically, since submission of pathway crossing located within a NPRM’s comment period for all crossing information to the Crossing railroad station. FRA also seeks interested parties, particularly those Inventory was voluntary, the primary comment on this proposed exception. involved in the actual electronic operating railroad would submit a Paragraph (c) proposes to require submission of data to the Crossing partially completed copy of the Class I railroads to submit all crossing Inventory, to discuss the technical Inventory Form to the applicable State data to the Crossing Inventory implications of using only certain authority, so that the State authority electronically. Since most Class I specified submission formats (.xml, could provide the remaining data and railroads already submit crossing data to .mdb, .xls, and .xlsx). FRA will publish submit the completed Inventory Form to the Crossing Inventory electronically, a separate notice in the Federal Register the Crossing Inventory for processing. FRA does not believe that this proposed providing the logistics of such a meeting Given existing constraints on the scope requirement would be unduly once the details are finalized. of FRA’s statutory authority, this NPRM burdensome. In accordance with does not propose to require States to Section 234.405 Submission of Initial paragraph (a) of this section, Class II and submit crossing information to the Data and Periodic Updates to the Class III railroads, as well as States, may Crossing Inventory. While FRA would Crossing Inventory choose to submit their crossing data to encourage State agencies to participate the Crossing Inventory electronically or Proposed paragraph (a) of this section fully in the submission of updated submit hard copies of the Inventory would require the submission of data to information to the Crossing Inventory, Form. An explanation of the proposed the Crossing Inventory for previously FRA has refrained from proposing file formats and data specifications can unreported crossings. Specifically, regulatory language that would require be found in the draft Electronic proposed paragraph (a)(1) is intended to railroads to submit copies of their Submission Instructions, a copy of implement paragraph (a)(1) of Section Inventory Forms to the applicable State which has been placed in the docket for 20160, which requires railroad carriers authorities for completion. However, review and comment by all interested to report to the Secretary ‘‘current this proposed rule would require parties. FRA seeks comment as to information, including information railroads to complete data fields on the whether additional railroads should be about warning devices and signage Inventory Form that have historically required to submit crossing data to the * * * concerning each previously been completed by State authorities for Crossing Inventory electronically. unreported crossing through which it each previously unreported public As noted above, FRA intends to operates or with respect to the trackage highway-rail at-grade crossing in order discontinue use of the GX32 software over which it operates.’’ Proposed to satisfy the legislative intent of Section product, which currently allows States paragraph (a)(1) would require that each 20160 to improve the Crossing and railroads to submit revised data to primary operating railroad submit a Inventory by obtaining critical data for the Crossing Inventory electronically completed Inventory Form (or its public crossings. FRA expects that through use of a computer disk or the electronic equivalent) to the Crossing railroads will seek input from State Internet. FRA intends to discontinue use Inventory, in accordance with proposed authorities with respect to certain data of the GX32 software and replace it with § 234.403, for each previously fields. FRA seeks comment on this a secure web-based application that unreported public, private, and pathway proposal. provides similar functionality, yet crossing through which it operates no Therefore, as stated in proposed facilitates instantaneous updates to later than six months after the effective paragraph (a) of this section, as well as crossing data. Therefore, any pending date of any final rule implementing this the Draft Guide, railroads would be changes using GX32 software would requirement. This requirement would required to obtain Inventory Numbers need to be submitted prior to apply to previously unreported at-grade from FRA and to assign a specific implementation of the web-based and grade-separated crossings, but Inventory Number to each previously system. FRA also intends to transition would not apply to temporary crossings. unreported public, private, or pathway the official Crossing Inventory database For purposes of proposed paragraph (a) crossing (unless the proposed exception to the new web-based application. of this section, ‘‘previously unreported’’ for multiple crossings located in Therefore, railroads that are currently crossings would be public, private, and railroad yards, within railway stations, using the GX32 software product to pathway crossings that have not been or areas belonging to private companies, submit crossing data electronically to reported to the Crossing Inventory as of ports, or dock areas would be the Crossing Inventory or who are the effective date of any final rule applicable). Railroads would then be submitting data electronically via other implementing this requirement. required to provide information for all means would be required to make Proposed paragraph (a)(1) would of the data fields on the Inventory Form adjustments to their existing electronic further require that the completed for each previously unreported public data systems to ensure such systems Inventory Form (or its electronic highway-rail at-grade crossing and to will work with the revised Crossing equivalent) reference the assigned submit the completed Inventory Form Inventory database. Accordingly, FRA Inventory Number for the crossing. If (or its electronic equivalent) to the seeks comment as to the feasibility of the primary operating railroad does not Crossing Inventory no later than six Class I railroads being able to make the already have an Inventory Number that months after the effective date of any necessary adjustments to their existing can be assigned to a previously final rule that may be issued as a result electronic data systems (or to develop unreported crossing, an Inventory of this rulemaking. In accordance with new electronic data systems) that would Number will need to be obtained for the generally accepted practice, however, allow for compliance with the draft crossing. Instructions for obtaining an railroads would only be required to Electronic Submission Instructions, as Inventory Number can be found in the provide information for the data fields well as compliance with the timeframes Draft Guide. Once an Inventory Number in the Header and Part I of the Draft

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Inventory Form for previously an automated FRA email notification crossings that were not in existence unreported private highway-rail system that would notify participating prior to the effective date of any final crossings, pathway crossings, and grade- States and railroads whenever public, rule implementing this proposal. separated crossings. FRA has not private, or pathway crossings are added Proposed paragraph (b) of this section historically collected data associated to the Crossing Inventory. FRA seeks would not, however, apply to temporary with Parts II–V of the Inventory Form comment from all interested parties on crossings. for these crossings. whether this proposed notification Proposed paragraph (b)(1) of this Proposed paragraph (a)(2) of this system would be useful. section would require that each primary section would require operating Proposed paragraph (a)(3) of this operating railroad submit a completed railroads, other than the primary section would allow an entity other than Inventory Form (or its electronic operating railroad, to confirm that a the primary operating railroad to submit equivalent) to the Crossing Inventory for completed Inventory Form (or its a completed Inventory Form (or its each new public, private, or pathway electronic equivalent) was timely electronic equivalent) to the Crossing crossing (except a temporary crossing) submitted to the Crossing Inventory in Inventory for one or more previously through which it operates no later than accordance with proposed paragraph unreported public, private, or pathway six months after the crossing becomes (a)(1) of this section. If the operating crossings, in order to satisfy the operational. If the primary operating railroad discovers that one or more proposed reporting requirements railroad does not already have an previously unreported public, private or contained in paragraph (a)(1) of this Inventory Number that can be assigned pathway crossings (except a temporary section. This proposed provision is to the new crossing, an Inventory crossing) over which it operates was not intended for use by State agencies with Number will need to be obtained for the timely reported to the Crossing jurisdiction over the previously crossing. Instructions for obtaining Inventory, proposed paragraph (a)(2) of unreported crossings that may wish to Inventory Numbers can be found in the this section would require that the submit crossing data to the Crossing Draft Guide. Once an Inventory Number operating railroad provide written Inventory on behalf of the primary has been assigned to the crossing, notification of the unreported crossing operating railroad. proposed paragraph (b)(1) of this section In the event that an entity other than to the FRA Associate Administrator for would require that the primary the primary operating railroad would Railroad Safety/Chief Safety Officer operating railroad submit a completed like to submit crossing data to the (Associate Administrator). This Inventory Form (or its electronic Crossing Inventory on behalf of the provision is being proposed in order to equivalent) to the Crossing Inventory, in primary operating railroad, proposed implement 49 U.S.C. 20160(a)(2), which accordance with § 234.403, which paragraph (a)(3) of this section would requires railroad carriers to ‘‘ensure that references the assigned Inventory require that the reporting entity and the the [current information, including Number. information about warning devices and primary operating railroad provide Paragraph (b)(1) of this section has signage, concerning each previously written notification to the Associate been proposed to implement 49 U.S.C. unreported crossing] has been reported Administrator of the entity assuming to the Secretary by another railroad reporting responsibility. Proposed 20160(a)(1), which states that ‘‘[n]ot carrier that operates through the paragraph (a)(3) of this section would later than * * * 6 months after a new crossing.’’ further require that any such crossing becomes operational, * * * At a minimum, the proposed written notification must contain positive each railroad carrier shall—(1) report to notification requirement contained in identification of the locations that will the Secretary of Transportation current paragraph (a)(2) of this section would be covered. information, including information require operating railroads to provide Proposed paragraph (a)(3) of this about warning devices and signage, as the latitudinal and longitudinal section is not, however, intended to specified by the Secretary, concerning coordinates for each previously allow the primary operating railroad to each previously unreported crossing unreported public, private, or pathway completely transfer its responsibility for through which it operates or with crossing for which a completed timely compliance with the proposed respect to the trackage over which it Inventory Form (or its electronic reporting requirements of paragraph operates.’’ equivalent) was not timely submitted to (a)(1) of this section to the reporting Proposed paragraph (b)(2) of this the Crossing Inventory. While State entity. Therefore, FRA reserves the right section would require operating agencies have historically submitted to hold the primary operating railroad, railroads, other than the primary latitudinal and longitudinal coordinates as well as the reporting entity liable, as operating railroad, which operate to the Crossing Inventory, railroads appropriate, for failure to timely comply through a new crossing for which a provide this data to FRA for rail- with the reporting requirements of completed Inventory Form (or its equipment train accident reporting paragraph (a)(1) of this section. Other electronic equivalent) has not been purposes. Therefore, FRA believes that operating railroads could potentially submitted to the Crossing Inventory this proposed requirement will not be also be held liable for the failure to within six months after the crossing unduly burdensome. FRA seeks comply with the reporting requirements becomes operational, to provide written comment on this proposal. of paragraph (a)(1) of this section, if they notification of this oversight to the FRA FRA proposes to hold each operating fail to provide written notification of the Associate Administrator. This provision railroad liable, including the primary unreported crossing in accordance with has been proposed in order to operating railroad, for each unreported paragraph (a)(2) of this section. implement 49 U.S.C. 20160(a)(2), which public, private, and pathway crossing Proposed paragraph (b) of this section states that, ‘‘[n]ot later than * * * 6 for which written notification was not would require the submission of data to months after a new crossing becomes timely provided to the FRA Associate the Crossing Inventory for new public operational, * * * each railroad carrier Administrator, in accordance with and private highway-rail crossings and shall—(2) ensure that the [current proposed paragraph (a)(2) of this pathway crossings, including new information, including information section. However, in order to facilitate grade-separated crossings. For purposes about warning devices and signage, compliance with this proposed of this paragraph, ‘‘new’’ crossings concerning each previously unreported requirement, FRA proposes to establish would be public, private, and pathway crossing] has been reported to the

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Secretary by another railroad carrier that Crossing Inventory on behalf of the Proposed paragraph (c)(1) would operates through the crossing,’’ primary operating railroad. require that the primary operating At a minimum, the proposed written In the event that an entity other than railroad submit up-to-date and accurate notification requirement contained in the primary operating railroad would crossing data for each public, private, paragraph (b)(2) of this section would like to submit crossing data to the and pathway crossing (other than a require railroads to provide the Crossing Inventory on behalf of the temporary crossing or a grade-separated latitudinal and longitudinal coordinates primary operating railroad, proposed crossing) through which it operates at for each new public, private, or pathway paragraph (b)(4) would require that the least every three years from the date of crossing that was not timely reported to reporting entity and the primary the most recent railroad submission (or the Crossing Inventory in accordance operating railroad provide written submission on behalf of a railroad) to with paragraph (b)(1) of this section. notification to the Associate the Crossing Inventory or within six While State agencies have historically Administrator of the entity assuming months of the effective date of any final submitted latitudinal and longitudinal reporting responsibility. Proposed rule implementing this requirement, coordinates to the Crossing Inventory, paragraph (b)(4) of this section would whichever occurs later. railroads provide this data to FRA for further require that any such Appendix B to the Draft Guide rail-equipment train accident reporting notification include positive contains a proposed Crossing Inventory purposes. Therefore, FRA believes that identification of the locations that will Responsibility Table that assigns this proposed requirement would not be be covered. responsibility for updating data fields unduly burdensome. FRA seeks Proposed paragraph (b)(4) of this on the proposed Inventory Form to the comment on this proposal. section is not, however, intended to operating railroad and/or the applicable FRA proposes to hold each operating allow the primary operating railroad to State agency. In accordance with railroad, including the primary completely transfer its responsibility for paragraphs (a)(1) and (b)(1) of proposed operating railroad, liable for each new timely compliance with the proposed § 234.405, railroads would be required public, private, and pathway crossing reporting requirements of paragraph to complete all of the data fields on the (including grade-separated crossings, (b)(1) of this section to the reporting Inventory Form when initially reporting but excluding temporary crossings) that entity. Therefore, FRA reserves the right previously unreported and new public was not timely reported to the Crossing to hold the primary operating railroad highway-rail at-grade crossings. Inventory, in accordance with paragraph and the reporting entity, as appropriate, However, a primary operating railroad (b)(1) of this section, unless the liable for failure to timely comply with would only be required to submit up-to- operating railroad provides written the reporting requirements of paragraph date and accurate information for the notification to the Associate (b)(1) of this section. Other operating data fields on the Inventory Form that Administrator of the unreported railroads might also be held liable if are assigned to the operating railroads crossing. In order to facilitate they fail to provide written notification by the Crossing Inventory Responsibility compliance with this proposed of an unreported crossing in accordance Table in Appendix B to the Draft Guide. requirement, FRA proposes to establish with paragraph (b)(2) of this section. (All remaining data fields on the an automated FRA email notification Proposed paragraph (c) of this section Inventory Form would be updated by system that would notify participating would require that the primary State authorities on a voluntary basis.) States and railroads whenever public, operating railroad periodically submit Similarly, even though the primary private, or pathway crossings are added up-to-date and accurate data to the operating railroad would be required to to the Crossing Inventory. FRA seeks Crossing Inventory for each public, submit up-to-date and accurate comment on this proposal. private, and pathway crossing through information for all of the data fields in Proposed paragraph (b)(3) of this which it operates, in accordance with the Header and Part I of the Draft section would allow multiple operating the Draft Guide. Submission of these Inventory Form for previously railroads to assume joint responsibility periodic updates would not, however, unreported private crossings, previously for submitting data to the Crossing be required for temporary crossings, unreported pathway crossings, new Inventory for new public, private, or since FRA is not proposing to require private crossings, and new pathway pathway crossings, in accordance with the reporting of temporary crossings to crossings, the primary operating railroad the Draft Guide. As stated in the Draft the Crossing Inventory, or to require would only be required to submit up-to- Guide, two or more railroads that have periodic updating for grade-separated date and accurate information for the agreed to file their own separate crossings since changes in crossing data fields in the Header and Part I of inventory information for the same characteristics do not appear to have a the Draft Inventory Form that are public, private, or pathway crossing significant impact on existing risk levels assigned to the operating railroad by the would need to check the box labeled at grade-separated crossings. Crossing Inventory Responsibility Table ‘‘Multiple Forms Filed’’ in Item no. 7 of Proposed paragraph (c)(1) of this in Appendix B to the Draft Guide. FRA Part I of the Draft Inventory Form, in section sets forth a proposed timeframe seeks comment on the proposed order to notify FRA of their agreement. within which the primary operating assignment of responsibility for Proposed paragraph (b)(4) of this railroad would be required to submit updating data fields on the Inventory section would allow an entity other than updated crossing data for each public, Form. the primary operating railroad to submit private, and pathway crossing to the If each applicable railroad-assigned a completed Inventory Form (or its Crossing Inventory. This provision has data field in the Crossing Inventory is electronic equivalent) to the Crossing been proposed in order to implement 49 accurate and up-to-date when the Inventory, in order to satisfy the U.S.C. 20160(b)(1)(A), which mandates periodic update becomes due, the proposed reporting requirements that railroads periodically ‘‘report to the primary operating railroad should contained in paragraph (b)(1) of this Secretary current information, including simply update the information section. This proposed provision is information about warning devices and contained in the data fields in the intended for use by State agencies with signage, as specified by the Secretary, Header portion of the Draft Inventory jurisdiction over the new public, concerning each crossing through which Form (or its electronic equivalent) for private, or pathway crossings that may it operates or with respect to the the affected crossing, in accordance wish to submit crossing data to the trackage over which it operates.’’ with the Draft Guide.

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Proposed paragraph (c)(2) of this Inventory data associated with certain require the selling railroad to submit an section would require operating specified public, private, or pathway Inventory Form (or its electronic railroads, other than the primary crossings. FRA seeks comment on equivalent) that reflects the crossing sale operating railroad, that operate through whether this proposed notification to the Crossing Inventory. This any at-grade public, private, or pathway system would be useful. proposed provision is intended to crossing (other than a temporary Proposed paragraph (c)(3) of this implement 49 U.S.C. 20160(b)(2), which crossing or a grade-separated crossing) section would allow two or more requires that railroads that sell a for which up-to-date and accurate operating railroads to assume joint crossing report to the Secretary, within information has not been submitted to responsibility for submitting periodic three months of such sale, current the Crossing Inventory in accordance updates to the Crossing Inventory in information, concerning the change in with paragraph (c)(1) of this section to accordance with the Draft Guide. As ownership of the crossing or part of the provide written notification of this stated in the Draft Guide, two or more crossing. oversight to the Associate operating railroads that have agreed to Accordingly, proposed paragraph (d) Administrator. This provision proposes file their own separate inventory of this section would require the to implement 49 U.S.C. 20160(b)(1)(B), information for the same public, private, submission of updated crossing data to which mandates that railroads or pathway crossing would need to the Crossing Inventory, no later than periodically ‘‘ensure that [current check the box labeled ‘‘Multiple Forms three months after the date of sale, in information, including information Filed’’ in Item no. 7 of Part I of the Draft accordance with proposed § 234.403 about warning devices and signage] has Inventory Form, in order to notify FRA and the Draft Guide. Pursuant to the been reported to the Secretary by of their agreement. Draft Guide, the selling railroad would another railroad carrier that operates Proposed paragraph (c)(4) of this simply be required to update the through the crossing.’’ section would allow an entity other than Crossing Inventory by revising either the As was the case with proposed the primary operating railroad to submit Primary Operating Railroad data field paragraph (c)(1) of this section, FRA up-to-date and accurate crossing data to (item one in Part I of the Draft Inventory proposes to exercise the discretion the Crossing Inventory, in order to Form) or the Operating Railroad data granted to the Secretary to determine satisfy the proposed periodic updating field (item 8 in Part I of the Draft the intervals by which periodic updates requirements contained in paragraph Inventory Form) to reflect the change in must be submitted to the Crossing (c)(1) of this section. In the event that an ownership. The selling railroad should Inventory. Accordingly, the proposed entity other than the primary operating not, however, attempt to close the written notification requirement railroad assumes responsibility for crossing record in the Crossing contained in paragraph (c)(1) of this submitting the required updates for a Inventory, since the crossing will section would not take effect unless up- particular crossing, proposed paragraph remain in use and its assigned Inventory to-date and accurate information was (c)(4) would require that the reporting Number will remain the same. not submitted to the Crossing Inventory entity and the primary operating With respect to certain specified for a public, private, or pathway railroad provide written notification to changes in crossing characteristics, crossing (other than a temporary the FRA Associate Administrator of the involving crossing closure, change in crossing or a grade-separated crossing) entity assuming the periodic updating crossing surface, or change in warning at least three years from the date of the responsibility. This paragraph would device at a public, private, or pathway most recent railroad submission or further require that any such crossing, proposed paragraph (e)(1) of within six months after the effective notification must contain positive this section would require that the date of any final rule implementing this identification of the locations that will primary operating railroad submit an requirement, whichever occurs later. be covered. Inventory Form (or its electronic At a minimum, the written Proposed paragraph (c)(4) of this equivalent), which reflects updated notification that would be required by section is not, however, intended to information in all applicable data fields, proposed paragraph (c)(2) of this section allow the primary operating railroad to to the Crossing Inventory, in accordance must include the Inventory Number for completely transfer its responsibility for with the Draft Guide and § 234.403 of each public, private, or pathway timely compliance with the proposed this part, within three months after the crossing that has not been updated. FRA periodic updating requirements in implementation date of the change. For proposes to hold each operating paragraph (c)(1) of this section. purposes of this provision, a ‘‘change in railroad, including the primary Therefore, FRA reserves the right to warning device’’ means a change in the operating railroad, liable for each hold the primary operating railroad and type of warning device installed at the Crossing Inventory record, for public, the reporting entity, as appropriate, crossing, as opposed to the modification private, or pathway crossings (other liable for failure to timely comply with of an existing crossing warning device. than a temporary crossing or a grade- the periodic updating requirements of Therefore, upgrades from crossbuck separated crossing) over which the paragraph (c)(1) of this section Other signs to crossbuck and STOP signs railroad operates, that has not been operating railroads might also be held would be considered a ‘‘change in updated in accordance with paragraph liable if they fail to provide written warning device’’ that would trigger the (c)(1) of this section, unless written notification of outdated Inventory update requirements contained in this notification of the outdated record is records for public, private, or pathway section. Another example of a ‘‘change provided to the Associate Administrator crossings over which they operate, in in warning device’’ that would trigger by the operating railroad in accordance accordance with paragraph (c)(2) of this the proposed updating requirements with proposed paragraph (c)(2) of this section. would be the addition of cantilevered section. However, in order to facilitate Paragraph (d) of this section contains lights to a crossing that is already compliance with this proposed proposed updating requirements related equipped with post-mounted flashing requirement, FRA proposes to establish to the sale of a public, private, or lights. Other changes in warning devices an automated FRA email notification pathway crossing. With respect to the that would trigger the proposed system that would notify participating sale of all or part of any public, private, updating requirement would include States and railroads whenever changes or pathway crossing, proposed the installation of a crossbuck, yield, or have been made to the Crossing paragraph (d) of this section would stop sign, flashing lights, conventional

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gates, and 4-quadrant gates at a grade Proposed paragraph (b) of this section designate someone who will be crossing. FRA seeks comment on would require operating railroads, authorized to authenticate hard copies whether the 3-month period for including the primary operating produced from the electronic format. reporting these changes in crossing railroad, to keep either a duplicate copy Proposed paragraph (a)(5) would characteristics should be shortened. of each Inventory Form that was require the railroad to make electronic Also, FRA seeks comment on whether submitted in hard copy to the Crossing documents available for FRA inspection this list of changes to crossing Inventory, or a copy of the electronic during ‘‘normal business hours’’ which characteristics, which would trigger a confirmation received from FRA after FRA interprets as the time, any day of requirement to submit updated data to new or updated crossing data has been the week, when railroads conduct their the Crossing Inventory, adequately electronically submitted to the Crossing regular business transactions. reflects the spectrum of significant Inventory. Nevertheless, FRA would reserve the changes to crossing characteristics that Proposed paragraph (c) of this section right to review and examine the should be reported to the Crossing would require that the railroad maintain documents prepared in accordance with Inventory shortly after implementation, a list of locations where a copy of any this subpart at any reasonable time if or whether this list of changes to record required to be retained by this situations warrant. In addition, in the crossing characteristics should be subpart is accessible for inspection and event that an electronic record kept by expanded to include significant changes photocopying. Proposed paragraph (c) the railroad pursuant to this subpart to train counts and train speed as well, would further require that this list of does not comply with the proposed or other relevant factors. locations be kept at the office where the requirements contained in paragraph (a) Proposed paragraph (e)(2) of this railroad’s reporting officer conducts his of this section, proposed paragraph (b) section would allow an entity other than or her official business. of this section would require that the the primary operating railroad to submit Proposed paragraph (d) of this section record be kept on paper in accordance updated crossing data to the Crossing would require that each operating with the recordkeeping requirements Inventory, in order to satisfy the railroad retain for at least four years contained in § 234.407. In short, each proposed reporting requirements (from the date of submission to the railroad electing to retain its records contained in paragraph (e)(1) of this Crossing Inventory) either a duplicate electronically would be required to section. In the event that an entity other copy of the Inventory Form that was ensure the integrity of the information than the primary operating railroad submitted in hard copy by the railroad and prevent possible tampering of data, assumes responsibility for submitting to the Crossing Inventory or a copy of thus ensuring the overall integrity of the the required updates for a particular the email confirmation received from inventory. crossing to the Crossing Inventory, FRA after new or updated crossing data proposed paragraph (e)(2) of this section has been electronically submitted to the Appendix A to Part 234—Schedule of would require that the reporting entity Crossing Inventory. Records required to Civil Penalties and the primary operating railroad be kept must be made available to FRA Appendix A to part 234 contains a provide written notification to the as provided by statute (49 U.S.C. 20107). schedule of civil penalties for use in Associate Administrator of the entity Section 234.409 Electronic connection with this part. FRA intends assuming the reporting responsibility. Recordkeeping to revise the schedule of civil penalties Proposed paragraph (e)(2) of this section when issuing the final rule to reflect would further require that any such Proposed § 234.409 contains revisions made to part 234. Because notification contain positive requirements that would apply to the such penalty schedules are statements identification of the location(s) that will electronic retention of records required of agency policy, notice and comment be covered. by this subpart. are not required prior to their issuance. If a railroad chooses to conduct Proposed paragraph (e)(2) is not, See 5 U.S.C. 553(b)(3)(A). Nevertheless, electronic recordkeeping of records however, intended to allow the primary commenters are invited to submit required by this subpart, proposed operating railroad to completely transfer suggestions to FRA describing the types paragraph (a)(1) of this section would its responsibility for timely compliance of actions or omissions for each require that the railroad adopt adequate with updating requirements of proposed regulatory section that would security measures to limit employee paragraph (e)(2) of this section. subject a person to the assessment of a access to its electronic data processing Therefore, FRA reserves the right to civil penalty. Commenters are also system and prescribe which employees hold the primary operating railroad and invited to recommend what penalties will be allowed to create, modify, or the reporting entity liable for failure to may be appropriate, based upon the delete data from the database. timely submit updated crossing data to relative severity of each type of Proposed paragraph (a)(2) of this the Crossing Inventory in accordance violation. with the proposed updating section would require the railroad to requirements of paragraph (e)(1) of this have a terminal at the office where the VI. Regulatory Impact and Notices railroad reporting officer conducts his or section. A. Executive Order 12866 and 13563 her official business and at each and DOT Regulatory Review Policies Section 234.407 Recordkeeping location designated by the railroad as and Procedures Proposed § 234.407 sets forth the having a copy of any record required to recordkeeping requirements for this be retained by this subpart that is This proposed rule has been subpart that would apply to each accessible for inspection and evaluated in accordance with existing railroad subject to this subpart. photocopying. In addition, proposed policies and procedures and determined Proposed paragraph (a) of this section paragraph (a)(3) of this section would to be non-significant under both would require each railroad to keep require the railroad to have a computer Executive Order 12866 and 13563 and certain records pertaining to its and a facsimile or printer connected to DOT policies and procedures. See 44 FR compliance with this subpart. Records the computer to retrieve and produce 11034; February 26, 1979. FRA has may be kept on paper or electronically records for immediate review. prepared and placed in the docket a in a manner that conforms with Proposed paragraph (a)(4) of this Regulatory Evaluation addressing the proposed § 234.409. section would require the railroad to economic impact of this proposed rule.

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As part of the regulatory evaluation, inventory. This would allow FRA to not meet the criteria established by the FRA has assessed quantitative estimates identify certain highway-rail crossings U.S. Small Business Administration of the cost streams expected to result and pathway crossings that are not (SBA) in determining small entities. from the implementation of this currently recorded in the existing Therefore there are 456 railroads that proposed rule. For the 20-year period voluntary crossing inventory. FRA comprise around 17 percent of the total analyzed, the estimated quantified cost believes that such clarification would highway-rail crossings. All of these that would be imposed on industry help offset costs associated with the railroads would have to make some totals $2.1 million with a present value rulemaking by simplifying the reporting labor investment to meet the proposed (PV, 7 percent) of $1.5 million. FRA process. FRA believes the value of the requirements. As these railroads have conducted a break-even analysis of the anticipated benefits would justify the less mileage, an indicator of fewer rule and believes that potential benefits cost of implementing the proposed rule. crossings, in their system than Class I from the proposal would likely equal or B. Initial Regulatory Flexibility Act and and Class II railroads, FRA expects them exceed total costs. Executive Order 13272 to meet the proposed requirements at a FRA considered the industry costs lower overall cost. Thus, although associated with requiring railroads to The Regulatory Flexibility Act of 1980 numerous small entities in this sector establish and maintain an inventory for (5 U.S.C. 601 et seq.) and Executive would likely be impacted, the economic all public and private highway-rail Order 13272 (67 FR 53461; August 16, impact on them would likely not be crossings and pathway crossings. Many 2002) require agency review of proposed significant. This IRFA is not intended to railroads have already implemented and final rules to assess their impact on be a stand-alone document. In order to components of the proposed rule. FRA small entities. An agency must prepare get a better understanding of the total estimates that as many as 50 percent of an initial regulatory flexibility analysis costs for the railroad industry, which all highway-rail crossings currently (IRFA) unless it determines and certifies forms the basis for the estimates in this have up-to-date information in the that a rule, if promulgated, would not IRFA, or more cost detail on any National Inventory. For more details on have a significant impact on a specific requirement, please see the the costing, please see the Regulatory substantial number of small entities. Regulatory Evaluation that FRA has Evaluation found in the docket. The FRA has not determined whether this placed in the docket for this rulemaking. requirements that are expected to proposed rule would have a significant In accordance with the Regulatory impose the largest burdens relate to the impact on a substantial number of small Flexibility Act, an IFRA must contain: collection of recent information and to entities. Therefore, FRA is publishing (1) A description of the reasons why the periodic update of the inventory. this IRFA to aid the public in the action by the agency is being The table below presents the estimated commenting on the potential small considered. costs associated with the proposed business impacts of the proposed (2) A succinct statement of the rulemaking. requirements in this NPRM. FRA invites objectives of, and legal basis for, the all interested parties to submit data and proposed rule. 20-YEAR COST FOR PROPOSED RULE information regarding the potential (3) A description—and, where economic impact on small entities that feasible, an estimate of the number—of Initial Update of Inventory ...... $874,280 would result from the adoption of this small entities to which the proposed Periodic Update of Inventory ...... 646,856 NPRM. FRA will consider all comments rule will apply. received in the public comment process (4) A description of the projected Total ...... 1,521,136 when making a final determination. reporting, record keeping, and other The proposed rule would apply to all compliance requirements of the Future costs are discounted to present railroads which own or maintain public value using a 7 percent discount rate. proposed rule, including an estimate of and private highway-rail crossings (both the classes of small entities that will be As part of the Regulatory Evaluation, at-grade and grade-separated) as well as subject to the requirements and the FRA has explained what the likely pathway crossings. Based on types of professional skills necessary for benefits for this proposed rule would be, information currently available, FRA preparation of the report or record. and provided a break-even analysis. The estimates that Class III railroads own 28 (5) An identification, to the extent main benefit derived from the rule percent of the total highway-rail practicable, of all relevant Federal rules would be improved crossing inventory crossings. However a number of the that may duplicate, overlap, or conflict data. This more precise information Class III railroads are owned by larger with the proposed rule. would better enable FRA, railroads, and holding companies. FRA often treats any other entity to accurately analyze these holding companies as Class I or 1. Reasons for Considering Agency pertinent data, detect trends, and if Class II railroads as they have more Action needed, initiate crossing-related safety resources than a Class III railroad. The goal of the U.S. DOT Highway- initiatives. In this break-even analysis, Excluding the 113 railroads that are Rail Crossing Inventory is to provide FRA determined that if there were a owned by a holding company, the small information to all stakeholders in the decrease of 0.015 percent of crossing entities own 17 percent of the total rail industry (e.g., Federal Government, accidents over the twenty-year period highway-rail crossings. FRA analysis State Governments, Local Governments, the costs associated with the rule would estimates that the cost of the proposed all railroads, public) for the break-even. In the last decade there rule would be $2.1 million with a improvement of safety at highway-rail were over 26,000 collisions at grade present value (PV, 7 percent) of $1.5 crossings. The improved and more crossing, this break-even analysis million. accurate information will help to add to expects that over a twenty-year period As calculated below, there are 569 a general pool of information regarding there would be at least 3 fewer incidents Class III railroads that would be accidents at crossings, which might be due to the proposed rule. FRA considered small for the purposes of able to help prevent future accidents. anticipates that this rulemaking will this analysis. As explained above, FRA RSIA required that all railroads increase the precision, completeness, believes that 113 of these railroads submit an inventory of all existing and utility of railroad records and will should be excluded because they are crossings to the FRA. Although the FRA improve FRA’s national crossing part of large holding companies that do currently has a national inventory, it has

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not been consistently updated. FRA the largest a railroad business firm that small entities for the purposes of this believes that around 99 percent of the is ‘‘for profit’’ may be and still be analysis. Hence there are 456 railroads crossings that exist are currently in the classified as a ‘‘small entity’’ is 1,500 which would be considered to be small database, but much of the information employees for ‘‘Line Haul Operating entities impacted by this proposed rule. on each crossing needs to be updated, Railroads’’ and 500 employees for The impact on these small railroads is and numerous nonexistent crossings ‘‘Switching and Terminal discussed in the following section. need to be removed from the database. Establishments.’’ Additionally, 5 U.S.C. 4. A Description of the Projected The FRA reviewed RSIA in order to 601(5) defines as ‘‘small entities’’ Reporting, Recordkeeping, and Other determine the best, most cost efficient governments of cities, counties, towns, Compliance Requirements of the Rule, and beneficial way to issue the townships, villages, school districts, or Including an Estimate of the Class of proposed rule. FRA anticipates that the special districts with populations less Small Entities That Will Be Subject to proposed requirements will be accepted than 50,000. by the industry as being as unobtrusive Federal agencies may adopt their own the Requirements and the Type of as possible. A team in the FRA carried size standards for small entities in Professional Skill Necessary for out a careful review of the mandates in consultation with SBA and in Preparation of the Report or Record RSIA to incorporate these requirements conjunction with public comment. For a thorough presentation of cost into these proposed Federal regulations. Pursuant to that authority, FRA has estimates, please refer to the Regulatory published a final statement of agency Evaluation, which has been placed in 2. A Succinct Statement of the policy that formally establishes ‘‘small the docket for this rulemaking. Objectives of, and Legal Basis for, the entities’’ or ‘‘small businesses’’ as being For the purpose of this analysis, FRA Proposed Rule railroads, contractors, and hazardous broke Class III railroads into two The purpose of this rulemaking is to materials shippers that meet the revenue categories. We considered any Class III require railroads to submit information requirements of a Class III railroad as set railroad that had more than 40 crossings for public and private highway-rail forth in 49 CFR 1201.1–1, which is $20 to be a Large Class III railroad and any crossings and pathway crossings. The million or less in inflation-adjusted Class III railroad with 40 or less proposed rule also sets forth regulations annual revenues; and commuter crossings to be a Small Class III railroad. mandating the periodic update of the railroads or small governmental Crossing specialists in FRA’s Office of national crossing inventory. Any jurisdictions that serve populations of Safety anticipate that the majority of the crossings that have been sold should 50,000 or less. See 68 FR 24891, May 9, Large Class III railroads use FRA’s web also be updated in the inventory. 2003, codified at Appendix C to 49 CFR, based program, to submit their Section 204 of RSIA has a part 209. The $20 million-limit is based inventories to the FRA. FRA assumes requirement for a National Crossing on the Surface Transportation Board’s that the Large Class III railroads would Inventory. Congress gave the Secretary revenue threshold for a Class III continue to use a web-based program to of Transportation the authority to railroad. Railroad revenue is adjusted input their crossing inventories into the prescribe the regulations to implement for inflation by applying a revenue national database. FRA believes that the Section 204. The task of creating the deflator formula in accordance with 49 Small Class III railroads would necessary regulation was delegated to CFR 1201.1–1. FRA is proposing to use manually send their inventory forms, by the Administrator of the Federal this definition for this rulemaking. Any either mail or email, to the FRA. FRA Railroad Administration. This proposed comments received pertinent to its use also estimates that 50 percent of all regulation will be codified in Title 49 of will be addressed in the final rule. railroads in the industry are already in the Code of Federal Regulations, Part compliance with the proposed rule. Railroads 234. There are 240 Large Class III railroads There are a total of 756 regulated that would be considered small entities. 3. A Description of, and Where Feasible, railroads. FRA is excluding 150 FRA estimates that each Large Class III an Estimate of Small Entities to Which railroads from the rulemaking because railroads would initially task one person the Proposed Rule Would Apply they do not own any crossings. There for approximately one week to review The ‘‘universe’’ of the entities to be are 7 Class I railroads and 12 Class II and update their inventory. considered generally includes only railroads, all which are not considered Subsequently, FRA estimates that it those small entities that are reasonably to be small. There are a total of 29 would take one person two days to expected to be directly regulated by this commuter/passenger railroads, update a Large Class III railroads action. This proposed rule would affect including Amtrak, with 19 that would inventory every year. The initial cost all railroads that own or maintain public be affected by this rule. However, all the associated with Large Class III railroads or private highway-rail crossings or affected commuter railroads are part of would be around $900 per railroad. The pathway crossings. larger public transportation agencies cost to periodically update their ‘‘Small entity’’ is defined in 5 U.S.C. that receive Federal funds and serve inventory is estimated to be about $350 601. Section 601(3) defines a ‘‘small major jurisdictions with populations per railroad. FRA believes that although entity’’ as having the same meaning as greater than 50,000. the Large Class III railroads would be ‘‘small business concern’’ under Section The level of costs incurred by each burdened by the proposed regulation, 3 of the Small Business Act. This railroad should generally vary in none of these small entities would be includes any small business concern proportion to the number of crossings significantly impacted. that is independently owned and they maintain. For instance, railroads There are 216 Small Class III railroads operated, and is not dominant in its with fewer crossings should have lower that would be considered small entities. field of operation. Section 601(4) overall costs associated with FRA estimates that each Small Class III likewise includes within the definition implementing the proposed standards. railroad would initially need one person of ‘‘small entities’’ not-for-profit There are 710 Class III railroads, and of to work 8 hours to review and update enterprises that are independently those railroads, only 569 are affected by each inventory. Subsequently, the owned and operated, and are not the rule. However, 113 of these railroads periodic inventory update cost would be dominant in their field of operation. The are owned by large holding companies, the same, requiring one person to work SBA stipulates in its size standards that and are therefore not considered to be 8 hours each year. The initial cost

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associated with Small Class III railroads by State and local officials in the law under certain provisions of the would be $173 per railroad. The cost to development of regulatory policies that Federal railroad safety statutes, periodically update their inventory is have federalism implications.’’ ‘‘Policies specifically the former Federal Railroad $173 per railroad. Again, FRA believes that have federalism implications’’ are Safety Act of 1970, repealed and that although all of the Small Class III defined in the Executive Order to recodified at 49 U.S.C. 20106. Section railroads would be affected by the include regulations that have 20106 provides that States may not proposed regulation, none of these small ‘‘substantial direct effects on the States, adopt or continue in effect any law, entities would be significantly on the relationship between the national regulation, or order related to railroad impacted. government and the States, or on the safety or security that covers the subject In conclusion, FRA believes that both distribution of power and matter of a regulation prescribed or the Large Class III railroads and the responsibilities among the various order issued by the Secretary of Small Class III railroads, thus a levels of government.’’ Under Executive Transportation (with respect to railroad substantial number of small entities Order 13132, the agency may not issue safety matters) or the Secretary of (small railroads) would be impacted by a regulation with federalism Homeland Security (with respect to implications that imposes substantial the proposed regulation. However, FRA railroad security matters), except when direct compliance costs and that is not has found that these entities that are the State law, regulation, or order directly burdened by the regulation required by statute, unless the Federal qualifies under the ‘‘essentially local would not have an economic significant government provides the funds safety or security hazard’’ exception to impact. FRA believes that the costs necessary to pay the direct compliance section 20106. associated with the proposed rule are costs incurred by State and local reasonable and would not cause any governments, or the agency consults In sum, FRA has analyzed this significant financial impact on their with State and local government proposed rule in accordance with the operations. officials early in the process of principles and criteria contained in developing the regulation. Where a Executive Order 13132. As explained 5. An Identification, to the Extent regulation has federalism implications above, FRA has determined that this Practicable, of All Relevant Federal and preempts State law, the agency proposed rule has no federalism Rules That May Duplicate, Overlap, or seeks to consult with State and local implications, other than the possible Conflict With the Proposed Rule officials in the process of developing the preemption of State laws under Federal FRA is not aware of any relevant regulation. railroad safety statutes, specifically 49 Federal rules that may duplicate, This NPRM has been analyzed in U.S.C. 20106. Accordingly, FRA has overlap or conflict with the proposed accordance with the principles and determined that preparation of a rule. criteria contained in Executive Order federalism summary impact statement FRA invites all interested parties to 13132. This proposed rule would not for this proposed rule is not required. submit data and information regarding have a substantial effect on the States or the potential economic impact that their political subdivisions; it would not D. Paperwork Reduction Act would result from adoption of the impose any compliance costs; and it proposals in this NPRM. FRA will would not affect the relationships The information collection consider all comments received in the between the Federal government and requirements in this proposed rule have public comment process when making a the States or their political subdivisions, been submitted for approval to the determination. or the distribution of power and Office of Management and Budget responsibilities among the various (OMB) under the Paperwork Reduction C. Federalism levels of government. Therefore, the Act of 1995, 44 U.S.C. 3501 et seq. The Executive Order 13132, ‘‘Federalism’’ consultation and funding requirements sections that contain the new (64 FR 43255, Aug. 10, 1999), requires of Executive Order 13132 do not apply. information collection requirements are FRA to develop an accountable process However, this proposed rule could duly designated, and the estimated time to ensure ‘‘meaningful and timely input have preemptive effect by operation of to fulfill each requirement is as follows:

Average time Total annual CFR Section/subject Respondent universe Total annual responses per response burden hours

234.403—Submission of Informa- 50 states & 607 railroads ...... 6,942 forms ...... 30 3,471 tion to the U.S. DOT Highway- 50 states & 607 railroads ...... 257 lists ...... 30 129 Rail Crossing Inventory (For- merly Voluntary). 50 states & 607 railroads ...... 1,111 lists ...... 30 556 50 states & 607 railroads ...... 38,982 records ...... 6 3,898 234.405—Submission of initial data 607 railroads ...... 450 written notifications ...... 30 225 and periodic updates to the U.S. 50 states & 607 railroads ...... 175 written notifications ...... 30 88 DOT Highway-Rail Crossing In- 607 railroads ...... 65 written notifications ...... 30 33 ventory (New Requirement). 607 railroads ...... 12 written notifications ...... 30 6 50 states & 607 railroads ...... 10 written notifications ...... 30 5 607 railroads ...... 950 written notifications ...... 20 317 607 railroads ...... 650 written notifications ...... 20 217 50 states & 607 railroads ...... 525 written notifications ...... 20 175 234.407 Recordkeeping (New Re- 607 railroads ...... 5,674 copies ...... 1 95 quirement). 607 railroads ...... 2,837 copies ...... 1 47 607 railroads ...... 607 forms ...... 5 51

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All estimates include the time for 26, 1999) as required by the National promulgates or is expected to lead to the reviewing instructions; searching Environmental Policy Act (42 U.S.C. promulgation of a final rule or existing data sources; gathering or 4321 et seq.), other environmental regulation, including notices of inquiry, maintaining the needed data; and statutes, Executive Orders, and related advance notices of proposed reviewing the information. Pursuant to regulatory requirements. FRA has rulemaking, and notices of proposed 44 U.S.C. 3506(c)(2)(B), FRA solicits determined that this proposed rule is rulemaking: (1)(i) That is a significant comments concerning: Whether these not a major FRA action (requiring the regulatory action under Executive Order information collection requirements are preparation of an environmental impact 12866 or any successor order, and (ii) is necessary for the proper performance of statement or environmental assessment) likely to have a significant adverse effect the functions of FRA, including whether because it is categorically excluded from on the supply, distribution, or use of the information has practical utility; the detailed environmental review pursuant energy; or (2) that is designated by the accuracy of FRA’s estimates of the to section 4(c)(20) of FRA’s Procedures. Administrator of the Office of burden of the information collection See 64 FR 28547 (May 26, 1999). Information and Regulatory Affairs as a requirements; the quality, utility, and In accordance with section 4(c) and significant energy action. FRA has clarity of the information to be (e) of FRA’s Procedures, the agency has evaluated this NPRM in accordance collected; and whether the burden of further concluded that no extraordinary with Executive Order 13211. FRA has collection of information on those who circumstances exist with respect to this determined that this NPRM is not likely are to respond, including through the regulation that might trigger the need for to have a significant adverse effect on use of automated collection techniques a more detailed environmental review. the supply, distribution, or use of or other forms of information As a result, FRA finds that this energy. Consequently, FRA has proposed rule is not a major Federal technology, may be minimized. For determined that this NPRM is not a action significantly affecting the quality information or a copy of the paperwork ‘‘significant energy action’’ within the of the human environment. package submitted to OMB, contact Mr. meaning of Executive Order 13211. Robert Brogan, Information Clearance F. Unfunded Mandates Reform Act of Officer, at 202–493–6292, or Ms. Nakia 1995 H. Trade Impact Jackson at 202–493–6073. Organizations and individuals Pursuant to Section 201 of the The Trade Agreements Act of 1979 desiring to submit comments on the Unfunded Mandates Reform Act of 1995 (Pub. L. 96–39, 19 U.S.C. 2501 et seq.) collection of information requirements (Pub. L. 104–4, 2 U.S.C. 1531), each prohibits Federal agencies from should direct them to Mr. Robert Brogan Federal agency ‘‘shall, unless otherwise engaging in any standards setting or or Ms. Kimberly Toone, Federal prohibited by law, assess the effects of related activities that create unnecessary Railroad Administration, 1200 New Federal regulatory actions on State, obstacles to the foreign commerce of the Jersey Avenue SE., 3rd Floor, local, and tribal governments, and the United States. Legitimate domestic Washington, DC 20590. Comments may private sector (other than to the extent objectives, such as safety, are not also be submitted via email to Mr. that such regulations incorporate considered unnecessary obstacles. The Brogan or Ms. Toone at the following requirements specifically set forth in statute also requires consideration of address: [email protected]; law).’’ Section 202 of the Act (2 U.S.C. international standards and, where [email protected]. 1532) further requires that ‘‘before appropriate, that they be the basis for OMB is required to make a decision promulgating any general notice of U.S. standards. FRA has assessed the concerning the collection of information proposed rulemaking that is likely to potential effect of this NPRM on foreign requirements contained in this proposed result in the promulgation of any rule commerce and believes that its rule between 30 and 60 days after that includes any Federal mandate that requirements are consistent with the publication of this document in the may result in expenditure by State, Trade Agreements Act of 1979. The Federal Register. Therefore, a comment local, and tribal governments, in the requirements imposed are safety to OMB is best assured of having its full aggregate, or by the private sector, of standards, which, as noted, are not effect if OMB receives it within 30 days $100,000,000 or more (adjusted considered unnecessary obstacles to of publication. The final rule will annually for inflation) in any 1 year, and trade. respond to any OMB or public before promulgating any final rule for comments on the information collection which a general notice of proposed I. Privacy Act rulemaking was published, the agency requirements contained in this proposal. Interested parties should be aware FRA is not authorized to impose a shall prepare a written statement’’ that anyone is able to search the penalty on persons for violating detailing the effect on State, local, and electronic form of all written comments information collection requirements tribal governments and the private received into any agency docket by the which do not display a current OMB sector. The proposed rule will not result name of the individual submitting the control number, if required. FRA in the expenditure, in the aggregate, of document (or signing the document, if intends to obtain current OMB control $140,800,000 or more (as adjusted submitted on behalf of an association, numbers for any new information annually for inflation) in any one year, business, labor union, etc.). You may collection requirements resulting from and thus preparation of such a review DOT’s complete Privacy Act this rulemaking action prior to the statement is not required. Statement in the Federal Register effective date of the final rule. The OMB G. Energy Impact published on April 11, 2000 (65 FR control number, when assigned, will be 19477–78) or you may visit http://www. announced by separate notice in the Executive Order 13211 requires dot.gov/privacy.html. Federal Register. Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant List of Subjects in 49 CFR Part 234 E. Environmental Impact energy action.’’ 66 FR 28355 (May 22, FRA has evaluated this rule in 2001). Under the Executive Order, a Highway safety, Penalties, Railroad accordance with its ‘‘Procedures for ‘‘significant energy action’’ is defined as safety, Reporting and recordkeeping Considering Environmental Impacts’’ any action by an agency (normally requirements, State and local (FRA’s Procedures) (64 FR 28545, May published in the Federal Register) that governments.

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The Proposed Rule FRA Associate Administrator means (b) The Inventory Form shall be For the reasons discussed in the the FRA Associate Administrator for completed in accordance with the preamble, FRA proposes to amend part Railroad Safety/Chief Safety Officer. Inventory Guide. A copy of this guide 234 of chapter II, subtitle B of title 49, Highway-rail crossing means the may be obtained from the Office of Code of Federal Regulations, as follows: location where one or more railroad Railroad Safety, RRS–23, Federal tracks intersect with a public highway, Railroad Administration, 1200 New PART 234—GRADE CROSSING road, street, or private roadway, Jersey Avenue SE., Washington, DC SAFETY including associated sidewalks and 20590. A copy of this guide can also be pathways, either at-grade or grade- viewed or downloaded from the FRA 1. The authority citation for part 234 separated. Web site at (FRA Web site address to be is revised to read as follows: Inventory Form means the U.S. DOT inserted). Authority: 49 U.S.C. 20103, 20107, 20152, Crossing Inventory Form (Form FRA F (c) Each Class I railroad shall submit 20160, 21301, 21304, 21311, 22501 note; Pub. 6180.71.) the data required by paragraph (a) of L. 110–432, Div. A., Sec. 202, 28 U.S.C. 2461, Inventory Guide means the FRA this section to the Crossing Inventory note; and 49 CFR 1.49. Guide for Preparing Highway-Rail electronically. Crossing Inventory Forms in effect at the 2. The heading for part 234 is revised § 234.405 Submission of initial data and to read as set forth above. time of the submission of data to the periodic updates to the Crossing Inventory. Crossing Inventory. 3. Section 234.1 is amended by (a) Initial Submission for Previously Inventory number means the number revising paragraphs (a)(3) and (4) and by Unreported Crossings. (1) Duty of assigned to a highway-rail crossing or adding paragraph (a)(5) to read as Primary Operating Railroad. Each pathway crossing in the Crossing follows: primary operating railroad shall submit Inventory. § 234.1 Scope. Operating railroad means any railroad a completed Inventory Form, or its electronic equivalent, to the Crossing (a) * * * that operates one or more trains through (3) Requirements for particular a highway-rail crossing or pathway Inventory for each previously identified States to develop State crossing. unreported public, private, and pathway highway-rail grade crossing action Pathway crossing means a pathway crossing (except a temporary crossing) plans; that: through which it operates, no later than (4) Requirements that certain railroads (1) Is explicitly authorized by a public (DATE 6 MONTHS AFTER EFFECTIVE establish systems for receiving toll-free authority or a railroad; DATE OF FINAL RULE). The completed telephone calls reporting various unsafe (2) Is dedicated for the use of non- Inventory Form, or its electronic conditions at highway-rail grade vehicular traffic, including pedestrians, equivalent, must reference the assigned crossings and pathway grade crossings, bicyclists, and others; Inventory Number for the crossing and and for taking certain actions in (3) Is not associated with a public the Inventory Form, or its electronic response to those calls; and highway, road, or street, or a private equivalent, must be completed and (5) Requirements for reporting to, and roadway; submitted in accordance with § 234.403 periodically updating information (4) Crosses one or more railroad tracks of this part. contained in, the U.S. DOT National either at grade or grade-separated. (2) Duty of Operating Railroads. Each Highway-Rail Crossing Inventory for Primary operating railroad means the operating railroad, other than the public, private, and pathway crossings. operating railroad responsible for primary operating railroad, which operates through a previously * * * * * submitting and/or updating data in the Crossing Inventory for a highway-rail unreported public, private, or pathway 4. Subpart F is added to read as crossing (except a temporary crossing) follows: crossing or pathway crossing. Private crossing means a highway-rail for which a completed Inventory Form, Subpart F—Highway-Rail Crossing crossing that is not a public crossing. or its electronic equivalent, has not been Inventory Reporting Public crossing means a highway-rail submitted to the Crossing Inventory in crossing where the roadway is under the accordance with paragraph (a)(1) of this Sec. jurisdiction of and maintained by a section, shall notify the FRA Associate 234.401 Definitions. public authority and open to public Administrator in writing of this 234.403 Submission of data to the Crossing travel. All roadway approaches must be oversight. Written notification provided Inventory, generally. under the jurisdiction of the public by the operating railroad shall include, 234.405 Submission of initial data and at a minimum, the latitudinal and periodic updates to the Crossing roadway authority and no roadway Inventory. approach may be on private property. longitudinal coordinates for each 234.407 Recordkeeping. Temporary crossing means a highway- previously unreported public, private, 234.409 Electronic recordkeeping. rail crossing created to serve a specific or pathway crossing for which a activity for a temporary time period not completed Inventory Form, or its § 234.401 Definitions. to exceed six months. electronic equivalent, has not been As used in this subpart— timely submitted to the Crossing Class I has the meaning assigned by § 234.403 Submission of data to the Inventory. regulations of the Surface Crossing Inventory, generally. (3) Reporting by Other Entities on Transportation Board (49 CFR part 1201; (a) Public, private, and pathway Behalf of the Primary Operating General Instructions 1–1), as those crossing data shall be submitted to the Railroad. In order to satisfy the regulations may be revised and applied Crossing Inventory on the Inventory reporting requirements of paragraph by order of the Board (including Form pursuant to the requirements set (a)(1) of this section, an entity other modifications in class threshold based forth in § 234.405 of this part. Except as than the primary operating railroad may on revenue deflator adjustments). provided in paragraph (c) of this submit a completed Inventory Form, or Crossing Inventory means the U.S. section, the Inventory Form may be its electronic equivalent, to the Crossing DOT National Highway-Rail Crossing submitted in hard copy or Inventory, provided both the reporting Inventory. electronically. entity and the primary operating

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railroad provide written notice to the the Crossing Inventory for each public, (e) Changes Requiring Submission of FRA Associate Administrator of the private, and pathway crossing (other Updated Information to the Crossing entity assuming reporting responsibility. than a temporary crossing or a grade- Inventory, Changes in Crossing Any such notification must include a separated crossing) through which it Characteristics. (1) Within three (3) positive identification of the locations operates, in accordance with the months of any crossing closure, change that will be covered. Inventory Guide. Updated crossing data in crossing surface, or change in (b) Initial Submissions for New shall be submitted to the Crossing warning device at any public, private, or Crossings. (1) Duty of Primary Operating Inventory at least every 3 years from the pathway crossing, the primary operating Railroad. Each primary operating date of the most recent railroad railroad shall submit an Inventory Form, railroad shall submit a completed submission or (DATE 6 MONTHS or its electronic equivalent, that reflects Inventory Form, or its electronic AFTER EFFECTIVE DATE OF FINAL the change in crossing characteristics to equivalent, to the Crossing Inventory for RULE), whichever occurs later. the Crossing Inventory, in accordance each new public, private, or pathway (2) Duty of Operating Railroads. An with § 234.403 of this subpart. A crossing (except a temporary crossing) operating railroad, other than the ‘‘change in warning device’’ means the through which it operates no later than primary operating railroad, that operates addition of a crossbuck, yield or stop six (6) months after the crossing through a public, private, or pathway sign, flashing lights, or gates at a public, becomes operational. The completed crossing (other than a temporary private, or pathway crossing. Inventory Form, or its electronic crossing or a grade-separated crossing) (2) Submission of Updated equivalent, must reference the assigned for which up-to-date and accurate Information to the Crossing Inventory by Inventory Number for the crossing and information has not been timely Other Entities on Behalf of the Primary the Inventory Form, or its electronic submitted to the Crossing Inventory in Operating Railroad. In order to satisfy equivalent, must be completed and accordance with paragraph (c)(1) shall the reporting requirements of paragraph submitted in accordance with § 234.403. notify the FRA Associate Administrator, (e)(1) of this section, an entity other (2) Duty of Operating Railroads. An in writing, of this oversight. Written than the primary operating railroad may operating railroad, other than the notification provided by the operating submit an Inventory Form, or its primary operating railroad, which railroad in accordance with this electronic equivalent, that reflects the operates through a new public, private, paragraph shall include, at a minimum, change(s) in crossing characteristics to or pathway crossing (except a temporary the Inventory Number for each public, the Crossing Inventory, provided both crossing) for which a completed private, or pathway crossing(s) that has the reporting entity and the primary Inventory Form has not been submitted not been updated. operating railroad provide written to the Crossing Inventory within six (6) (3) Joint Updating by Multiple notification to the FRA Associate months after the crossing becomes Administrator of the entity assuming operational shall notify the FRA Operating Railroads. Two or more operating railroads may assume joint reporting responsibility. Any such Associate Administrator, in writing, of notification shall include positive this oversight. Written notification responsibility for submission of the periodic updates required by paragraph identification of the location(s) that will provided by the operating railroad shall be covered. include, at a minimum, the latitudinal (c)(1) of this section by providing and longitudinal coordinates for each written notification of this agreement in § 234.407 Recordkeeeping. accordance with the Inventory Guide. new and unreported public, private, or (a) Each railroad subject to this (4) Submission of Periodic Updates by pathway crossing through which it subpart shall keep records in Other Entities on Behalf of the Primary operates. accordance with this section. Records Operating Railroad. In order to satisfy (3) Joint Reporting by Multiple may be kept either on paper or by the periodic updating requirements of Operating Railroads. Two or more electronic means in a manner that paragraph (c)(1) of this section, an entity operating railroads may agree to assume conforms with § 234.409. joint responsibility for the reporting other than the primary operating (b) Each operating railroad, including requirement set forth in paragraph (b)(1) railroad may submit up-to-date and the primary operating railroad, of this section by providing written accurate crossing data to the Crossing responsible for submitting information notification of this agreement in Inventory, provided both the reporting to the Crossing Inventory in accordance accordance with the Inventory Guide. entity and the primary operating with this subpart shall, at a minimum, (4) Reporting by Other Entities on railroad provide written notification to maintain the following information for Behalf of the Primary Operating the FRA Associate Administrator of the each required Inventory Form: Railroad. In order to satisfy the entity assuming the periodic updating (1) A duplicate copy of each Inventory reporting requirements of paragraph responsibility. Any such notification Form submitted in hard copy to the (b)(1) of this section, an entity other shall include positive identification of Crossing Inventory; or than the primary operating railroad may the locations that will be covered. (2) A copy of the electronic submit a completed Inventory Form, or (d) Changes Requiring Submission of confirmation received from FRA after its electronic equivalent, to the Crossing Updated Information to the Crossing electronic submission of crossing data to Inventory, provided both the reporting Inventory, Crossing sale. Any railroad the Crossing Inventory. entity and the primary operating that sells all or part of a public, private, (c) Each railroad shall identify the railroad provide written notification to or pathway crossing shall submit an locations where a copy of any record the FRA Associate Administrator of the Inventory Form, or its electronic required to be retained by this subpart entity assuming reporting responsibility. equivalent, which reflects the crossing is accessible for inspection and Any such notification must include sale to the Crossing Inventory. The photocopying by maintaining a list of positive identification of the locations updated Inventory Form, or its such establishment locations at the that will be covered. electronic equivalent, shall be submitted office where the railroad’s reporting (c) Periodic Updates. (1) Duty of to the Crossing Inventory, no later than officer conducts his or her official primary operating railroad. Each three (3) months after the date of sale, business. primary operating railroad shall submit in accordance with § 234.403 of this (d) Each operating railroad shall up-to-date and accurate crossing data to subpart. retain for at least four (4) years from the

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date of submission to the Crossing DEPARTMENT OF TRANSPORTATION Ground Floor, Room W12–140, Inventory all records referred to in Washington, DC 20590–0001. paragraphs (a) and (b) of this section. Federal Motor Carrier Safety • Hand Delivery or Courier: West Records required to be kept under this Administration Building Ground Floor, Room W12–140, subpart shall be made available to FRA 1200 New Jersey Avenue SE., as provided by 49 U.S.C. 20107. 49 CFR Part 395 Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, [Docket No. FMCSA–2011–0373] § 234.409 Electronic recordkeeping. except Federal holidays. • Fax: 1–202–493–2251. (a) If a railroad subject to this subpart Hours of Service of Drivers Each submission must include the maintains records required by this AGENCY: Federal Motor Carrier Safety Agency name and the docket number for subpart in electronic format in lieu of Administration (FMCSA), DOT. this notice. Note that DOT posts all paper, the system for keeping the ACTION: Notice of public listening comments received without change to electronic records must meet all of the session. www.regulations.gov, including any following conditions: personal information included in a (1) The railroad adequately limits and SUMMARY: FMCSA announces that it will comment. Please see the Privacy Act controls accessibility to the records hold a public listening session to solicit heading below. retained in its electronic database information, concepts, ideas, and Docket: For access to the docket to system and identifies those individuals information on hours-of-service (HOS) read background documents or who have such access; requirements for drivers of passenger- comments, go to www.regulations.gov at carrying commercial motor vehicles any time or visit Room W12–140 on the (2) The railroad has a terminal at the (CMVs). Specifically, the Agency would ground level of the West Building, 1200 office where the railroad’s reporting like to know what factors, issues, and New Jersey Avenue SE., Washington, officer conducts his or her official data it should consider as it determines DC, between 9 a.m. and 5 p.m., ET, business and at each location designated preliminarily whether the HOS Monday through Friday, except Federal by the railroad as having a copy of any regulations applicable to these drivers holidays. The on-line Federal document record required to be retained by this need to be changed to decrease the risk management system is available 24 subpart that is accessible for inspection of fatigue-related crashes. The session, hours each day, 365 days each year. If and photocopying; which will be held in Santa Barbara, you want acknowledgment that we (3) Each such terminal has a computer CA, will allow interested persons to received your comments, please include and either a facsimile machine or a present comments, views, and relevant a self-addressed, stamped envelope or printer connected to a computer to new research that FMCSA should postcard or print the acknowledgement retrieve and produce information in a consider in drafting a Notice of page that appears after submitting usable format for immediate review by Proposed Rulemaking (NPRM). All comments on-line. FRA representatives; comments will be transcribed and Privacy Act: Anyone may search the placed in the docket for FMCSA’s electronic form of all comments (4) The railroad has a designated consideration. The entire day’s received into any of our dockets by the representative who is authorized to proceedings will be webcast. name of the individual submitting the authenticate retrieved information from DATES: The listening session will be comment (or of the person signing the the electronic system as a true and held on Tuesday, October 30, 2012, in comment, if submitted on behalf of an accurate copy of the electronically kept Santa Barbara, CA. The listening session association, business, labor union, etc.). record; and will be held from 1:15 p.m. until 5:30 You may review DOT’s Privacy Act (5) The railroad provides FRA p.m., LT, or earlier, if all participants Statement for the Federal Docket representatives with immediate access wishing to express their views have Management System published in the to the record(s) for inspection and done so. Federal Register on January 17, 2008 copying during normal business hours ADDRESSES: The October 30, 2012, (73 FR 3316), or you may visit http:// and provides a printout of such meeting will be held at the Fess Parker’s edocket.access.gpo.gov/2008/pdf/E8- 785.pdf. record(s) upon request. Doubletree Resort, 633 East Cabrillo FOR FURTHER INFORMATION CONTACT: For (b) If a record required by this subpart Blvd., Santa Barbara, CA 93103. The information concerning the listening is in the form of an electronic record hotel telephone number is 1–805–884– 8511. session or the live webcast, please kept by an electronic recordkeeping Internet Address for Live Webcast. contact Ms. Shannon L. Watson, Senior system that does not comply with FMCSA will post specific information Advisor for Policy, FMCSA, (202) 385– paragraph (a) of this section, then the on how to participate via the Internet on 2395. record must be kept on paper in the FMCSA Web site at http:// If you need sign language assistance accordance with the recordkeeping www.fmcsa.dot.gov/rules-regulations/ to participate in this HOS listening requirements contained in § 234.407. topics/hos/HOS-Listening- session, contact Ms. Watson by Issued in Washington, DC, on October 12, Sessions.aspx. Thursday, October 18, 2012, to allow us 2012. You may submit comments bearing to arrange for such services. There is no Karen J. Hedlund, the Federal Docket Management System guarantee that interpreter services requested on short notice can be Deputy Administrator. (FDMS) Docket ID FMCSA–2011–0373 using any of the following methods: provided. [FR Doc. 2012–25623 Filed 10–17–12; 8:45 am] • Federal eRulemaking Portal: Go to SUPPLEMENTARY INFORMATION: BILLING CODE 4910–06–P www.regulations.gov. Follow the on-line instructions for submitting comments. I. Background • Mail: Docket Management Facility; The HOS requirements for U.S. Department of Transportation, 1200 motorcoach operators have not been New Jersey Avenue SE., West Building substantially revised in several decades.

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The FMCSA did not include changes to service for drivers of passenger-carrying estimation of how or whether crash risk the motorcoach HOS requirements in its CMVs. varies over successive hours of daily April 2003 final rule and subsequent driving. II. Meeting Participation and revisions concerning HOS requirements 4. Cumulative Fatigue. The Agency Information FMCSA Seeks From the for truck drivers because the Agency did seeks comment on whether its Public not have enough data and information methodology for evaluating cumulative on motorcoach operations to form the The listening session is open to the fatigue and its impact on driving basis of a rulemaking notice. public. Speakers’ remarks will be performance is reasonable. The Agency Motorcoach operations differ limited to 5 minutes each. The public also welcomes further information on significantly from trucking operations may submit material to the FMCSA staff the effects of cumulative fatigue, and the information upon which the at the session for inclusion in the public particularly in the form of scientific Agency relied for its truck drivers’ rule docket, FMCSA–2011–0373. studies or data that would allow better did not address the unique fatigue The Agency seeks data and answers evaluation of cumulative fatigue and its issues associated with the scheduling relating to the following issues and impact on workplace safety, driver and operating practices of the questions. The comments sought below safety performance, and productivity. motorcoach industry. may be submitted in written form at the session and summarized verbally, if III. Alternative Media Broadcasts The current HOS rules for passenger- desired. During and Immediately After the carrying operations allow up to 10 hours 1. Driving Time. FMCSA is seeking Listening Session on October 30, 2012 of driving time following 8 consecutive additional studies or data that examine FMCSA will webcast the listening hours off duty. Driving is prohibited in greater detail the fatigue and safety after the operator has accumulated 15 session on the Internet. Specific differences associated with different information on how to participate via hours of on-duty time following 8 driving times. consecutive hours off duty (15-hour the Internet and the telephone access 2. Duty Time/Driving Window. number will be on the FMCSA Web site rule). The 15-hour window may be FMCSA is soliciting information on extended by off-duty periods, unlike the at http://www.fmcsa.dot.gov/rules- patterns of work for night drivers. regulations/topics/hos/HOS-Listening- 14-hour window for drivers of property- 3. Time-On-Task (TOT) Function. The carrying vehicles. Sessions.aspx. Agency seeks comment on whether its FMCSA will docket the transcripts of With regard to weekly limitations, approach to estimating its TOT function the webcast and a separate transcription drivers of passenger-carrying vehicles is reasonable given the lack of good of the listening session that will be are subject to a 60- or 70-hour rule but, exposure data. The Agency is interested prepared by an official court reporter. unlike drivers of property-carrying in any suggestions for improving its vehicles, they may not restart their approach for estimating TOT effects, Issued on: October 11, 2012. calculations after 34 consecutive hours especially information on where it Larry W. Minor, off duty. At this time, the Agency is might obtain better data on exposure Associate Administrator for Policy. moving toward developing a proposal to and other driver characteristics that [FR Doc. 2012–25789 Filed 10–17–12; 8:45 am] revise the regulations for hours-of- would enable it to improve its BILLING CODE 4910–EX–P

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Notices Federal Register Vol. 77, No. 202

Thursday, October 18, 2012

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: The building name, room number, bureau, contains documents other than rules or Personnel Locator System is being region, mission, country, office proposed rules that are applicable to the updated as an Agency-wide system of telephone numbers, office fax numbers, public. Notices of hearings and investigations, record to cover all USAID Locator contact email address, employment committee meetings, agency decisions and Systems, to include the Emergency mechanism, home address, home phone rulings, delegations of authority, filing of petitions and applications and agency Notification System, USAID Web site number, alternate phone number, statements of organization and functions are Modernization to include requests for emergency contact name, emergency examples of documents appearing in this newsletters via USAID.gov and contact phone number, emergency section. information collected on Agency contact alternate number, program areas Telework forms. This would also of expertise, foreign language skills, include electronic business card professional affiliations, professional AGENCY FOR INTERNATIONAL applications. USAID Offices, Bureaus, certifications, photograph, region or DEVELOPMENT Missions, or Teams, that desire to country-based experience, operational collect, maintain or store personnel data experience and educational experience. Privacy Act of 1974, System of under the scope of this system of The Personnel Locator System is being Records records will be required to undergo a updated as an Agency-wide system of compliance review and register their record to cover all USAID Locator AGENCY: United States Agency for International Development. system with the USAID Privacy Office. Systems, to include the Emergency The system is being established to Notification System, USAID Web site ACTION: Altered system of records. collect and maintain USAID Modernization to include, requests for organizational information, emergency newsletters via USAID.gov and SUMMARY: The United States Agency for International Development (USAID) is contact information and professional information collected on Agency issuing public notice of its intent to alter biographical information. The Personnel Telework forms. This would also a system of records maintained in Locator System will enable USAID to include electronic business card accordance with the Privacy Act of 1974 quickly access information required to applications. reach individuals in the event of an (5 U.S.C. 552a), as amended, entitled AUTHORITY FOR MAINTENANCE OF THE SYSTEM: ‘‘USAID–28, Personnel Locator urgent situation, conduct continuity of Privacy Act of 1974 (Pub. L. 93–579), System’’. This action is necessary to operations planning exercises, and sec. 552a(c), (e), (f), and (p). meet the requirements of the Privacy identify individuals with specialized areas of expertise to facilitate Act to publish in the Federal Register PURPOSE(S): professional contacts. notice of the existence and character of Records in this system will be used: record systems maintained by the Dated: August 29, 2012. (1) To develop and maintain current agency (5 U.S.C. 522a(e)(4)). William Morgan, agency personnel locator and DATES: Public comments must be Chief Information Security Officer—Chief professional directory listings, received on or before November 20, Privacy Officer. (2) To identify and notify individuals 2012. Unless comments are received USAID–28 employed by USAID when an that would require a revision; this emergency which occurs after hours update to the system of records will SYSTEM NAME: requires that he/she report or not report become effective on November 30, 2012. USAID Personnel Locator System (to for duty, ADDRESSES: You may submit comments: include Emergency Notification System, (3) To maintain and implement Telework, and Newsletters). emergency plans, including continuity Paper Comments SECURITY CLASSIFICATION: of operations and facility evacuation • Fax: (703) 666–5670. plans, Sensitive But Unclassified. • Mail: Chief Privacy Officer, United (4) To notify, locate, and mobilize States Agency for International SYSTEM LOCATION(S): individuals as necessary during Development, 2733 Crystal Drive, 11th United States Agency for International emergency or other threatening Floor, Arlington, VA 22202. Development, 1300 Pennsylvania Ave. situations, (5) To notify the designated Electronic Comments NW., Washington, DC 20523. emergency contact in case of a medical • Federal eRulemaking Portal: http:// CATEGORIES OF INDIVIDUALS COVERED BY THE or other emergency event involving an SYSTEM: www.regulations.gov. Follow the individual, instructions on the Web site for This system contains records of (6) To identify colleagues by areas of submitting comments. current employees, contractors, expertise to facilitate mentoring • Email: [email protected]. consultants, and partners. activities with Foreign Service Officers, FOR FURTHER INFORMATION CONTACT: For CATEGORIES OF RECORDS COVERED BY THE (7) To identify colleagues with general questions, please contact, SYSTEM: specialized knowledge and/or expertise USAID Privacy Office, United States This system contains USAID to participate in collaborative efforts, Agency for International Development, organizational information. At a (8) To facilitate this information in the 2733 Crystal Drive, 10th Floor, solution wide level the system will Emergency Notification System, Arlington, VA 22202. Email: collect and display First and Last Name, (9) To facilitate the transmission of [email protected]. title, USAID Organizational address, Agency Newsletters, and

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(10) To identify personnel that are request shall be signed by either Comments also may be submitted via utilizing the Governmental Telework notarized signature or by signature facsimile to (970) 295–5755 or by email Policy and to support the OMB mandate under penalty of perjury and reasonably to: [email protected]. for telework. specify the record contents being All comments, including names and sought. addresses when provided, are placed in DISCLOSURE TO CONSUMER REPORTING the record and are available for public AGENCIES: RECORD ACCESS PROCEDURES: inspection and copying. The public may These records are not disclosed to Individuals wishing to request access inspect comments received at the Forest consumer reporting agencies. to a record must submit the request in Management Service Center, 2150 PURPOSES OF SUCH USES: writing according to the ‘‘Notification Centre Ave., Bldg. A, Fort Collins, CO. Procedures’’ above. An individual Visitors are encouraged to call ahead at USAID may disclose relevant system wishing to request access to records in (970) 295–5020 and ask for Lathrop records in accordance with any current person must provide identity Smith to facilitate entry into the and future blanket routine uses documents, such as government-issued building. established for its record systems. These photo identification, sufficient to satisfy may be for internal communications or FOR FURTHER INFORMATION CONTACT: the custodian of the records that the with external partners. Lathrop Smith, Forest Management requester is entitled to access. Staff, at (970) 295–5961. Individuals ROUTINE USE OF RECORDS MAINTAINED IN THE CONTESTING RECORD PROCEDURES: who use telecommunication devices for SYSTEM, INCLUDING CATEGORIES OF USERS AND the deaf (TDD) may call the Federal THE An individual requesting amendment Relay Service (FRS) at 1–800–877–8339, of a record maintained on himself or Disclosure to consumer reporting 24 hours a day, every day of the year, herself must identify the information to agencies: including holidays. be changed and the corrective action These records are not disclosed to SUPPLEMENTARY INFORMATION: sought. Requests must follow the consumer reporting agencies. Title: Advertised Timber for Sale. ‘‘Notification Procedures’’ above. POLICIES AND PRACTICES FOR STORING, OMB Number: 0596–0066. RETRIEVING, ACCESSING, RETAINING, AND RECORD SOURCE CATEGORIES: Expiration Date of Approval: April 30, DISPOSING OF RECORDS IN THE SYSTEM: 2013. The records contained in this system Type of Request: Extension with STORAGE: will be provided by and updated by the Revision. Electronic records are maintained in individual who is the subject of the Abstract: Pursuant to statutory user-authenticated, password-protected record. requirements at 16 U.S.C. 472a, unless systems. All records are accessed only EXEMPTIONS CLAIMED FOR THE SYSTEM: extraordinary conditions exist as by authorized personnel who have a defined by regulation, the Secretary of None. need to access the records in the Agriculture must (1) advertise sales of performance of their official duties. Meredith Snee, all National Forest System timber or forest products exceeding $10,000 in RETRIEVABILITY: Privacy Analyst. appraised value, (2) select bidding Records are retrievable by name, [FR Doc. 2012–25607 Filed 10–17–12; 8:45 am] BILLING CODE P methods that ensure open and fair location or any other identifier listed in competition; (3) select bidding methods the categories of records cited above. that ensure the Federal Government SAFEGUARDS: receives not less than appraised value of Additional administrative safeguards DEPARTMENT OF AGRICULTURE the timber or forest product; and (4) monitor bidding patterns for evidence of are provided through the use of internal Forest Service standard operating procedures. unlawful bidding practices. Pursuant to the Forest Service Small RETENTION AND DISPOSAL: Information Collection; Advertised Business Timber Sale Set-Aside Timber for Sale Records will be updated periodically Program, developed in cooperation with to reflect changes and deleted or AGENCY: Forest Service, USDA. the Small Business Administration, Forest Service regulations at Title 36 of destroyed when their use is no longer ACTION: Notice; request for comments. required. the Code of Federal Regulations, SUMMARY: In accordance with the § 223.84 require Forest Service bid SYSTEM MANAGER(S) AND ADDRESS: Paperwork Reduction Act of 1995, the forms to include provisions for small Personnel Locator System (Emergency Forest Service is seeking comments business concerns. The data collected Notification System, Telework Program from all interested individuals and from the bid forms will be used by the and USAID Web site Modernization), organizations on the revision with Agency to ensure that National Forest United States Agency for International, changes of the currently approved System timber will be sold at not less Development, 1300 Pennsylvania information collection 0596–0066 than appraised value, that bidders will Avenue NW., Washington, DC 20523. Advertised Timber for Sale. meet specific criteria when submitting a bid, and to monitor bidding for evidence NOTIFICATION PROCEDURES: DATES: Comments must be received in of anti-trust violations. Individuals requesting notification of writing on or before December 17, 2012 The tax identification number of each the existence of records on them must to be assured of consideration. bidder is entered into an automated bid send the request in writing to the Chief Comments received after that date will monitoring system, which is used to Privacy Officer, USAID, 2733 Crystal be considered to the extent practicable. determine if speculative bidding or Drive, 11th Floor, Arlington, Va. 22202. ADDRESSES: Comments concerning this unlawful bidding practices are The request must include the notice should be addressed to Lathrop occurring and is required to process requestor’s full name, his/her current Smith, Forest Management Service electronic payments to the purchaser. address and a return address for Center, 2150 Centre Ave., Bldg. A, Fort Respondents will be bidding on transmitting the information. The Collins, CO 80526–1891. National Forest System timber sales and

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Integrated Resource Timber Contracts. FS–2400–14—Bid for Advertised 14BVU– Best Value, Unit Rate Offer): Forest Service Sales Officers will mail Timber (3 form versions: FS–2400– These forms will be used for soliciting bid forms to potential bidders, and 14UR– Unit Rate Bidding; FS–2400– and receiving offers on Integrated bidders will return the completed forms, 14WA– Weighted Average Bidding; FS– Resource Timber Contracts that are dated and signed, to the Forest Service 2400–14TV– Total Value Bidding): advertised for 30 days or longer and Sales Officer. These forms will be used for soliciting generally greater than $10,000 in The data gathered in this information and receiving bids on Timber Sales that advertised value. collection are not available from other are advertised for 30 days or longer and sources. Forms showing changes to the April generally greater than $10,000 in 2010 versions currently in use can be advertised value. These forms Forms Associated With This viewed on the World Wide Web/ implement the same statutes, policies, Information Collection Internet site at: http://www.fs.fed.us/ and regulations and collect similar FS–2400–42a—National Forest forestmanagement/products/ information from the same applicants. Timber and Forest Products for Sale newbidforms.shtm and at the Forest Respondents are the bidders on National (Advertisement and Short-Form Bid): Management Service Center, 2150 This form will be used for soliciting and Forest System timber and forest product sales. Centre Ave., Bldg. A, Fort Collins, CO. receiving bids on short-notice timber Visitors are encouraged to call ahead at sales that are advertised for less than 30 FS–2400–14BV—Solicitation and (970) 295–5020 and ask for Lathrop days and less than $10,000 in advertised Offer For Integrated Resource Contract Smith to facilitate entry into the value. Respondents are bidders on (2 form versions: FS–2400–14BV– Best building. National Forest System timber sales. Value, Total Value Offer; and FS–2400–

Item FS–2400–42a FS 2400–14 FS–2400–14BV

Estimate of Annual Burden ...... 9 hours ...... 34 hours ...... 53 hours.

Type of Respondents ...... Individuals, large and small businesses, and corporations bidding on National Forest timber sales and Integrated Resource Timber Contracts.

Estimated Annual Number of Respondents ...... 532 ...... 2145 ...... 174 Estimated Number of Responses per Respondent ...... 1.4 ...... 2.2 ...... 1.7 Estimated Total Annual Burden on Respondents ...... 4788 hours ...... 72,930 hours ...... 9222 hours.

Comment Is Invited DEPARTMENT OF AGRICULTURE ADDRESSES: Send written comments to Allen Rowley, Forest Supervisor, 115 Comment is invited on: (1) Whether Forest Service East 900 North, Richfield, Utah 84701. the proposed collection of information Comments may also be sent via email to is necessary for the stated purposes or Supplemental Environmental Impact [email protected], the proper performance of the functions Statement to the 2011 Final EIS for the or via facsimile to 435–896–9347. Please of the agency, including whether the Leasing and Underground Mining of reference Greens Hollow Supplemental information shall have practical or the Greens Hollow Federal Coal Lease EIS in the subject field. scientific utility; (2) the accuracy of the Tract (UTU–84102) agency’s estimate of the burden of the FOR FURTHER INFORMATION CONTACT: proposed collection of information, AGENCY: Forest Service, USDA. Marianne Orton, Forest Environmental including the validity of the ACTION: Notice of intent to prepare a Coordinator, Fishlake National Forest, methodology and assumptions used; (3) supplemental environmental impact 115 East 900 North, Richfield, Utah ways to enhance the quality, utility, and statement. 84701 or phone 435–896–1090. clarity of the information to be Individuals who use telecommunication collected; and (4) ways to minimize the SUMMARY: The Manti-La Sal and devices for the deaf (TDD) may call the burden of the collection of information Fishlake National Forests along with the Federal Information Relay Service on respondents, including the use of Bureau of Land Management (BLM), (FIRS) at 1–800–877–8339 between 8 automated, electronic, mechanical, or Price Field Office as joint lead agencies a.m. and 8 p.m., Eastern Time, Monday other technological collection announce their intent to prepare a through Friday. techniques or other forms of information supplemental Environmental Impact SUPPLEMENTARY INFORMATION: The technology. Statement (EIS) and Record of Decision proposed Greens Hollow Federal Coal to the 2011 Final EIS For the Leasing Lease Tract is located on the Manti-La All comments received in response to and Undeground Mining of the Greens this notice, including name and address Sal and Fishlake National Forests in Hollow Federal Coal Lease Tract UTU– Sanpete and Sevier counties, Utah. The when provided, will be summarized and 84102. Supplemental analyses are included in the request for Office of surface and coal resources are both required to correct deficiencies in the federally owned. The Forests administer Management and Budget approval. All Final EIS. comments also will become a matter of the surface resources, while the BLM public record. DATES: Additional scoping will not be administers the subsurface coal conducted in accordance with 40 CFR resources. The tract is located on the Dated: October 10, 2012. 1502.9(c)(4). The draft supplemental EIS Muddy Creek and North Fork James M. Pen˜ a, is expected in late December 2012 and Quitchupah Creek drainages Associate Deputy Chief, National Forest the final supplemental EIS is expected approximately 10 air miles west of the System. in March 2013. There will be a 45-day town of Emery, Utah. The tract is [FR Doc. 2012–25590 Filed 10–17–12; 8:45 am] comment period after the draft estimated to contain about 56.6 million BILLING CODE 3410–11–P supplemental EIS is issued. tons of recoverable coal reserves. The

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tract is being considered for competitive industrial, security, and environmental needed to protect non-mineral coal leasing under BLM regulations at needs. resources. 43 CFR part 3400. The BLM is considering the Proposed In accordance with the Mineral Coal in the tract would be accessed Action because it would be an integral Leasing Act of 1920, as amended, and and recovered using underground part of the BLM’s coal leasing program contingent on consent of the surface longwall mining methods, with under authority of the Mineral Leasing managing agency, the Green River foreseeable access from existing Act of 1920, as ammended by the District Manager of the BLM will decide adjacent leases. The Forest Service and Federal Coal Leasing Amendments Act whether or not to offer the tract for BLM have determined that data are of 1976 and supplemented in 1978, and competitive leasing and under what available to meet the Data Adequacy by implementing regulations at 43 CFR terms, conditions, and special Standards for Federal Coal Leasing, 3425, Lease-On-Application. Coal stipulations. Uinta-Southwestern Utah Coal Region. developent is recognized as an Preliminary Issues The final coal lease tract, as amended appropriate use of public lands within This Supplemental EIS will analyze by BLM’s Tract Delineation Team, the Wasatch Plateau Coal Field. The issues relating to the potential for encompasses 6,175 acres of Federal coal BLM will consider the approval of the underground mining and associated estate. The proposed lease contains Proposed Action in a manner that subsidence and foreseeable surface uses about 6,096 acres of National Forest minimizes impacts on or to other to affect: Geologic resources (including System (NFS) lands administered by the resource values (including water and mining-induced subsidence and Manti-La Sal National Forest and about cultural resources), avoids or reduces seismicity); existing and reasonably 79 acres of NFS lands administered by impact on resources and activities, and forseeable surface structures and the Fishlake National Forest. prevents unnecessary or undue facilities; surface and ground water A Final EIS for the Leasing and degradation of public lands. resources, including water quantity and Underground Mining of the Greens Proposed Action water quality; terrestrial and aquatic Hollow Federal Coal Lease Tract (UTU– wildlife resources (including 84102) was released to the public along The action proposed to meet the Threatened, Endangered, and special with the Record of Decision in purpose and need is for the Forest status species); vegetation resources December 2011. Subsequently, the Service to consent to the BLM offering (including Threatened, Endangered, and decision was made to withdraw the the Greens Hollow Federal Coal Lease special status species); heritage Record of Decision and prepare a Tract (UTU–84102) for competitive bid. resources; paleontological resources; Supplemental EIS. The Forest Service consent decision socioeconomics; recreation; visual would include special coal lease Purpose and Need for Action quality; range; roadless characteristics; stipulations for use and protection of and air quality. The purpose for developing this non-mineral interests, and the BLM Supplemental EIS is to clarify the decision would include stipulations Permits or Licenses Required decisions to be made and agency related to the mineral resource. Should a lease be issued and before decision authority, analyze the Lead and Cooperating Agencies any mining activity could commence, environmental consequences of the lessee must obtain a coal mining and potential actions to be taken by each The Bureau of Land Management, reclamation permit from the Utah agency, make technical corrections, and Price Field Office, and the Forest Division of Oil, Gas and Mining address agency compliance actions and Service, Manti-La Sal and Fishlake consistent with the requirements of the key resource concerns not previously National Forests, are joint lead agencies Surface Mining Control and analyzed in the original 2011 Final EIS. for this project. The USDI Office of Reclamation Act of 1977 (SMCRA) as The Supplemental EIS will replace the Surface Mining (OSM) will participate codified in 30 CFR 700 to end, and the Final EIS in its entirety. There is a need as a cooperating agency. Utah Coal Rules. Other Federal and to comply with current direction Responsible Official State permits would also be required. regarding management of Inventoried Roadless Areas and unroaded/ The Responsible Official for the Scoping Process undeveloped areas, address key Forest Service is Allen Rowley, Manti- Scoping for this Supplemental EIS resource concerns, and update analysis La Sal Acting Forest Supervisor and was completed in preparation of the for aquatic management indicator Fishlake Forest Supervisor, 115 East 900 previous EIS. The original Notice of species and sage-grouse. North, Richfield, Utah 84701. The Intent (NOI) for the Greens Hollow Coal The Forest Service and the BLM have responsible official for the BLM is Lease Tract was printed in the Federal identified a need to respond to a federal William Stringer, Green River District Register (Vol. 73, No. 29, pp. 8060– coal lease-by-application, and assess Manager, 170 South 500 East, Vernal 8062) on February 12, 2008. The NOI whether or not to offer certain NFS Utah 84078. designated a 45-day comment period lands for lease by competitive bid. The Nature of Decision To Be Made ending March 28, 2008, when comments purpose of the federal agencies’ actions would be most useful. A public notice is to facilitate continued development In accordance with the Federal Coal was also distributed to interested and recovery of federally managed coal Leasing Amendments Act of 1975, individuals on the BLM, Price Field resources in an environmentally sound which amended the Mineral Leasing Act Office and Manti-La Sal and Fishlake manner. The Proposed Action responds of 1920, and enacting regulations at 43 National Forests mailing lists. A legal to the federal government’s overall CFR 3400, the Forest Supervisor for the notice was also sent to local newspapers policy to foster and encourage private Manti-La Sal and Fishlake National to notify the general public. enterprise in the development of Forests, will decide whether or not to A content analysis of the comments economically sound and stable consent to BLM leasing the subject received on the Draft EIS was prepared. industries, and in the orderly and federal coal lease tract. As part of its A summary of the issues and concerns, economic development of domestic consent decision, the Forest Service will grouped by discipline or resource, resources to help assure satisfaction of identify special coal lease stipulations identified during the scoping process

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were analyzed in the EIS, while a more Wetmore Ave., Everett, Washington Telephone (202) 720–9815, Email detailed record of responses received 98201. [email protected]. were compiled into a scoping report for FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: the project. Peter Forbes, District Ranger, Darrington Title: Intermediary Relending Other Public Involvement Ranger District, phone (360) 436–2301, Program. The Draft EIS for the Greens Hollow email [email protected]. Individuals OMB Number: 0570–0021. Coal Lease Tract was released and who use telecommunication devices for Expiration Date of Approval: February distributed on March 26, 2009. The EPA the deaf (TDD) may call the Federal 28, 2013. Notice of Availability (NOA) was Information Relay Service (FIRS) at 1– Type of Request: Extension of published in the Federal Register on 800–877–8339 between 8 a.m. and 8 currently approved collection April 3, 2009, initiating the formal 45- p.m., Eastern Standard Time, Monday information. Abstract: The regulations contain day coment period on the Draft EIS. The through Friday. various requirements for information BLM NOA appeared in the Federal SUPPLEMENTARY INFORMATION: The from the intermediaries, and some Register on April 6, 2009. The Forest meeting is open to the public. More requirements may cause the Service Legal Notice of Proposed Action information will be posted on the Mt. intermediary to seek information from appeared in the local newsapers on Baker-Snoqualmie National Forest Web ultimate recipients. The information April 14 and 15, 2009. The NOA was site at http://www.fs.fed.us/r6/mbs/ requested is necessary for RBS to be able also posted on the BLM’s Environmental projects/rac.shtml. to process applications in a responsible Notification Bulletin Board on April 3, Comments may be sent via email to manner, make prudent credit and 2009. An electronic copy of the Draft [email protected] or via facsimile to program decisions, and effectively EIS was also made available on the (360) 436–1309. All comments, monitor the intermediaries’ activities to BLM’s Web site and hard copies were including names and addresses when protect the Government’s financial mailed to the project mailing list. provided, are placed in the record and interest and ensure that funds obtained Responses to comments on the Draft EIS are available for public inspection and from the Government are used were included in the Final EIS, copying. The public may inspect appropriately. It includes information to Appendix C. comments received at the Darrington identify the intermediary; describe the The Final EIS was released to the Ranger District office at 1405 Emens intermediary’s experience and expertise; public on December 14, 2011. The EPA Avenue, Darrington, Washington, describe how the intermediary will NOA was published in the Federal during regular office hours (Monday operate its revolving loan fund; provide Register on December 23, 2011. On through Friday 8 a.m.–4:30 p.m.). for debt instruments, loan agreements, February 13, 2012, an appeal was filed Dated: October 12, 2012. with the Region 4, Regional Forester. and security; and other material Jennifer Eberlien, Following the appeal, the decision was necessary for prudent credit decisions made to withdraw the Record of Forest Supervisor. and reasonable program monitoring. Decision and conduct additional [FR Doc. 2012–25661 Filed 10–17–12; 8:45 am] Estimate of Burden: Public reporting analysis. BILLING CODE 3410–11–P burden for this collection of information is estimated to average 7.5 hours per Dated: October 11, 2012. response. Allen Rowley, DEPARTMENT OF AGRICULTURE Respondents: Non-profit corporations, Forest Supervisor, Fishlake and Manti LaSal public agencies, Indian tribes and National Forests. Rural Business-Cooperative Service cooperatives. [FR Doc. 2012–25663 Filed 10–17–12; 8:45 am] Estimated Number of Respondents: Notice of Request for Extension of a BILLING CODE 3410–11–P 202. Currently Approved Information Estimated Number of Responses per Collection Respondent: 12. DEPARTMENT OF AGRICULTURE AGENCY: Rural Business-Cooperative Estimated Number of Responses: Service, USDA. 2,383. Forest Service Estimated Total Annual Burden on ACTION: Proposed collection; comments Respondents: 17,959 hours. Snohomish County Resource Advisory requested. Committee (RAC) Copies of this information collection SUMMARY: In accordance with the can be obtained from Brigitte Sumter, AGENCY: Forest Service, USDA. Paperwork Reduction Act of 1995, this Regulations and Paperwork ACTION: Notice of meeting. notice announces the Rural Business- Management Branch, Support Services Division at (202) 692–0042. SUMMARY: The Snohomish County Cooperative Service’s (RBS) intention to Resource Advisory Committee (RAC) request an extension of a currently Comments approved information collection in will meet in Everett, Washington on Comments are invited on (a) whether support of the Intermediary Relending October 25, 2012. The committee is the proposed collection of information Program (IRP). meeting to review and prioritize 2012 is necessary for the proper performance and 2013 Snohomish County RAC DATES: Comments on this notice must be of the functions of RBS, including Project Proposals for funding. received by December 17, 2012, to be whether the information will have DATES: The meeting will be held on assured of consideration. practical utility; (b) the accuracy of Thursday, October 25, 2012, from 9 a.m. FOR FURTHER INFORMATION CONTACT: Lori RBS’s estimate of the burden of the to 5 p.m. Washington, Specialty Programs proposed collection of information ADDRESSES: The meeting will be held in Division, Rural Business-Cooperative including the validity of the the Mt. Baker-Snoqualmie National Service, U.S. Department of Agriculture, methodology and assumptions used; (c) Forest 4th floor Conference Room, STOP 3225, 1400 Independence Avenue ways to enhance the quality, utility, and located at the Wall Street Building, 2930 SW., Washington, DC 20250–3225, clarity of the information to be

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collected; and (d) ways to minimize the DATES: Effective Date: October 18, 2012. opportunity to comment on the burden of the collection of information SUMMARY: On April 11, 2012, the preliminary results of review and to on those who are to respond, including Department of Commerce (the submit, pursuant to 19 CFR through the use of appropriate Department) published the preliminary 351.301(c)(3)(ii) and 351.408(c), automated, electronic, mechanical, or results of the administrative review of publicly available information to value other technological collection the antidumping duty order on glycine factors of production within 20 days techniques or other forms of information from the People’s Republic of China after the date of publication of the technology. Comments may be sent to (PRC) 1 in the Federal Register. We results. The domestic interested party, Brigitte Sumter, Regulations and revised the preliminary results on June GEO Specialty Chemicals, Inc. (GEO), Paperwork Management Branch, 27, 2012, and issued the results to all submitted factor-valuation information Support Services Division, U.S. interested parties for comment.2 We on May 1, 2012. GEO and the sole Department of Agriculture, Rural have analyzed all comments received by respondent in this review,3 Baoding Development, 1400 Independence the parties and have made changes to Mantong, submitted case briefs on May Avenue SW., STOP 0742, 1400 the margin calculation with respect to 11, 2012, and Baoding Mantong Independence Ave. SW., Washington, the sole company subject to this review, submitted rebuttal comments on May DC 20250. All responses to this notice Baoding Mantong Fine Chemistry Co. 16, 2012. Based on the comments will be summarized and included in the Ltd. (Baoding Mantong), for the final received, we made revisions to certain request for OMB approval. All results. surrogate valuations and the comments will also become a matter of FOR FURTHER INFORMATION CONTACT: preliminary margin-calculation program public record. Edythe Artman or Angelica Mendoza, for Baoding Mantong. We released the Revised Preliminary Results of review to Nondiscrimination Statement AD/CVD Operations, Office 7, Import Administration, International Trade all interested parties on June 27, 2012. The U.S. Department of Agriculture Administration, U.S. Department of Both GEO and Baoding Mantong (USDA) prohibits discrimination in all Commerce, 14th Street and Constitution submitted comments and factor- its programs and activities on the basis Avenue NW., Washington, DC 20230; valuation information on the Revised of race, color, national origin, age, telephone: (202) 482–3931 or (202) 482– Preliminary Results on July 16, 2012, disability, and, where applicable, sex, 3019, respectively. and rebuttal comments on July 23, 2012. On July 31, 2012, we extended fully the marital status, familial status, parental SUPPLEMENTARY INFORMATION: status, religion, sexual orientation, deadline of the final results of review genetic information, political beliefs, Period of Review from August 9, 2012, to October 9, reprisal, or because all or part of an The period of review is March 1, 2012.4 individual’s income is derived from any 2010, through February 28, 2011. Analysis of Comments Received public assistance program. (Not all Scope of the Order All issues raised in the case and prohibited bases apply to all programs.) rebuttal briefs and additional comments Persons with disabilities who require The product covered by the order is received by parties to this review are alternative means for communication of glycine, which is a free-flowing addressed in the memorandum to Paul program information (Braille, large crystalline material, like salt or sugar. Piquado, Assistant Secretary for Import print, audiotape, etc.) should contact Glycine is produced at varying levels of Administration, from Christian Marsh, USDA’s TARGET Center at (202) 720– purity and is used as a sweetener/taste Deputy Assistant Secretary for 2600 (voice and TDD). enhancer, a buffering agent, Antidumping and Countervailing Duty To file a complaint of discrimination reabsorbable amino acid, chemical Operations, entitled, ‘‘Issues and write to USDA, Director, Office of Civil intermediate, and a metal complexing Decision Memorandum for the Final Rights, 1400 Independence Avenue agent. This review covers glycine of all Results in the Administrative Review of SW., Washington, DC 20250–9410, or purity levels. Glycine is currently Glycine from the People’s Republic of call (800) 795–3272 (voice) or (202) classified under subheading China’’ (Decision Memorandum), which 720–6382 (TDD). USDA is an equal 2922.49.4020 of the Harmonized Tariff is dated concurrently with, and adopted opportunity provider, employer, and Schedule of the United States (HTSUS). by, this notice. A list of the issues which lender. Although the HTSUS subheading is provided for convenience and Customs parties raised, and to which we respond Dated: October 3, 2012. purposes, the written description of the in the Decision Memorandum is Lillian Salerno, merchandise subject to the order is attached to this notice as an Appendix. Acting Administrator, Rural Business- dispositive. The Decision Memorandum is a public Cooperative Service. document and is on file electronically [FR Doc. 2012–25682 Filed 10–17–12; 8:45 am] Background via Import Administration’s BILLING CODE 3410–XY–P On April 11, 2012, the Department Antidumping and Countervailing Duty published the Preliminary Results in the Centralized Electronic Service System Federal Register. The Department (IA ACCESS). Access to IA ACCESS is DEPARTMENT OF COMMERCE provided interested parties with the available to registered users at http://

International Trade Administration 1 See Glycine From the People’s Republic of 3 We rescinded this review with respect to 29 China: Preliminary Results of Antidumping Duty other companies after GEO submitted a timely [A–570–836] Administrative Review and Partial Rescission of request to withdraw its request for review of these Antidumping Duty Administrative Review, 77 FR companies. Preliminary Results, 77 FR at 21739. Glycine from the People’s Republic of 21738 (April 11, 2012) (Preliminary Results). 4 See Memorandum to Christian Marsh, Deputy China: Final Results of Antidumping 2 See Memorandum to the File, through Angelica Assistant Secretary for Antidumping and Duty Administrative Review Mendoza, Program Manager, Antidumping and Countervailing Duty Operations, from Edythe Countervailing Duty Operations, Office 7, dated Artman, International Trade Compliance Analyst, AGENCY: June 27, 2012, entitled, ‘‘Revisions to Certain regarding ‘‘Glycine from the People’s Republic of Import Administration, Surrogate Valuations and the Preliminary Margin- China: Extension of Deadline for Final Results of International Trade Administration, Calculation Program for Baoding Mantong Fine Antidumping Duty Administrative Review,’’ dated Department of Commerce Chemistry Co., Ltd.’’ (Revised Preliminary Results). July 31, 2012.

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iaaccess.trade.gov and in the Central publication of the final results of this all non-PRC exporters of subject Records Unit (CRU), room 7046 of the review. In accordance with 19 CFR merchandise which have not received main Department of Commerce 351.212(b)(1), we have calculated, their own rate, the cash deposit rate will building. In addition, a complete whenever possible, an exporter/ be the rate applicable to the PRC version of the Issues and Decision importer (or customer)-specific exporters that supplied that non-PRC Memorandum can be accessed directly assessment rate or value for exporter. These cash deposit on the internet at http://www.trade.gov/ merchandise subject to these reviews as requirements, when imposed, shall ia/. The signed Decision Memorandum described below. We will instruct CBP remain in effect until further notice. and the electronic versions of the to assess antidumping duties on all Decision Memorandum are identical in appropriate entries covered by this Notification to Importers review if any exporter/importer-specific content. This notice serves as a final reminder assessment rate calculated in the final Changes Since the Revised Preliminary results of this review is above de to importers of their responsibility Results minimis. under 19 CFR 351.402(f)(2) to file a Based on a review of the record and certificate regarding the reimbursement Export Price Sales comments received from parties of antidumping duties prior to regarding our preliminary results and With respect to export-price sales for liquidation of the relevant entries Revised Preliminary Results, we have these final results, we divided the total during this period of review. Failure to made no changes to the margin dumping margins (calculated as the comply with this requirement could calculation for Baoding Mantong in difference between normal value and result in the Secretary’s presumption these final results of review. However, export-price) for each exporter’s that reimbursement of antidumping following our preliminary results, we importer or customer by the total duties occurred and the subsequent asked the company to provide number of units the exporter sold to that assessment of double antidumping additional information concerning importer or customer. We will direct duties. CBP to assess the resulting per-unit international freight expenses on its Administrative Protective Order constructed-export-price sales. The dollar amount against each unit of company did not respond to our request merchandise in each of that importer’s/ This notice also serves as a reminder within the applicable deadline and, as customer’s entries during the review to parties subject to administrative a result, we have applied surrogate period. protective orders (APO) of their freight expenses to some constructed- Constructed Export Price Sales responsibility concerning the return or export-price sales for which freight destruction of proprietary information For constructed-export-price sales, we services may have been provided by a disclosed under APO in accordance divided the total dumping margins for non-market-economy carrier. with 19 CFR 351.305, which continues the reviewed sales by the total entered to govern business proprietary Separate Rates Determination value of those reviewed sales for each information in this segment of the importer. We will direct CBP to assess In our Preliminary Results, we proceeding. Timely written notification the resulting assessment rate against the determined that Baoding Mantong met of the return/destruction of APO the criteria for separate-rate status. We entered customs values for the subject merchandise on each of that importer’s materials or conversion to judicial have not received any information since protective order is hereby requested. issuance of the preliminary results that entries during the review period. See 19 CFR 351.212(b). Failure to comply with the regulations provides a basis for reconsidering this and terms of an APO is a violation preliminary determination. Therefore, Cash-Deposit Requirements which is subject to sanction. the Department continues to find that Baoding Mantong meets the criteria for The following cash-deposit We are issuing and publishing this a separate rate. requirements will be effective upon administrative review and notice in publication of these final results of accordance with sections 751(a)(1) and Final Results of the Review review for all shipments of subject 777(i) of the Act. merchandise entered, or withdrawn The Department has determined that Dated: October 9, 2012. the following margin exists for the from warehouse, for consumption on or Paul Piquado, period March 1, 2010, through February after the publication date, as provided 28, 2011: by section 751(a)(2)(C) of the Act: (1) Assistant Secretary for Import For the exporters listed above, the cash Administration. deposit rate will be the rate established Exporter Margin Appendix (percent) in the final results of this review (i.e., Baoding Mantong) (except that if the Comment 1: Valuation of Liquid Chlorine Baoding Mantong Fine Chem- rate for a particular company is de Comment 2: Valuation of Liquid Ammonia istry Co., Ltd ...... 453.79 minimis, i.e., less than 0.5 percent, no Comment 3: Valuation of Formaldehyde cash deposit will be required for that Comment 4: Valuation of Steam Coal Assessment Rates company); (2) for previously Comment 5: Valuations of By-Products Consistent with these final results, investigated or reviewed PRC and non- Comment 6: Valuation of Surrogate Financial and pursuant to section 751(a)(2)(B) of PRC exporters not listed above that have Ratios the Tariff Act of 1930, as amended (the separate rates, the cash deposit rate will Comment 7: Implementation of Verification Act), and 19 CFR 351.212(b)(1), the continue to be the exporter-specific rate Findings Department will direct U.S. Customs published for the most recent period; (3) Comment 8: Import Data Extracted in and Border Protection (CBP) to assess for all PRC exporters of subject Incorrect Currency antidumping duties on all appropriate merchandise which have not been Comment 9: Errors in the Calculations of entries. The Department will issue found to be entitled to a separate rate, Surrogate Values for Packing Materials appropriate assessment instructions to the cash deposit rate will be the PRC- [FR Doc. 2012–25595 Filed 10–17–12; 8:45 am] CBP 15 days after the date of wide rate of 155.89 percent; and (4) for BILLING CODE 3510–DS–P

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DEPARTMENT OF COMMERCE correct the alleged ministerial errors. No regarding ‘‘Sixth Antidumping other parties in this proceeding Administrative Review of Frozen International Trade Administration submitted comments on the Warmwater Shrimp from the Socialist [A–552–802] Department’s final margin calculations. Republic of Vietnam: Ministerial Error Based upon our analysis of the and Correction Memorandum,’’ dated Frozen Warmwater Shrimp From the comments and allegations of ministerial concurrently with this notice Socialist Republic of Vietnam: errors, we made changes to the (‘‘Ministerial Errors and Correction Amended Final Results and Partial antidumping duty margin calculation Memo’’). Final Rescission of Antidumping Duty for Minh Phu Group. Additionally, we Amended Final Results Administrative Review made corrections to the exporter company names for the following: (1) The Act defines ‘‘ministerial error’’ as AGENCY: Import Administration, UTXI Aquatic Products Processing including ‘‘errors in addition, International Trade Administration, Corporation; (2) Thuan Phuoc Seafoods subtraction, or other arithmetic Department of Commerce. and Trading Corporation; and (3) Phu function, clerical errors resulting from DATES: Effective Date: October 18, 2012. Cuong Jostoco Seafood Corporation. inaccurate copying, duplication, or the FOR FURTHER INFORMATION CONTACT: Toni Furthermore, as a result of correcting like, and any other type of unintentional Dach, AD/CVD Operations, Office 9, the clerical errors in the antidumping error which the administering authority Import Administration, International margin calculation for Minh Phu Group, considers ministerial.’’ 5 After analyzing Trade Administration, U.S. Department the antidumping margin for the separate the Vietnamese Respondents’ of Commerce, 14th Street and rate respondents was also revised comments, we have determined, in Constitution Avenue NW., Washington, because the separate rate margin was accordance with section 751(h) of the DC 20230; telephone: (202) 482–1655. derived from the simple average of the Act and 19 CFR 351.224(e), that we SUPPLEMENTARY INFORMATION: margins of the Minh Phu Group and the made certain ministerial errors in our Nha Trang Group.3 calculations for the final results with Background In the Preliminary Results,4 pursuant respect to our calculation of freight for On September 11, 2012, the to the withdrawal of the request for the Minh Phu Group and certain Department of Commerce review of BIM Seafood Joint Stock typographical errors for various exporter (‘‘Department’’) published in the Company (‘‘BIM Seafood’’), the company names.6 Federal Register the final results of the Department preliminarily rescinded this Because we have revised the sixth administrative review of the review with respect to BIM Seafood. antidumping duty margin for Minh Phu antidumping duty order of frozen Subsequent to the Final Results, the Group, we are also revising the warmwater shrimp from the Socialist Department discovered that we had antidumping duty margin for the Republic of Vietnam (‘‘Vietnam’’).1 inadvertently failed to include the final separate rate respondents because the On September 17, 2012, the Minh Phu rescission for BIM Seafood in the Final separate rate margin for those Group,2 Phu Cuong Jostoco Seafood Results. Therefore, we are also companies was calculated as the simple Corporation, Thuan Phuoc Seafoods and rescinding this review with respect to average margin for Minh Phu Group and Trading Corporation, and UTXI Aquatic BIM Seafood. Nha Trang Group. In accordance with Products Processing Corporation, section 751(h) of the Act, we are Scope of the Order collectively referred to here as amending the final results of the ‘‘Vietnamese Respondents,’’ filed timely For a full description of the products administrative review of certain frozen allegations that the Department made covered by the antidumping duty order warmwater shrimp from Vietnam. various ministerial errors in the Final on certain frozen warmwater shrimp The dumping margins for the period Results and requested, pursuant to 19 from Vietnam, see Memorandum to Paul of review for these amended final CFR 351.224, that the Department Piquado, from Christian Marsh, results are as follows:

Margin Exporter (percent)

Minh Phu Group: ...... 0.53 Minh Phat Seafood Co., Ltd. aka ...... Minh Phat Seafood aka Minh Phu Seafood Export Import Corporation (and affiliates Minh Qui Seafood Co., Ltd. and Minh Phat Seafood Co., Ltd.) aka Minh Phu Seafood Corp. aka Minh Phu Seafood Corporation aka Minh Qui Seafood aka Minh Qui Seafood Co., Ltd. Minh Phu Seafood Pte aka Minh Phat aka Minh Qui Minh Phu Hau Giang Seafood Co., Ltd. Nha Trang Seafoods Group: ...... 1.23 Nha Trang Seaproduct Company (‘‘Nha Trang Seafoods’’) aka

1 See Certain Frozen Warmwater Shrimp from the 3 Nha Trang Seaproduct Company, NT Seafoods of Administrative Review, 77 FR 13547 (March 7, Socialist Republic of Vietnam: Final Results and Corporation, Nhatrang Seafoods—F89 Joint Stock 2012) (‘‘Preliminary Results’’). Final Partial Rescission of Antidumping Duty Company, and NTSF Seafoods Joint Stock 5 See section 751(h) of the Tariff Act of 1930, as Administrative Review, 77 FR 55800 (September 11, Company. amended (‘‘the Act’’). 2012) (‘‘Final Results’’). 4 See Certain Frozen Warmwater Shrimp From the 6 2 Minh Phu Seafood Corporation, Minh Qui See Ministerial Errors and Correction Memo. Seafood Co., Ltd. and Minh Phat Seafood Co., Ltd. Socialist Republic of Vietnam: Preliminary Results

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Margin Exporter (percent)

Nha Trang Seafoods aka Nha Trang Seafood Product Company aka Nha Trang Seaproduct Company Nha Trang Seafoods aka NT Seafoods Corporation (‘‘NT Seafoods’’) aka Nha Trang Seafoods—F.89 Joint Stock Company (‘‘Nha Trang Seafoods—F.89’’) aka NTSF Seafoods Joint Stock Company (‘‘NTSF Seafoods’’) Amanda Foods (Vietnam) Limited (‘‘Amanda Foods’’) ...... 0.88 Bac Lieu Fisheries Company Limited aka ...... 0.88 Bac Lieu Fisheries Company Limited (‘‘Bac Lieu’’) aka Bac Lieu Fisheries Joint Stock Company aka Bac Lieu Fisheries Limited Company aka Bac Lieu Fisheries Company Limited aka Bac Lieu Fis Camau Frozen Seafood Processing Import Export Corporation (‘‘CAMIMEX’’) aka ...... 0.88 Camimex aka Camau Seafood Factory No. 4 aka Camau Seafood Factory No. 5 aka Camau Frozen Seafood Processing Import & Export aka Camau Frozen Seafood Processing Import Export Corp. (CAMIMEX–FAC 25) aka Frozen Factory No. 4 aka Camau Frozen Seafood Processing Import Export Corporation (‘‘CAMIMEX’’) aka Camimex aka Camau Frozen Seafood Processing Import Export Corporation C.P. Vietnam Livestock Company Limited aka ...... 0.88 C.P. Vietnam Livestock Corporation (‘‘C.P. Vietnam’’) aka C.P. Vietnam Livestock Corporation aka C.P. Vietnam Livestock Co. Ltd. Cadovimex Seafood Import-Export and Processing Joint Stock Company (‘‘CADOVIMEX–VIETNAM’’) aka ...... 0.88 Cadovimex Seafood Import-Export and Processing Joint Stock Company aka Cadovimex-Vietnam aka Cadovimex aka Cai Doi Vam Seafood Import-Export Company aka Cai Doi Vam Seafood Import-Export Company (‘‘Cadovimex’’) aka Cai Doi Vam Seafood Import-Export Company (Cadovimex) aka Cai Doi Vam Seafood aka Cai Doi Vam Seafood Im-Ex Company (Cadovimex) aka Cai Doi Vam Seafood Processing Factory aka Caidoivam Seafood Company (Cadovimex) aka Caidoivam Seafood Im-Ex Co. Cafatex Fishery Joint Stock Corporation (‘‘Cafatex Corp.’’) aka ...... 0.88 Cafatex Fishery Joint Stock Corporation (‘‘CAFATEX CORP.’’) aka Cantho Animal Fisheries Product Processing Export Enterprise (Cafatex) aka Cafatex aka Cafatex Vietnam aka Xi Nghiep Che Bien Thuy Suc San Xuat Kau Cantho aka Cas aka Cas Branch aka Cafatex Saigon aka Cafatex Fishery Joint Stock Corporation aka Cafatex Corporation aka Taydo Seafood Enterprise aka Cafatex Corp. aka Cafatex Corporation Cam Ranh Seafoods Processing Enterprise Company (‘‘Camranh Seafoods’’) aka ...... 0.88 Camranh Seafoods Can Tho Agricultural and Animal Products Import Export Company (‘‘CATACO’’) aka ...... 0.88 CATACO Sole Member Limited Liability Company aka Can Tho Agricultural and Animal Product Import Export Company (‘‘CATACO’’) aka Can Tho Agricultural Products aka CATACO aka Can Tho Agricultural and Animal Products Imex Company Can Tho Import Export Fishery Limited Company (‘‘CAFISH’’) ...... 0.88 Coastal Fishery Development aka ...... 0.88 Coastal Fisheries Development Corporation (‘‘Cofidec’’) aka Coastal Fisheries Development Corporation (Cofidec) aka COFIDEC aka Coastal Fisheries Development Corporation aka Coastal Fisheries Development Co. aka Coastal Fisheries Development Corp. Cuulong Seaproducts Company (‘‘Cuu Long Seapro’’) aka ...... 0.88 Cuu Long Seaproducts Limited (‘‘Cuulong Seapro’’) aka Cuulong Seapro aka Cuulong Seaproducts Company aka

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Margin Exporter (percent)

Cuulong Seaproducts Company (‘‘Cuulong Seapro’’) aka Cuu Long Seaproducts Company (‘‘Cuu Long Seapro’’) aka Cuu Long Seaproducts Company aka Cuu Long Seapro aka Cuulong Seaproducts Company (‘‘Cuu Long Seapro’’) aka Cuu Long Seaproducts Limited (Cuulong Seapro) aka Cuulong Seapro aka Cuulong Seaproduct Company Danang Seaproducts Import Export Corporation (‘‘Seaprodex Danang’’) aka ...... 0.88 Danang Seaproducts Import Export Corporation aka Danang Seaproduct Import-Export Corporation aka Danang Seaproducts Import Export aka Danang Sea Products Import Export Corporation aka Tho Quang Seafood Processing & Export Company aka Seaprodex Danang aka Tho Quang Seafood Processing and Export Company aka Tho Quang aka Tho Quang Co. Gallant Ocean (Vietnam) Co., Ltd. aka ...... 0.88 Gallant Ocean (Quang Ngai) Co. Ltd. Viet I-Mei Frozen Foods Co., Ltd. aka ...... 0.88 Viet I-Mei Frozen Foods Co. Ltd. aka Viet I-Mei aka Grobest & I-Mei Industrial (Vietnam) Co., Ltd. aka Grobest & I-Mei Industry (Vietnam) Co., Ltd. aka Grobest Investment Commerce Fisheries Corporation (‘‘Incomfish’’) aka ...... 0.88 Incomfish aka Investment Commerce Fisheries Corp. aka Incomfish Corp. aka Incomfish Corporation aka Investment Commerce Fisheries aka Investment Commerce Fisheries Corporation aka Incomfish Corporation Kim Anh Company Limited (‘‘Kim Anh’’) ...... 0.88 Minh Hai Export Frozen Seafood Processing Joint Stock Company aka ...... 0.88 Minh Hai Jostoco aka Minh Hai Export Frozen Seafood Processing Joint-Stock Company (‘‘Minh Hai Jostoco’’) aka Minh Hai Export Frozen Seafood Processing Joint Stock Company (‘‘Minh Hai Jostoco’’) aka Minh Hai Export Frozen Seafood Processing Joint-Stock Company aka Minh Hai Joint Stock Seafood Processing Joint-Stock Company aka Minh Hai Export Frozen Seafood Processing Joint-Stock Co. aka Minh-Hai Export Frozen Seafood Processing Joint-Stock Company Minh Hai Joint-Stock Seafoods Processing Company (‘‘Seaprodex Minh Hai’’) aka ...... 0.88 Sea Minh Hai aka Minh Hai Joint-Stock Seafoods Processing Company aka Seaprodex Minh Hai aka Seaprodex Min Hai aka Seaprodex Minh Hai (Minh Hai Joint Stock Seafoods Processing Co.) aka Seaprodex Minh Hai Factory aka Seaprodex Minh Hai Factory No. 69 aka Seaprodex Minh Hai Workshop 1 aka Seaprodex Minh Hai-Factory No. 78 aka Workshop I Seaprodex Minh Hai Minh Hai Sea Products Import Export Company (‘‘Seaprimex Co’’) aka ...... 0.88 Ca Mau Seafood Joint Stock Company (‘‘SEAPRIMEXCO’’) aka Seaprimexco Vietnam aka Seaprimexco aka Seaprimex Co aka Ca Mau Seafood Joint Stock Company (‘‘Seaprimexco’’) aka Minh Hai Seaproducts Import Export Corporation aka Seaprimexco aka Minh Hai Seaproducts Co Ltd. (Seaprimexco) aka Ca Mau Seafood Joint Stock Company (‘‘Seaprimexco Vietnam’’) Ngoc Sinh Private Enterprise aka ...... 0.88 Ngoc Sinh Seafoods aka Ngoc Sinh Seafoods Processing and Trading Enterprise aka Ngoc Sinh Fisheries aka Ngoc Sinh Private Enterprises aka Ngoc Sinh Seafoods Processing and Trading Enterprises aka Ngoc Sinh aka Ngoc Sinh Seafood Processing Company aka Ngoc Sinh Seafoods (Private Enterprise)

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Margin Exporter (percent)

Ngoc Tri Seafood Joint Stock Company ...... 0.88 Nhat Duc Co., Ltd. aka ...... 0.88 Nhat Duc Co., Ltd. (‘‘Nhat Duc’’) Nha Trang Fisheries Joint Stock Company (‘‘Nha Trang Fisco’’) aka ...... 0.88 Nha Trang Fisheries Joint Stock Company aka Nhatrang Fisheries Joint Stock Company aka Nha Trang Fisco aka Nhatrang Fisco aka Nha Trang Fisheries Joint Stock Company (‘‘Nha Trang Fisco’’) aka Nha Trang Fisheries, Joint Stock aka Nha Trang Fishereies Joint Stock Company (Nha Trang Fisco) Phu Cuong Seafood Processing and Import-Export Co., Ltd. aka ...... 0.88 Phu Cuong Seafood Processing and Import Export Company Limited aka Phu Cuong Jostoco Corp. aka Phu Cuong Jostoco Seafood Corporation Phuong Nam Co., Ltd. (‘‘Phuong Nam’’) aka ...... 0.88 Western Seafood Processing and Exporting Factory (‘‘Western Seafood’’) aka Phuong Nam Foodstuff Corp. aka Phuong Nam Co. Ltd. Sao Ta Foods Joint Stock Company (‘‘Fimex VN’’) aka ...... 0.88 Sao Ta Foods Joint Stock Company aka Fimex VN aka Sao Ta Seafood Factory aka Saota Seafood Factory Soc Trang Aquatic Products and General Import Export Company (‘‘Stapimex’’) aka ...... 0.88 Soc Trang Seafood Joint Stock Company (‘‘Stapimex’’) aka Soc Trang Seafood Joint Stock Company aka Soc Trang Aquatic Products and General Import Export Company aka Stapimex aka Soc Trang Aquatic Products and General Import Export Company-(Stapimex) aka Stapimex Soc Trans Aquatic Products and General Import Export Company aka Stapmex Thuan Phuoc Seafoods and Trading Corporation aka ...... 0.88 Thuan Phuoc Corp. aka Frozen Seafoods Factory No. 32 aka Seafoods and Foodstuff Factory aka My Son Seafoods Factory aka Seafoods and Foodstuff Factory UTXI Aquatic Products Processing Company aka ...... 0.88 UT XI Aquatic Products Processing Company aka UT–XI Aquatic Products Processing Company aka UTXI aka UTXI Co. Ltd. aka Khanh Loi Seafood Factory aka Hoang Phuong Seafood Factory aka Hoang Phong Seafood Factory aka UTXI Aquatic Products Processing Corporation (‘‘UTXICO’’) aka UTXI Aquatic Products Processing Corporation aka UTXICO Viet Foods Co., Ltd. aka ...... 0.88 Nam Hai Foodstuff and Export Company Ltd. Viet Hai Seafood Co., Ltd. aka ...... 0.88 Vietnam Fish One Co., Ltd. (‘‘Fish One’’) aka Viet Hai Seafoods Company Ltd. (‘‘Vietnam Fish One Co. Ltd.’’) Vietnam Clean Seafood Corporation aka ...... 0.88 VINA Cleanfood Vietnam-wide Entity ...... 25.76

Rescission of Review, In Part Seafood.8 Pursuant to 19 CFR rescinding this review with respect to 351.213(d)(1), the Department will In the Preliminary Results, the BIM Seafood. rescind an administrative review, in Department preliminarily rescinded this These amended final results and whole or in part, if the party that review with respect to BIM Seafood notice are issued and published in requested the review withdraws its because Domestic Producers 7 withdrew accordance with sections 751(h), and request within 90 days of the date of their request for review of BIM 777(i)(1) of the Act, and 19 CFR publication of the notice of initiation of the requested review. Therefore, as the 351.224. 7 The Domestic Producers are the Ad Hoc Shrimp withdrawal of the request for review of Trade Action Committee members: Nancy Edens; Papa Rod, Inc.; Carolina Seafoods; Bosarge Boats, BIM Seafood was timely, we are Inc.; Knight’s Seafood Inc.; Big Grapes, Inc.; Versaggi Shrimp Co.; and Craig Wallis. 8 See Preliminary Results, 77 FR at 13548.

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Dated: October 5, 2012. country’s energy demand. Estimates level discussions between U.S. Paul Piquado, indicate that Chile must install an exporters and Chilean officials, the Assistant Secretary for Import additional 8 gigawatts (GW) of mission will help create a burgeoning Administration. generating capacity by 2020 to meet its export market for U.S. RE&EE [FR Doc. 2012–25660 Filed 10–17–12; 8:45 am] growing demand. Currently, Chile is companies, substantially increasing U.S. BILLING CODE 3510–DS–P dependent on imported fossil fuels for exports to a country whose resource a large portion of its power generation potential and business environment (imported natural gas accounts for a portends significant growth for years to DEPARTMENT OF COMMERCE third of the country’s power capacity). come. As a result, energy prices have increased ITA’s U.S. and Foreign Commercial International Trade Administration along with energy demand, Service (US&FCS) at the U.S. Embassy incentivizing the development of the in Santiago reports that U.S. companies Renewable Energy and Energy country’s renewable energy resources. are well positioned to meet export Efficiency Trade Policy Mission to In fact, renewable energy technologies orders; and that potential policy Chile are much closer to ‘‘grid parity’’ in Chile incentives could strongly catalyze AGENCY: International Trade than in most markets, enhancing their additional development. Opportunities Administration, Commerce. competitiveness. are expected in the wind, solar, ACTION: Notice. Chile has a strong and growing energy geothermal, biomass, hydropower, and industry. The country privatized its energy efficiency sectors. Several U.S. Mission Description: power sector in 1982, and today, has 70 firms have already made investments in The U.S. Department of Commerce’s power generation companies (4 Chile’s renewable energy sector. International Trade Administration dominant firms), five transmission Mission Goals: (ITA) is organizing a Renewable Energy operators (1 dominant), and 34 The RE&EE trade policy mission will and Energy Efficiency (RE&EE) Trade distribution companies (4 dominant). In facilitate the development of an export Policy Mission to Santiago, Chile from renewable energy, Chile led Latin market by supporting the establishment April 15–16, 2013. The mission is America in implementing a renewable of policy incentives in Chile’s RE&EE designed to be led by a senior energy portfolio standard (RPS). By market. The mission will combine the Department of Commerce official, and 2011, Chilean utilities were required to policy development and advocacy will focus on: (1) Creating a policy produce 5% of their output from efforts of a traditional trade policy environment conducive to growth in renewable energy sources; the quota mission with networking and business Chile’s RE&EE market; and (2) increases by 0.5% annually from 2015 outreach opportunities for participating introducing U.S. RE&EE exporters to key until 2024. Despite the RPS, renewable firms.. The delegation will have a Chilean Government officials. Mission energy (aside from large hydropower) unique opportunity to meet government participants will also be invited to contributed just 2.7% of Chile’s power officials, discuss policy concerns, and showcase their U.S.-made RE&EE capacity at the end of 2011. As a result, suggest creative solutions to Chile’s technologies at an important industry- Chile must make a substantial energy challenges. Several topics specific trade show following the trade investment in the sector to achieve its pertinent to the creation of a thriving policy mission at their own expense. goal of 20% renewable energy capacity renewable energy market will be The RE&EE trade policy mission will by 2020. addressed, including: promote the competitiveness of U.S. Fortunately, Chile possesses some of • Establishment of incentives to help wind, solar, geothermal, biomass, the world’s largest potential for Chile meet the goals of its National hydropower, waste-to-energy, smart renewable energy. By 2011, Chile had Energy Strategy; grid, and energy efficiency exporters in installed only 0.198 GW of wind • Development of interconnection a key emerging market and demonstrate capacity, for example, despite an standards and feed-in tariffs that would U.S. Government support for Chile’s estimated potential of up to 10 GW. attract global investment and provide an renewable energy goals. The mission Likewise, Chile has developed only incentive for development; supports ITA’s commitments contained about half its biomass potential and has • Mapping of renewable energy in the Renewable Energy and Energy a small fraction of at least 2 GW of resources; Efficiency Export Initiative (RE4I), geothermal potential under • Strengthening of policy and which aims to significantly increase development. Chile’s solar potential is regulatory cooperation between the U.S. RE&EE exports by the end of 2014, one of the largest in the world and—like United States and Chile; and the National Export Initiative time other renewable energy technologies— • Development of local financing frame. has been largely undeveloped. institutions to further encourage If firms decide to participate in the Chile’s new National Energy Strategy development. International Fair of Technologies (IFT) contains six pillars: Energy efficiency; Trade policy mission participants are Energy 2013 trade show immediately renewable energy; traditional fossil also encouraged to exhibit at the IFT following the trade mission (April 17– fuels; smart grid; competition in Energy 2013 trade show immediately 19, 2013), which is encouraged by the electricity distribution; and regional following the trade policy mission. Department, they will be expected to electricity distribution. In a speech on Participation in IFT Energy 2013 is not register and pay for their participation February 28, 2012, President Pin˜ era mandatory and firms that exhibit will be in the show separately from their trade announced the Government of Chile expected to make arrangements with the policy mission participation fees. (GoC) would introduce 100 laws and conference organizer separate from their Commercial Setting: administrative measures to implement participation in the trade policy Chile’s fast growing economy and the new strategy. mission. business friendly environment provide The mission will occur at an Mission Scenario: an attractive market for U.S. exporters. opportune time, as Chilean policy The Renewable Energy and Energy The rapidly expanding Chilean makers seek to establish policy to Efficiency Trade Policy Mission will economy, which grew 6.1% in 2011, has support the growth of renewable energy provide several opportunities for caused a dramatic increase in the in their country. By facilitating high- participants to discuss policy challenges

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with Chilean Government officials. In Chile, including an assessment of to discuss policies and the business addition, mission participants will have upcoming opportunities; environment; and • an opportunity to showcase their Receive a Market Assessment • Attend a networking reception with Report on opportunities in Chile’s products in a U.S. Pavilion during the Chilean business persons and renewable energy market; IFT Energy 2013 trade show. government officials organized by the During the trade policy mission, • Be introduced to key Chilean U.S. Foreign and Commercial Service. participants will: government officials and decision- • Receive market briefings on the makers during government-to- status of the renewable energy market in government meetings for opportunities

PROPOSED TIMETABLE*

Date Day Activity

April 14 ...... Sunday ...... Arrive in Santiago, Chile. Santiago, Chile April 15 ...... Monday ...... • Market briefing on RE&EE industry in Chile for mission participants Santiago, Chile by US&FCS Santiago and Embassy staff. • Meetings with key GoC officials and stakeholders. April 16 ...... Tuesday ...... • Lunch and seminar at AmCham Chile. Santiago, Chile • Networking and exchange with key private sector contacts. • Networking reception at Ambassador’s Residence. • Mission ends. April 17 ...... Wednesday ...... • [OPTIONAL] Opportunity to attend/exhibit IFT Energy 2013. Santiago, Chile April 18 ...... Thursday ...... • [OPTIONAL] Opportunity to attend/exhibit IFT Energy 2013. Santiago, Chile April 19 ...... Friday ...... • [OPTIONAL] Opportunity to attend/exhibit IFT Energy 2013. Santiago, Chile *Note: The final schedule will depend on the availability of local government and business officials, specific goals of the mission participants, and air travel schedules.

Participation Requirements: Expenses for travel, lodging, meals, and information into account when All parties interested in participating incidentals will be the responsibility of evaluating the applications. in the trade mission must complete and each mission participant. Delegation Each applicant must also certify that submit an application package for members will be able to take advantage the products or services it seeks to consideration by the Department of of U.S. Embassy rates for hotel rooms. export through the mission are either Commerce. All applicants will be The cost to exhibit at the show is $575 produced in the United States, or, if not, evaluated based on their ability to meet per square meter of booth space; this marketed under the name of a U.S. firm certain conditions and best satisfy the will be paid by the trade mission and has at least 51 percent U.S. content selection criteria as outlined below. A participant directly to the show of the value of the finished product or minimum of 15 and maximum of 25 organizer. service. companies will be selected to Exclusions: Selection Criteria for Participation: participate in the mission from the The mission fee does not include any Selection will be based on the following applicant pool. U.S. companies already personal travel expenses such as criteria: • Suitability of the company’s doing business in Chile as well as U.S. lodging, most meals, local ground products or services to the market; companies seeking to enter to the transportation, except as stated in the • Applicant’s potential for business Chilean market for the first time may proposed timetable, or air transportation in Chile and in the region, including apply. to and from the United States. Business Fees and Expenses: likelihood of exports resulting from the visas are not required. Participants will After a company or organization has mission; been selected to participate on the be expected to register and pay for the • Consistency of the applicant’s goals mission, a payment to the Department of IFT Energy 2013 trade show separately and objectives with the stated scope of Commerce of a participation fee is from their trade policy mission the mission; required. The participation fee for the registration and dues, if they decide to Referrals from political organizations Trade Mission will be $1,100 for a small participate in the show following the and any documents containing or medium-sized firm (SME) 1, and mission. references to partisan political activities $1,400 for large firms. The fee for each Conditions for Participation: (including political contributions) will additional firm representative (large An applicant must submit a be removed from an applicant’s firm or SME/trade organization) is $500. completed mission application signed submission and not considered during by a company officer, together with the selection process. Diversity of 1 An SME is defined as a firm with 500 or fewer supplemental application materials, company size and location may also be employees or that otherwise qualifies as a small including adequate information on the considered during the review process. business under SBA regulations (see http:// company’s products and/or services, Timeline for Recruitment and www.sba.gov/services/contracting_opportunities/ sizestandardstopics/index.html). Parent companies, primary market objectives, and goals for Applications: affiliates, and subsidiaries will be considered when participation. If the Department of Mission recruitment will be determining business size. The dual pricing reflects Commerce receives an incomplete conducted in an open and public the Commercial Service’s user fee schedule that application, the Department may reject manner, including publication in the became effective May 1, 2008 (see http:// www.export.gov/newsletter/march2008/ the application, request additional Federal Register, posting on the initiatives.html for additional information). information, or take the lack of Commerce Department trade mission

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calendar (http://export.gov/ COMMODITY FUTURES TRADING COMMODITY FUTURES TRADING trademissions) and other Internet Web COMMISSION COMMISSION sites (including the Renewable Energy & Energy Efficiency Exporters Portal at Sunshine Act Meetings Sunshine Act Meetings www.export.gov/reee), press releases to general and trade media, direct mail, AGENCY HOLDING THE MEETING: AGENCY HOLDING THE MEETING: notices by industry trade associations Commodity Futures Trading Commodity Futures Trading and other multiplier groups, and Commission. Commission. publicity at industry meetings, symposia, conferences, and trade shows. TIME AND DATE: 10:00 a.m., Friday TIME AND DATE: 10:00 a.m., Friday, Recruitment for the mission will begin November 9, 2012. November 16, 2012. immediately and conclude no later than PLACE: 1155 21st St. NW., Washington, PLACE: 1155 21st St. NW., Washington, March 1, 2013. The U.S. Department of DC, 9th Floor Commission Conference DC, 9th Floor Commission Conference Commerce will review applications and Room. Room. make selection decisions on a rolling basis beginning in November 1, 2013. STATUS: Closed. STATUS: Closed. Applications received after March 1, MATTERS TO BE CONSIDERED: Surveillance MATTERS TO BE CONSIDERED: Surveillance 2013 will be considered only if space and Enforcement Matters. In the event and Enforcement Matters. In the event and scheduling permit. that the times or dates of these or any that the times or dates of these or any Contacts: future meetings change, an future meetings change, an Ryan Mulholland, Renewable Energy announcement of the change, along with announcement of the change, along with Trade Specialist, MAS—Office of the new time and place of the meeting the new time and place of the meeting Energy and Environmental Industries, will be posted on the Commission’s will be posted on the Commission’s Phone: (202) 482–4693, Email: Web site at http://www.cftc.gov. Web site at http://www.cftc.gov. [email protected]; CONTACT PERSON FOR MORE INFORMATION: CONTACT PERSON FOR MORE INFORMATION: Ellen Lenny-Pessagno, Senior Sauntia S. Warfield, 202–418–5084. Sauntia S. Warfield, 202–418–5084. Commercial Officer, U.S. Commercial Service—Santiago, Chile, Tel: (56) 2– Sauntia Warfield, Sauntia Warfield, 330–3610, Email: Ellen.Lenny- Assistant Secretary of the Commission. Assistant Secretary of the Commission. [email protected]. [FR Doc. 2012–25802 Filed 10–16–12; 4:15 pm] [FR Doc. 2012–25803 Filed 10–16–12; 4:15 pm] Elnora Moye, BILLING CODE 6351–01–P BILLING CODE 6351–01–P Trade Program Assistant. [FR Doc. 2012–25647 Filed 10–17–12; 8:45 am] BILLING CODE 3510–FP–P COMMODITY FUTURES TRADING COMMODITY FUTURES TRADING COMMISSION COMMISSION

Sunshine Act Meetings Sunshine Act Meetings COMMODITY FUTURES TRADING COMMISSION AGENCY HOLDING THE MEETING: AGENCY HOLDING THE MEETING: Commodity Futures Trading Commodity Futures Trading Sunshine Act Meetings Commission. Commission. TIME AND DATE: TIME AND DATE: AGENCY: Commodity Futures Trading 10:00 a.m., Friday 10:00 a.m., Friday, Commission. November 23, 2012. November 30, 2012. TIME AND DATE: 10:00 a.m., Friday, PLACE: 1155 21st St. NW., Washington, PLACE: 1155 21st St. NW., Washington, November 2, 2012. DC, 9th Floor Commission Conference DC, 9th Floor Commission Conference Room. Room. PLACE: 1155 21st St. NW., Washington, DC, 9th Floor Commission Conference STATUS: Closed. STATUS: Closed. Room. MATTERS TO BE CONSIDERED: Surveillance MATTERS TO BE CONSIDERED: Surveillance STATUS: Closed. and Enforcement Matters. In the event and Enforcement Matters. In the event MATTERS TO BE CONSIDERED: Surveillance that the times or dates of these or any that the times or dates of these or any and Enforcement Matters. In the event future meetings change, an future meetings change, an that the times or dates of these or any announcement of the change, along with announcement of the change, along with future meetings change, an the new time and place of the meeting the new time and place of the meeting announcement of the change, along with will be posted on the Commission’s will be posted on the Commission’s the new time and place of the meeting Web site at http://www.cftc.gov. Web site at http://www.cftc.gov. will be posted on the Commission’s CONTACT PERSON FOR MORE INFORMATION: CONTACT PERSON FOR MORE INFORMATION: Web site at http://www.cftc.gov. Sauntia S. Warfield, 202–418–5084. Sauntia S. Warfield, 202–418–5084. CONTACT PERSON FOR MORE INFORMATION: Sauntia S. Warfield, 202–418–5084. Sauntia Warfield, Sauntia Warfield, Assistant Secretary of the Commission. Assistant Secretary of the Commission. Sauntia Warfield, [FR Doc. 2012–25804 Filed 10–16–12; 4:15 pm] [FR Doc. 2012–25805 Filed 10–16–12; 4:15 pm] Assistant Secretary of the Commission. BILLING CODE 6351–01–P BILLING CODE 6351–01–P [FR Doc. 2012–25801 Filed 10–16–12; 4:15 pm] BILLING CODE 6351–01–P

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DEPARTMENT OF DEFENSE forms are available electronically at Committee Membership. Federal www.MRRIC.org. agencies with programs affecting the Department of the Army; Army Corps Purpose and Scope of the Committee. Missouri River may be members of the of Engineers The duties of the MRRIC cover two MRRIC through a separate process with areas: the Corps. States and Federally Notice of Solicitation of Applications 1. The Committee provides guidance recognized Native American Indian for Stakeholder Representative to the Corps, and affected Federal tribes, as described in the Charter, are Members of the Missouri River agencies, State agencies, or Native eligible for Committee membership Recovery Implementation Committee American Indian Tribes on a study of through an appointment process. AGENCY: Department of the Army, U.S. the Missouri River and its tributaries to Interested State and Tribal government Army Corps of Engineers, DoD. determine the actions required to representatives should contact the Corps mitigate losses of aquatic and terrestrial ACTION: Notice. for information about the appointment habitat, to recover federally listed process. SUMMARY: The Commander of the species protected under the Endangered This Notice is for individuals Northwestern Division of the U.S. Army Species Act, and to restore the river’s interested in serving as a stakeholder Corps of Engineers (Corps) is soliciting ecosystem to prevent further declines member on the Committee. In applications to fill two vacant among other native species. This study accordance with the Charter for the stakeholder representative member is identified in Section 5018(a) of the MRRIC, stakeholder membership is positions on the Missouri River WRDA. It will result in a single, limited to 28 people, with each member Recovery Implementation Committee comprehensive plan to guide the having an alternate. Members and (MRRIC). Members are sought to fill implementation of mitigation, recovery, alternates must be able to demonstrate vacancies on a committee to represent and restoration activities in the Missouri that they meet the definition of various categories of interests within the River Basin. This plan is referred to as ‘‘stakeholder’’ found in the Charter of Missouri River basin. The MRRIC was the Missouri River Ecosystem the MRRIC. Applications are currently formed to advise the Corps on a study Restoration Plan (MRERP). For more being accepted for representation in the of the Missouri River and its tributaries information about the MRERP go to stakeholder interest categories listed and to provide guidance to the Corps www.MRERP.org. below: 2. The MRRIC also provides guidance with respect to the Missouri River a. Hydropower; to the Corps with respect to the recovery and mitigation activities b. Irrigation; currently underway. The Corps Missouri River recovery and mitigation plan currently in existence, including c. Major Tributaries; established the MRRIC as required by d. Navigation; the U.S. Congress through the Water recommendations relating to changes to the implementation strategy from the e. Thermal Power; and Resources Development Act of 2007 f. Waterway Industries. (WRDA), Section 5018. use of adaptive management; coordination of the development of Terms of stakeholder representative DATES: The agency must receive consistent policies, strategies, plans, members of the MRRIC are three years. completed applications and programs, projects, activities, and There is no limit to the number of terms endorsement letters no later than priorities for the Missouri River a member may serve. November 19, 2012. recovery and mitigation plan. Members and alternates of the ADDRESSES: Mail completed Information about the Missouri River Committee will not receive any applications and endorsement letters to Recovery Program is available at compensation from the federal U.S. Army Corps of Engineers, Omaha www.MoRiverRecovery.org. government for carrying out the duties District (Attn: MRRIC), 1616 Capitol 3. Other duties of MRRIC include of the MRRIC. Travel expenses incurred Avenue, Omaha, NE 68102–4901 or exchange of information regarding by members of the Committee will not email completed applications to programs, projects, and activities of the be reimbursed by the federal [email protected]. Please put ‘‘MRRIC’’ in agencies and entities represented on the government. the subject line. Committee to promote the goals of the Application for Stakeholder FOR FURTHER INFORMATION CONTACT: Missouri River recovery and mitigation Membership. Persons who believe that Mary S. Roth, 402–995–2919. plan; establishment of such working they are or will be affected by the SUPPLEMENTARY INFORMATION: The groups as the Committee determines to Missouri River recovery and mitigation operation of the MRRIC is in the public be necessary to assist in carrying out the activities and are not employees of interest and provides support to the duties of the Committee, including federal agencies, tribes, or state Corps in performing its duties and duties relating to public policy and agencies, may apply for stakeholder responsibilities under the Endangered scientific issues; facilitating the membership on the MRRIC. Species Act, 16 U.S.C. 1531 et seq.; Sec. resolution of interagency and Applications for stakeholder 601(a) of the Water Resources intergovernmental conflicts between membership may be obtained Development Act (WRDA) of 1986, entities represented on the Committee electronically at www.MRRIC.org. Public Law 99–662; Sec. 334(a) of associated with the Missouri River Applications may be emailed or mailed WRDA 1999, Public Law 106–53, and recovery and mitigation plan; to the location listed (see ADDRESSES). In Sec. 5018 of WRDA 2007, Public Law coordination of scientific and other order to be considered, each application 110–114. The Federal Advisory research associated with the Missouri must include: Committee Act, 5 U.S.C. App. 2, does River recovery and mitigation plan; and 1. The name of the applicant and the not apply to the MRRIC. annual preparation of a work plan and primary stakeholder interest category A Charter for the MRRIC has been associated budget requests. that person is qualified to represent; developed and should be reviewed prior Administrative Support. To the extent 2. A written statement describing the to applying for a stakeholder authorized by law and subject to the applicant’s area of expertise and why representative membership position on availability of appropriations, the Corps the applicant believes he or she should the Committee. The Charter, operating provides funding and administrative be appointed to represent that area of procedures, and stakeholder application support for the Committee. expertise on the MRRIC;

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3. A written statement describing how on the Corps by the Endangered Species Commission was established by Public the applicant’s participation as a Act and other statutes. Law 101–510, the BRAC Law, to Stakeholder Representative will fulfill recommend military installations for Mary S. Roth, the roles and responsibilities of MRRIC; realignment and closure. 4. A written description of the Project Manager for the Missouri River, Recommendations of the 2005 BRAC applicant’s past experience(s) working Recovery Implementation Committee Commission were included in a report (MRRIC). collaboratively with a group of presented to the President on September individuals representing varied interests [FR Doc. 2012–25619 Filed 10–17–12; 8:45 am] 8, 2005. The President approved and towards achieving a mutual goal, and BILLING CODE 3720–58–P forwarded this report to Congress on the outcome of the effort(s); September 16, 2005, which became 5. A written description of the effective as public law on November 9, DEPARTMENT OF DEFENSE communication network that the 2005, and must be implemented in applicant plans to use to inform his or Department of the Navy accordance with the requirements of the her constituents and to gather their BRAC Law. In 2005, NAS JRB Willow feedback, and Notice of Intent To Prepare an Grove, PA was designated for closure 6. A written endorsement letter from Environmental Impact Statement for under the authority of the Defense Base an organization, local government body, the Disposal and Reuse of the Former Closure and Realignment Act of 1990, or formal constituency, which Naval Air Station Joint Reserve Base Public Law 101–510, as amended (the demonstrates that the applicant Willow Grove, Horsham, PA and Notice Act). Pursuant to this designation, on represents an interest group(s) in the of Public Scoping Meetings January 8, 2010, land and facilities at Missouri River basin. this installation were declared excess to To be considered, the application AGENCY: Department of the Navy, DoD. the DoN and made available to other must be complete and received by the ACTION: Notice. DoD components and other Federal close of business on November 19, 2012, agencies. The DoN has evaluated all at the location indicated (see SUMMARY: Pursuant to Section 102(2)(c) timely Federal requests and made a ADDRESSES). Applications must include of the National Environmental Policy decision to close the former NAS JRB an endorsement letter to be considered Act (NEPA) of 1969, as implemented by Willow Grove on September 15, 2011. complete. Full consideration will be the Council on Environmental Quality The proposed action for this EIS is to given to all complete applications regulations (40 CFR Parts 1500–1508), accommodate the BRAC 2005 law. The received by the specified due date. the Department of the Navy (DoN) BRAC-directed action includes disposal Application Review Process. announces its intent to prepare an and reuse of NAS JRB Willow Grove and Committee stakeholder applications will Environmental Impact Statement (EIS) its excess properties. Upon completion be forwarded to the current members of to evaluate the potential environmental of the disposal, the property will be the MRRIC. The MRRIC will provide consequences of the disposal and reuse redeveloped in accordance with the membership recommendations to the of the former Naval Air Station Joint Horsham Township Authority (HLRA) Corps as described in Attachment A of Reserve Base (NAS JRB) Willow Grove, Redevelopment Plan. the Process for Filling MRRIC Horsham, Pennsylvania, per Public Law The EIS will consider the alternatives Stakeholder Vacancies document 101–510, the Defense Base Closure and that are reasonable to accomplish the (www.MRRIC.org). The Corps is Realignment Act of 1990, as amended in proposed action. Alternatives to be responsible for appointing stakeholder 2005 (BRAC Law). Potential impacts considered include: (1) Disposal of the members. The Corps will consider associated with reuse of NAS JRB property by the DoN and reuse in applications using the following criteria: Willow Grove, including the change in accordance with the HLRA’s Preferred • Ability to commit the time required. land use and traffic patterns, will be Land Use Plan; (2) Disposal of the • Commitment to make a good faith evaluated and will contribute to the property by the DoN with a higher- (as defined in the Charter) effort to seek alternatives considered. density reuse scenario; (3) Disposal of balanced solutions that address multiple DATES: The DoN will conduct public the property by the DoN and reuse as an interests and concerns. scoping meetings in Horsham Township airport; and (4) No Action in which the • Agreement to support and adhere to in Montgomery County, PA to receive DoN would retain the property in a the approved MRRIC Charter and comments on the environmental caretaker status and no reuse or Operating Procedures. concerns that should be addressed in development would occur. • Demonstration of a formal the EIS. Both public scoping open Alternative 1 would meet the designation or endorsement by an houses will be held at the Horsham requirements of the BRAC Law by organization, local government, or Township Community Center located at allowing for the disposal and reuse of constituency as its preferred 1025 Horsham Road, Horsham, PA. NAS JRB Willow Grove. Reuse would be representative. Schedule will be as follows: conducted in accordance with the • Demonstrations of an established 1. Open House: Monday, October 29, HLRA Plan. The Plan provides a mix of communication network to keep 2012, 4:00 p.m.–8:00 p.m. land uses based on existing conditions constituents informed and efficiently 2. Open House: Tuesday, October 30, on the installation and in the seek their input when needed. 2012, 10:00 a.m.–2:00 p.m. community, guiding principles for • Agreement to participate in development established by the HLRA, FOR FURTHER INFORMATION CONTACT: collaboration training as a condition of and public participation. It is Director, BRAC Program Management membership. anticipated that full build-out of the All applicants will be notified in Office Northeast, 4911 Broad Street, Plan would be implemented over a 20- writing as to the final decision about Building 679, Philadelphia, PA 19112– year period. The Reuse Plan calls for the their application. 1303, telephone 215–897–4900, fax development of approximately 444 acres Certification. I hereby certify that the 215–897–4902, email: (52%) of the total base property. In establishment of the MRRIC is necessary [email protected]. addition, approximately 418 acres and in the public interest in connection SUPPLEMENTARY INFORMATION: The Base (48%) would be dedicated to a variety with the performance of duties imposed Closure and Realignment (BRAC) of active and passive land uses,

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including recreation, open space, and military and civilian workforce, impacts www.regulations.gov by selecting natural areas. The Plan also incorporates on local traffic patterns resulting from Docket ID number ED–2012–OPE–0036 elements based on smart-growth reuse scenarios, and the clean-up of or via postal mail, commercial delivery, principles, including pedestrian- installation remediation sites. or hand delivery. Please note that friendly transportation features (e.g., The DoN is initiating the scoping comments submitted by fax or email walkable neighborhoods, bike lanes, and process to identify community concerns and those submitted after the comment compact development), open spaces, and issues that should be addressed in period will not be accepted. Written and a mix of land use types. the EIS. Agencies and the public are requests for information or comments Alternative 2 would also meet the encouraged to provide written submitted by postal mail or delivery requirements of the BRAC Law by comments at scheduled public scoping should be addressed to the Director of allowing for disposal and reuse of NAS meetings. Comments should clearly the Information Collection Clearance JRB Willow Grove. This alternative describe specific issues or topics that Division, U.S. Department of Education, features a higher density of residential the EIS should address. Written 400 Maryland Avenue SW., LBJ, Room and community mixed-use comments must be postmarked or 2E117, Washington, DC 20202–4537. development. Similar to Alternative 1, emailed by midnight November 13, Individuals who use a this alternative includes a mix of land 2012, and should be sent to: Director, telecommunications device for the deaf use types, preserves open space and BRAC Program Management Office (TDD) may call the Federal Information natural areas, and incorporates elements Northeast, 4911 Broad Street, Building Relay Service (FIRS) at 1–800–877– based on smart-growth principles, 679, Philadelphia, PA 19112–1303, 8339. including pedestrian-friendly telephone 215–897–4900, fax 215–897– transportation and compact SUPPLEMENTARY INFORMATION: Section 4902, email: [email protected]. 3506 of the Paperwork Reduction Act of development. It is anticipated that full Requests for special assistance, sign build-out of the higher-density scenario 1995 (44 U.S.C. Chapter 35) requires language interpretation for the hearing that Federal agencies provide interested would be implemented over a 20-year impaired, language interpreters, or other period. The higher density alternative parties an early opportunity to comment auxiliary aids for scheduled public on information collection requests. The calls for the development of scoping meetings must be sent by mail approximately 576 acres (67%) of the Director, Information Collection or email by October 24, 2012, to Mr. Clearance Division, Privacy, Information total base property. In addition, Matt Butwin, Ecology and Environment, approximately 280 acres (32%) of the and Records Management Services, Inc., 348 Southport Circle, Suite 101, Office of Management, publishes this base would be dedicated to a variety of Virginia Beach, Virginia 23452, active and passive land uses, including notice containing proposed information telephone 757–456–5356, ext. 2811, collection requests at the beginning of recreation, open space, and natural email: [email protected]. areas. the Departmental review of the Alternative 3 would maintain and Dated: October 11, 2012. information collection. The Department reuse the existing airfield for private C. K. Chiappetta, of Education is especially interested in aviation purposes. The Plan reuses the Lieutenant Commander, Office of the Judge public comment addressing the existing airfield and its supporting Advocate General, U.S. Navy, Federal following issues: (1) Is this collection infrastructure (i.e., taxiways, parking Register Liaison Officer. necessary to the proper functions of the aprons and hangar facilities). After [FR Doc. 2012–25686 Filed 10–17–12; 8:45 am] Department; (2) will this information be accounting for the area being reused for BILLING CODE 3810–FF–P processed and used in a timely manner; aviation purposes, the remaining land (3) is the estimate of burden accurate; available for development would be (4) how might the Department enhance approximately 380 acres. This would be DEPARTMENT OF EDUCATION the quality, utility, and clarity of the developed in a mix of land use types information to be collected; and (5) how and densities, and preserves open space Notice of Proposed Information might the Department minimize the and natural areas. New development Collection Requests; Office of burden of this collection on the would be airport related industry and Postsecondary Education; Annual respondents, including through the use businesses. Performance Report for the Gaining of information technology. Please note Alternative 4 is required by NEPA and Early Awareness for Undergraduate that written comments received in is the No Action Alternative. Under this Programs response to this notice will be alternative, NAS JRB Willow Grove considered public records. SUMMARY: would be retained by the U.S. The GEAR UP annual Title of Collection: Annual government in caretaker status. No reuse performance report asks for information Performance Report for the Gaining or redevelopment would occur at the specific to the budget year for which the Early Awareness for Undergraduate facility. report is being submitted. The final Programs. The EIS will address potential direct, performance report asks for information OMB Control Number: 1840–0777. indirect, short-term, long-term, and specific to the last budget year of the Type of Review: Revision. cumulative impacts on the human and grant, and also requires the grantee to Total Estimated Number of Annual natural environments, including update the enrollment and graduation Responses: 225. potential impacts on topography, data of all students who have Total Estimated Number of Annual geology and soils, water resources, participated in a GEAR UP program at Burden Hours: 2,475. biological resources, air quality, noise, any time during the project period. Abstract: The Annual Performance infrastructure and utilities, traffic, DATES: Interested persons are invited to Report for Partnership and State Projects cultural resources, land use, submit comments on or before for Gaining Early Awareness and socioeconomics, environmental justice, December 17, 2012. Readiness for Undergraduate Programs and waste management. Known areas of ADDRESSES: Comments submitted in (GEAR UP) is a required report that concern associated with the BRAC response to this notice should be grant recipients must submit annually. action include impacts on submitted electronically through the The purpose of this information socioeconomics due to loss of the Federal eRulemaking Portal at http:// collection is for accountability. The data

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is used to report on progress in meeting • Overview of the Draft Injury DEPARTMENT OF ENERGY the performance objectives of GEAR UP, Assessment Plan from the Hanford program implementation, and student Natural Resources Trustee Council Office of Energy Efficiency and Renewable Energy outcomes. The data collected includes • DOE’s Land Conveyance budget data on Federal funds and match Environmental Assessment: contributions, demographic data, and Nationwide Categorical Waivers of the Overview of October 10 Public data regarding services provided to American Recovery and Reinvestment Scoping Meeting students. Act • Board Member Orientation (for both Dated: October 15, 2012. AGENCY: Office of Energy Efficiency and new and current members/ Kate Mullan, Renewable Energy, U.S. Department of alternates) Acting Director, Information Collection Energy (DOE). • Clearance Division, Privacy, Information and Review of EM SSAB Letters ACTION: Notice of Amended Limited Records Management Services, Office of • Committee Reports Waivers. Management. • Board Business—Selection of new [FR Doc. 2012–25700 Filed 10–17–12; 8:45 am] SUMMARY: The U.S. Department of HAB Chair BILLING CODE 4000–01–P Energy (DOE) is hereby granting an Public Participation: The meeting is Amended Waiver of section 1605 of the open to the public. The EM SSAB, American Reinvestment and Recovery DEPARTMENT OF ENERGY Hanford, welcomes the attendance of Act of 2009 (Recovery Act Buy the public at its advisory committee American provisions) in EERE-funded Environmental Management Site- meetings and will make every effort to projects for (1) Enphase microinverters Specific Advisory Board, Hanford accommodate persons with physical and (2) pre-insulated district heating pipe systems. AGENCY: Department of Energy. disabilities or special needs. If you This amendment withdraws the require special accommodations due to ACTION: Notice of open meeting. nonavailability waiver issued on August a disability, please contact Tifany 11, 2010 for Enphase micro-inverters, SUMMARY: This notice announces a Nguyen at least seven days in advance and the nonavailability waiver issued meeting of the Environmental of the meeting at the phone number March 27, 2012 for pre-insulated district Management Site-Specific Advisory listed above. Written statements may be heating pipe systems. Board (EM SSAB), Hanford. The Federal filed with the Board either before or DATES: Effective Date: October 3, 2012. Advisory Committee Act (Pub. L. No. after the meeting. Individuals who wish FOR FURTHER INFORMATION CONTACT: 92–463, 86 Stat. 770) requires that to make oral statements pertaining to Christine Platt-Patrick, Office of Energy public notice of this meeting be agenda items should contact Tifany Efficiency and Renewable Energy announced in the Federal Register. Nguyen at the address or telephone (EERE), (202) 586–7691, Department of DATES: Thursday, November 1, 2012 number listed above. Requests must be Energy, 1000 Independence Avenue 8:30 a.m.–5:00 p.m. Friday, November 2, received five days prior to the meeting SW., Mailstop EE–2K, Washington, DC 2012 8:30 a.m.–3:00 p.m. and reasonable provision will be made 20585. ADDRESSES: Red Lion Hanford House, to include the presentation in the SUPPLEMENTARY INFORMATION: Under the 802 George Washington Way, Richland, agenda. The Deputy Designated Federal authority of Recovery Act, Public Law WA 99352. Officer is empowered to conduct the 111–5, section 1605(b)(2), the head of a FOR FURTHER INFORMATION CONTACT: meeting in a fashion that will facilitate Federal department or agency may issue Tifany Nguyen, Federal Coordinator, the orderly conduct of business. a ‘‘determination of inapplicability’’ (a Department of Energy Richland Individuals wishing to make public waiver of the Buy American provision) Operations Office, 825 Jadwin Avenue, comments will be provided a maximum if the iron, steel, or relevant P.O. Box 550, A7–75, Richland, WA, of five minutes to present their manufactured good is not produced or 99352; Phone: (509) 376–3361; or Email: comments. manufactured in the United States in [email protected]. Minutes: Minutes will be available by sufficient and reasonably available quantities and of a satisfactory quality SUPPLEMENTARY INFORMATION: writing or calling Tifany Nguyen’s office (‘‘nonavailability’’). The authority of the Purpose of the Board: The purpose of at the address or phone number listed Secretary of Energy to make all the Board is to make recommendations above. Minutes will also be available at to DOE–EM and site management in the inapplicability determinations was re- the following Web site: http:// areas of environmental restoration, delegated to the Assistant Secretary for www.hanford.gov/page.cfm/hab. waste management, and related Energy Efficiency and Renewable activities. Issued at Washington, DC on October 9, Energy (EERE), for EERE projects under Tentative Agenda: 2012. the Recovery Act, in Redelegation Order • Tri-Party Agreement Agencies— LaTanya R. Butler, No. 00–002.01E, dated April 25, 2011. Annual Updates On August 11, 2010, The Assistant Æ Acting Deputy Committee Management U.S. Department of Energy (DOE), Officer. Secretary issued a nonavailability waiver for Enphase micro-inverters. On Richland Operations Office [FR Doc. 2012–25628 Filed 10–17–12; 8:45 am] Æ U.S. DOE, Office of River Protection March 27, 2012 the Assistant Secretary Æ State of Washington Department of BILLING CODE 6450–01–P issued a nonavailability waiver for pre- Ecology insulated district heating pipe systems Æ U.S. Environmental Protection consisting of thin wall thickness steel Agency pipe meeting the EN13941 standard, • Draft White Paper on Hanford bonded to polyurethane foam Advisory Board (HAB) Values insulation, bonded to an HDPE jacket, • Draft Letter/Advice—Other HAB such that all the components operate as membership-related issues a single pipe (including two 1.5 mm

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squared area copper wires embedded in constitutes the detailed written FOR FURTHER INFORMATION CONTACT: the insulation for leak detection and justification required by Section 1605(c) Email your questions to Roy Simon or location); pre-insulated steel fittings for waivers based on a finding under call him at 202–564–3868, or to with the same characteristics as the pre- subsection (b). Jacquelyn Springer, at insulated pipe; and pre-insulated This waiver determination is pursuant [email protected] or call her maintenance free ball valves with an all to the delegation of authority by the at 202–564–9904. welded valve body and a stainless steel Secretary of Energy to the Assistant SUPPLEMENTARY INFORMATION: National valve ball in a spring loaded teflon seat, Secretary for Energy Efficiency and Drinking Water Advisory Council: The having the same insulation and jacket Renewable Energy with respect to Council was created by Congress on characteristics as the pipe. expenditures within the purview of his December 16, 1974, as part of the Safe As with all waivers, the Assistant responsibility. Consequently, this Drinking Water Act of 1974, Public Law Secretary reserved the right to revisit waiver applies to all EERE projects 93–523, 42 U.S.C. 300j–5 and is and amend this determination based on carried out under the Recovery Act. operated in accordance with the any changes in the manufacturing Authority: Pub. L. 111–5, section 1605. provisions of the Federal Advisory landscape, such as the entry into the Issued in Washington, DC on October 9, Committee Act (FACA), 5 U.S.C. App.2. market of new domestic manufacturers. The Council consists of 15 members, The remaining items covered by the 2012. David T. Danielson, including a Chairperson, appointed by February 11, 2010 Waiver (24-leaf, EPA’s Administrator. Five members motorized DMX iris units, induction Assistant Secretary, Energy Efficiency and Renewable Energy, U.S. Department of represent the general public; five lamps and ballasts, commercial-scale members represent appropriate State high efficiency condensing boilers with Energy. [FR Doc. 2012–25636 Filed 10–17–12; 8:45 am] and local agencies concerned with water indirect water heaters, large-format solar hygiene and public water supply; and BILLING CODE 6450–01–P thermal collectors for integrated district five members represent private heating systems, and turbochargers for organizations or groups demonstrating Mitsubishi/Man 52/55B diesel generator an active interest in the field of water ENVIRONMENTAL PROTECTION engines) continue to be covered by the hygiene and public water supply, of AGENCY August 11, 2010 waiver and remain which two members shall represent subject to the specifications and [FRL–9742–7] small, rural public water systems. The conditions of that waiver. current list of members is available on In order for the withdrawn waivers to National Drinking Water Advisory the EPA Web site at: http:// continue to apply substantial steps to Council: Request for Nominations water.epa.gov/drink/ndwac/. commit funds for the purchase of the The Council meets face-to-face at least formerly waived items must have been AGENCY: Environmental Protection Agency (EPA). once each year and likely a second made on or before October 31, 2012. meeting by conference call/webinar, ACTION: Substantial steps to commit funds Request for Nominations. generally in the spring and fall. would include, but are not limited to, SUMMARY: The EPA invites nominations Additionally, members may be asked to (1) issuing a Request for Proposals (RFP) of qualified candidates to be considered participate in ad hoc workgroups to on or before October 31, 2012 for a three-year appointment to the develop policy recommendations, (applicable only where the grantee National Drinking Water Advisory advice letters and reports to address accepts a proposal received under that Council (Council). The 15 member specific program issues. RFP); (2) in the case of a sole source Council was established by the Safe Member Nominations: Any interested selection: placing an order for the goods Drinking Water Act (SDWA) to provide person and/or organization may on or before October 31, 2012; (3) practical and independent advice, nominate qualified individuals for commencing a bidding process on or consultation and recommendations to membership. The EPA values and before October 31, 2012; (4) in the EPA Administrator on the activities, welcomes diversity. In an effort to circumstances where the grantee functions, policies, and regulations obtain nominations of diverse solicited quotes without an RFP: the required by the SDWA. This notice candidates, the agency encourages grantee purchases the goods based on a solicits nominations to fill four new nominations of women and men of all quote dated on or before October 31, vacancies through December 15, 2015. racial and ethnic groups. 2012 and the order for the goods is To maintain the representation required All nominations will be fully placed on or before October 31, 2012; or by statute, nominees will be selected to considered, but applicants need to be (5) grantee has executed a contract or represent: State and local agencies (two aware of the specific representation purchase agreement with a supplier to vacancies) and the general public (two required by the SDWA for the current acquire affected goods on or before vacancies). vacancies: State and local agencies October 31, 2012. DATES: Nominations should be concerned with public water supply EERE hereby provides notice that on (two vacancies), and the general public October 3, 2012, an Amended Waiver of submitted on or before November 19, 2012. (two vacancies). Other criteria used to section 1605 of the American evaluate nominees will include: Reinvestment and Recovery Act of 2009 ADDRESSES: Submit nominations to Roy • Demonstrated experience with (Recovery Act Buy American Simon, Designated Federal Officer drinking water issues at the national, provisions) in EERE-funded projects for (DFO), The National Drinking Water State or local level; (1) Enphase microinverters and (2) pre- Advisory Council, U.S. Environmental • Excellent interpersonal, oral and insulated district heating pipe systems. Protection Agency, Office of Ground written communication and consensus- This amendment withdraws the Water and Drinking Water (Mail Code building skills; nonavailability waiver issued on August 4601–M), 1200 Pennsylvania Avenue • Willingness to commit time to the 11, 2010 for Enphase micro-inverters, NW, Washington, DC 20460. You may Council and demonstrated ability to and the nonavailability waiver issued also email nominations with the subject work constructively on committees; March 27, 2012 for pre-insulated district line NDWACResume2012 to • Absence of financial conflicts of heating pipe systems. This notice [email protected]. interest;

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• Absence of appearance of a lack of EXPORT-IMPORT BANK Frequency of Reporting or Use: impartiality; and Yearly. [Public Notice 2012–0531] • Background and experiences that Government Review Time: 1 hour. would help members contribute to the Agency Information Collection Total Hours 3,400. diversity of perspectives on the Council, Activities: Comment Request Cost to the Government: $131,648. e.g., geographic, economic, social, Sharon A. Whitt, cultural, educational backgrounds, AGENCY: Export-Import Bank of the Agency Clearance Officer. professional affiliations, and other United States. [FR Doc. 2012–25621 Filed 10–17–12; 8:45 am] considerations. ACTION: Submission for OMB review and Nominations must include a resume, comments request. BILLING CODE 6690–01–P which provides the nominee’s Form Title: EIB 92–51 Application for background, experience and educational EXPORT-IMPORT BANK qualifications, as well as a brief Special Buyer Credit Limit (SBCL) statement (one page or less) describing Under Multi-Buyer Credit Insurance [Public Notice 2012–0304] the nominee’s interest in serving on the Policies. Council and addressing the other SUMMARY: The Export-Import Bank of Agency Information Collection criteria described above. Nominees the United States (Ex-Im Bank), as a part Activities: Final Collection; Comment should be identified by name, of its continuing effort to reduce Request paperwork and respondent burden, occupation, position, current business AGENCY: Export-Import Bank of the U.S. address, and email and telephone invites the general public and other Federal Agencies to comment on the ACTION: Submission for OMB Review number. Interested candidates may self- and Comments Request. nominate. proposed information collection, as required by the Paperwork Reduction The DFO will acknowledge receipt of Form Title: EIB 03–02 Application for Act of 1995. nominations. Nominees are encouraged The ‘‘Application for Special Buyer Medium Term Insurance or Guarantee. to provide any additional information Credit Limit (SBCL) Under Multi-Buyer SUMMARY: The Export-Import Bank of that they feel would be useful for Export Credit Insurance Policies’’ form the United States (Ex-Im Bank), as a part consideration, such as: availability to will be used by entities involved in the of its continuing effort to reduce participate as a member of the Council; export of US goods and services, to paperwork and respondent burden, how the nominee’s background, skills provide Ex-Im Bank with the invites the general public and other and experience would contribute to the information necessary to obtain Federal Agencies to comment on the diversity of the Council; and any legislatively required assurance of proposed information collection, as concerns the nominee has regarding repayment and fulfills other statutory required by the Paperwork Reduction membership. requirements. Act of 1995. Persons selected for membership will The application can be reviewed at: The purpose of this collection is to receive compensation for travel and a www.exim.gov/pub/pending/EIB92– gather information necessary to make a nominal daily compensation (if 51.pdf. Application for Special Buyer determination of eligibility of a appropriate) while attending meetings. Credit Limit (SBCL) Under Multi-Buyer transaction for Ex-Im Bank assistance Additionally, selected candidates will Credit Insurance Policies. under its medium-term guarantee and be required to fill out the ‘‘Confidential insurance program. DATES: Comments should be received on Financial Disclosure Form for EPA or before November 19, 2012 to be The form can be viewed at Special Government Employees’’ [EPA assured of consideration. www.exim.gov/pub/pending/eib03- Form 3310–48]. This confidential form 02.pdf. allows EPA to determine whether there ADDRESSES: Comments maybe submitted DATES: Comments should be received on is a statutory conflict between that electronically on www.regulations.gov or before December 17, 2012 to be person’s public responsibilities as a or by mail to Office of Information and assured of consideration. Special Government Employee and Regulatory Affairs, 725 17th Street NW. private interests and activities, or the Washington, DC 20038 Attn: OMB ADDRESSES: Comments may be appearance of a lack of impartiality, as 3048–0015. submitted electronically on defined by Federal regulation. The form SUPPLEMENTARY INFORMATION: www.regulations.gov or by mail to may be viewed and downloaded Titles and Form Number: EIB 92–51 Vasilios Giannpooulos, Export Import through the ‘‘Ethics Requirements for Application for Special Buyer Credit Bank of the United States, 811 Vermont Advisors’’ link on the OGWDW NDWAC Limit (SBCL) Under Multi-Buyer Credit Ave. NW., Washington, DC 20571. Web site, http://water.epa.gov/drink/ Insurance Policies. SUPPLEMENTARY INFORMATION: ndwac/fact.cfm. OMB Number: 3048–0015. Titles and Form Number: EIB 03–02 Other sources, in addition to this Type of Review: Regular. Application for Medium Term Federal Register notice, may also be Need and Use: The information Insurance or Guarantee. utilized in the solicitation of nominees. requested enables the applicant to OMB Number: 3048–0014. To help the EPA in evaluating the provide Ex-Im Bank with the Type of Review: Regular. effectiveness of its outreach efforts, information necessary to obtain Need and Use: The purpose of this please tell us how you learned of this legislatively required assurance of collection is to gather information opportunity. repayment and fulfills other statutory necessary to make a determination of requirements. eligibility of a transaction for Ex-Im Dated: October 11, 2012. Annual Number of Respondents: Bank assistance under its medium-term Pamela S. Barr, 3,400. guarantee and insurance program. Acting Director, Office of Ground Water and Estimated Time per Respondent: 30 Affected Public: This form affects Drinking Water. minutes. entities involved in the export of U.S [FR Doc. 2012–25669 Filed 10–17–12; 8:45 am] Government Annual Burden Hours: goods and services. BILLING CODE 6560–50–P 3,400 hours. Annual Number of Respondents: 400.

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Estimated Time per Respondent: 1 Federal Deposit Insurance Corporation. shares of Cheyenne Banking hour and 45 minutes. Robert E. Feldman, Corporation, and thereby indirectly Number of forms reviewed by Ex-Im Executive Secretary. acquire voting shares of Security State Bank: 400. [FR Doc. 2012–25659 Filed 10–17–12; 8:45 am] Bank, both in Cheyenne, Oklahoma. Government Annual Burden Hours: BILLING CODE 6714–01–P Board of Governors of the Federal Reserve 700 hours. System, October 15, 2012. Government Cost: $38,115. Margaret McCloskey Shanks, FEDERAL RESERVE SYSTEM Frequency of Reporting or Use: As Associate Secretary of the Board. needed—each time a company seeks Change in Bank Control Notices; [FR Doc. 2012–25657 Filed 10–17–12; 8:45 am] medium term guarantee or insurance Acquisitions of Shares of a Bank or BILLING CODE 6210–01–P support for an export sale. Bank Holding Company Sharon A. Whitt, Agency Clearance Officer. The notificants listed below have FEDERAL RESERVE SYSTEM applied under the Change in Bank [FR Doc. 2012–25622 Filed 10–17–12; 8:45 am] Control Act (12 U.S.C. 1817(j)) and Formations of, Acquisitions by, and BILLING CODE 6690–01–P § 225.41 of the Board’s Regulation Y (12 Mergers of Bank Holding Companies CFR 225.41) to acquire shares of a bank or bank holding company. The factors The companies listed in this notice FEDERAL DEPOSIT INSURANCE that are considered in acting on the have applied to the Board for approval, CORPORATION notices are set forth in paragraph 7 of pursuant to the Bank Holding Company the Act (12 U.S.C. 1817(j)(7)). Act of 1956 (12 U.S.C. 1841 et seq.) Notice to All Interested Parties of the The notices are available for immediate inspection at the Federal (BHC Act), Regulation Y (12 CFR part Termination of the Receiverships of 225), and all other applicable statutes 1309 Carteret Federal Savings Bank, Reserve Bank indicated. The notices also will be available for inspection at and regulations to become a bank Newark, NJ and 8609 Carteret Savings holding company and/or to acquire the Bank, F.A. the offices of the Board of Governors. Interested persons may express their assets or the ownership of, control of, or Notice is hereby given that the Federal views in writing to the Reserve Bank the power to vote shares of a bank or Deposit Insurance Corporation (‘‘FDIC’’) indicated for that notice or to the offices bank holding company and all of the as Receiver for Carteret Federal Savings of the Board of Governors. Comments banks and nonbanking companies Bank, Newark, New Jersey and Carteret must be received not later than owned by the bank holding company, Savings Bank, F.A. (‘‘Receiver’’) intends November 2, 2012. including the companies listed below. A. Federal Reserve Bank of to terminate its receiverships for said The applications listed below, as well Minneapolis (Jacqueline G. King, institutions. The Resolution Trust as other related filings required by the Community Affairs Officer) 90 Corporation (‘‘RTC’’) was appointed Board, are available for immediate Receiver for Carteret Federal Savings Hennepin Avenue, Minneapolis, Minnesota 55480–0291: inspection at the Federal Reserve Bank Bank and Carteret Savings Bank, F.A. indicated. The applications will also be and pursuant to 12 U.S.C. 1441a(m)(1) 1. Quoin Financial Bank 401(K) Profit Sharing Plan, Miller, South Dakota available for inspection at the offices of FDIC succeeded RTC as Receiver. The the Board of Governors. Interested liquidation of receiverships assets has (First Bank & Trust, Brookings, South persons may express their views in been completed. To the extent permitted Dakota, trustee; Tom, Jerry, and Garry writing on the standards enumerated in by available funds and in accordance Peterka with power to vote), and the BHC Act (12 U.S.C. 1842(c)). If the with law, the Receiver will be making Goodman Group Management Deferred a final dividend payment to proven Compensation Rabbi Trust Plan, F/B/O proposal also involves the acquisition of creditors. Dan Peterka, Phoenix, Arizona a nonbanking company, the review also (Wilmington Trust Retirement and includes whether the acquisition of the Based on the foregoing, the Receiver Institutional Services Company, has determined that the continued nonbanking company complies with the Phoenix, Arizona, trustee; Dan Peterka existence of the receiverships will serve standards in section 4 of the BHC Act with power to vote); to join the Peterka no useful purpose. Consequently, notice (12 U.S.C. 1843). Unless otherwise Family Group to acquire voting shares is given that the receiverships shall be noted, nonbanking activities will be of M & H Financial Services Inc., and terminated, to be effective no sooner conducted throughout the United States. thereby indirectly acquire voting shares than thirty days after the date of this of Quoin Financial Bank, both in Miller, Unless otherwise noted, comments Notice. If any person wishes to South Dakota. regarding each of these applications comment concerning the termination of B. Federal Reserve Bank of Kansas must be received at the Reserve Bank the receiverships, such comment must City (Dennis Denney, Assistant Vice indicated or the offices of the Board of be made in writing and sent within President) 1 Memorial Drive, Kansas Governors not later than November 13, thirty days of the date of this Notice to: City, Missouri 64198–0001: 2012. Federal Deposit Insurance Corporation, 1. Mikael Lowell Males, individually Attention: Receivership Oversight A. Federal Reserve Bank of Chicago and as co-trustee of the Males Family (Colette A. Fried, Assistant Vice Department 32.1, 1601 Bryan Street, Trust, the Males Family Trust, the Males Dallas, Texas 75201. President) 230 South LaSalle Street, 2010 Trust, The James L. Males Trust, Chicago, Illinois 60690–1414: No comments concerning the and the William L. Males Living Trust, termination of these receiverships will all of Edmond, Oklahoma, and Toni 1. Heartland Financial USA, Inc., be considered which are not sent within Darlene Swartwood, Elk City, Dubuque, Iowa; to acquire 100 percent this timeframe. Oklahoma, as co-trustee of the Males of the voting shares of Heritage Bank, Dated at Washington, DC, this 15th day of Family Trust, all as members of the NA., Phoenix, Arizona. October 2012. Males Family group; to acquire voting

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Board of Governors of the Federal Reserve DEPARTMENT OF HEALTH AND service of the Children’s Bureau, a System, October 15, 2012. HUMAN SERVICES component within the Administration Margaret McCloskey Shanks, for Children and Families, and is Associate Secretary of the Board. Administration for Children and dedicated to the mission of connecting Families [FR Doc. 2012–25656 Filed 10–17–12; 8:45 am] professionals and concerned citizens to information on programs, research, BILLING CODE 6210–01–P Submission for OMB Review; legislation, and statistics regarding the Comment Request safety, permanency, and well-being of Title: Data Collection Plan for a children and families. The follow-up Follow-up Survey with Child Welfare survey will gather data about how Information Gateway Customers. professionals use Child Welfare OMB No.: 0970–NEW. Information Gateway’s information Description: The proposed services in their work. Survey findings information collection activity includes will be applied to make continuous a follow-up survey designed to assess improvements to Child Welfare how professional customers are using Information Gateway’s Web site and information received from Child other information services. Welfare Information Gateway. Child Respondents: Child Welfare Welfare Information Gateway is a Information Gateway professional users.

ANNUAL BURDEN ESTIMATES

Number of responses Average Total burden Instrument Number of respondents per respond- burden hours hours ent per response

Follow-up Survey ...... Private Sector ...... 100 0.167 16.7 Follow-up Survey ...... State, Local, or Tribal Governments ...... 100 0.167 16.7

Estimated Total Annual Burden DEPARTMENT OF HEALTH AND reports are submitted to the Secretary of Hours: 33.4 hours. HUMAN SERVICES the Department of Health and Human Services; the Committee on Health, Additional Information Health Resources and Services Education, Labor and Pensions of the Copies of the proposed collection may Administration Senate; and the Committee on Energy be obtained by writing to the and Commerce of the House of Advisory Committee on Training in Administration for Children and Representatives. Primary Care Medicine and Dentistry; Families, Office of Planning, Research Agenda: The meeting on Thursday, Notice of Meeting and Evaluation, 370 L’Enfant November 1, 2012, will begin with Promenade SW., Washington, DC 20447, In accordance with section 10(a)(2) of opening comments from HRSA senior Attn: ACF Reports Clearance Officer. All the Federal Advisory Committee Act officials. Work on the Committee’s tenth requests should be identified by the title (Pub. L. 92–463), notice is hereby given report on inter-professional training of of the information collection. Email of the following meeting: primary care providers will begin with address: [email protected]. Name: Advisory Committee on an update by the report’s writing group. Training in Primary Care Medicine and The Committee will then complete the OMB Comment Dentistry (ACTPCMD). report and approve the final draft. OMB is required to make a decision Date and Time: November 1, 2012, Before the next major agenda item, concerning the collection of information 10:00 a.m.–5:00 p.m. Eastern Time. HRSA staff will present a brief update between 30 and 60 days after Place: Webinar format. on the Agency’s efforts in the area of publication of this document in the SUPPLEMENTARY INFORMATION: interprofessional oral health clinical Federal Register. Therefore, a comment Status: The meeting will be open to competencies. Much of the remaining is best assured of having its full effect the public. meeting time will be spent on if OMB receives it within 30 days of Purpose: The Advisory Committee determining a topic for the next report, publication. Written comments and provides advice and recommendations establishing a writing group to guide the recommendations for the proposed on a broad range of issues relating to writing process, and developing a report information collection should be sent grant programs authorized by sections outline. The Committee also will plan directly to the following: Office of 222 and 749 of the Public Health for the next Advisory Committee Management and Budget, Paperwork Service Act, as amended by section meeting, which will be a face-to-face Reduction Project, Email: 5103(d) and re-designated by section meeting in April 2013, and determine [email protected], 5303 of the Patient Protection and report work to be done in the interim. Attn: Desk Officer for the Affordable Care Act of 2010. An opportunity will be provided for Administration for Children and At this meeting, the Advisory public comment at the end of the Families. Committee will finalize its report on the meeting. inter-professional education of primary For members of the public interested Robert Sargis, care providers. The Committee will also in gaining access to the webinar, please Reports Clearance Officer. select a topic for its next report and use the following URL: https:// [FR Doc. 2012–25648 Filed 10–17–12; 8:45 am] begin planning how to approach the hrsa.connectsolutions.com/actpcmd/. BILLING CODE 4184–01–P writing of that report. The Committee’s The audio portion of the meeting will be

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computer-based. Anyone wishing to Agenda: The workshop will focus on the check-in process. Pre-registration is make a public comment should use the seven chapters of the 2011 IACC Strategic recommended. Seating will be limited to the Question & Answer Pod any time during Plan, featuring discussions between IACC room capacity and seats will be on a first the meeting. The questions will be members and external experts in the areas of come, first served basis, with expedited basic and translational science, as well as check-in for those who are pre-registered. collected and as many addressed as services research and policy, regarding The schedule for the meeting is subject to possible during time provided at the updates that may be considered for the 2012 change. end of the meeting. Anyone wishing Strategic Plan. The first day of the workshop, Information about the IACC is available on further information on the webinar October 29th, will focus on services research the Web site: http://www.iacc.hhs.gov. and policy. The second day of the workshop, aspects of the meeting should contact Dated: October 11, 2012. Iwona Grodecki at (301) 443–8379. October 30th, will focus on basic and translational research. Carolyn A. Baum, FOR FURTHER INFORMATION CONTACT: Place: Omni Shoreham Hotel, 2500 Calvert Program Analyst, Office of Federal Advisory Anyone interested in obtaining a roster Street NW., Washington, DC 20008. Committee Policy. of members or other relevant Conference Call Access: [FR Doc. 2012–25582 Filed 10–17–12; 8:45 am] information should write or contact October 29, 2012, Phone number: 888– BILLING CODE 4140–01–P Jerilyn K. Glass, M.D., Ph.D., Division of 972–6896, Access code: 1954800. Medicine and Dentistry, Bureau of October 30, 2012, Phone number: 888– Health Professions, Health Resources 469–3189, Access code: 8310127. Each day of the workshop will feature DEPARTMENT OF HEALTH AND and Services Administration, Room 9A– HUMAN SERVICES 27, Parklawn Building, 5600 Fishers breakout sessions as part of the agenda. Call- in information for each session will be Lane, Rockville, Maryland 20857, available on the IACC Web site (http://iacc. National Institutes of Health Telephone (301) 443–7271. The web hhs.gov/events/) prior to the day of the address for information on the Advisory workshop. National Institute on Drug Abuse; Committee is http://www.hrsa.gov/ Webcast Live: http://videocast.nih.gov/. Amended Notice of Meeting advisorycommittees/bhpradvisory/ Cost: The meeting is free and open to the actpcmd/index.html. public. Notice is hereby given of changes in Registration: https://pointpass.com/events/ the meeting of the National Institute on Dated: October 12, 2012. IACC_Strategic_Planning_Workshop/. Pre- Drug Abuse Special Emphasis Panel, Bahar Niakan, registration is recommended to expedite October 2, 2012, 8:30 a.m. to October 2, Director, Division of Policy Information and check-in. Seating in the meeting room is 2012, 1:00 p.m., National Institutes of Coordination. limited to room capacity and on a first come, Health, Neuroscience Center, 6001 [FR Doc. 2012–25662 Filed 10–17–12; 8:45 am] first served basis. Executive Boulevard, Rockville, MD, Access: The workshop location is within BILLING CODE 4165–15–P two blocks of the Woodley Park/Zoo/Adams 20852 which was published in the Morgan Metro station (Red Line). On-site Federal Register on September 6, 2012, parking is available for a fee; limited 77; 173 FR 2012–21889. DEPARTMENT OF HEALTH AND neighborhood parking may be available. The date and time of the meeting are HUMAN SERVICES Contact Person: Ms. Lina Perez, Office of changed to November 8, 2012, 8:30 a.m. Autism Research Coordination, National to November 8, 2012, 12:00 p.m. The National Institutes of Health Institute of Mental Health, NIH, 6001 meeting is closed to the public. Executive Boulevard, NSC, Room 6182a, National Institute of Mental Health; Rockville, MD 20852, Phone: (301) 443–6040, Dated: October 12, 2012. Notice of Workshop Email: [email protected]. Michelle Trout, Notice is hereby given of a Strategic Please Note: This workshop will also be Program Analyst, Office of Federal Advisory open to the public through a conference call Committee Policy. Planning Workshop convened by the number and live webcast on the Internet. [FR Doc. 2012–25583 Filed 10–17–12; 8:45 am] Interagency Autism Coordinating Members of the public who participate using BILLING CODE 4140–01–P Committee (IACC). the conference call phone number will be The purpose of the 2012 IACC able to listen to the discussion but will not Strategic Planning Workshop is to be heard. If you experience any technical discuss, in a public forum, significant problems with the conference call or DEPARTMENT OF HEALTH AND advances in basic and translational webcast, please email iacchelpdesk2012@ HUMAN SERVICES gmail.com. science and services research that have National Institutes of Health occurred since January 2011, when the To access the live webcast on the Internet the following computer capabilities are IACC Strategic Plan for Autism National Institute on Alcohol Abuse Spectrum Disorder Research was required: (A) Internet Explorer 5.0 or later, Netscape Navigator 6.0 or later or Mozilla and Alcoholism; Notice of Closed previously updated. The group will also Firefox 1.0 or later; (B) Windows® 2000, XP Meeting identify remaining gap areas in autism Home, XP Pro, 2003 Server or Vista; (C) research. Invited experts and IACC Stable 56k, cable modem, ISDN, DSL or Pursuant to section 10(d) of the Subcommittee members will use this better Internet connection; (D) Minimum of Federal Advisory Committee Act, as forum to share information that may be Pentium 400 with 256 MB of RAM amended (5 U.S.C. App.), notice is considered by the IACC in their (Recommended); (E) Java Virtual Machine hereby given of the following meeting. planning for the 2012 update to the enabled (Recommended). The meeting will be closed to the IACC Strategic Plan. The workshop will Individuals who participate in person or by public in accordance with the be open to the public and accessible by using these electronic services and who need provisions set forth in sections special assistance, such as captioning of the live webcast and conference call. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., conference call or other reasonable as amended. The grant applications and accommodations, should submit a request to Name of Committee: Interagency Autism the discussions could disclose Coordinating Committee (IACC). the contact person listed on this notice at Type of Meeting: Strategic Planning least 5 days prior to the meeting. confidential trade secrets or commercial Workshop. As a part of security procedures, attendees property such as patentable material, Date: October 29–30, 2012. should be prepared to present a photo ID at and personal information concerning Time: 9:00 a.m. to 5:30 p.m. Eastern Time. the meeting registration desk during the individuals associated with the grant

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applications, the disclosure of which Name of Committee: Center for Scientific Place: National Institutes of Health, 6701 would constitute a clearly unwarranted Review Special Emphasis Panel; Member Rockledge Drive, Bethesda, MD 20892, invasion of personal privacy. Conflict: Biological Chemistry and (Telephone Conference Call). Macromolecular. Biophysics. Contact Person: Peter J Perrin, Ph.D., Name of Committee: National Institute on Date: November 13–14, 2012. Scientific Review Officer, Center for Alcohol Abuse and Alcoholism Special Time: 7:00 a.m. to 5:00 p.m. Scientific Review, National Institutes of Emphasis Panel. Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 2180, Name of Committee: applications. MSC 7818, Bethesda, MD 20892, (301) 435– Date: November 5, 2012. Place: National Institutes of Health, 6701 0682, [email protected]. Time: 2:30 p.m. to 5:30 p.m. Rockledge Drive, Bethesda, MD 20892, Name of Committee: Center for Scientific Agenda: To review and evaluate grant (Virtual Meeting). Review Special Emphasis Panel; Population applications. Contact Person: Kathryn M Koeller, Ph.D., Sciences and Epidemiology: Chronic Disease Place: National Institutes of Health, 5635 Scientific Review Officer, Center for Epidemiology and Genetics. Fishers Lane, Bethesda, MD 20892, Scientific Review, National Institutes of Date: November 15, 2012. (Telephone Conference Call). Health, 6701 Rockledge Drive, Room 4166, Time: 2:00 p.m. to 4:00 p.m. Contact Person: Richard A. Rippe, Ph.D., MSC 7806, Bethesda, MD 20892, 301–435– Agenda: To review and evaluate grant Scientific Review Officer, National Institute 2681, [email protected]. applications. on Alcohol Abuse and Alcoholism, 5635 Place: National Institutes of Health, 6701 Fishers Lane, Room 2109, Rockville, MD Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892, 20852, 301–443–8599, [email protected]. Review Special Emphasis Panel; (Telephone Conference Call). Fellowships: Cell Biology, Developmental (Catalogue of Federal Domestic Assistance Contact Person: George Vogler, Ph.D., Biology, and Bioengineering. Program Nos. 93.273, Alcohol Research Scientific Review Officer, PSE IRG, Center for Date: November 15, 2012. Programs, National Institutes of Health, HHS) Scientific Review, National Institutes of Time: 8:00 a.m. to 6:00 p.m. Health, 6701 Rockledge Drive, Room 3140, Dated: October 11, 2012. Agenda: To review and evaluate grant Bethesda, MD 20892, 301–435–0694, Carolyn A. Baum, applications. [email protected]. Program Analyst, Office of Federal Advisory Place: Doubletree Hotel Bethesda, Name of Committee: Center for Scientific Committee Policy. (Formerly Holiday Inn Select), 8120 Review Special Emphasis Panel; Wisconsin Avenue, Bethesda, MD 20814. [FR Doc. 2012–25584 Filed 10–17–12; 8:45 am] Fellowships: Oncology F32. Contact Person: Kenneth Ryan, Ph.D., Date: November 16, 2012. BILLING CODE 4140–01–P Scientific Review Officer, Center for Time: 8:00 a.m. to 5:00 p.m. Scientific Review, National Institutes of Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 3218, applications. DEPARTMENT OF HEALTH AND MSC 7717, Bethesda, MD 20892, 301–435– Place: Embassy Suites at the Chevy Chase HUMAN SERVICES 1789, [email protected]. Pavilion, 4300 Military Road, NW., Name of Committee: Center for Scientific Washington, DC 20015. National Institutes of Health Review Special Emphasis Panel; Small Contact Person: Michael L Bloom, Ph.D., Business: Cardiovascular Sciences. Scientific Review Officer, Center for Center for Scientific Review; Notice of Date: November 15, 2012. Scientific Review, National Institutes of Closed Meetings Time: 8:00 a.m. to 6:30 p.m. Health, 6701 Rockledge Drive, Room 6187, Agenda: To review and evaluate grant MSC 7804, Bethesda, MD 20892, 301–451– Pursuant to section 10(d) of the applications. 0132, [email protected]. Federal Advisory Committee Act, as Place: Doubletree Hotel Bethesda, Name of Committee: AIDS and Related amended (5 U.S.C. App.), notice is (Formerly Holiday Inn Select), 8120 Research Integrated Review Group; hereby given of the following meetings. Wisconsin Avenue, Bethesda, MD 20814. NeuroAIDS and other End-Organ Diseases The meetings will be closed to the Contact Person: Bradley Nuss, Ph.D., Study Section. public in accordance with the Scientific Review Officer, Center for Date: November 16, 2012. provisions set forth in sections Scientific Review, National Institutes of Time: 8:00 a.m. to 5:00 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Health, 6701 Rockledge Drive, Room 4142, Agenda: To review and evaluate grant applications. as amended. The grant applications and MSC7814, Bethesda, MD 20892, 301–451– 8754, [email protected]. Place: Marriott Wardman Park Washington the discussions could disclose DC Hotel, 2660 Woodley Road, NW., Name of Committee: Center for Scientific confidential trade secrets or commercial Washington, DC 20008. Review Special Emphasis Panel; Member property such as patentable material, Contact Person: Eduardo A Montalvo, Conflict: AIDS and AIDS Related Research. Ph.D., Scientific Review Officer, Center for and personal information concerning Date: November 15–16, 2012. individuals associated with the grant Scientific Review, National Institutes of Time: 10:00 a.m. to 5:00 p.m. Health, 6701 Rockledge Drive, Room 5108, applications, the disclosure of which Agenda: To review and evaluate grant would constitute a clearly unwarranted MSC 7852, Bethesda, MD 20892, (301) 435– applications. 1168, [email protected]. invasion of personal privacy. Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892, Name of Committee: Center for Scientific Review Special Emphasis Panel; PAR10–021: (Virtual Meeting). Review Special Emphasis Panel; Molecular AIDS-Science Track Award For Research Contact Person: Kenneth A Roebuck, Ph.D., Pharmacology. Transition (R03). Scientific Review Officer, Center for Date: November 8, 2012. Date: November 16, 2012. Time: 2:00 p.m. to 5:00 p.m. Scientific Review, National Institutes of Time: 3:00 p.m. to 5:30 p.m. Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 5106, Agenda: To review and evaluate grant applications. MSC 7852, Bethesda, MD 20892, (301) 435– applications. Place: National Institutes of Health, 6701 1166, [email protected]. Place: Marriott Wardman Park Washington Rockledge Drive, Bethesda, MD 20892, Name of Committee: Center for Scientific DC Hotel, 2660 Woodley Road, NW., (Telephone Conference Call). Review Special Emphasis Panel; PAR–12– Washington, DC 20008. Contact Person: Jonathan K Ivins, Ph.D., 140: Role of the Microflora in the Etiology of Contact Person: Eduardo A Montalvo, Scientific Review Officer, Center for Gastro-Intestinal Cancer. Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Date: November 15, 2012. Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4040A, Time: 1:00 p.m. to 4:00 p.m. Health, 6701 Rockledge Drive, Room 5108, MSC 7806, Bethesda, MD 20892, (301) 594– Agenda: To review and evaluate grant MSC 7852, Bethesda, MD 20892, (301) 435– 1245, [email protected]. applications. 1168, [email protected].

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(Catalogue of Federal Domestic Assistance Mental Health, NIH, Neuroscience Center, DEPARTMENT OF HEALTH AND Program Nos. 93.306, Comparative Medicine; 6001 Executive Blvd., Room 6151, MSC 9606, HUMAN SERVICES 93.333, Clinical Research, 93.306, 93.333, Bethesda, MD 20892–9606, 301–443–1606, 93.337, 93.393–93.396, 93.837–93.844, [email protected]. National Institutes of Health 93.846–93.878, 93.892, 93.893, National Name of Committee: National Institute of Institutes of Health, HHS) Mental Health Special Emphasis Panel; Center for Scientific Review; Amended Dated: October 12, 2012. Harnessing Advanced Health Technologies to Notice of Meeting Anna Snouffer, Drive Mental Health Improvement. Date: November 15, 2012. Notice is hereby given of a change in Deputy Director, Office of Federal Advisory the meeting of the Center for Scientific Committee Policy. Time: 8:00 a.m. to 5:00 p.m. Agenda: To review and evaluate grant Review Special Emphasis Panel, [FR Doc. 2012–25585 Filed 10–17–12; 8:45 am] applications. November 8, 2012, 8:00 a.m. to BILLING CODE 4140–01–P Place: St. Gregory Hotel, 2033 M Street November 8, 2012, 5:00 p.m., Hyatt NW., Washington, DC 20036. Regency Bethesda, One Bethesda Metro Contact Person: Aileen Schulte, Ph.D., Center, 7400 Wisconsin Avenue, DEPARTMENT OF HEALTH AND Scientific Review Officer, Division of Bethesda, MD, 20814 which was HUMAN SERVICES Extramural Activities, National Institute of published in the Federal Register on Mental Health, NIH, Neuroscience Center, National Institutes of Health 6001 Executive Blvd., Room 6140, MSC 9608, October 10, 2012, 77 FR 61614–61615. Bethesda, MD 20892–9608, 301–443–1225, The meeting location has been National Institute of Mental Health; [email protected]. changed to Double Tree by Hilton, 8120 Notice of Closed Meetings Name of Committee: National Institute of Wisconsin Avenue, Bethesda, MD 20814. The meeting date and time Pursuant to section 10(d) of the Mental Health Special Emphasis Panel; K99/ R00 Pathway to Independence Awards. remain the same. The meeting is closed Federal Advisory Committee Act, as Date: November 16, 2012. to the public. amended (5 U.S.C. App.), notice is Time: 1:00 p.m. to 5:00 p.m. Dated: October 11, 2012. hereby given of the following meetings. Agenda: To review and evaluate grant Carolyn A. Baum, The meetings will be closed to the applications. public in accordance with the Place: National Institutes of Health, Program Analyst, Office of Federal Advisory provisions set forth in sections Neuroscience Center, 6001 Executive Committee Policy. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Boulevard, Rockville, MD 20852, (Telephone [FR Doc. 2012–25586 Filed 10–17–12; 8:45 am] as amended. The grant applications and Conference Call). BILLING CODE 4140–01–P the discussions could disclose Contact Person: Megan Kinnane, Ph.D., confidential trade secrets or commercial Scientific Review Officer, Division of property such as patentable material, Extramural Activities, National Institute of Mental Health, NIH, Neuroscience Center, DEPARTMENT OF HOMELAND and personal information concerning SECURITY individuals associated with the grant 6001 Executive Blvd., Room 6148, MSC 9609, Rockville, MD 20852–9609, 301–402–6807, applications, the disclosure of which [email protected]. U.S. Citizenship and Immigration would constitute a clearly unwarranted Services Name of Committee: National Institute of invasion of personal privacy. Mental Health Special Emphasis Panel; P30 [OMB Control Number 1615–0070] Name of Committee: National Institute of Centers Program for Research on HIV/AIDS & Mental Health Special Emphasis Panel; NIH Mental Health. Agency Information Collection Summer Research Experience Programs. Date: November 19, 2012. Activities: Refugee/Asylee Adjusting Date: November 9, 2012. Time: 1:00 p.m. to 5:00 p.m. Status, Form Number I–643; Extension, Time: 11:00 a.m. to 4:00 p.m. Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. Without Change, of a Currently applications. Place: National Institutes of Health, Approved Collection Place: National Institutes of Health, Neuroscience Center, 6001 Executive Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852, (Telephone ACTION: 30-Day Notice. Boulevard, Rockville, MD 20852, (Telephone Conference Call). SUMMARY: The Department of Homeland Conference Call). Contact Person: David W. Miller, Ph.D., Contact Person: David M. Armstrong, Scientific Review Officer, Division of Security (DHS), U.S. Citizenship and Ph.D., Scientific Review Officer, Division of Extramural Activities, National Institute of Immigration Services (USCIS) will be Extramural Activities, National Institute of Mental Health, NIH, Neuroscience Center, submitting the following information Mental Health, NIH, Neuroscience Center/ 6001 Executive Blvd., Room 6140, MSC 9608, collection request to the Office of Room 6138/MSC 9608, 6001 Executive Bethesda, MD 20892–9608, 301–443–9734, Management and Budget (OMB) for Boulevard, Bethesda, MD 20892–9608, 301– [email protected]. review and clearance in accordance 443–3534, [email protected]. (Catalogue of Federal Domestic Assistance with the Paperwork Reduction Act of Name of Committee: National Institute of Program Nos. 93.242, Mental Health Research 1995. The information collection notice Mental Health Special Emphasis Panel; Grants; 93.281, Scientist Development National Cooperative Drug Discovery & was previously published in the Federal Award, Scientist Development Award for Development. Register on June 28, 2012, at 77 FR Clinicians, and Research Scientist Award; Date: November 14, 2012. 38650, allowing for a 60-day public 93.282, Mental Health National Research Time: 1:00 p.m. to 2:00 p.m. comment period. USCIS did not receive Agenda: To review and evaluate grant Service Awards for Research Training, any comment(s) in connection with the National Institutes of Health, HHS) applications. 60-day notice. Place: National Institutes of Health, Dated: October 11, 2012. DATES: The purpose of this notice is to Neuroscience Center, 6001 Executive Carolyn A. Baum, Boulevard, Rockville, MD 20852, (Telephone allow an additional 30 days for public Program Analyst, Office of Federal Advisory Conference Call). comments. Comments are encouraged Committee Policy. Contact Person: Vinod Charles, Ph.D., and will be accepted until November 19, Scientific Review Officer, Division of [FR Doc. 2012–25591 Filed 10–17–12; 8:45 am] 2012. This process is conducted in Extramural Activities, National Institute of BILLING CODE 4140–01–P accordance with 5 CFR 1320.10.

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ADDRESSES: Written comments and/or (4) Minimize the burden of the DEPARTMENT OF HOMELAND suggestions regarding the item(s) collection of information on those who SECURITY contained in this notice, especially are to respond, including through the regarding the estimated public burden use of appropriate automated, U.S. Citizenship and Immigration and associated response time, should be electronic, mechanical, or other Services directed to DHS, and to the OMB USCIS technological collection techniques or [OMB Control Number 1615–0111] Desk Officer. Comments may be other forms of information technology, submitted to: DHS, USCIS, Office of e.g., permitting electronic submission of Agency Information Collection Policy and Strategy, Chief, Regulatory responses. Activities: Petition for CNMI-Only Coordination Division, 20 Nonimmigrant Transition Worker, Form Massachusetts Avenue NW., Overview of This Information I–129CW; Extension, Without Change, Washington, DC 20529–2020. Collection of a Currently Approved Collection Comments may also be submitted to DHS via email at uscisfrcomment@uscis. (1) Type of Information Collection ACTION: 30-Day notice. dhs.gov, to the OMB USCIS Desk Officer Request: Extension, Without Change, of via facsimile at 202–395–5806 or via a Currently Approved Collection. SUMMARY: The Department of Homeland email at [email protected] (2) Title of the Form/Collection: Security (DHS), U.S. Citizenship and and via the Federal eRulemaking Portal Refugee/Asylee Adjusting Status. Immigration Services (USCIS) will be submitting the following information Web site at http://www.regulations.gov (3) Agency form number, if any, and under e-Docket ID number USCIS– collection request to the Office of the applicable component of the DHS 2006–0029. When submitting comments Management and Budget (OMB) for sponsoring the collection: I–643; USCIS. by email, please make sure to add 1615– review and clearance in accordance 0070 in the subject box. (4) Affected public who will be asked with the Paperwork Reduction Act of All submissions received must or required to respond, as well as a brief 1995. The information collection notice include the agency name, OMB Control abstract: Primary: Individuals or was previously published in the Federal Number and Docket ID. Regardless of households. Refugees and Asylees, Register on August 3, 2012, at 77 FR the method used for submitting Cuban/Haitian Entrants under section 46446, allowing for a 60-day public comments or material, all submissions 202 of Public Law 99–603, and comment period. USCIS did receive a will be posted, without change, to the Amerasians under Public Law 97–359, comment in connection with the 60-day Federal eRulemaking Portal at http:// must use this form when applying for notice. www.regulations.gov, and will include adjustment of status, with the U.S. DATES: The purpose of this notice is to any personal information you provide. Citizenship and Immigration Services allow an additional 30 days for public Therefore, submitting this information (USCIS). USCIS will provide the data comments. Comments are encouraged makes it public. You may wish to collected on this form to the Department and will be accepted until November 19, consider limiting the amount of of Health and Human Services (HHS). 2012. This process is conducted in personal information that you provide accordance with 5 CFR 1320.10. (5) An estimate of the total number of in any voluntary submission you make ADDRESSES: Written comments and/or respondents and the amount of time to DHS. For additional information suggestions regarding the item(s) estimated for an average respondent to please read the Privacy Act notice that contained in this notice, especially is available via the link in the footer of respond: 195,000 respondents averaging regarding the estimated public burden http://www.regulations.gov. .916 hours (55 minutes) per response. and associated response time, should be Note: The address listed in this notice (6) An estimate of the total public directed to DHS, and to the OMB USCIS should only be used to submit comments burden (in hours) associated with the Desk Officer. Comments may be concerning this information collection. collection: 178,620 Hours. submitted to: DHS, USCIS, Office of Please do not submit requests for individual Policy and Strategy, Chief, Regulatory case status inquiries to this address. If you If you need a copy of the information are seeking information about the status of collection instrument with Coordination Division, 20 your individual case, please check ‘‘My Case supplementary documents, or need Massachusetts Avenue NW., Status’’ online at: https://egov.uscis.gov/cris/ additional information, please visit Washington, DC 20529–2020. Comments may also be submitted to Dashboard.do, or call the USCIS National http://www.regulations.gov. We may Customer Service Center at 1–800–375–5283. DHS via email at also be contacted at: USCIS, Office of Written comments and suggestions [email protected], to the Policy and Strategy, Regulatory OMB USCIS Desk Officer via facsimile from the public and affected agencies Coordination Division, 20 should address one or more of the at 202–395–5806 or via email at Massachusetts Avenue NW., [email protected] and via following four points: Washington, DC 20529–2020; (1) Evaluate whether the proposed the Federal eRulemaking Portal Web site collection of information is necessary Telephone 202–272–8433. at http://www.regulations.gov under e- for the proper performance of the Dated: October 12, 2012. Docket ID number USCIS–2012–0011. functions of the agency, including Laura Dawkins, When submitting comments by email, please make sure to add 1615–0111 in whether the information will have Chief, Regulatory Coordination Division, practical utility; Office of Policy and Strategy, U.S. Citizenship the subject box. (2) Evaluate the accuracy of the and Immigration Services, Department of All submissions received must agency’s estimate of the burden of the Homeland Security. include the agency name, OMB Control proposed collection of information, [FR Doc. 2012–25608 Filed 10–17–12; 8:45 am] Number and Docket ID. Regardless of including the validity of the the method used for submitting BILLING CODE 9111–97–P methodology and assumptions used; comments or material, all submissions (3) Enhance the quality, utility, and will be posted, without change, to the clarity of the information to be Federal eRulemaking Portal at http:// collected; and www.regulations.gov, and will include

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any personal information you provide. respond: 6,000 form respondents at 3 I. Public Comment Procedures Therefore, submitting this information hours per response and 12,000 A. How do I request copies of makes it public. You may wish to respondents from whom USCIS collects applications or comment on submitted consider limiting the amount of biometrics at 1.17 hours per response. applications? personal information that you provide (6) An estimate of the total public in any voluntary submission you make burden (in hours) associated with the Send your request for copies of to DHS. For additional information collection: 38,160 total Annual Hours applications or comments and materials please read the Privacy Act notice that Burden. concerning any of the applications to is available via the link in the footer of If you need a copy of the information the contact listed under ADDRESSES. http://www.regulations.gov. collection instrument with Please include the Federal Register supplementary documents, or need notice publication date, the PRT- Note: The address listed in this notice number, and the name of the applicant should only be used to submit comments additional information, please visit concerning this information collection. http://www.regulations.gov. We may in your request or submission. We will Please do not submit requests for individual also be contacted at: USCIS, Office of not consider requests or comments sent case status inquiries to this address. If you Policy and Strategy, Regulatory to an email or address not listed under are seeking information about the status of Coordination Division, 20 ADDRESSES. If you provide an email your individual case, please check ‘‘My Case Massachusetts Avenue NW., address in your request for copies of Status’’ online at: https://egov.uscis.gov/cris/ Washington, DC 20529–2020; applications, we will attempt to respond Dashboard.do, or call the USCIS National Telephone 202–272–8377. to your request electronically. Customer Service Center at 1–800–375–5283. Please make your requests or Written comments and suggestions Dated: October 12, 2012. comments as specific as possible. Please from the public and affected agencies Laura Dawkins, confine your comments to issues for should address one or more of the Chief, Regulatory Coordination Division, which we seek comments in this notice, following four points: Office of Policy and Strategy, U.S. Citizenship and explain the basis for your (1) Evaluate whether the proposed and Immigration Services, Department of comments. Include sufficient Homeland Security. collection of information is necessary information with your comments to for the proper performance of the [FR Doc. 2012–25609 Filed 10–17–12; 8:45 am] allow us to authenticate any scientific or functions of the agency, including BILLING CODE 9111–97–P commercial data you include. whether the information will have The comments and recommendations practical utility; that will be most useful and likely to influence agency decisions are: (1) (2) Evaluate the accuracy of the DEPARTMENT OF THE INTERIOR agency’s estimate of the burden of the Those supported by quantitative proposed collection of information, Fish and Wildlife Service information or studies; and (2) Those including the validity of the that include citations to, and analyses methodology and assumptions used; [FWS–HQ–IA–2012–N244; of, the applicable laws and regulations. (3) Enhance the quality, utility, and FXIA16710900000P5–123–FF09A30000] We will not consider or include in our clarity of the information to be administrative record comments we collected; and Endangered Species; Receipt of receive after the close of the comment (4) Minimize the burden of the Applications for Permit period (see DATES) or comments collection of information on those who delivered to an address other than those are to respond, including through the AGENCY: Fish and Wildlife Service, listed above (see ADDRESSES). use of appropriate automated, Interior. B. May I review comments submitted by electronic, mechanical, or other ACTION: Notice of receipt of applications others? technological collection techniques or for permit. other forms of information technology, Comments, including names and e.g., permitting electronic submission of SUMMARY: We, the U.S. Fish and street addresses of respondents, will be responses. Wildlife Service, invite the public to available for public review at the street comment on the following applications address listed under ADDRESSES. The Overview of This Information to conduct certain activities with public may review documents and other Collection endangered species. With some information applicants have sent in (1) Type of Information Collection exceptions, the Endangered Species Act support of the application unless our Request: Extension, without change, of (ESA) prohibits activities with listed allowing viewing would violate the a currently approved collection; species unless Federal authorization is Privacy Act or Freedom of Information (2) Title of the Form/Collection: acquired that allows such activities. Act. Before including your address, Petition for CNMI-Only Nonimmigrant DATES: We must receive comments or phone number, email address, or other Transition Worker. requests for documents on or before personal identifying information in your (3) Agency form number, if any, and November 19, 2012. comment, you should be aware that the applicable component of the DHS ADDRESSES: Brenda Tapia, Division of your entire comment—including your sponsoring the collection: Form I– Management Authority, U.S. Fish and personal identifying information—may 129CW; USCIS. Wildlife Service, 4401 North Fairfax be made publicly available at any time. (4) Affected public who will be asked Drive, Room 212, Arlington, VA 22203; While you can ask us in your comment or required to respond, as well as a brief fax (703) 358–2280; or email to withhold your personal identifying abstract: Primary: Primary: Business or [email protected]. information from public review, we other for-profit; Not-for-profit cannot guarantee that we will be able to institutions; Commonwealth or Local FOR FURTHER INFORMATION CONTACT: do so. Government. Brenda Tapia, (703) 358–2104 (5) An estimate of the total number of (telephone); (703) 358–2280 (fax); II. Background respondents and the amount of time [email protected] (email). To help us carry out our conservation estimated for an average respondent to SUPPLEMENTARY INFORMATION: responsibilities for affected species, and

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in consideration of section 10(a)(1)(A) of Applicant: Wildlife Conservation We are now amending the publication the Endangered Species Act of 1973, as Society, Bronx, NY; PRT–86344A and reopening the comment period to amended (16 U.S.C. 1531 et seq.), along The applicant requests a permit to allow the public the opportunity to with Executive Order 13576, import five horned guan (Oreophasis comment on a request for a permit to ‘‘Delivering an Efficient, Effective, and derbianus) from Mexico for the purpose export the sport-hunted trophies of one Accountable Government,’’ and the of enhancement of the survival of the addax (Addax nasomaculatus) and one President’s Memorandum for the Heads species. Scimitar horned oryx (oryx dammah) of Executive Departments and Agencies culled from a captive herd maintained Applicant: Feld Entertainment, Inc., in the state of Texas, for the purpose of of January 21, 2009—Transparency and Vienna, VA; PRT–79461A Open Government (74 FR 4685; January enhancement of the survival of the 26, 2009), which call on all Federal The applicant requests a permit to species. agencies to promote openness and import two live captive-born tigers Applicant: Indianhead Ranch, Inc. Del (Panthera tigris) for the purpose of transparency in Government by Rio, TX; PRT–79115A enhancement of the survival of the disclosing information to the public, we species from Alexander Lacey of the The applicant requests a permit to invite public comment on these permit Netherlands. export the sport-hunted trophy of one applications before final action is taken. addax (Addax nasomaculatus), culled Applicant: Illinois State Museum III. Permit Applications from a captive herd maintained in the Research and Collections Center, state of Texas, for the purpose of A. Endangered Species Springfield, IL; PRT–84293A enhancement of the survival of the The applicant requests a permit to re- species. Applicant: Mesa Garden, Belen, NM; export wild biological samples of Hine’s PRT–678845 emerald dragonfly (Somatochlora Applicant: Indianhead Ranch, Inc. Del Rio, TX; PRT–79116A The applicant requests renewal of a hineana) to Canada for the purpose of permit to export the following enhancement of the survival of the The applicant requests a permit to export the sport-hunted trophies of one endangered and threatened cactus species. Scimitar horned oryx (oryx dammah) species for the purpose of enhancement Applicant: Carson Springs Wildlife and one Dama gazelle (Nanger Dama), of the species in the wild: Tobusch Conservation Foundation, Gainesville, culled from a captive herd maintained fishhook (Sclerocatus brevihamatus FL; PRT–86835A in the state of Texas, for the purpose of tobuschii), star cactus, (Astrophytum The applicant requests a permit to enhancement of the survival of the asterias), Nellie’s cory cactus (Escobaria import four South African cheetahs, species. minima), bunched Cory cactus (Acinonyx jubatus jubatus) from South (Coryphantha ramillosa), Cochise Africa for the purpose of conservation Applicant: 777 Ranch, Hondo, TX; PRT– pincushion cactus (Coryphantha education and enhancement of the 85070A robbinsorum), Sneed pincushion cactus survival of the species. This notification The applicant requests a permit to (Escobaria sneedii v. sneedii), Lee covers activities to be conducted by the export the sport-hunted trophy/trophies pincushion cactus, (Escobaria sneedii v. applicant over a 5-year period. of one addax (Addax nasomaculatus), culled from a captive herd maintained leei), Chisos Mountain hedgehog cactus Applicant: Ferdinand Fercos Hantig and in the state of Texas, for the purpose of (Echinocereus chisoensis v. chisoensis), Anton Fercos Hantig, Las Vegas, NV; enhancement of the survival of the Kuenzler hedgehog cactus PRT–073403, 114454, and 206853 (Echinocereus fendleri v. kuenzleri), species. black lace cactus (Echinocereus On April 06, 2012, we published a Federal Register notice inviting the Applicant: Dinges Taxidermy Studio, reichenbachii v. albertii), Arizona public to comment on two applications Omaha, NE; PRT–86638A hedgehog cactus (Echinocereus for permits to conduct certain activities The applicant requests a permit to triglochidiatus v. arizonicus), Davis’ with endangered species (77 FR 20838). export the sport-hunted trophy/trophies green Pitaya (Echinocereus viridiflorus We are now reopening the comment of one scimitar-horned oryx (Oryx v. davisii), Lloyd’s Mariposa cactus period to allow the public the dammah) and two Addax (Addax (Sclerocactus mariposensis) Brady’s opportunity to review additional nasomaculatus) culled from a captive pincushion cactus (Pediocactus bradyi), information submitted for the re- herd maintained in the state of Texas, San Rafael cactus (Pediocactus issuance of their permits to re-export for the purpose of enhancement of the despainii), Knowlton’s cactus and re-import three captive born tigers survival of the species. (Pediocactus knowltonii), Peebles (Panthera tigris) to worldwide locations Navajo cactus (Pediocactus for the purpose of enhancement of the Applicant: Dinges Taxidermy Studio, peeblesianus v. peeblesian), Siler species. The permit numbers and Omaha, NE; PRT–86640A pincushion cactus (Pediocactus sileri), animals are 073403, Sherni; 114454, The applicant requests a permit to Uinta Basin hookless cactus Dora; and 206853, Allaya. This export the sport-hunted trophy/trophies (Sclerocactus glaucus), Mesa Verde notification covers activities to be of one scimitar-horned oryx (Oryx cactus (Sclerocactus mesae-verdae), conducted by the applicant over a 3- dammah) and one addax (Addax Wright fishhook cactus (Sclerocactus year period. nasomaculatus) culled from a captive wrightiae), Pima pineapple cactus herd maintained in the state of Texas, Applicant: Indianhead Ranch, Inc.; Del for the purpose of enhancement of the (Coryphantha scheeri v. robustispina), Rio, TX; PRT–67596A and Nichols Turk’s head cactus survival of the species. On August 3, 2012, we published a (Echinocactus horizonthalonius v. Federal Register notice inviting the Multiple Applicants nicholii). This notification covers public to comment on an application for The following applicants each request activities to be conducted by the a permit to conduct certain activities a permit to import the sport-hunted applicant over a 5-year period. with endangered species (77 FR 46514). trophy of one male bontebok

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(Damaliscus pygargus pygargus) culled ADDRESSES: Comments may be quality, utility and clarity of the from a captive herd maintained under submitted by mail, fax, or electronic information collection; and (4) Ways to the management program of the mail. minimize the information collection Republic of South Africa, for the Mail: U.S. Department of the Interior, burden on respondents, such as use of purpose of enhancement of the survival Bureau of Land Management, 1849 C automated means of collection of the of the species. Street NW., Room 2134LM, Attention: information. A summary of the public comments will accompany our Applicant: Richard Creelman, Jean Sonneman, Washington, DC 20240. Moultonboro, NH; PRT–81013A Fax: to Jean Sonneman at 202–245– submission of the information collection 0050. requests to OMB. Applicant: David Cote, Morristown, NJ; _ Electronic mail: Jean Sonneman@ Before including your address, phone PRT–87103A blm.gov. number, email address, or other Applicant: David Smith, Humble, TX; Please indicate ‘‘Attn: 1004–0058’’ personal identifying information in your PRT–86852A regardless of the form of your comment, you should be aware that comments. your entire comment—including your Brenda Tapia, FOR FURTHER INFORMATION CONTACT: personal identifying information—may Program Analyst/Data Administrator, Branch Mike Bechdolt, at 202–912–7234. be made publicly available at any time. of Permits, Division of Management Persons who use a telecommunication While you can ask us in your comment Authority. device for the deaf (TDD) may call the to withhold your personal identifying [FR Doc. 2012–25610 Filed 10–17–12; 8:45 am] Federal Information Relay Service information from public review, we BILLING CODE 4310–55–P (FIRS) at 1–800–877–8339, to leave a cannot guarantee that we will be able to message for Mr. Bechdolt. do so. DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION: OMB The following information is provided regulations at 5 CFR 1320, which for the information collection: Bureau of Land Management implement provisions of the Paperwork Title: Timber Export Reporting and Reduction Act, 44 U.S.C. 3501–3521, [LL WO220000 L63100000.PH0000 13X] Substitution Determination (43 CFR part require that interested members of the 5420). public and affected agencies be given an Renewal of Approved Information OMB Control Number: 1004–0058. Collection opportunity to comment on information collection and recordkeeping activities Abstract: This collection of AGENCY: Bureau of Land Management, (see 5 CFR 1320.8(d) and 1320.12(a)). information collection pertains to Interior. This notice identifies an information compliance of Federal timber purchases ACTION: 60-Day notice and request for collection that the BLM plans to submit with timber export restrictions. comments. to OMB for approval. The Paperwork Forms: Reduction Act provides that an agency • Form 5450–17, Export SUMMARY: In compliance with the may not conduct or sponsor a collection Paperwork Reduction Act, the Bureau of Determination; and of information unless it displays a • Land Management (BLM) invites public currently valid OMB control number. Form 5460–17, Substitution comments on, and plans to request Until OMB approves a collection of Determination. approval to continue, the collection of information, you are not obligated to Frequency of Collection: On occasion. information that enables the BLM to respond. Description of Respondents: monitor compliance with timber export The BLM will request a 3-year term of Purchasers of Federal timber. restrictions. The Office of Management approval for this information collection Estimated Annual Responses: 2. and Budget (OMB) has assigned control activity. Comments are invited on: (1) number 1004–0058 to this information The need for the collection of Estimated Annual Burden Hours: 2. collection. information for the performance of the The following table details the DATES: Please submit comments on the functions of the agency; (2) The individual components and respective proposed information collection by accuracy of the agency’s burden hour burdens of this information December 17, 2012. estimates; (3) Ways to enhance the collection request:

Total hours Type of response Number of Hours per (Column B × responses response Column C)

A B C D

Form 5450–17 Export Determination ...... 1 1 1 Form 5460–17 Substitution Determination ...... 1 1 1

Totals ...... 2 ...... 2

Jean Sonneman, Information Collection Clearance Officer, Bureau of Land Management. [FR Doc. 2012–25627 Filed 10–17–12; 8:45 am] BILLING CODE 4310–84–P

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DEPARTMENT OF THE INTERIOR to the Cascade RMP (1988), Bruneau under FLPMA Section 203. The quoted MFP (1983), and Kuna MFP (1983) language from each of the plans would Bureau of Land Management proposed amendments and associated be clarified in these amendments so that EA by any of the following methods: public lands currently designated as [LLIDB00100 LF1000000.HT0000 • LXSS020D0000 4500031158] Web site: http://www.blm.gov/id/st/ ‘‘potentially eligible’’ for disposal are en/info/nepa.html. designated as either eligible through Notice of Intent To Amend the Cascade • Email: [email protected]. sale or not. The proposed amendments • Resource Management Plan (RMP) and Fax: (208) 384–3326. would not change the BLM’s ability to • the Kuna and Bruneau Management Mail: BLM Boise District Office, dispose of those lands through Framework Plans (MFP) for the Attn: Kelley Moore, 3948 Development exchange, R&PP Act leases or other Bruneau, Four Rivers Field Offices in Ave., Boise, ID 83705. means of conveyance, or to retain them; Idaho and the Associated Documents pertinent to this proposal and Environmental Assessment may be examined at the BLM’s Boise District Office at 3894 Development (2) Analyze the reclassification to AGENCY: Bureau of Land Management, Ave, Boise, ID 38705. ‘‘available for disposal,’’ approximately Interior. FOR FURTHER INFORMATION CONTACT: and/ 1,600 acres presently classified for ACTION: Notice of Intent. or to have your name added to our ‘‘retention’’ in the Kuna MFP. Preliminary planning criteria are SUMMARY: In compliance with the mailing list, contact Kelley Moore, FLPMA’s Section 203 sale criteria for National Environmental Policy Act of Realty Specialist, telephone: 208–384– the clairification parcels and BLM’s 1969 as amended (NEPA), and the 3339; address: 3894 Development Ave, Federal Land Policy and Management Boise, ID 38705; email: planning handbook (H–1601–1) for the Act of 1976 as amended, the Bureau of [email protected]. Persons who use a reclassification parcels. The Land Management (BLM) Boise District telecommunications device for the deaf clairification and reclassification would Office, Boise, Idaho, intends to prepare (TDD) may call the Federal Information not have any on-the-ground impacts so Resource Management Plan (RMP) and Relay Service (FIRS) at 1–800–877–8339 no other preliminary planning criteria Management Framework Plan (MFP) to contact the above individual during are being considered. amendments with an associated normal business hours (8:00 a.m. to 4:30 Disposal of BLM parcels considered p.m.). The FIRS is available 24 hours a Environmental Assessment (EA) for the suitable for conveyance by sale or other day, 7 days a week, to leave a message Bruneau and Four Rivers Field Offices accepted methods may lead to economic or question with the above individual. and by this notice announcing the benefits to the local community, while You will receive a reply during normal beginning of the scoping process to blocking up Federal and State solicit public comments and identify business hours. management units in the area. Pursuant issues.. The amendments would clarify SUPPLEMENTARY INFORMATION: This to Section 1505 of the Omnibus Public the subset of lands, designated as document provides notice that the BLM, Land Management Act of 2009, Public eligible or potentially eligible for Boise District Office, Boise, Idaho, Law 111–11, the proceeds from the sale disposal, that meet FLPMA’s Section intends to prepare RMP and MFP of eligible parcels could allow BLM to 203 sale criteria. The BLM Boise District amendments with an associated EA to Office will also analyze approximately analyze proposed amendments to the acquire lands that are of higher social, 1,600 acres of public land, currently 1983 Bruneau MFP, the 1983 Kuna cultural or environmental value, and/or identified as Category I (retention), for MFP, and the 1988 Cascade RMP, could be more efficiently and reclassification as suitable for sale under announces the beginning of the scoping economically managed. Any FLPMA Section 203, exchange or process, and seeks public input on determination of the suitability of Recreation and Public Purpose patent. issues and planning criteria. The identified BLM parcels for disposal, This reclassification could result in a planning areas are located in Ada, however, would not remove the BLM’s net benefit to BLM programs and aid in Adams, Boise, Canyon, Elmore, Gem, obligation to carry out a detailed blocking up State and Federal Valley, and Washington counties in environmental analysis prior to any management units. The BLM will apply Idaho and encompasses approximately proposed sale, exchange, issuance of an Section 203 criteria to determine 780,000 acres of public land. The R&PP Act lease, or conveyance through whether the parcels will be considered purpose of the public scoping process is any other means. Nor would it change eligible for disposal through sale or to determine relevant issues that will BLM’s authority to retain those lands through exchange or Recreation and influence the scope of the under Federal management. Public Purposes (R&PP) Act conveyance environmental analysis, including The public is invited to provide or leases. alternatives, and guide the planning scoping comments on the above DATES: This notice initiates the public process. scoping process for the RMP and MFP Preliminary issues for the plan mentioned issues, as well as other amendments with associated EA. amendment areas have been identified issues that should be addressed in the Comments on issues may be submitted by BLM personnel; Federal, State, and preparation of the plan amendments. in writing until November 19, 2012. In local agencies; and other stakeholders. You may submit comments on issues order to be included in the analysis, all The issues include: and planning criteria in writing to the comments must be received prior to the (1) Identify lands currently designated BLM at any public scoping meeting, or close of the 30-day scoping period or 30 as eligible or potentially eligible for you may submit them to the BLM using days after the last public meeting, disposal, that also meet FLPMA Section one of the methods listed in the whichever is later. We will provide 203 sale criteria (43 U.S.C. 1713(a)). The ADDRESSES section above. To be most additional opportunities for public land disposal classifications within each helpful, you should submit comments participation as appropriate. of the above land use plans fail to by the close of the 30-day scoping ADDRESSES: You may submit comments identify parcels of public land that have period or within 30 days after the last on issues and planning criteria related been evaluated for disposal by sale public meeting, whichever is later.

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The BLM will use the NEPA public involved in the planning process: lands The plat, in seven sheets, representing the participation requirements to assist the and realty, rangeland management, dependent resurvey of portions of the south agency in satisfying the public minerals and geology, forestry, outdoor and east boundaries, the subdivisional lines, involvement requirements under recreation, archaeology, paleontology, the adjusted original meanders of the former Section 106 of the National Historic left and right banks of the Flathead River, wildlife and fisheries, hydrology, and downstream, through sections 5 and 8, the Preservation Act (NHPA) (16 U.S.C. soils. meanders of North and South Pablo and 470(f)) pursuant to 36 CFR 800.2(d)(3). Authorities: 43 U.S.C. 1713(a); 43 CFR Polson Reservoirs (fixed and limiting The information about historic and 1610.5–5 & 43 CFR 2710. boundaries) and the subdivision of certain cultural resources within the area sections, and the survey of a portion of the potentially affected by the proposed Allen Sieglitz, southerly right-of-way of U.S. Highway 93 in action will assist the BLM in identifying District Manager. section 4, certain parcels in sections 4 and 17 and evaluating impacts to such [FR Doc. 2012–25593 Filed 10–17–12; 8:45 am] and a metes and bounds description, Tract A, resources in the context of both NEPA BILLING CODE 4310–GG–P in section 29, Township 22 North, Range 20 and Section 106 of the NHPA. West, Principal Meridian, Montana was The BLM will consult with Indian accepted September 28, 2012. tribes on a government-to-government DEPARTMENT OF THE INTERIOR We will place a copy of the plat, in basis in accordance with Executive seven sheets, and related field notes we Order 13175 and other policies. Tribal Bureau of Land Management described in the open files. They will be concerns, including impacts on Indian [LLMT926000–L14200000–BJ0000] available to the public as a matter of trust assets and potential impacts to information. If the BLM receives a cultural resources, will be given due Notice of Filing of Plats of Survey; protest against this survey, as shown on consideration. Federal, State, and local Montana this plat, in seven sheets, prior to the agencies, along with tribes and other date of the official filing, we will stay AGENCY: Bureau of Land Management, stakeholders that may be interested in or the filing pending our consideration of Interior. affected by the proposed action that the the protest. We will not officially file ACTION: BLM is evaluating, are invited to Notice of filing of plats of this plat, in seven sheets, until the day participate in the scoping process and, survey. after we have accepted or dismissed all if eligible, may request or be requested SUMMARY: The Bureau of Land protests and they have become final, by the BLM to participate in the Management (BLM) will file the plat of including decisions or appeals. development of the environmental survey of the lands described below in Authority: 43 U.S.C. chapter 3. analysis as a cooperating agency. Before the BLM Montana State Office, Billings, including your address, phone number, Montana, on November 19, 2012. James D. Claflin, email address, or other personal Chief Cadastral Surveyor, Division of DATES: Protests of the survey must be identifying information in your Resources. filed before November 19, 2012 to be comment, you should be aware that considered. [FR Doc. 2012–25705 Filed 10–17–12; 8:45 am] your entire comment—including your BILLING CODE P personal identifying information—may ADDRESSES: Protests of the survey be made publicly available at any time. should be sent to the Branch of While you can ask us in your comment Cadastral Survey, Bureau of Land DEPARTMENT OF THE INTERIOR to withhold your personal identifying Management, 5001 Southgate Drive, information from public review, we Billings, Montana 59101–4669. Bureau of Land Management cannot guarantee that we will be able to FOR FURTHER INFORMATION CONTACT: [LLWY920000.L14300000.ET0000; WYW do so. The BLM will evaluate identified Marvin Montoya, Cadastral Surveyor, 111611] issues to be addressed in the plan, and Branch of Cadastral Survey, Bureau of will place them into one of three Land Management, 5001 Southgate Notice of Proposed Withdrawal categories: Drive, Billings, Montana 59101–4669, Extension and Notification of a Public 1. Issues to be resolved in the plan telephone (406) 896–5124 or (406) 896– Meeting for the East Fork Elk Winter amendment; 5009, [email protected]. Range; WY 2. Issues to be resolved through policy Persons who use a telecommunications or administrative action; or device for the deaf (TDD) may call the AGENCY: Bureau of Land Management, 3. Issues beyond the scope of this plan Federal Information Relay Service Interior. amendment. (FIRS) at 1–800–877–8339 to contact the ACTION: Notice. The BLM will provide an explanation above individual during normal in the EA as to why an issue was placed business hours. The FIRS is available 24 SUMMARY: The Assistant Secretary of the in category two or three. The public is hours a day, 7 days a week, to leave a Interior for Policy, Management and also encouraged to help identify any message or question with the above Budget proposes to extend the duration management questions and concerns individual. You will receive a reply of Public Land Order (PLO) No. 6960, as that should be addressed in the plan. during normal business hours. corrected by PLO No. 6980, for an The BLM will work collaboratively with additional 20-year term. PLO No. 6960 SUPPLEMENTARY INFORMATION: This withdrew 10,535.30 acres of public interested parties to identify the survey was executed at the request of mineral estate from location or entry management decisions that are best the Regional Realty Officer, Northwest under the United States mining laws, to suited to local, regional, and national Region, Bureau of Indian Affairs, protect the East Fork Elk Winter Range needs and concerns. Portland, Oregon, and was necessary to The BLM will use an interdisciplinary and elk natural feeding grounds in determine individual and tribal trust approach to develop the plan Fremont County. This notice gives an lands. amendments in order to consider the The lands we surveyed are: opportunity for the public to comment variety of resource issues and concerns on the proposed withdrawal extension identified. Specialists with expertise in Principal Meridian, Montana and announces the date, time, and the following disciplines will be T. 22 N., R. 20 W. location of a public meeting.

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DATES: We must receive comments on or withdrawal extension may present their Bureau of Land Management (BLM) before January 16, 2013. We will hold a views in writing to the BLM Wyoming requesting the Assistant Secretary of the public meeting on December 3, 2012. State Director at the address noted Interior for Policy, Management and ADDRESSES: Send your comments to the above. Comments, including names and Budget to withdraw 32.56 acres of State Director, Bureau of Land street addresses of respondents, will be public land from settlement, sale, Management, Wyoming State Office, available for public review at the BLM location, and entry under the general 5353 Yellowstone Road, Cheyenne, Lander Field Office, 1335 Main Street, land laws, including the United States Wyoming 82009. Lander, Wyoming, during regular mining laws, for protection of FOR FURTHER INFORMATION CONTACT: business hours 8:00 a.m. to 4:30 p.m., recreational facilities constructed in Janelle Wrigley, Bureau of Land Monday through Friday, except Federal connection with the Buffalo Bill Dam Management, Wyoming State Office, holidays. and Reservoir Modification Project near 307–775–6257, or at the above address. Before including your address, phone Cody, Wyoming. This notice gives the Persons who use a telecommunications number, email address, or other public an opportunity to comment on device for the deaf (TDD) may call the personal identifying information in your the application and to request a public Federal Information Relay Service comment, you should be aware that meeting. (FIRS) at 1–800–877–8339 to reach the your entire comment—including your DATES: Comments must be received on Bureau of Land Management (BLM) personal identifying information—may or before January 16, 2013. contact during normal business hours. be made publicly available at any time. ADDRESSES: Comments and meeting The FIRS is available 24 hours a day, 7 While you may ask us in your comment requests should be sent to the BLM days a week, to leave a message or to withhold your personal identifying Wyoming State Director, 5353 question with the above individual. You information from public review, we Yellowstone Road, Cheyenne, Wyoming will receive a reply during normal cannot guarantee that we will be able to 82009. do so. business hours. FOR FURTHER INFORMATION CONTACT: We will hold a public meeting in SUPPLEMENTARY INFORMATION: The connection with the proposed Diane Schurman, BLM Wyoming State withdrawal created by PLO No. 6960 (58 withdrawal extension on December 3, Office, telephone: 307–775–6189; email: FR 16628 (1993)), as corrected by PLO 2012, at the Dubois Town Hall, 712 [email protected] or at the above No. 6980 (58 FR 33025 (1993)), will Meckem, Dubois, Wyoming from 4:30 address. Persons who use a expire on March 29, 2013, unless p.m. until 7:30 p.m. We will publish a telecommunications device for the deaf extended. PLO No. 6960 is incorporated notice of the time and place in at least (TDD) may call the Federal Information herein by reference. The BLM has filed one local newspaper no less than 30 Relay Service (FIRS) at 1–800–877–8339 a petition/application to extend PLO days before the scheduled meeting date. to contact the above individual. The No. 6960 for an additional 20-year term. Interested parties may make oral FIRS is available 24 hours a day, 7 days The PLO withdrew 10,535.30 acres of statements and may file written a week, to leave a message or question public mineral estate from location or statements at the meeting. We will with the above individual. You will entry under the United States mining consider all statements received before receive a reply during normal business laws, to protect the East Fork Elk Winter we submit any recommendation hours. Range and elk natural feeding grounds. concerning the proposed extension to SUPPLEMENTARY INFORMATION: The The proposed withdrawal extension the Assistant Secretary for final action. Assistant Secretary for Policy, would continue to protect the elk and We will process this withdrawal Management and Budget proposes to bighorn sheep winter range, feeding extension proposal in accordance with withdraw, subject to valid existing grounds, and capital investments for an the regulations set forth in 43 CFR rights, the following described public additional 20-year term. 2310.1–2. land from settlement, sale, location, and The use of a right-of-way, interagency, entry under the general land laws, or cooperative agreement would not Authority: 43 CFR 2310.3–1. including the United States mining adequately constrain nondiscretionary Larry Claypool, laws, but not from leasing under the uses which could result in permanent Acting Wyoming State Director. mineral leasing laws, for a period of 20 loss of significant values and years to protect the capital investments irreplaceable resources of the range. [FR Doc. 2012–25594 Filed 10–17–12; 8:45 am] BILLING CODE 4310–22–P of a developed recreation site in the There are no suitable alternative sites Buffalo Bill Dam and Reservoir since the lands contain an area that elk Modification Project area: and bighorn sheep have historically DEPARTMENT OF THE INTERIOR used as winter range, because of the Sixth Principal Meridian physical characteristics of the lands and Bureau of Land Management T. 52 N., R. 104 W., the local weather conditions. Sec. 14, lots 10, 11, 26, and 27; The purpose of the requested [LLWY920000 L14300000.ET0000; WYW Sec. 15, lots 21, 22, and 23. withdrawal extension does not require 179968] The area described contains 32.56 acres in Park County. water rights. Notice of Proposed Withdrawal of You may examine records relating to The Assistant Secretary for Policy, Public Land for the Buffalo Bill Dam the application by contacting Janelle Management and Budget approved the and Reservoir Modification Project Wrigley at the above address or by BR’s petition/application; therefore, it Recreation Site and Opportunity for a telephone: 307–775–6257, or the BLM constitutes a withdrawal proposal. Public Meeting; WY Lander Field Office, Field Manager, The purpose of the proposed 1335 Main Street, Lander, Wyoming AGENCY: Bureau of Land Management, withdrawal is to protect the capital 82520 or by telephone: 307–332–8400. Interior. investments expended for the For a period until January 16, 2013, ACTION: Notice. recreational facilities to be administered all persons who wish to submit pursuant to a joint-venture agreement by comments, suggestions, or objections in SUMMARY: The Bureau of Reclamation the Wyoming Recreation Commission connection with the proposed (BR) has filed an application with the for the BR. This recreational site is part

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of a Master Plan for the Buffalo Bill discretionary land use authorizations of FOR FURTHER INFORMATION CONTACT: State Park and the Buffalo Bill Dam and a temporary nature which would not Amy Sherman (202–205–3289), Office Reservoir Modification Project. impact the site may be allowed with the of Investigations, U.S. International The use of a right-of-way, interagency approval of an authorized officer of the Trade Commission, 500 E Street SW., or cooperative agreement, or surface BLM during the application processing Washington, DC 20436. Hearing- management under the 43 CFR 3809 period. impaired persons can obtain regulations would not adequately Notice is hereby given that an information on this matter by contacting constrain nondiscretionary uses which opportunity for a public meeting is the Commission’s TDD terminal on 202– could result in permanent loss of afforded in connection with the 205–1810. Persons with mobility significant values of the recreation site. proposed withdrawal. All interested impairments who will need special There are no suitable alternative sites persons who desire a public meeting for assistance in gaining access to the since the lands described here contain the purpose of being heard on the Commission should contact the Office the resource values that need protection. proposed withdrawal must submit a of the Secretary at 202–205–2000. No water rights would be needed to written request to the BLM Wyoming General information concerning the fulfill the purpose of the requested State Director no later than January 16, Commission may also be obtained by withdrawal. 2013. If the authorized officer accessing its Internet server (http:// Records relating to the application determines that a public meeting will be www.usitc.gov). The public record for may be examined by contacting either held, a notice of the time and place will these reviews may be viewed on the Diane Schurman at the above address or be published in the Federal Register Commission’s electronic docket (EDIS) by calling 307–775–6189 or Lyle Myler, and a local newspaper at least 30 days at http://edis.usitc.gov. Bureau of Reclamation, Wyoming Area before the scheduled date of the Office, Mills, Wyoming, or by calling meeting. SUPPLEMENTARY INFORMATION: On 307–261–5676. This application will be processed in October 5, 2012, the Commission For a period until January 16, 2013, accordance with the regulations set determined that it should proceed to all persons who wish to submit forth in 43 CFR 2310.1–2. full reviews in the subject five-year comments, suggestions, or objections in reviews pursuant to section 751(c)(5) of connection with the proposed Donald A. Simpson, the Act. The Commission found that withdrawal application may present State Director. both the domestic interested party group their views in writing to the BLM [FR Doc. 2012–25592 Filed 10–17–12; 8:45 am] response to its notice of institution (77 Wyoming State Director at the address BILLING CODE 4310–MN–P FR 39254, July 2, 2012) was adequate or email address noted above. and that the respondent interested party Comments including names and street group responses with respect to Latvia addresses of respondents will be INTERNATIONAL TRADE and Moldova were adequate, and available for public review at the BLM COMMISSION decided to conduct full reviews of the Wyoming State office, during regular antidumping duty orders on steel business hours 8:00 a.m. to 4:30 p.m., [Investigation Nos. 731–TA–873–875, 878– 880, and 882 (Second Review)] concrete reinforcing bar from Latvia and Monday through Friday, except Moldova. The Commission found that holidays. Before including your address, Steel Concrete Reinforcing Bar From the respondent interested party group phone number, email address, or other Belarus, China, Indonesia, Latvia, response with respect to Belarus, China, personal identifying information in your Moldova, Poland, and Ukraine; Notice Indonesia, Poland, and Ukraine was comment, you should be aware that of Commission Determinations to inadequate. However, the Commission your entire comment—including your Conduct Full Five-Year Reviews determined to conduct full reviews personal identifying information—may concerning the orders on steel concrete be made publicly available at any time. AGENCY: United States International reinforcing bar from Belarus, China, While you may ask us in your comment Trade Commission. Indonesia, Poland, and Ukraine to to withhold your personal identifying ACTION: Notice promote administrative efficiency in information from public review, we light of its decision to conduct full SUMMARY: The Commission hereby gives cannot guarantee that we will be able to reviews with respect to the orders on notice that it will proceed with full do so. Individual respondents may subject imports from Latvia and reviews pursuant to section 751(c)(5) of request confidentiality. If you wish to Moldova. A record of the the Tariff Act of 1930 (19 U.S.C. withhold your name or address from Commissioners’ votes, the 1675(c)(5)) to determine whether public review or from disclosure under Commission’s statement on adequacy, revocation of the antidumping duty the Freedom of Information Act, you and any individual Commissioner’s orders on steel concrete reinforcing bar must state this prominently at the statements will be available from the from Belarus, China, Indonesia, Latvia, beginning of your comments. Such Office of the Secretary and at the Moldova, Poland, and Ukraine would be requests will be honored to the extent Commission’s Web site. allowed by law. All submissions from likely to lead to continuation or organizations or businesses, and from recurrence of material injury within a Authority: These reviews are being individuals identifying themselves as reasonably foreseeable time. A schedule conducted under authority of title VII of the representatives or officials of for the reviews will be established and Tariff Act of 1930; this notice is published organizations or businesses, will be announced at a later date. For further pursuant to section 207.62 of the made available for public inspection in information concerning the conduct of Commission’s rules. their entirety. these reviews and rules of general Issued: October 15, 2012. application, consult the Commission’s For a period until October 20, 2014, By order of the Commission. the land will be segregated as specified Rules of Practice and Procedure, part above unless the application is denied 201, subparts A through E (19 CFR part Lisa R. Barton, or canceled or the withdrawal is 201), and part 207, subparts A, D, E, and Acting Secretary to the Commission. approved prior to that date. Licenses, F (19 CFR part 207). [FR Doc. 2012–25666 Filed 10–17–12; 8:45 am] permits, cooperative agreements, or DATES: Effective Date: October 5, 2012. BILLING CODE 7020–02–P

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DEPARTMENT OF JUSTICE Advanced Media Workflow Association, with the Attorney General and the Inc. has filed written notifications Federal Trade Commission disclosing Antitrust Division simultaneously with the Attorney changes in its membership. The General and the Federal Trade notifications were filed for the purpose Notice Pursuant to the National Commission disclosing changes in its of extending the Act’s provisions Cooperative Research and Production membership. The notifications were limiting the recovery of antitrust Act of 1993—Wireless Industrial filed for the purpose of extending the plaintiffs to actual damages under Technology Konsortium Inc. Act’s provisions limiting the recovery of specified circumstances. Specifically, antitrust plaintiffs to actual damages Office of the Assistant Secretary for Notice is hereby given that, on under specified circumstances. Networks & Information Integration/ September 25, 2012, pursuant to Section Specifically, Apple, Cupertino, CA; Department of Defense Chief 6(a) of the National Cooperative Tedial, Campanillas, SPAIN; Harry Plate Information Officer, Washington, DC; Research and Production Act of 1993, (individual member), Snohomish, WA; CACI International, Inc., Arlington, VA; 15 U.S.C. 4301 et seq. (‘‘the Act’’), and Robert Rutherford (individual Federal Aviation Administration, Wireless Industrial Technology member), Lidcombe, Australia, have Washington, DC; GBL Systems, Konsortium Inc. (‘‘WITEK’’) has filed been added as parties to this venture. Camarillo, CA; L–3 Communications, written notifications simultaneously Also, Automatic Duck, Snohomish, New York, NY; Luciad, Leuven, with the Attorney General and the WA; Dark Matter, Epsom, Surrey, BELGIUM; and Mosaic ATM, Leesburg, Federal Trade Commission disclosing United Kingdom; Oracle America, VA, have withdrawn as parties to this changes in its membership. The Redwood Shores, CA; SeaChange venture. notifications were filed for the purpose International, Acton, MA; and Brooks No other changes have been made in of extending the Act’s provisions Harris (individual member), Marina del either the membership or planned limiting the recovery of antitrust Rey, CA, have withdrawn as parties to activity of the group research project. plaintiffs to actual damages under this venture. Membership in this group research specified circumstances. Specifically, No other changes have been made in project remains open, and NCOIC Nivis LLC, Atlanta, GA, has been added either the membership or planned intends to file additional written as a party to this venture. activity of the group research project. notifications disclosing all changes in No other changes have been made in Membership in this group research membership. either the membership or planned project remains open, and Advanced On November 19, 2004, NCOIC filed activity of the group research project. Media Workflow Association, Inc. its original notification pursuant to Membership in this group research intends to file additional written Section 6(a) of the Act. The Department project remains open, and WITEK notifications disclosing all changes in of Justice published a notice in the intends to file additional written membership. Federal Register pursuant to Section notifications disclosing all changes in On March 28, 2000, Advanced Media 6(b) of the Act on February 2, 2005 (70 membership. Workflow Association, Inc. filed its FR 5486). On August 8, 2008, WITEK filed its original notification pursuant to Section The last notification was filed with original notification pursuant to Section 6(a) of the Act. The Department of the Department on May 9, 2012. A 6(a) of the Act. The Department of Justice published a notice in the Federal notice was published in the Federal Justice published a notice in the Federal Register pursuant to Section 6(b) of the Register pursuant to Section 6(b) of the Register pursuant to Section 6(b) of the Act on June 29, 2000 (65 FR 40127). Act on June 8, 2012 (77 FR 34066). Act on September 18, 2008 (73 FR The last notification was filed with Patricia A. Brink, 54170). the Department on July 3, 2012. A The last notification was filed with notice was published in the Federal Director of Civil Enforcement, Antitrust Division. the Department on November 2, 2010. A Register pursuant to Section 6(b) of the notice was published in the Federal Act on July 25, 2012 (77 FR 43614). [FR Doc. 2012–25691 Filed 10–17–12; 8:45 am] Register pursuant to Section 6(b) of the BILLING CODE P Act on December 17, 2010 (75 FR Patricia A. Brink, 79025). Director of Civil Enforcement, Antitrust Division. DEPARTMENT OF JUSTICE Patricia A. Brink, [FR Doc. 2012–25694 Filed 10–17–12; 8:45 am] Drug Enforcement Administration Director of Civil Enforcement, Antitrust BILLING CODE 4410–11–P Division. Jose Gonzalo Zavaleta, M.D.; Denial of [FR Doc. 2012–25689 Filed 10–17–12; 8:45 am] Application BILLING CODE P DEPARTMENT OF JUSTICE On March 2, 2011, the Deputy Antitrust Division Assistant Administrator, Office of DEPARTMENT OF JUSTICE Notice Pursuant to the National Diversion Control, Drug Enforcement Administration, issued an Order to Antitrust Division Cooperative Research and Production Act of 1993—Network Centric Show Cause (Order) to Jose Gonzalo Notice Pursuant to the National Operations Industry Consortium, Inc. Zavaleta, M.D. (Applicant), of Cooperative Research and Production Alexandria, Louisiana (La.). The Order Act of 1993; Advanced Media Workflow Notice is hereby given that, on proposed the denial of Applicant’s Association, Inc. September 25, 2012, pursuant to Section pending applications for DEA 6(a) of the National Cooperative Certificates of Registration as a Notice is hereby given that, on Research and Production Act of 1993, practitioner, which he filed on April 19, September 24, 2012, pursuant to Section 15 U.S.C. 4301 et seq. (‘‘the Act’’), 2010 (Control Number W10020882C) 6(a) of the National Cooperative Network Centric Operations Industry and on December 9, 2010 (Control Research and Production Act of 1993, Consortium, Inc. (‘‘NCOIC’’) has filed Number W10078290C), for the 15 U.S.C. 4301 et seq. (‘‘the Act’’), written notifications simultaneously registered location of 1217 Willow Glen

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River Road, Alexandria, La., on the applications. Id. at 2 (citing 21 CFR Applicant first came to the attention ground that his registration would be 1316.47; 21 CFR 1301.43). Since service of law enforcement on January 17, 2008, ‘‘inconsistent with the public interest.’’ of the Second Order, more than thirty when Louisiana State Police received a Order at 1 (citing 21 U.S.C. 823(f)). days have now passed and neither call from a pharmacist that he had The Show Cause Order incorporated Applicant, nor anyone purporting to authorized prescriptions for ‘‘excessive by reference the allegations of a represent him, has either requested a amounts of name brand narcotics with previous Show Cause Order which had hearing or submitted a written statement no generic substitutions allowed.’’ 76 been issued on February 23, 2009; a in lieu of a hearing. See 21 CFR FR at 49506. Upon receipt of this copy of the latter was attached to the 1301.43(b)–(d). Accordingly, I find that information, an undercover state trooper second Show Cause Order. Id. at 1–2. Applicant has waived his rights to a (UC1) visited Applicant’s clinic with The first Show Cause Order had alleged hearing or to submit a written statement. audio/video recording equipment on that Applicant voluntarily surrendered Id. 1301.43(d). I therefore issue this January 23, 2008. Id. When Applicant his DEA Certificate of Registration, Decision and Final Order without a asked UC1 ‘‘why he was there,’’ UC1 BZ5998250, on March 26, 2008, after hearing based on relevant material responded by requesting being charged with six counts of contained in the investigative record ‘‘[h]ydrocodone pain pills.’’ Id. UC1 prescribing controlled substances submitted by the Government. I make ‘‘initially denied that he was in pain beyond authority and accepted medical the following findings. but, after negotiating with [Applicant], treatment, in violation of La. Rev. Stat. he agreed to falsely state that he was Ann. § 40:971(C)(1)(2008) (effective Findings suffering from a sexually transmitted Aug. 15, 2006). Id. The first Order On July 27, 2011, I issued a Decision disease,’’ and Applicant recorded this further alleged that Applicant and Final Order denying Respondent’s false information in UC1’s medical file. prescribed controlled substances to application which he filed on July 28, Id. Then, Applicant, without any undercover agents with ‘‘cursory or no 2008 and which was the subject of the physical examination to verify the claim medical examinations, and without a first Show Cause Order. See Jose of illness or symptoms, wrote legitimate medical purpose in violation Gonzalo Zavaleta, M.D., 76 FR 49506 prescriptions for 15 Lortab 1 pills and an of 21 U.S.C. § 841(a)(1),’’ including a (Aug. 10, 2011). Therein, I made antibiotic. Id. The undercover agent total of 75 dosage units of hydrocodone extensive findings that are res judicata paid $100 for the visit. Id. (including Lortab and/or Lorcet), which in this proceeding. Five days later, on January 28, 2008, are schedule III narcotics; 20 dosage Applicant was previously the holder UC1 returned to Applicant’s clinic units of Xanax, a schedule IV controlled seeking additional ‘‘pain pills.’’ Id. of DEA Certificate of Registration, substance; and six ounces of Phenergan However, Applicant denied his request BZ5998250, which authorized him to with codeine, a schedule V narcotic for more pain pills ‘‘because ‘big dispense controlled substances in cough syrup. Id. Finally, the first Order brother’ was watching him.’’ Id. schedules II through V as a practitioner alleged ‘‘[Applicant] facilitated the Thereafter, on January 30, February 8, at the registered location of 5629 undercover officers’ procurement of and February 28, 2008, a second state Jackson Street Ext., Alexandria, drugs by fraudulent means’’ when he trooper (UC2) visited Applicant’s clinic Louisiana. 76 FR 49506. However, on advised them to ‘‘provide false medical in an undercover capacity, while March 26, 2008, concurrent with information’’ to justify ‘‘illegitimate equipped with an audio/video recording Applicant’s arrest on state drug charges prescriptions.’’ Id. at 2. device. Id. At UC2’s first visit, In addition to these allegations, the (the circumstances of which are set forth Applicant issued her a prescription for Second Show Cause Order alleged that below), he voluntarily surrendered his hydrocodone,2 notwithstanding UC2’s on June 24, 2010, Applicant had entered registration. Id. Applicant’s registration ‘‘initially den[ying] she was in pain’’ into a consent agreement with the was then retired by DEA on March 27, and ‘‘later stat[ing] she was in pain in Louisiana State Board of Medical 2008. Id. order to obtain a prescription for Examiners which had found ‘‘that On July 28, 2008, Applicant applied hydrocodone.’’ Id. At her second visit reasonable cause existed for for a new DEA registration as a on February 8, Applicant provided recommending that a formal practitioner in schedules IV and V; this prescriptions for hydrocodone and Administrative Complaint be filed application was denied by my Order of Phenergan with codeine,3 the latter against [him], charging [him] with August 10, 2011. Id. On April 19, 2010, being a cough syrup, ‘‘even though she violation of the Louisiana Medical Applicant filed a second application for had no cough or congestion and Practice Act.’’ Show Cause Order at 2. a practitioner’s registration, seeking exhibited no such symptoms.’’ Id. On The Second Show Cause Order further authority to handle controlled UC2’s third visit, she requested and alleged that ‘‘[t]o avoid the filing of a substances in schedules II thorugh V at obtained from Applicant prescriptions formal Administrative Complaint, the registered location of Rapides for hydrocodone and Xanax.4 Id. To [Applicant] entered into a consent order Primary Health Care Center, 1217 justify issuing the prescriptions, with the Board * * * in which [he] Willow Glenn River Rd., Alexandria, La. Applicant ‘‘coached’’ UC2 about what to accepted a public reprimand and 71302. GX 6, at 1. On his application, say and recorded the coached various conditions [were] place upon Respondent stated that ‘‘the DA made statements in her medical file. Id. At the [his] medical license.’’ me an offer for a program called PTI and On March 7, 2011, the Second Show no DEA license for two years. Now, I 1 Lortab, which is a combination drug containing Cause Order, which also notified have completed my part of the deal, hydrocodone and acetaminophen, is a schedule III Applicant of his right to either request meaning I completed two years without controlled substance. 21 CFR 1308.13(e)(iv). 2 Hydrocodone is typically combined with a hearing on the allegations or to submit [a] DEA license, and now I want my acetaminophen. In this formulation, it is a schedule a written statement in lieu of a hearing, unrestricted DEA license back.’’ Id. On III controlled substance. 21 CFR 1308.13(e)(iv). the procedures for doing so, and the December 9, 2010, Respondent filed a 3 Phenergan with codeine cough syrup consists of consequence if he failed to do either, third application; this application was a combination of promethazine and codeine; it is a schedule V controlled substance. 21 CFR was served on Applicant by certified also for the registered location of the 1308.15(c). mail addressed to him at the address Rapides Primary Health Care Center. GX 4 Xanax (alprazolam) is a schedule IV controlled listed on his second and third 7. substance. 21 CFR 1308.14(c)(1).

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undercover visits, Applicant never Id. As the Supreme Court recently ‘‘require[d] any medical records nor did ‘‘[T]hese factors are considered in the explained, ‘‘the [CSA’s] prescription he conduct any physical examinations.’’ disjunctive.’’ Robert A. Leslie, 68 FR requirement * * * ensures patients use Id. 15227, 15230 (2003). I may rely on any controlled substances under the On March 20, 2008, after a state court one or a combination of factors and may supervision of a doctor so as to prevent judge issued a warrant for Applicant’s give each factor the weight I deem addiction and recreational abuse. As a arrest, Louisiana State Police alerted appropriate in determining whether corollary, [it] also bars doctors from DEA to the investigation and pending * * * to deny an application. Id. peddling to patients who crave the arrest. Id. Thereafter, on March 26, Moreover, I am ‘‘not required to make drugs for those prohibited uses.’’ 2008, Applicant was arrested and findings as to all of the factors.’’ Hoxie Gonzales v. Oregon, 546 U.S. 243, 274 charged with ‘‘six counts of prescribing v. DEA, 419 F.3d 477, 482 (6th Cir. (2006) (citing United States v. Moore, beyond authority and accepted medical 2005) (citing Morall v. DEA, 412 F.3d 423 U.S. 122, 135, 143 (1975)); see also treatment, a violation of Louisiana 165, 173–74 (D.C. Cir. 2005)). La. Rev. Stat. Ann. § 40:1238.2(A) (2008) Revised Statute 40:971C(1).’’ Id. Based In this matter, while I have (effective Aug. 15, 2006). on Applicant’s arrest, a DEA Diversion considered all of the factors, I conclude Under the CSA, it is fundamental that Investigator asked for the voluntary that it is not necessary to make findings a practitioner must establish and surrender of his DEA registration; with respect to factors one (the maintain a bonafide doctor-patient Applicant agreed and signed a DEA– recommendation of the state licensing relationship in order to act ‘‘in the usual 104, Voluntary Surrender of Controlled board), three (applicant’s conviction course of * * * professional practice’’ Substance Privileges.5 Id. at 49506–07. record) and five (such other conduct and to issue a prescription for a Respondent has presented no which may threaten public health and ‘‘legitimate medical purpose.’’ Laurence evidence that he acknowledges his safety). Having previously found that T. McKinney, 73 FR 43260, 43265 n.22 misconduct and accepts responsibility Applicant has committed acts which (2008); see also Moore, 423 U.S. at 142– for it. render his registration ‘‘inconsistent 43 (noting that evidence established that with the public interest,’’ 76 FR at Discussion physician ‘‘exceeded the bounds of 49507 (quoting 21 U.S.C. 823(f), ‘professional practice,’’’ when ‘‘he gave Section 303(f) of the Controlled 824(a)(4)), and Applicant having failed inadequate physical examinations or Substances Act (CSA) provides that an to present any evidence to rebut this none at all,’’ ‘‘ignored the results of the application for a practitioner’s conclusion, I will order that his pending tests he did make,’’ and ‘‘took no registration may be denied upon a applications for registration be denied. precautions against * * * misuse and determination ‘‘that the issuance of such Factors Two and Four—Applicant’s diversion’’). The CSA generally looks to registration would be inconsistent with Experience in Dispensing Controlled state law to determine whether a doctor the public interest.’’ 21 U.S.C. 823(f). In Substances and Compliance With and patient have established a bonafide making the public interest Applicable Laws Related to Controlled doctor-patient relationship. See Kamir determination in the case of a Substances Garces-Mejias, 72 FR 54931, 54935 practitioner, Congress directed that the (2007); United Prescription Services, Under a longstanding DEA regulation, following factors be considered: Inc., 72 FR 50397, 50407 (2007); but see a prescription for a controlled substance (1) The recommendation of the appropriate 21 U.S.C. § 829(e)(2)(B) (providing is not ‘‘effective’’ unless it is ‘‘issued for State licensing board or professional federal standard for prescribing over the a legitimate medical purpose by an disciplinary authority. internet). individual practitioner acting in the (2) The applicant’s experience in Under the regulation of the Louisiana dispensing * * * controlled substances. usual course of his professional Board of Medical Examiners, in the (3) The applicant’s conviction record under practice.’’ 21 CFR 1306.04(a). This treatment of ‘‘intractable pain * * * a Federal or State laws relating to the regulation further provides that ‘‘an physician shall comply’’ with the manufacture, distribution, or dispensing of order purporting to be a prescription controlled substances. Louisiana Pain Rules, including the issued not in the usual course of (4) Compliance with applicable State, requirements that a physician perform professional treatment * * * is not a Federal, or local laws relating to controlled an ‘‘[e]valuation of the [p]atient’’ and prescription within the meaning and substances. make a ‘‘[m]edical [d]iagnosis.’’ La. (5) Such other conduct which may threaten intent of [21 U.S.C. 829] and * * * the Admin. Code tit. 46:XLV.6921(A) the public health and safety. person issuing it, shall be subject to the (2008). ‘‘Evaluation of the patient shall penalties provided for violations of the initially include relevant medical, pain, 5 As part of the record in this matter, the provisions of law related to controlled alcohol and substance abuse histories, Government submitted a copy of the Consent Order substances.’’ Id.; see also La. Rev. Stat. applicant entered into with the Louisiana State an assessment of the impact of pain on Ann. § 40:961(33) (2008) (effective Aug. Board of Medical Examiners. GX 5. While therein, the patient’s physical and psychological Applicant ‘‘acknowledge[d] that the reported 15, 2004); 6 La. Rev. Stat. Ann. functions, a review of previous information could provide the Investigating Officer § 40:1238.2(A) (2008) (effective Aug. 15, diagnostics studies, previously utilized with probable cause to pursue formal 2006).7 administrative proceedings against him for therapies, an assessment of coexisting violation of the [Louisiana Medical Practice] Act,’’ illnesses, diseases, or conditions, and an Applicant did not admit to any of the allegations. 6 Louisiana law defines the term ‘‘prescription’’ to Id. at 2. Accordingly, I do not rely on the Consent mean ‘‘a written request for a drug * * * issued by appropriate physical examination.’’ Id. Order to make any findings regarding violations of a licensed physician * * * for a legitimate medical federal law by the Applicant in prescribing to purpose, for the purpose of correcting a physical, issued to a drug abuser or habitual user of legend undercover agents. mental, or bodily ailment, and acting in good faith drugs, not in the course of professional treatment, However, I find that Respondent had a full and in the usual course of his professional practice.’’ La. is not a prescription within the meaning and intent fair opportunity to litigate the allegations of the first Rev. Stat. Ann. § 40.961(33). of this Section. Any person who knows or should DEA Show Cause Order, even if he did not avail 7 This statute provides that: know that he or she is filling such a prescription himself of it. See Alan H. Olefsky, 76 FR 20025, A prescription, in order to be effective in or order to a drug abuser or habitual user of legend 20031 (2011); Robert L. Dougherty 76 FR 16823, legalizing the possession of legend drugs, shall be drugs, as well as the person issuing the 16830 (2011). Accordingly, those findings are res issued for a legitimate medical purpose by one prescription, may be charged with a violation of judicata in this proceeding. Olefsky, 76 FR at authorized to prescribe the use of such legend this Section. 20031; Dougherty, 76 FR at 16830. drugs. An order purporting to be a prescription La. Rev. Stat. Ann. § 40:1238.2(A).

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(emphasis added); see also Armstrong v. relationship, lacked a legitimate medical Respondent did not file exceptions to La. State Bd. of Med. Examiners, 868 So. purpose, and acted outside of the usual the decision. 2d 830, 840 (La.App. 4 Cir. Feb. 18, course of professional practice in Having reviewed the entire record, I 2004) (upholding two year suspension prescribing controlled substances to the have decided to adopt the ALJ’s of physician’s license; noting that when undercover agents and thus violated recommended rulings, findings of fact, prescribing controlled substances for Federal law. See id. (citing 21 CFR conclusions of law, and recommended relief of non-malignant pain is 1306.04(a); 21 U.S.C. 841(a)(1); see also Order except for her legal conclusions ‘‘unaccompanied by appropriate testing, Louisiana v. Moody, 393 So. 2d 1212, as to the initial visits of the two diagnosis, oversight and monitoring 1215 (La. 1981) (holding that physician undercover officers (UCs) and her * * * the physician falls below furnished prescriptions for ‘‘other than discussion in the first full paragraph at generally accepted standards of care’’); a legitimate medical purpose’’ based on page 34 of her slip opinion.1 However, Pastorek v. La. State Bd. of Med. evidence showing that prescriptions I need not decide whether the Examiners, 4 So. 3d 833 (La.App. 4 Cir. were issued in response to specific prescriptions Respondent issued at the Dec. 17, 2008). The Board’s rules further requests of patients and physician did initial visits of the two UCs violated 21 require that a ‘‘medical diagnosis * * * not conduct physical examinations or CFR 1306.04(a), because there is be established and fully documented in take medical histories)). substantial evidence to support the the patient’s medical record.’’ La. I therefore hold again that granting ALJ’s legal conclusions that he acted Admin. Code tit. 46:XLV.6921(A)(2) Applicant’s applications for a new outside of the usual course of (2008). registration ‘‘would be inconsistent with professional practice and lacked a Louisiana law also prohibits a the public interest.8’’ 21 U.S.C. 823(f). legitimate medical purpose in issuing physician from ‘‘[a]ssist[ing] a patient or Accordingly, I will order that prescriptions at the UCs’ subsequent any other person in obtaining a Applicant’s pending applications be visits. controlled dangerous substance through denied. More specifically, one week after the misrepresentation, fraud, forgery, Order initial visit of David Hays (UC1), at deception, or subterfuge.’’ La. Rev. Stat. which he was prescribed 150 Percocet, Pursuant to the authority vested in me Ann. § 40:971.2 (2008) (effective Aug. a drug which combines 10 mg of by 21 U.S.C. 823(f) and 28 CFR 0.100(b), 15, 2005). It is also unlawful for a oxycodone with 325 mg of I order that the applications (Control physician to ‘‘prescribe * * * legally acetaminophen, Hays returned to Numbers W10020882C and controlled substances beyond his Respondent complaining that the drug W10078290C) of Jose Gonzalo Zavaleta, respective prescribing authority or for a was causing digestive problems. M.D., for a DEA Certificate of purpose other than accepted medical Respondent then prescribed 150 Registration as a practitioner be, and treatment of disease, condition, or Roxicodone (oxycodone) 30 mg, without illness. Id., at § 40:971(C)(1) (2008) they hereby are, denied. This order is effective November 19, 2012. any inquiry into Hays’ pain level. Tr. 54, (effective Sept. 9, 1988). GX 3a, at 13. Respondent noted in the As found in my Decision and Order Dated: October 8, 2012. chart, however, that Hays ‘‘had no relief of July 27, 2011, on four occasions, Michele M. Leonhart, [from] pain.’’ GX 12, at 14. Applicant prescribed drugs containing Administrator. With respect to this prescription, the hydrocodone (including Lortab and/or [FR Doc. 2012–25576 Filed 10–17–12; 8:45 am] Government’s Expert testified that the Lorcet), which are schedule III BILLING CODE 4410–09–P ‘‘[m]edication would not have been narcotics; Xanax, a schedule IV indicated given the complaints of the controlled substance; and Phenergan patient, [and] certainly not that with codeine, a schedule V narcotic DEPARTMENT OF JUSTICE cough syrup; to Louisiana State particular agent and certainly not that dose or frequency.’’ Tr. 54. Notably, this Troopers acting in undercover Drug Enforcement Administration capacities. See 76 FR at 49508. Notably, [Docket No. 11–34] 1 The ALJ noted that Respondent and his PA Applicant issued these prescriptions ‘‘were given direct evidence of diversion and failed without conducting a physical Zvi H. Perper, M.D., Decision and Order to act.’’ Slip Op. at 34. More specifically, the ALJ examination at any of the visits and the noted that UC1 had told the PA that his girlfriend undercover agents received these On July 19, 2011, Administrative Law had used some of his controlled substances and that the PA did nothing in response and that UC2 had prescriptions even though they did not Judge (ALJ) Gail A. Randall issued the told both Respondent and his PA that he had demonstrate conditions or symptoms attached recommended decision. The bought controlled substances off the street and that that would justify the prescriptions. Id. neither Respondent nor his PA took any action. Id. Moreover, both undercover agents 8 As found above, Applicant stated in his second The ALJ thus reasoned that ‘‘[a] practitioner who initially denied they were in pain, but application that ‘‘the DA made me an offer for a takes no ‘precautions against * * * misuse and diversion’ exceeds the bound of professional Applicant assisted the agents in program called PTI and no DEA license for two years,’’ and that because he has ‘‘completed two practice when he prescribes controlled obtaining controlled substances by years without [a] DEA license,’’ he ‘‘want[s] [his] substances[,]’’ and that ‘‘[s]uch action violates the encouraging them to make false unrestricted DEA license back.’’ GX 6. Respondent standard of diligence expected of a DEA registrant.’’ statements. See id. For example, while has presented no evidence that any DEA official Id. (quoting United States v. Moore, 423 U.S. 122, 142–43 (1975)). he denied being in pain, UC1 asked agreed to the deal he made with the district attorney, and in any event, a state official has no While purchasing drugs off the street may well be Applicant for ‘‘[h]ydrocodone pain authority to bind this Agency. See Edmund Chein, evidence that a patient is a substance abuser, the pills,’’ and then ‘‘negotiate[ed]’’ with 72 FR 6580, 6590 (2007) (Congress granted the record contains no evidence establishing the Applicant to ‘‘falsely state’’ he had a authority to determine whether a registration ‘‘is appropriate course of professional practice when a consistent with the public interest’’ to ‘‘the practitioner is confronted with such information. sexually transmitted disease. Id. Attorney General of the United States, and that Likewise, while UC1’s statement to the PA that his Likewise, Applicant also ‘‘coached’’ the authority has been delegated solely to the officials girlfriend had gotten into his medication supports second undercover agent on what to say of [DEA]. State officials therefore lack authority to a finding that diversion is occurring, here again, the to ‘‘justify issuing the prescriptions and resolve a matter pending before the Drug record contains no evidence establishing what Enforcement Administration’’ and cannot bind this precautions were required to be taken under the wrote her coached statements in a Agency.) (citing 21 U.S.C. 824, 28 CFR 0.100(b), and standard of professional practice. Thus, while I find medical file.’’ Id. Therefore, Applicant Fourth Street Pharmacy v. DEA, 836 F.2d 1137, this conduct extremely disturbing, I do not rely on failed to establish a physician-patient 1139 (8th Cir. 1988)); see also 21 U.S.C. 823(f)). it.

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testimony was unrefuted. I thus increase in his prescriptions—and once PA told him he would give him a list conclude that Respondent acted outside again asked for an increase. GX 5, at 16– and that the pills would cost four of the usual course of professional 19. dollars each. Id. at 12. In response, Hays practice and lacked a legitimate purpose Respondent then noted that Hays’ stated that he could not afford to fill 210 in issuing the prescription and thus ‘‘pain level is only a two over ten’’ and pills and asked if the PA could split his violated federal law. 21 CFR 1306.04(a). that this was ‘‘pretty good.’’ Id. at 17. prescription; the PA agreed. Id. at 12– Hays returned three weeks later (May Respondent then asked Hays if he was 13. The PA stated that a lot of the small 19, 2010) and saw Respondent’s ‘‘having some breakthrough pain mostly pharmacies were going to ‘‘require a Physician Assistant (PA). While during at work.’’ Id. Hays answered: ‘‘Every non-narcotic, non-controlled medicine the visit, the PA initially confused Hays now and then something feels * * * a to go with’’ the narcotic prescriptions with a patient whose name was spelled little bit hey-wire back there,’’ that it and that ‘‘[t]hey wouldn’t just take Hayes, upon recognizing his error he was ‘‘mostly in the mornings,’’ and that * * * the Roxicodone, Dilaudid script nonetheless noted that Hays was ‘‘too he would ‘‘get all sore and stiff back from’’ him because there is ‘‘a early.’’ GX 4, at 14. During the visit, there.’’ Id. Respondent noted that at the perception problem.’’ Id. at 14–15. The Hays asked the PA if he could increase last visit, Hays had been ‘‘given a PA then explained that he would give the Roxicodone 30 mg prescription prescription for breakthrough pain’’ and Hays a prescription for thirty Motrin to because he was probably going to be Hays was ‘‘going kind of rapidly with put in his ‘‘back pocket’’ which he gone for three or four months working [his] medicine.’’ Id. Notwithstanding could produce if the pharmacist on a tugboat. Id. at 23. The PA instead that Hays had reported his pain level as questioned the prescriptions. Id. at 15. offered to give Hays ‘‘the fifteen only a two and was nearly three weeks However, the PA told Hays to ‘‘shred’’ milligrams * * * strength.’’ Id. at 25. early, Respondent gave him a the script if the pharmacist did not Hays asked the PA if he ‘‘[c]ould * * * prescription for 210 tablets of question the prescriptions. Id. increase the thirties * * * just to Roxicodone 30 mg, a prescription for 90 Later, the PA asked Hays if he was whatever is reasonable and add some Roxicodone 15 mg for breakthrough ‘‘satisfactory in the sleep department fifteens,’’ to which the PA answered: ‘‘I pain, and a prescription for a liver and in the anxiety department?’’ Id. at have to ask.’’ Id. The PA then told Hays function test, which Hays never 18. Hays answered: ‘‘You know, I never To ‘‘have a seat in the waiting room’’ obtained. GX 12, at 26. have anxiety, really. And I sleep pretty and ‘‘[l]et me find out for you.’’ Id. Hays returned on July 20 and saw the good.’’ Id. Following a discussion of a Notably, during this visit, Hays did not PA. Hays told the PA that he was doing new state law prohibiting pain tell the PA that he was experiencing ‘‘pretty good’’ and that his back had management clinics from dispensing breakthrough pain. improved. GX 6, at 3–4. During the visit, and a proposal to establish a state Approximately fifteen minutes later, Hays told the PA that his girlfriend had prescription database, the PA left to the PA spoke with Hays and told him gotten into his medicine (which have Respondent review and sign the that Respondent ‘‘was very generous’’ according to the Government’s Expert prescriptions. Id. at 23. Respondent but that the ‘‘the deal’’ was that Hays was indicative of ‘‘misuse and issued Hays two prescriptions totaling could not see the PA again until after diversion,’’ Tr. 65) and wanted to come 210 tablets of Roxicodone 30 mg, as well the fourth of July. Id. at 31. The PA then to the clinic. GX 6, at 5. The PA told as prescriptions for 60 Dilaudid 4 mg told Hays that Respondent had given Hays that ‘‘we could only see her with and 30 Motrin. him 210 Roxicodone 30 mg and 90 a valid reason * * * like an MRI report’’ Hays returned on August 18 and again Roxicodone 15 mg. Id. at 32; GX 12, at and ‘‘not just because [the drugs] made saw the PA. Notably, on the Patient 23 (copies of prescriptions). On the her feel good.’’ Id. at 6. The PA, Comfort Assessment form, Hays prescription for the Roxicodone 15 mg, however, then commented that ‘‘she got indicated that the worst his pain had Respondent noted that it was for that subtle euphoria and of course she been in the last month was a ‘‘3’’ on a ‘‘breakthrough’’ pain, even though Hays liked it. But if she doesn’t have a true ‘‘0’’ to ‘‘10’’ scale, that his pain had never complained of having pain area * * * it’s not appropriate.’’ Id. averaged a ‘‘2’’ during the last month, breakthrough pain.2 The PA then explained that the laws and that it was currently a ‘‘1.’’ GX 12, While the progress note for this visit had changed and that the clinic would at 33. Hays also wrote that his pain stated ‘‘Earliest pt. can be seen until 7/ never fill prescriptions again and that ‘‘was in my lower back but feels better 5/10,’’ id. at 20; on June 16, Hays Hays would have to go to a pharmacy now’’ and circled that pain was returned and saw Respondent. GX 5, at to fill the prescriptions and that the ‘‘occasional’’ and not ‘‘continuous.’’ 16. While Hays was nearly three weeks clinic was going to discuss with local Hays told the PA that the Dilaudid early, Respondent did not raise this as pharmacies where they could ‘‘at least made him ‘‘kind of dizzy and nauseous’’ an issue, see id. at 16–19, even though direct patients to.’’ Id. at 7. and that he thought the oxycodone were according to the Government’s Expert, The PA then discussed giving Hays ‘‘good for’’ him and asked if Respondent this is a ‘‘red flag’’ indicative of ‘‘[d]rug- ‘‘this new medicine called Dilaudid, ever prescribed the 80s. GX 7, at 22–23. seeking behavior’’ and either abuse or which is a morphine derivative’’ for his The PA stated that Respondent would diversion. Tr. 65, 67. Moreover, Hays breakthrough pain. After discussing ‘‘start out a little slower[,] like the 40’s told Respondent that he still had not how Dilaudid (hydromorphone) was * * * but yes, we do, do the 80s.’’ Id. been on the tugboat assignment—the different from oxycodone, the PA and at 23. Hays told the PA that he did not purported reason for why he needed an Hays resumed discussing where the have any problems getting the thirties latter could fill his prescriptions with and that his ‘‘girlfriend knew [a] a place 2 Under Federal law, a practitioner may issue a the PA stating that because of the that has them * * * readily available.’’ patient ‘‘multiple prescriptions authorizing the number of pills (210 Roxicodone), it was Id. The PA then asked Hays whether he patient to receive a total of up to a 90-day supply of a schedule II controlled substance’’ provided, ‘‘extremely hard to believe that [Hays had ‘‘hand[ed] two split scripts in in inter alia, that the prescriptions otherwise comply would] be able to get’’ the Oxycodone one time’’; Hays said ‘‘No.’’ Id. at 24. with 21 CFR 1306.04(a) (as well as other provisions 30s from big chain drug stores such as The PA then told Respondent that he of the CSA and state law), the prescriptions include CVS or Publix. Id. at 11. Hays then had to get his liver function tested and the earliest date on which they can be filled, and that they ‘‘do not create an undue risk of diversion asked the PA to recommend a pharmacy told him where to get it and that it or abuse.’’ 21 CFR 1306.12(b)(1). which would fill the prescriptions; the would cost $45. Id. at 24–25.

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Next, the PA asked Hays if his ‘‘lower Percocet for the day’’ for insomnia’’ such as having ‘‘caffeine at back [was] okay this month?’’ Id. at 25. ‘‘breakthrough’’ pain and advised him to night or excessive meals right before Hays answered: ‘‘You know, I think it ‘‘eat with them.’’ Id. at 31–32. The PA bedtime.’’ Id. at 62. Once this was really feels pretty good.’’ Id. The PA added that ‘‘hopefully the seven thirties addressed, the Expert stated that if then asked: ‘‘Do you even need a a day will be enough pain relief for you ‘‘medications were indicated there are breakthrough * * * I mean * * * and you don’t need anything else’’ and [other] agents that are appropriate for [y]ou’re taking seven * * * a day, why advised Hays to fill the Percocet insomnia, rather than a benzodiazepine don’t you just stick with them?’’ Id. prescription only if he needed it. Id. like Valium, [which is available in 2, 5 Hays answered: ‘‘well, there might be Following a discussion of doctor and 10 mg tablets], at its highest dose.’’ that occasion when I did need it but shopping, the PA went to Respondent to Id. at 63. Finally, the Expert noted that * * * I don’t know.’’ Id. at 26. The PA obtain his approval for the Valium’s ‘‘primary purpose is not [to replied: ‘‘I’ll throw you a few Percocets prescriptions. Id. at 39. Thereafter, Hays treat] insomnia.’’ Id. then just to get on the safe side but the was provided with prescriptions for 210 Here too, the testimony of the 15s are very hard to come by and they’re Roxicodone 30 mg, 60 Percocet 10/ Government’s Expert was unrefuted. I very expensive.’’ Id. 325mg, 30 Valium 10mg, and Motrin. therefore conclude that substantial Hays asked if the stuff Michael GX 12, at 35. evidence supports the conclusion that Jackson had taken would work; the PA With respect to the Dilaudid Respondent acted outside of the usual stated that that drug was only indicated prescription Respondent issued to Hays, course of professional practice and to ‘‘put people out with and perform the Government’s Expert testified that lacked a legitimate medical purpose in surgery.’’ Id. at 27. Hays then asked ‘‘if there was no evidence that Hays was issuing the Valium prescription to Hays. there is some other creative way that experiencing break-through pain ‘‘of any 21 CFR 1306.04(a).4 you could deal with me?’’ Id. at 28. In significant degree.’’ Tr. 60. The Expert As for the prescriptions issued to response, the PA asked: ‘‘Are you further explained that ‘‘[t]here was no Eddie Martinez, the evidence showed having trouble sleeping? Is [that] what history consistent with severe break- that Respondent increased his you’re getting at?’’ Id. Hays answered ‘‘I through pain and it appeared that prescription from 120 Percocet 10/325 wonder * * * I do have trouble [Hays’] pain was adequately—more than at the initial visit (for a total daily dose sleeping. I don’t sleep much.’’ Id. The adequately managed, even based on the of 40 mg of oxycodone) to 90 PA then asked Hays if he had ‘‘ever subjective history.’’ Id. The Expert thus Oxycodone 30 mg (for a total daily dose tried Valium?’’ Id. After Hays answered concluded that Dilaudid prescription of 90 mg of oxycodone) at the second that he had not, the PA asked if he was ‘‘not justified.’’ Id. This testimony visit. GX 13, at 16, 20. The would like to. Id. Hays replied ‘‘You stands unrefuted. Government’s Expert opined that know I might, because there are times I therefore conclude that substantial Martinez’s complained-of pain level did when I * * * and it could be because evidence supports the conclusion that not justify a prescription for Roxicodone * * * I’ve got too much on my mind, Respondent acted outside of the usual 30, which was more than double the with work and everything, and I wake course of professional practice and dosing of the previous prescription, as up at night and then I just stay awake.’’ lacked a legitimate medical purpose in ‘‘[t]here wasn’t any physical Id. The PA then told Hays to ‘‘try it one issuing the Dilaudid prescription to examination abnormality or focal hour before you want it to work,’’ but Hays. 21 CFR 1306.04(a). Moreover, for neurological deficit * * * consistent not to drive on it and not to take it every the same reasons that the Expert with his MRI finding or even his night.3 Id. at 29. concluded that the Dilaudid complaints that * * * would have Hays and the PA returned to prescription was not medically justified, warranted those medications at that discussing his use of Dilaudid, with the I also conclude that Respondent acted dose[].’’ Tr. 85. This testimony was PA stating that he was going to outside of the usual course of unrefuted. discontinue it. Id. at 30. The PA then professional practice and lacked a At the third visit, Martinez told asked Hays to move each leg up to his legitimate medical purpose in issuing Respondent that he had run out a week hand, and whether doing so bothered the May 15 and June 16 prescriptions early and bought drugs on the street his back; Hays indicated that it did not. for Roxicodone 15mg, as well as the even though in Respondent’s words Id. at 31; see also GX 20 (audio August 18 prescription for Percocet 10, ‘‘[y]ou changed from Percocet to recording of visit). The PA asked Hays all of which were purportedly issued for Oxycodone, that’s a much stronger if he needed the prescriptions split breakthrough pain. medicine than what you were using’’ again; Hays answered that he did not. As for the Valium prescription, the and ‘‘there’s a significant increase in the GX 7, at 31. The PA then said he was Government’s Expert observed that the total amount of medicine you’re getting going to give Hays ‘‘a couple [of] progress note ‘‘indicated that the patient daily.’’ GX 11, at 20; see also id. at 22. had insomnia for the past month’’ but At the visit, Respondent wrote Martinez 3 Under DEA precedent, a registrant is strictly that Respondent did not explain ‘‘in his liable for the misconduct of those employees that note why Valium [was] being added, 4 Noting that Hays had asked the PA ‘‘if there is he has authorized to act on his behalf with respect although the prescription is to be taken some other creative way that you could deal with to the registrant’s handling of controlled substances. one at bedtime only.’’ Id. at 61. me?’’ and the PA’s response that: ‘‘Are you having See Anthony L. Capelli, 59 FR 42288 (1994) trouble sleeping? Is [that] what you’re getting at?,’’ (holding registrant strictly liable for unauthorized Continuing, the Expert testified that the ALJ reasoned that the circumstances prescriptions issued under his registrant by while he could ‘‘hypothesize why surrounding the prescription ‘‘nearly equate[] to unlicensed persons). See also Scott C. Bickman, 76 [Valium] may have been chosen * * * outright drug dealing.’’ ALJ at 31. I go one step FR 17694, 17703 (2011); Harrell Robinson, 74 FR there was nothing that would justify further and conclude that it was an outright drug 61370, 61377–78 2009, Paul Volkman, 73 FR 30630, deal, noting not only unusual nature of Hays’ 30644 n.42 (2008). While in this case the PA did that dose * * * for this individual.’’ Id. statement, but also that Hays had denied a sleep not have authority to issue controlled substance The Government’s Expert further problem just one month earlier, as well as the prescriptions under Florida law, it is clear that explained that before prescribing Expert’s testimony that: (1) the PA’s evaluation of Respondent authorized the PA to act on his behalf Valium for insomnia, ‘‘[t]he first Hays’ sleep problem was inadequate, Tr. 62; (2) that in evaluating his patients and relied on the PA’s there are other drugs which are indicated for evaluation to issue controlled substances reasonably standard thing to do would insomnia and that Valium’s ‘‘primary purpose is prescriptions. Accordingly, Respondent is strictly be to ensure that the patient wasn’t not [to treat] insomnia’’; and (3) that the prescribed liable for issuing the prescriptions. doing anything that may be promoting dose was ‘‘very high.’’ Id. at 63.

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prescriptions for 90 Roxicodone 30 mg, Accordingly, I adopt the ALJ’s safety. [Administrative Law Judge Exhibit as well as 60 Percocet 10 mg, the latter recommended order that Respondent’s (‘‘ALJ Exh.’’) 1]. being for ‘‘breakthrough pain.’’ GX 13, at registrations be revoked and any The Administrator, Drug Enforcement 24. Notably, on the Patient Comfort pending applications be denied. For the Administration, issued a second Order to Show Cause and Immediate Suspension of Assessment Guide for this visit, same reasons which led me to order the Registration (‘‘Order II’’) dated March 4, Martinez noted that at its worst, his pain Immediate Suspension of Respondent’s 2011, proposing to revoke the DEA was a ‘‘5’’ on a scale of 0 to 10, a registrations, I conclude that the public Certificates of Registration, Numbers decrease from the level of 7–8 which he interest requires that this Order be made BP7732349,6 BP7622764,7 BP7622752,8 reported the previous month. GX 13, at effective immediately. See 21 CFR BP3429835, and BP8477639, of Dr. Perper, as 17, 21. Moreover, at no point did 1316.67. a practitioner, pursuant to 21 U.S.C. § 824(a)(4) (2006), and deny any pending Martinez complain of having Order breakthrough pain. See GX 11, at 20–24. applications for renewal or modification of Pursuant to the authority vested in me such registrations pursuant to 21 U.S.C. According to the Government’s § 823(f), because the continued registration of Expert, that Martinez said he had run by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA the Respondent would be inconsistent with out early and complained of unrelieved the public interest, as that term is used in 21 pain was not a legitimate medical Certificates of Registration Nos. U.S.C. §§ 823(f) and 824(a)(4). Order II also justification for increasing the dosing of FP1312406, BP8477639, and immediately suspended these registrations oxycodone because it was ‘‘[n]ot based BP3429835, issued to Zvi H. Perper, pursuant to 21 U.S.C. § 824(d), because the on the history, physical, and objective M.D., be, and they hereby are revoked. Respondent’s continued registration information available in this patient’s I further order that any pending constituted an imminent danger to the public applications of Zvi H. Perper, M.D., to health or safety. [ALJ Exh. 3]. file.’’ Tr. 87. The Expert further opined The Respondent was served with the Order that while it would be within the course renew or modify any of his registrations, be, and they hereby are denied. This II on March 7, 2011. [ALJ Exh. 2]. of professional practice to prescribe The Orders asserted that the Respondent analgesic medications ‘‘if the clinical Order is effective immediately. dispensed controlled substances to justification existed,’’ Martinez’s Dated: October 8, 2012. undercover law enforcement officers for ‘‘history and physical’’ did not meet the Michele M. Leonhart, other than a legitimate medical purpose and/ criteria for prescribing. Id. at 90. Administrator. or outside the usual course of professional practice. [ALJ Exh. 1]. Further, the Orders Here again, this testimony was Frank Mann, Esq., for the Government unrefuted. Accordingly, I hold that also alleged that Respondent’s Physician’s Richard G. Lubin, Esq. & Anthony Vitale, Assistant coached an undercover law substantial evidence supports the Esq., for the Respondent enforcement person on how to procure large conclusion that Respondent acted RECOMMENDED RULINGS, FINDINGS OF amounts of narcotics from pharmacies outside of the usual course of FACT, CONCLUSIONS OF LAW, AND without ‘‘arousing suspicions that the professional practice and lacked a DECISION OF THE ADMINISTRATIVE prescriptions were being issued for other legitimate medical purpose in issuing LAW JUDGE than legitimate medical purposes.’’ [ALJ Exh. oxycodone prescriptions to Martinez at 1 at 2]. I. PROCEDURAL BACKGROUND both his second and third visits. 21 CFR By letter dated March 15, 2011, the 1306.04(a). I thus conclude that Gail A. Randall, Administrative Law Judge. Respondent, through counsel, timely filed a The Administrator, Drug Enforcement request for a hearing in the above-captioned Respondent violated Federal law in Administration (‘‘DEA’’ or ‘‘Government’’), matter. [ALJ Exh. 4]. issuing numerous controlled substance issued an Order to Show Cause and At the Respondent’s request, the hearing prescriptions to both UCs. Immediate Suspension of Registration was held in St. Lucie, Florida, on May 18– This finding provides reason alone to (‘‘Order I’’) dated February 18, 2011, 19, 2011. [ALJ Exh. 6; Transcript (‘‘Tr.’’) conclude that Respondent has proposing to revoke the DEA Certificate of Volume I–II]. At the hearing, Counsel for the committed acts which render his Registration, Number FP1312406, of Zvi H. DEA called witnesses to testify and registration inconsistent with the public Perper, M.D., (‘‘Respondent’’ or ‘‘Dr. introduced documentary evidence. The interest. See 21 U.S.C. 824(a)(4). Perper’’), as a practitioner, pursuant to 21 Respondent, through Counsel, elected not to U.S.C. § 824(a)(4) (2006), and deny any present any evidence. [Tr. 346]. After the However, this conclusion is buttressed pending applications for renewal or by the ALJ’s additional findings and hearing, both Counsel submitted Proposed modification of such registration pursuant to Findings of Fact, Conclusions of Law and legal conclusions, including those 21 U.S.C. § 823(f), because the continued Argument. regarding the shortages of controlled registration of the Respondent would be substances ordered under Respondent’s inconsistent with the public interest, as that II. ISSUE registration (nearly 24,000 dosage units term is used in 21 U.S.C. §§ 823(f) and The issue in this proceeding is whether or of oxycodone 30 and 2,565 dosage of 824(a)(4). Order I also immediately not the record as a whole establishes by a suspended the registration pursuant to 21 Endocet 10/325), his failure to take preponderance of the evidence that the Drug U.S.C. § 824(d), because the Respondent’s Enforcement Administration should revoke initial inventories after moving his continued registration constituted an practice, 21 CFR 1304.11, and his failure the DEA Certificate of Registrations, Numbers imminent danger to the public health or FP1312406, BP7732349, BP7622764, ‘‘to provide any explanation for his BP7622752, BP3429835, BP8477639, of Zvi conduct or any assurances regarding his 21932 (1988)). Moreover, because ‘‘past H. Perper, M.D., (‘‘Respondent’’), as a future conduct.’’ ALJ at 37. See also performance is the best predictor of future practitioner, pursuant to 21 U.S.C. § 824(a), Medicine Shoppe-Jonesborough, 73 FR performance, ALRA Labs, Inc. v. DEA, 54 F.3d 450, 5 452 (7th Cir.1995), [DEA] has repeatedly held that 364, 387 (2008). where a registrant has committed acts inconsistent 6 This registration expired by its own terms on with the public interest, the registrant must accept March 31, 2011, and the Respondent did not file an 5 As explained in Medicine Shoppe-Jonesborough, responsibility for [his] actions and demonstrate that application to renew it. [Tr.293–94, 323; Govt. Exh. where, as here, ‘‘the Government has proved that [he] will not engage in future misconduct.’’ 1]. a registrant has committed acts inconsistent with Medicine Shoppe, 73 FR at 387; see also Jackson, 7 This registration expired by its own terms on the public interest, a registrant must ‘present[] 72 FR at 23853; John H. Kennedy, 71 FR 35705, March 31, 2011, and the Respondent did not file an sufficient mitigating evidence to assure the 35709 (2006); Prince George Daniels, 60 FR 62884, application to renew it. [Tr. 297, 323–324; Govt. Administrator that [he] can be entrusted with the 62887 (1995). See also Hoxie v. DEA, 419 F.3d at Exh. 1]. responsibility carried by such a registration.’’’ 73 FR 483 (‘‘admitting fault’’ is ‘‘properly consider[ed]’’ by 8 This registration expired by its own terms on at 387 (quoting Samuel S. Jackson, 72 FR 23848, DEA to be an ‘‘important factor[]’’ in the public March 31, 2011, and the Respondent did not file an 23853 (2007) (quoting Leo R. Miller, 53 FR 21931, interest determination). application to renew it. [Tr. 297, 324; Govt. Exh. 1].

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and deny any pending applications for 334–35; Govt. Exh. 12 at 16; Govt. Exh. 13 primary physician, and that his last physical renewal or modification of such registrations, at 12]. examination was in August 1980. [Govt. Exh. pursuant to 21 U.S.C. § 823(f), because his 10. Both undercover agents were required 12 at 4]. continued registrations would be to take a urinalysis examination on their first Mr. Hays also wrote that he had never inconsistent with the public interest, as that visit. [Tr. 335]. taken opiates before. [Govt. Exh. 12 at 11]. term is defined in 21 U.S.C. § 823(f). [Tr. 8; 11. Each new patient at the clinic was 20. Mr. Hays also signed an agreement ALJ Exh. 5]. required to give a medical history with an regarding his responsibilities in taking emphasis on their pain complaint. [Tr. 336]. medications that may be prescribed III. FINDINGS OF FACT The undercover agents, on their first visits, (‘‘Agreement’’). The Agreement informed Mr. I find, by a preponderance of the evidence, had a face-to-face meeting with the Hays of his agreement to random drug the following facts: Respondent. [Tr. 336]. testing, to only receiving pain medications C. Dr. Rubenstein’s Testimony from the Respondent, to understanding that A. Stipulated Facts lost medications will not be refilled, and to The parties have jointly agreed to the 12. Dr. Rubenstein, a medical doctor, is keeping referral appointments should the following stipulated facts: board certified in Physical Medicine in Respondent make such a referral. The 1. Respondent is registered with DEA as a Rehabilitation, in Pain Medicine, and in Agreement also defines actions Mr. Hays may practitioner in Schedules II–V under DEA Electrodiagnostic Medicine. [Tr. 20; Govt. take that would result in his being discharged registration numbers FP1312406, BP7732349, Exh. 25 at 1]. Dr. Rubenstein has a private from the practice. Such actions include BP7622764, BP7622752, BP3429835, and practice focused on his specialties, and he is selling or distributing prescribed BP8477639 at the following locations, licensed to practice medicine in Florida and medications, obtaining pain medication from respectively: (1) Delray Pain Management, Virginia. [Tr. 23]. Approximately 90 percent a source other than ‘‘my doctor,’’ forging or 102 N. Swinton Avenue, Delray Beach, of his patients have some type of pain altering a prescription, or failing to receive complaint. [Tr. 24]. Florida 33444; (2) Women’s Center of Hyde any therapeutic benefit from the pain 13. He also has two certificates, one as a Park, LLC, 502 S. Magnolia Avenue, Tampa, medication. Mr. Hays and the Respondent Diplomate of the American Academy of Pain Florida 33606–2257; (3) 1103 Lucerne signed this Agreement on April 21, 2010. [Tr. Management, and Board Certification Terrace, Orlando, Florida 32806; (4) 609 41–42; Govt. Exh. 12 at 12]. through the American Board of Medical 21. At the initial visit there was no Virginia Drive, Orlando, Florida 32803; (5) Specialties, with a sub-specialty in Pain evidence that Mr. Hays was doctor shopping. 3025 Andrews Place, Boca Raton, Florida Medicine. [Tr. 21]. He has been practicing [Tr. 97]. 33234; and (6) Ocala Womens Center, 108 pain medicine since 1993. [Id.]. 22. Mr. Hays’ medical history also NW Pine Avenue, Ocala, Florida 34475. [ALJ 14. Dr. Rubenstein holds four academic disclosed, in response to questions asked on Exh. 5]. appointments and teaches pain medicine at 2. DEA registration Nos. BP7732349, each one. [Tr. 22]. the form, that his pain was sharp and had BP7622764, and BP7622752 expire by their 15. Dr. Rubenstein was qualified as an been with him for three years, and that his terms on March 31, 2011; DEA registration expert in pain management and pain pain interfered with work, sleep, and daily Nos. FP1312406 and BP8477639 expire by medicine. [Tr. 24]. activities. [Tr. 190–93; Govt. Exh. 12 at 10]. their terms on March 31, 2012; and DEA 16. Prior to rendering his opinion However, the form did not provide space for registration No. BP3429835 expires by its concerning the Respondent’s prescribing of Mr. Hays to discuss the basis for his answers terms on March 31, 2013. [Id.{. controlled substances, Dr. Rubenstein to these questions, and nowhere else in the 3. Respondent is currently licensed in the reviewed the medical records reporting the medical record are these concerns addressed. State of Florida as a Medical Doctor treatment of two individuals, David Hays 9 [Tr. 42–43; Govt. Exh. 12 at 10–11]. (Dispensing Practitioner), Lic. No. ME 65525, and Eddie Martinez.10 Dr. Rubenstein also 23. When asked on the intake form if Mr. expiration date: 1/31/2013. [Id.]. reviewed the transcripts of their visits with Hays had provided honest and valid medical the Respondent. [Tr. 29–30, 34; Govt. Exhs. records to the clinic, he answered ‘‘Yes.’’ [Tr. B. Background Facts 12 and 13, 2–11]. 193]. As for his treatment goals, Mr. Hays 4. The Respondent works at Delray Pain wrote that he wanted to ‘‘work better’’. [Tr. Management (‘‘clinic’’). The clinic D. Treatment of David Hays 193]. Mr. Hays also wrote and told the disqualified some patients because of the 17. David Hays first visited the Respondent Respondent that the pain interfered with his distance they had to travel to get to the clinic. on April 21, 2010. [Govt. Exh. 12 at 5; Govt. self-esteem, his overall energy, and his ability [Tr.183]. Exh. 15]. On that date, Mr. Hays’ chart 11 to perform physical activities. [Tr. 193–94, 5. In 2009, the Respondent ordered 321,600 notes a drug screen was taken with negative 198; Govt. Exh. 12 at 11]. Mr. Hays also told dosage units of oxycodone. [Tr. 318; results for all tested substances, to include the Respondent that his back ‘‘hurt.’’ [Tr. Government Exhibit (‘‘Govt. Exh.’’) 14 at 3]. opiates. [Tr. 123–24; Govt. Exh. 12 at 8]. At 200]. However, none of these complaints, From January 1 to June 30 of 2010, the none of the other visits, after controlled other than pain, was discussed with Mr. Respondent ordered 387,248 dosage units of substances were prescribed, did the Hays. [Govt. Exh. 2]. oxycodone. [Tr. 318–19; Govt. Exh. 14 at 4]. Respondent require a urinalysis screen. 24. Mr. Hays’ magnetic resonance imaging Based on these purchases, the Respondent [Govt. Exhs. 3–7, 9–11]. (‘‘MRI’’) report noted that there was ‘‘L4/5 ranked 22nd in the nation regarding 18. In his medical history forms, Mr. Hays and L5/S1, small protrusions with annular practitioners purchasing oxycodone. [Tr. reported taking over-the-counter anti- bulge and no nerve effacement.’’ [Tr. 44; 319]. inflammatories such as Advil or Motrin. Govt. Exh. 12 at 16]. Per Dr. Rubenstein, the 6. The Respondent accepted cash for office [Govt. Exh. 12 at 9–10]. From the medical MRI report, alone, does not justify visits and prescriptions. [Tr. 320–323; Govt. history, Dr. Rubenstein concluded that he prescribing of narcotics on April 21, 2010. Exh. 34]. had not taken opiates in the past. [Tr. 40–41]. [Tr. 46]. This MRI, ‘‘in and of itself, (doesn’t) 7. The record does not contain any legal The urinalysis results corroborated this define necessarily a pain generator, maybe a documents indicating the ownership of conclusion as to the immediate past. [Tr. 96]. potential pain generator, that needs to be Delray Pain Management. Mr. Kent Murray 19. The medical history form also related to the patient’s history and physical appears to have been the owner of the pain indicated that Mr. Hays did not have a examination.’’ [Tr. 46]. clinic for some time, but the Respondent 25. Mr. Hays’ basic complaint was low acted as either the general manager or also 9 David Hays is the undercover name used by back stiffness, having never said pain during the owner of the clinic. [Tr. 326–329]. Special Agent Jack Lunsford. For consistency with the physical examination. [Tr. 129, 189]. Low 8. The clinic requires a valid Florida the documentary exhibits, I will refer to this back pain is a diagnosis, however. [Tr. 47]. individual as Mr. Hayes. Since this investigation, identification for the patients seen there. [Tr. SA Lunsford has retired from the DEA. [Tr. 118, Mr. Hays explained that he restored BMW 332]. 179, 308]. motorcycles, and his back was ‘‘stiff and 9. The clinic also requires each patient to 10 Eddie Martinez is the undercover name used by jammed up and all.’’ [Govt. Exh. 2 at 22]. He provide an MRI. [Tr. 332–33]. The MRIs of Special Agent Eddie Brigantty. [Tr. 308]. agreed, however, that his pain had worsened Mr. Hays and Mr. Martinez were verified by 11 The Respondent maintained a medical record over the last three years. [Govt. Exh. 2 at 23]. an individual named Lynette or Lynn. [Tr. for Mr. Hays. [Govt. Exh. 12]. He managed his pain with over-the-counter

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medications like Aleve. He denied currently unsettled.’’ Later in the conversation, Mr. Roxicodone (30 mg pills) as well as the 15 taking any medications or having taken Hays stated that the medication ‘‘[k]inda mg. oxycodone pills. [Govt. Exh. 4 at 24; medications in the past year. [Govt. Exh. 2 at makes me not want to eat.’’ [Govt. Exh. 3A Govt. Exh. 17A]. Mr. Cohen agreed to speak 23, 27]. The Respondent then instructed Mr. at 11–12; see also Tr. 312; Govt. Exh. 16 ]. to the Respondent, whom Mr. Cohen later Hays that he only gives prescriptions for one When asked about the Flexeril, Mr. Hays stated had been ‘‘very generous’’ in his month and that Mr. Hays must only be seen responded that ‘‘I don’t know that it does prescribing to Mr. Hays. [Govt. Exh. 4 at 31– by him. [Id. at 25]. anything at all.’’ [Govt. Exh. 3A at 13]. He 32; Govt. Exh. 12 at 23; Govt. Exh. 17A]. 26. Next, the Respondent physically was not asked if the Percocet relieved his Ultimately, the Respondent added a examined the patient. [See id. at 27]. The pain, and he did not comment about the prescription for 15 mg. strength oxycodone to Respondent noted that Mr. Hays experienced Percocet and pain. [Tr. 145; Govt. Exh. 3A]. Mr. Hays’ 30 mg. prescription. [Govt. Exh. 12 ‘‘no pain with straight leg raising bilaterally Yet Mr. Hays medical chart contained the at 20]. and normal motor and sensory.’’ [Govt. Exh. statement that the prior prescription had 39. On this date, Mr. Hays received two 12 at 14]. Dr. Rubenstein opined that this provided ‘‘no relief (from) pain.’’ [Govt. Exh. prescriptions signed by the Respondent; one would represent a limited neurologic exam 12 at 14. Mr. Hays denied making such a for Roxycodone 30 mg, 210 tablets, and one for this patient. [Tr. 47]. But the results were statement, and no such statement appears on for Roxycodone 15 mg., 90 tablets. [Tr. 164; ‘‘normal,’’ and Dr. Rubenstein opined that he the recording or in the transcript. [Tr. 145; Govt. Exh. 12 at 23]. Mr. Cohen told Mr. Hays did not see ‘‘what the justification is, then, see also Govt. Exh. 3A and 16A]. Dr. Perper not to return to the clinic until after July 4. to even treat (him) if the exam is normal.’’ did not ask Mr. Hays whether he still had [Tr. 157; Govt. Exh. 4 at 31]. [Tr. 98]. pills from the earlier script for Percocet, nor 40. Mr. Hays paid $175.00 for this visit and 27. As part of the physical examination, did he instruct him what to do with those $510.00 for the medication. [Tr. 178]. the Respondent noted that there was a remaining pills, if they existed. [Govt. Exh. 41. On June 16, 2010, Mr. Hays reported, ‘‘positive, moderate tenderness at L5/S1.’’ 3A at 12, 16]. and the Respondent acknowledged that Mr. [Tr. 48]. In response to the question of 34. Dr. Rubenstein disagreed with this Hays’ lower back pain ranged from zero to whether his pain was in his lower back, Mr. prescription, noting that the medication four out of ten, with an average pain level of Hays responded ‘‘yes.’’ [Tr. 203]. However, ‘‘would have not been indicated given the two, and a current pain level of one. [Tr. 58; Dr. Rubenstein noted that Mr. Hays did not complaints of the patient, certainly not that Govt. Exh. 12 at 24, Govt. Exh. 5]. Mr. Hays complain of pain or tenderness during the particular agent and certainly not that dose circled on his intake form that his pain was physical examination, and such a complaint or frequency.’’ [Tr. 54]. ‘‘gnawing’’ and ‘‘nagging.’’ [Tr. 209; Govt. would need to be made for the Respondent 35. Mr. Hays did not pay anything for this Exh. 12 at 24]. to make such a legitimate observation. [Tr. visit. [Tr. 178]. 42. There was no discussion about Mr. 49]. 36. On May 19, 2010, Mr. Hays visited with 28. The Respondent diagnosed Mr. Hays Mitchell Cohen, a physician’s assistant at the Hays returning to the clinic before July 4. [Tr. with ‘‘chronic lumbar pain with bulge L4–5 Respondent’s clinic. [Tr. 151, 312; Govt. Exh. 165]. and L5/S1 with protrusions. No 17 and 17A]. Mr. Hays reported that his pain 43. During this visit, the Respondent again radiculopathy.’’ [Tr. 48; Govt. Exh. 12 at 14]. was between zero to five on a ten point scale, remarked that he was due to set out on a During the visit, the Respondent discussed a and it was completely alleviated by taking three month tug boat excursion, and asked back brace that Mr. Hays could use, and he the prescribed medication of six Roxycodone for additional pills to tide him over. The even showed Mr. Hays how to wear the belt. 30 milligram tablets per day. [Tr. 56; Govt. Respondent noted that Mr. Hays was going [Tr. 204; Govt. Exh. 2 at 32–40]. Exh. 12 at 21–22]. Mr. Hays rated his average through his medication rather quickly. [Govt. 29. Mr. Hays paid $250.00 cash for an pain as a ‘‘2’’ for the prior month, and rated Exh. 5 at 17]. The Respondent asked Mr. examination fee at this first visit. He was a his current pain level as ‘‘no pain’’. [Tr. 152; Hays whether his break-through pain was ‘‘walk-in patient’’ without an appointment. Govt. Exh. 12 at 22]. He also wrote ‘‘was in mostly with work. Mr. Hays had not [Tr. 121, 178]. lower back; gone now.’’ [Id.]. Mr. Hays told complained of break-through pain, however. 30. On April 21, 2010, the Respondent Mr. Cohen that his lower back was ‘‘no [Tr. 166; Govt. Exh. 5 at 17]. Yet, at this visit prescribed Percocet 10/325 in a quantity of problem at all’’ and denied having any side he received a prescription for 210 150, to be taken every four to six hours. effects from the medication. [Govt. Exhs. 4 at Roxycodone 30 mg and 90 Roxycodone 15 [Govt. Exh. 12 at 17]. Dr. Rubenstein opined 18, 17A]. He did state, however, that his mg., with ‘‘break through pain’’ written on that the ‘‘doses and frequency of the symptoms ‘‘might come back if (he) didn’t the bottom. [Govt. Exh. 12 at 26]. medication were excessive. . . Percocet 10 have medication.’’ [Govt. Exh. 4 at 19; Govt. 44. Mr. Hays was prescribed a liver milligrams would be excessive for an opioid Exh. 17A]. function test. [Tr. 210; Govt. Exh. 12 at 26]. naı¨ve patient . . . and that quantity of 37. Mr. Cohen performed a cursory However, Mr. Hays did not get such a test. medication would be excessive given the physical examination, asking him to raise [Tr. 210]. patient’s pain complaints and lack of any and lower his legs, declaring that Mr. Hays’ 45. Mr. Hays paid $175.00 for this visit and objective pathology on physical back felt ‘‘a little tight’’ but not ‘‘horribly $638.00 for his medication. [Tr. 178]. examination.’’ [Tr. 52]. Although muscle bad.’’ [Govt. Exh. 4 at 21; Govt. Exh. 17A]. 46. On July 20, 2010, Mr. Hays returned to spasm may be expected given this diagnosis, During this examination, Mr. Hays expressed the clinic. [Tr. 169; Govt. Exh. 6]. He met opiates are not often given as a result of this no pain or discomfort. He also denied any with Mitchell Cohen on that date. [Tr. 170]. observation. [Tr. 55–56]. anxiety or sleep problems. [Govt. Exh. 17A]. Mr. Hays reported that his lower back pain 31. Mr. Hays purchased 150 Percocet Here, Mr. Cohen asked about Mr. Hays’earlier ranged from zero to three out of ten, with tablets and paid $195.00 cash for them. [Tr. prescription for Percocet, which Mr. Hays complete relief after taking seven 130, 178]. stated he still had. Mr. Cohen then instructed oxycodone 12 30 milligram tablets and three 32. Mr. Hays next visited the Respondent, him to flush those pills and not to give them oxycodone 15 milligram tablets per day. [Tr. unscheduled, on April 28, 2010. On that date to anyone. [Govt. Exh. 4 at 22]. 57; Govt. Exh. 12 at 29–30]. When asked if the Respondent wrote in Mr. Hays’ medical 38. Mr. Hays requested a larger amount of his lower back had improved with the records that the patient had complained of pain medication, because he was joining a medicine, Mr. Hays said that he thought it severe stomach upset and that the Percocet tugboat crew and would be gone for three had improved. [Govt. Exh. 6 at 4]. did not relieve his pain. The Respondent months. [Tr. 156; Govt. Exh. 17A]. Mr. Cohen 47. On this date, the Respondent 13 then prescribed Roxycodone, 30 milligrams, refused to approve this request and advised prescribed Dilaudid four milligrams, 60 150 dosage units to be taken as needed for Mr. Hays to ‘‘stretch out’’ his medication by tablets to be taken one, twice daily, as needed pain. [Tr. 52, 150; Govt. Exh. 12 at 14, 18]. breaking it in half and ‘‘tak(ing) some Advil for breakthrough pain. [Tr. 59; Govt. Exh. 12 33. Yet Mr. Hays told the Respondent that in between.’’ [Govt. Exhs. 4 at 24, 17A]. Mr. the prior medication ‘‘doesn’t seem to be Cohen then offered to give Mr. Hays some 15 12 Roxycodone is a medication containing having the total effect I expected. And mg. strength oxycodone tablets instead of oxycodone. [Tr. 83]. another side thing it does is it, it’s giving me increasing the number of 30 mg. strength 13 Although Mr. Cohen saw Mr. Hays, the some kinda like-digestive-anxiety or tablets prescribed to Mr. Hays. Mr. Hays prescriptions bore the Respondent’s signature. something. I’m always feeling kinda again requested a greater quantity of [Govt. Exh. 12 at 3].

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at 31]. He also signed two prescriptions 14 for 51. On August 18, 2010, Mr. Hays returned also opined that the prescribing of controlled Roxycodone 30 mg., one for 120 tablets and to the clinic and met with Mitchell Cohen. substances to Mr. Hays was not based on one for 90 tablets. [Govt. Exh. 12 at 31]. [Tr. 174–75; Govt. Exh. 7; see also Tr. 314; sound clinical grounds. [Tr. 69]. Dr. However, after reviewing the medical records Govt. Exh. 20]. Mr. Hays spent $200.00 for Rubenstein would not consider the for this date, there was no evidence that Mr. this visit. [Tr. 178]. prescribing appropriate, given ‘‘the history Hays was experiencing any breakthrough 52. Mr. Hays reported that his back pain and physical examination and objective pain. [Tr. 60]. ‘‘feels better now,’’ with a pain level from information.’’ [Tr. 69–70]. Thus, this 48. This shift of medication to Dilaudid zero to three out of ten, averaging two, and prescribing of these controlled substances was not justified according to Dr. Rubenstein. a present rating of one. [Tr. 59; Govt. Exh. 12 was outside the usual course of professional [Tr. 60]. Further, Dr. Rubenstein noted that at 33–34]. Further, during a physical exam practice and without a legitimate medical no neurological musculoskeletal exam had where Mr. Cohen told Mr. Hays to move his purpose. [Tr. 70]. been performed, and that Mr. Hays had legs up against Mr. Cohen’s hand, Mr. Hays 57. Further, Dr. Rubenstein did not find violated his pain contract by allowing his indicated that neither action caused him any any evidence that the Respondent discussed girlfriend to share his medications. [Tr. 39– discomfort or pain. [Govt. Exh. 7 at 30–31; the risk and benefits of the use of controlled 41; Govt. Exh. 12 at 12]. Dr. Rubenstein Govt. Exh. 20]. He told Mr. Cohen that his substances with Mr. Hays. [Tr. 70]. agreed that sharing medication with a girlfriend knew of a place for him to get 58. Lastly, Dr. Rubenstein identified girlfriend would be a violation of the prescriptions filled. numerous ‘‘red flags’’ indicating potential Agreement. [Tr. 42]. In reviewing Mr. Hays’ 53. On this date, Mr. Hays asked Mr. Cohen diversion and/or abuse of controlled medical chart, Dr. Rubenstein found that whether there was some other ‘‘creative way substances. [Tr. 65]. The Respondent seemed ‘‘drug-seeking behavior is suspected.’’ [Tr. that he could deal with him.’’ [Govt. Exh. 7 to ignore these red flags, for there was no 95]. at 28]. To this Mr. Cohen responded, ‘‘Are reaction to Mr. Hays’ constant requests for 49. On this date, Mr. Hays told Mr. Cohen you having trouble sleeping? Is that what more narcotic medication or his sharing of that his girlfriend ‘‘got into [his] medication’’ you’re getting at?’’ [Id.]. Mr. Hays replied, medication with a girlfriend. [Tr. 65; see also … and ‘‘liked it.’’ [Tr. 170–71; Govt. Exh. 6 at ‘‘ummm .you know. I wonder . . . I do have Govt. Exhs. 3A at 7]. Also, no mention was 5; Govt. Exh. 19 and 19A]. Next, Mr. Hays trouble sleeping. I don’t sleep much . . .’’ made of Mr. Hays’ visit before July 5, 2010. said that his girlfriend wanted to come to the [Id.]. Mr Cohen then asked if Mr. Hays had [Tr. 68]. Respondent’s clinic, but he was unsure ever tried Valium and if he’d like to this whether she had a ‘‘valid reason’’ for month. [Id.]. The Respondent prescribed E. Treatment of Eddie Martinez 15 requesting medication. [Govt. Exh. 6 at 5–6]. Roxycodone 30 mg, 210 tablets, Percocet 10 59. Mr. Martinez was first treated by the Mr. Hays also admitted that his own mg., 60 tablets for break-through pain, and Respondent on June 10, 2010. He did not medication made him euphoric. [Govt. Exh. Valium 10 mg., 30 tablets. [Tr. 177; Govt. have an appointment. [Tr. 73, 226; Govt. Exh. 6 at 6]. Mr. Cohen took no action in response Exh. 12 at 35]. Although the treatment note 13; see also Tr. 314; Govt. Exh. 21 and 21A]. to these comments except to tell Mr. Hays documented Mr. Hays’ insomnia and noted Digital audio and video recordings were that the Respondent would not see his that he was to take one Valium at bedtime made of the visit. [Govt. Exh. 21 and 21A]. girlfriend unless she had a ‘‘valid reason.’’ only, Dr. Rubenstein opined that ‘‘there was A transcript of the audio recording was also [Govt. Exh. 6 at 6]. Mr. Cohen further stated nothing that would justify that dose . . . for made. [Govt. Exh. 8]. that if Mr. Hays’ girlfriend ‘‘has a legitimate this individual.’’ [Tr. 61–62; see also Govt. 60. On the intake documentation,16 Mr. area of pain’’ that is ‘‘proven with an Exh. 7 at 28]. Rather, Dr. Rubenstein stated Martinez answered ‘‘yes’’ to several of the objective test . . . like an MRI, then no that the ‘‘first reasonably standard thing to do questions asked in reference to his pain problem.’’ [Govt. Exh. 6 at 6–7]. Mr. Cohen would be to ensure that the patient wasn’t information. [Govt. Exh. 13 at 4]. However, made no response to the news that Mr. Hays’ doing anything or taking anything that may the form did not provide space for Mr. girlfriend had gotten into his medication or be promoting insomnia . . .’’ [Tr. 62]. Dr. Martinez to discuss his ‘‘yes’’ answers, and that Mr. Hays experienced euphoria from his Rubenstein objected to the fact that the nothing in the medical record indicates that controlled substances. [Id.]. During this visit, Respondent prescribed Valium at the highest the Respondent discussed these questions Mr. Cohen also had a long conversation with available dose, which would be a very high with Mr. Martinez. [Tr. 73; Govt. Exh. 13]. Mr. Hays about the price of medication and dose, and ‘‘its primary purpose is not for The Respondent did not discuss the lack of where to have his prescriptions filled. Mr. insomnia.’’ [Tr. 63]. information in Mr. Martinez documentation, Cohen advised Mr. Hays that ‘‘at this level,’’ 54. The Respondent had told Mr. Hays to for he did not list an emergency contact or he should not go to large chain pharmacies obtain a liver function test, yet the medical a previous doctor. [Govt. Exh. 13 at 1]. When and that the clinic would provide him with records fail to indicate that such a test was asked to note how long he had been on a list of places to go. [Govt. Exh. 6 at 7–14]. taken. [Tr. 68]. Mr. Cohen also emphasized opiates, Mr. Martinez left that question blank. Mr. Cohen then indicated that he would give at this visit that the Respondent should get He also left blank the questions asking if he him a script for Motrin, even though he the test, and he told the Respondent where had taken a list of controlled substances. already had two refills, because otherwise the he could go and the cost of the test. [ Govt. script for controlled substances would not be [Govt. Exh. 13 at 4]. He never described the Exh. 7 at 24–25]. Dr. Rubenstein opined that duration of his pain or whether it was filled by the pharmacy. [Govt. Exh. 6 at 14– he would be concerned about Mr. Hays’ lack 15]. Then Mr. Cohen asked Mr. Hays how he constant. [Govt. Exh. 13 at 2]. On the intake of compliance with the test recommendation, would like his ‘‘pills split.’’ [Govt. Exh. 6 at documents, Mr. Martinez denied taking as well as being concerned about the possible 16]. Motrin, Advil, Aleve, or Naproxyn [Govt. liver toxicity that results from the 50. Mr. Hays spent $200.00 cash for this Exh. 13 at 4], but then told the Respondent medications being prescribed to Mr. Hays. visit. [Tr. 178]. that he had tried taking at least some of those [Tr. 68, 102–03]. drugs. [Govt. Exh. 8 at 13–14]. Mr. Martinez 55. Mr. Hays also told Mr. Cohen that he 14 even admitted that over-the-counter Instead of writing one prescription for 210 was not experiencing any side effects from medications provided ‘‘temporary’’ relief. Roxicodone tablets, the prescriptions were divided the medication and that he felt ‘‘real good’’ into two separate prescriptions, one for 120 tablets [Tr. 228; Govt. Exh. 13 at 14]. and one for 90 tablets. Mr. Cohen advised Mr. Hays now and was able to work better. [Tr. 212]. 61. Yet the Respondent did enter into a to hand in one of the prescriptions, then ‘‘wait a 56. Dr. Rubenstein ultimately opined that, physician-patient relationship with Mr. couple of days or a week and go hand in the other after reviewing the transcripts of the visits, Martinez. [Tr. 92]. He had a face-to-face one.’’ [Govt. Exh. 6 at 13; Govt. Exh. 19 and 19A]. the medical records, and the recording of the meeting with Mr. Martinez, and he kept In this way Mr. Cohen advised Mr. Hays in how to first visit, he did not believe the prescribing medical records and evidence of the avoid arousing suspicion when presenting his of controlled substances was within the prescriptions he wrote to Mr. Martinez. [Tr. prescriptions to a pharmacy. Further, Mr. Cohen acceptable standard of care, given the 92; Govt. Exh. 13]. gave Mr. Hays a prescription for ibuprofen, saying quantities and frequency of such that by providing a prescription for a non- controlled substance, he could waylay such prescriptions. [Tr. 68–69]. There was also a 15 Eddie Martinez is the undercover name of suspicion, if needed. If the ibuprofen prescription problem with patient safety because of the Special Agent Ed Brigantty. [Tr. 218, 221 308]. was not needed in this way, Mr. Hays was to shred large dose of controlled substances 16 The Respondent maintained a medical record the prescription. [Govt. Exh. 6 at 15]. prescribed at the initial visit. [Tr. 52, 69]. He for Mr. Martinez. [Govt. Exh. 13].

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62. Mr. Martinez told the Respondent that complaints of pain in his middle back and prescsription for a patient who came back a he had pain in his leg and his back, and that neck were not consistent with the MRI. [Tr. week later. [Govt. Exh. 9 at 3].18 the pain is worse in the morning. [Tr. 259]. 77]. 72. Next, the Respondent treated Mr. On the pain assessment form, Mr. Martinez 67. The Respondent made a diagnosis of Martinez on July 28, 2010. [Tr. 82, 238, 314; had circled his neck and upper spine as the Mr. Martinez, finding ‘‘chronic lumbar pain Govt. Exh. 13 at 19, Govt. Exhs. 10, 23]. locations for his pain. [Tr. 229–30, 259; Govt. with stenosis, and in parentheses, spasm, Again, Mr. Martinez told the Respondent that Exh. 13 at 4]. Mr. Martinez told the multiple bulges with spondylosis with neural he had gotten meds off of the street. [Govt. Respondent that when he would lay down foraminal enchroachment, which is the NFE, Exh. 10 at 13]. The Respondent prescribed flat on a hard surface, that helped his pain. canal stenosis and lumbosacral stenosis, Roxicodone 30 mg, 90 tablets, a total of 2700 [Tr. 259]. which is the LSS. No radicular pain.’’ [Tr. 77; mg of oxycodone. [Tr. 82; Govt. Exh. 13 at 63. Mr. Martinez signed a pain Govt. Exh. 13 at 15]. Yet Dr. Rubenstein 19–20]. This prescription was an increase in management agreement. [Govt. Exh. 13 at 5]. opined that this is a radiologic diagnosis the dosage strength of the oxycodone Mr. Martinez agreed not to obtain pain based on the MRI, not on the complaint of prescribed at the initial visit. [Tr. 83–84]. medications from any other sources other Mr. Martinez, for he complained of pain in Again, Dr. Rubenstein found that such than the Respondent. [Tr. 74]. Dr. Rubenstein his cervical and thoracic region, not the prescribing was not warranted, given the lack agreed that, if a patient stated that he had lumbar region. [Tr. 77–78, 106; Govt. Exh. 13 of any physical examination noting an purchased illegally pain medications on the at 4]. Such an inconsistency raised a ‘‘pink’’ abnormality ‘‘or focal neurologic deficit to be street, the patient would have violated this consistent with his MRI finding or even his provision of the pain agreement. [Id.]. flag for Dr. Rubenstein. [Tr. 79]. Neither the medical record nor the transcript of the complaints.’’ [Tr. 85]. Dr. Rubenstein would 64. Mr. Martinez’s urinalysis report was have expected the Respondent to ‘re-examine negative for all substances tested, to include patient visit contain evidence that the Respondent explored this inconsistency with strengths, sensation and reflexes; or at a opiates. [Tr. 96; Govt. Exh. 13 at 6]. After minimum strength and reflexes at subsequent Mr. Martinez. [Tr. 79; Govt. Exhs. 13, 8]. Dr. controlled substances were prescribed, at visits with those types of complaints. And Rubenstein pointed out that the Respondent follow-up visits, the Respondent did not gait would be something I would expect him seemed only to treat the pathology included require any other urinalysis tests. [Tr. 112, to assess, too, at least to a degree.’’ [Tr. 114]. in the MRI, while ignoring the fact that Mr. 231, 249]. Yet the medical record fails to indicate that Martinez had identified pain in his middle 65. Mr. Martinez told the Respondent that any of these tests were performed at his pain started ten years ago and ‘‘slowly back and neck. [Tr. 106–07; Govt. Exh. 13 at subsequent visits. [Govt. Exh. 13]. and surely got worse.’’ [Govt. Exh. 8 at 11]. 4]. 73. Lastly, the Respondent saw Mr. The Respondent asked him about his work, 68. Mr. Martinez had indicated on his Martinez on August 25, 2010. [Tr. 85, 314; his other medications, and symptoms, and intake forms that he had only taken over-the- Govt. Exhs. 13 at 23–24, Govt. Exhs. 11, 24, whether he saw any other physicians. [Id. at counter medications and that they provided 24A]. Again, the Respondent increased the 12–14]. The Respondent conducted a temporary relief. [Tr. 79, 228; Govt. Exhs. 8 amount of oxycodone given to Mr. Martinez physical examination of Mr. Martinez, which at 13–14, 13 at 4]. He also told the by prescribing Percocet 10mg, 60 tablets for consisted of his raising his arm and leg and Respondent that he had taken some break-through pain, Roxycodone, also an the Respondent asking if it hurt in various ‘‘blues’’ 17 and that he had purchased them oxycodone containing medication, 30mg, 90 places on his body. [Tr. 227]. At no time did from someone that he knew had them. [Tr. tablets, with a total of 3300 mg of oxycodone. Mr. Martinez indicate he was experiencing 228; Govt. Exh. 8 at 12–13; Govt. Exh. 21 and [Tr. 85–86; Govt. Exh. 13 at 24]. The only any significant pain. [Govt. Exh. 8 at 16–17; 21A]. justification given for increasing the dosage see also Govt. Exhs. 21 and 21A]. Yet, 69. However, the Respondent prescribed was that Mr. Martinez ran out of his compared to his MRI, Mr. Martinez’s controlled substances to Mr. Martinez on his medication early, had purchased controlled statements were contradictory. Though he first visit, Percocet 10mg, 120 tablets, totaling substances illegally,19 and was still circled areas on a diagram that corresponded 1200 mg of oxycodone. [Tr. 81; Govt. Exh. 13 complaining of unrelieved pain. [Tr. 86; to his center back and neck, he told the at 15–16]. Dr. Rubenstein thought such Govt. Exh. 11 at 20–21; Govt. Exh. 13 at 23]. Respondent he was feeling pain ‘‘[m]ore on prescribing would not be appropriate. [Tr. The Respondent was clearly suspicious of my left.’’ [Govt. Exh. 8 at 15; Govt. Exh. 13 80]. Specifically, he credibly testified that ‘‘I Mr. Martinez, for when Mr. Martinez at 4]. In the written documentation, Mr. think the prescription was excessive and not attempted to argue that the Respondent had Martinez had denied any ‘‘lower back warranted based on the history and physical decreased his medications, the Respondent problems.’’ [Govt. Exh. 13 at 2]. The examination presented.’’ [Tr. 81]. urged him to ‘‘do the math.’’ [Govt. Exh. 11 Respondent did not address these 70. Mr. Martinez paid $250.00 in cash for at 21]. Yet, in response to Mr. Martinez’s inconsistencies. this visit and $156.00 for his medication. [Tr. statement that he had to get more, the 66. The radiologist, interpreting an MRI of 226, 232–33]. There was no explanation of Respondent issued him another prescription Mr. Martinez dated May 27, 2010, found a his diagnosis and no discussion about for Percocet, the same medication that Mr. disc bulge at L3–4 which approached the physical therapy or any other modalities. Martinez had told Mr. Cohen had made him canal where the nerve leaves at that level, but [Govt. Exh. 8]. ill. [Govt. Exh. 11 at 22; Govt. Exhs. 24 and there was no evidence that the spinal cord 71. Next, Mr. Martinez saw Mr. Cohen on 24A; Govt. Exh. 9 at 3–4]. was encroached. [Tr. 75; Govt. Exh. 13 at 12]. June 17, 2010. [Tr. 314; Govt. Exhs. 9, 22, 74. Dr. Rubenstein opined that ‘‘[j]ust The radiologist also noted that at L4–5, there 22A]. Mr. Martinez told Mr. Cohen that the simply his complaint of pain without a was a disc bulge that touched the front of the medication did not agree with him and that physical exam that would correlate with the region where the spinal cord sat. The disc he wanted a different prescription. [Tr. 233– need for same, wouldn’t be a reason to titrate bulge ‘‘was narrowing the canals where the 34]. Mr. Cohen refused to prescribe another the medications.’’ [Tr. 86]. Dr. Rubenstein nerves would leave on either side between concluded that, based on the history, the fourth and fifth vertebrae of the lumbar medication. He offered to give Mr. Martinez a shot of pain medication, but he refused the physical, and objective information available spine.’’ [Tr. 75–76]. Also, at L5/S1 there were in Mr. Martinez’s file, the increase in similar findings of enchroachment on both offer. [Tr. 234–35]. In answer to a question concerning how he had managed his pain medication was not a legitimate medical sides. [Tr. 76]. Dr. Rubenstein credibly justification. [Tr. 86–87]. opined that an MRI, alone, does not justify prior to coming to the clinic, Mr. Martinez told Mr. Cohen that he bought ‘‘stuff’’ off the 75. Dr. Rubenstein did not believe that the the prescribing of controlled substances. [Tr. Respondent’s prescribing of controlled street. [Tr. 235–36]. Mr. Cohen advised Mr. 76]. However, these MRI results could lead substances to Mr. Martinez was within the Martinez that he would have to ‘‘go back to’’ a doctor to believe that ‘‘there were some acceptable standard of care. [Tr. 87]. The significant changes in the lower back that purchasing controlled substances on the street. [Tr. 236; Govt. Exh. 9 at 4–5]. He could be a pain generator.’’ [Tr. 104]. Dr. 18 insisted that Dr. Perper would not change a Although this is inconsistent with Dr. Perper’s Rubenstein also found a significant treatment of David Hays. [See FOF 30–33]. disconnect between Mr. Martinez’s 19 The Respondent made no comment regarding complaints and the actual diagnosis. Dr. 17 ‘‘Blues’’ are street slang for Roxicodone which this break of the pain management agreement. [Tr. Rubenstein found that Mr. Martinez’s contains oxycodone. [See Tr. 75]. 245–46].

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Respondent’s prescribing demonstrated a 82. Using the same computation method naı¨ve DEA officers and issued those lack of reasonable safety given Mr. Martinez’s and the Respondent’s records, the DEA’s prescriptions without regard for their safety.’’ complaints. [Tr. 87–88]. audit disclosed that the Respondent had an [Government’s Brief at 27–28]. 76. Further, Mr. Martinez had also told the overage, and therefore, was unable to account The Government further asserts that the Respondent that he had purchased controlled for 4808 tablets of oxycodone 15 mg. [Tr. 288; Respondent failed to follow the steps substances on the street. [Tr. 88–89, 245–46; Govt. Exh. 32 at 1]. However, using the outlined in the Florida Administrative Code Govt. Exh. 11 at 20]. Per Dr. Rubenstein, the suppliers’ records, the Respondent was only prior to prescribing pain medication. Respondent’s prescribing of controlled unable to account for 8 tablets of oxycodone [Government’s Brief at 28]. substances did not evidence the diligence 15 mg. [Tr. 288; Govt. Exh. 32 at 2]. The Government also asserts that the needed to prevent the risk of diversion or to 83. Using the same computation method Respondent violated DEA regulations when monitor for such risk. [Tr. 88–89]. and the Respondent’s records, the DEA’s he failed to guard against diversion of 77. The Respondent told Mr. Martinez to audit disclosed that the Respondent was controlled substances. The Respondent get a liver function test, but Mr. Martinez did unable to account for 38 tablets of oxycodone overlooked numerous instances of drug not do that. [Tr. 249–50]. Dr. Rubenstein was 40 mg., 71 tablets of oxycodone 80 mg., 2,565 seeking behavior and prescribed controlled concerned that the Respondent failed to Endocet 10/325 mg. and 365 tablets of substances to such patients anyway. consider any treatment options other than Endocet 10/650 mg. [Tr. 289–293; Govt. Exh. [Government’s Brief at 28]. The Respondent’s prescribing controlled substances. For 32 at 1]. Although DEA personnel searched decision to keep providing those patients instance, Mr. Martinez had stated that over- for records disclosing controlled substances with controlled substance prescriptions the-counter medications provided returned from customers, returns to increased the risk of illegal diversion. ‘‘temporary’’ relief, yet no such approach was suppliers, thefts, or surrenders of controlled [Government’s Brief at 29]. attempted. [Tr. 79–80]. substances, no such records were found. [Tr. As for the actions taken by the physician 78. In total, Dr. Rubenstein concluded that 291; Govt. Exh. 32 at 1]. assistant, Mr. Cohen, under both Florida law ‘‘I don’t believe that this patient’s history and 84. Lastly, the DEA personnel were unable and DEA precedent, the Respondent is liable physical met that criteria for those to find an initial inventory which should for Mr. Cohen’s conduct. Mr. Cohen issued prescriptions.’’ [Tr. 90]. have been taken on the date the Respondent prescriptions for controlled substances signed by the Respondent, instructed Mr. F. The Respondent moved to the North Swinton Avenue address. Hays in ways to ensure pharmacists would 79. The Government called the Respondent [Tr. 294]. Even if the Respondent had no controlled substances on hand, he needed to fill controlled substances prescriptions, and as a witness, and he asserted his Fifth he advised Mr. Martinez to go back to Amendment rights against self-incrimination take an initial, written inventory reflecting this zero balance. [Tr. 294]. purchasing controlled substances on the and refused to answer any questions beyond street. The fact that Mr. Cohen performed stating his name and business address. [Tr. IV. STATEMENT OF LAW AND these actions does not absolve the 116–117]. DISCUSSION Respondent from his responsibilities in G. Audit supervising Mr. Cohen. [Government’s Brief A. Position of the Parties at 29]. 80. Diversion Investigator Janice Barnes 1. Position of the Government The Government argues that the (‘‘DI Barnes’’) conducted an accountability The Government asserts that the Respondent’s failure to maintain accurate audit based on the Respondent’s records. [Tr. Respondent’s DEA Certificates of Registration medical records threatens the public health 280–81]. Specifically, she reviewed the and safety. ‘‘Moreover, Respondent’s Respondent’s inventory records of controlled should be revoked. As a basis for that assertion, the Government argues that the employment of a physician assistant who substances on hand, receiving records to provides advice to patients to assist them in include DEA Form 222 for Schedule II Respondent prescribed controlled substances to patients without a legitimate medical obtaining drugs for abuse and/or diversion is controlled substances, and dispensing both troubling and inconsistent with the records, to include prescriptions. [Tr. 281– purpose and outside the course of professional practice, in violation of DEA public interest.’’ [Government’s Brief at 30]. 82]. Lastly, the Respondent’s failure to admit 81. The audit covered the timeframe of regulations and precedent. Further, the Respondent violated Florida law when he fault or to accept responsibility for his March 2, 2010, to February 23, 2011. The misconduct also weighs heavily in the public beginning inventory came from the prescribed controlled substances after an inadequate physical examination and history interest determination under DEA precedent. Respondent’s computerized inventory. The The fact that the Respondent neither testified beginning inventory and the amount of which failed to justify such prescribing. [Government’s Proposed Findings of Fact, nor presented any evidence to rebut the controlled substances received during the Government’s prima facie case weighs in audit period are added together to reflect the Conclusions of Law and Argument (‘‘Government’s Brief’’) at 26–28]. The favor of revocation. The Government argues total number of controlled substances for that an adverse inference should be taken which the Respondent would be accountable. medical records actually contained inaccuracies and possibly false statements, from the Respondent’s refusal to testify, and [Tr. 283]. For oxycodone 30 mg. that total the record clearly lacks any evidence of the Government argues. [Id.]. Further, the number accountable was 199,752. [Tr. 283; mitigating circumstances to consider on the Respondent failed to discuss the risks and Govt. Exh. 32]. On the date of the closing Respondent’s behalf. In conclusion, the benefits of using controlled substances, and inventory, February 23, 2011, the Respondent Government requests revocation of the he failed to refer Mr. Hays and Mr. Martinez had no controlled substances on hand. [Tr. Respondent’s DEA Certificates of for ‘‘additional evaluation and treatment.’’ 284; Govt. Exh. 32]. The Respondent was able Registration. [Government’s Brief at 30–32]. to account for, using his prescriptions, [Government’s Brief at 26–27]. 180,559 tablets of oxycodone 30 mg. [Tr. 284; Next the Government asserts that the 2. Position of the Respondent Govt. Exh. 32]. Thus, he did not have records Respondent issued controlled substance The Respondent requests that his DEA showing the dispensing of 19,193 tablets of prescriptions knowing that his patients could Certificate of Registration be reinstated. He oxycodone 30 mg. [Tr. 284; Govt. Exh. 32]. be drug abusers or diverters. [Government’s argues that the Government has failed to However, after verifying the receiving Brief at 27]. Prescribing under such meet its burden of proof regarding his documents with the Respondent’s suppliers, circumstances ‘‘constitutes prescribing prescribing of pain medication; for he in fact the Respondent should have received outside the usual course of professional prescribed controlled substances for a an additional 4800 tablets of oxycodone 30 practice’’ and is contrary to DEA regulations. legitimate medical purpose and in mg. [Tr. 285; Govt. Exh. 32 at 2]. Thus, the [Government’s Brief at 27]. Further, the compliance with the standards set forth by Respondent was actually responsible for Respondent increased the amount of the Florida Medical Board Guidelines. 202,980, and the total accountable is now controlled substances without a legitimate [Respondent Zvi H. Perper, M.D.’s Post- 204,552 tablets. The Respondent’s records medical reason. The Respondent also Hearing Brief (Resp. Brief) at 2,4,6]. Further, still only showed his dispensing of 180,559 prescribed additional types of controlled the Government has not met its burden of tablets, resulting in his being unable to substances without medical justification. The proof that the Respondent’s registration is account for 23,993 tablets of oxycodone 30 Respondent ‘‘demonstrated no skill when inconsistent with the public interest. [Resp. mg. [Tr. 286–87; Govt. Exh. 32 at 2]. issuing prescriptions to the obviously opiate Brief at 6].

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The Respondent next argues that the Court DEA precedent has also held that ‘‘past but rather to communicate what the [Florida lacked subject matter jurisdiction of performance is the best predictor of future Board] considers to be within the boundaries Certificate of Registration numbers performance.’’ [ALRA Labs, Inc. v. DEA, 54 of professional practice.’’ Id. at 9.013(1)(g). BP7732349, BP7622752, BP7622764, F.3d 450, 452 (7th Cir. 1995)]. Further, DEA Thus, the plain text supports an inference BP3429835, and BP8477639 because the has repeatedly held that ‘‘where a registrant that the standards provide the minimum Order to Show Cause only addressed has committed acts inconsistent with the requirements for establishing conduct that Certificate of Registration number public interest, the registrant must accept meets the professional practice of controlled FP1312406. He asserts that the DEA did not responsibility for his actions and substance-based pain management within the issue an Order to Show Cause for the demonstrate that he will not engage in future state. Likewise, the range of acceptable remaining DEA registration numbers. [Resp. misconduct.’’ [Medicine Shoppe, 73 Fed. Reg. practice that is built into the regulation Brief at 2–3, 5].20 at 387; see also Samuel S. Jackson, 72 Fed. underscores the importance of seeking an expert opinion in reaching a correct B. Statement of Law Reg. 23,848, 23,853 (DEA 2007)]. In this matter, factors two, four and five are adjudication of whether a registrant has met Pursuant to 21 U.S.C. § 824(a)(4), the relevant in determining the appropriate the applicable Florida standard. 21 Deputy Administrator may revoke a DEA resolution. Here, Dr. Rubenstein found that the Certificate of Registration if she determines Respondent issued prescriptions that were that the continuance of such registration C. Discussion not for a legitimate medical purpose or in the would be ‘‘inconsistent with the public 1. Factors 2 and 4: The applicant’s course of usual medical practice. interest’’ as determined pursuant to 21 U.S.C. experience in dispensing, or conducting Specifically, he found that the prescriptions § 823(f). Section 823(f) requires that the research with respect to controlled issued to Mr. Hays were not within the following factors be considered: substances; Compliance with applicable acceptable standard of care, given the (1) The recommendation of the appropriate State, Federal, or local laws relating to quantities and frequency of such State licensing board or professional controlled substances prescriptions. [FOF 56]. Also, given the disciplinary authority. medical history, the physical examination, (2) The applicant’s experience in a. Patient Care and other objective information, Dr. dispensing, or conducting research with Under a longstanding DEA regulation, a Rubenstein opined that the prescriptions respect to controlled substances. prescription for a controlled substance is not were not based on sound clinical grounds. (3) The applicant’s conviction record under ‘‘effective’’ unless it is ‘‘issued for a Thus, he concluded that the prescriptions Federal or State laws relating to the legitimate medical purpose by an individual issued to Mr. Hays were issued outside the manufacture, distribution, or dispensing of practitioner acting in the usual course of his usual course of professional practice and controlled substances. professional practice.’’ [21 C.F.R. were not issued for a legitimate medical (4) Compliance with applicable State, § 1306.04(a); George C. Aycock, M.D., 74 Fed. purpose. [FOF 56]. Federal, or local laws relating to controlled Reg. 17529, 17541 (DEA 2009)]. This Likewise, Dr. Rubenstein found that the substances. regulation further provides that ‘‘an order Respondent issued prescriptions to Mr. (5) Such other conduct which may threaten purporting to be a prescription issued not in Martinez outside the acceptable standard of the public health and safety. the usual course of professional treatment care. [FOF 74–75]. Specifically, he found that These factors may be considered in the . . . is not a prescription within the meaning the Respondent demonstrated a lack of disjunctive: The Deputy Administrator may and intent of [21 U.S.C. § 829] and . . . the reasonable safety in his prescribing, given properly rely on any one or a combination of person issuing it, shall be subject to the Mr. Martinez’s complaints. As he credibly these factors, and may give each factor the penalties provided for violations of the concluded, ‘‘I don’t believe that this patient’s weight she deems appropriate, in provisions of law related to controlled history and physical met the criteria for those determining whether a registration should be substances.’’ [Id. See also 21 U.S.C. § 802(10) prescriptions.’’ [FOF 78]. revoked or an application for registration (defining the term ‘‘dispense’’ as meaning ‘‘to For both Mr. Hays and Mr. Martinez, the denied. Marvin L. Gibbs, Jr., M.D., 69 Fed. deliver a controlled substance to an ultimate Respondent shifted medications, either Reg. 18299, 18302 (DEA 2004) (citing Henry user by, or pursuant to the lawful order of, increasing the dosages or adding Dilaudid J. Schwarz, Jr., M.D., 54 Fed. Reg. 16,422 and Valium without medical justification. (DEA 1989)). a practitioner, including the prescribing and Also, in an action to revoke a registrant’s administering of a controlled substance’’)]. [FOF 48, 53, 72, 73, 74]. In addition, the certificate, the DEA has the burden of Likewise, under Florida law, grounds for circumstances surrounding the Respondent’s proving that the requirements for revocation disciplinary action or denial of state prescription of Valium nearly equates to are satisfied. [21 C.F.R. § 1301.44(e)]. The licensure include ‘‘prescribing . . . any outright drug dealing. [See FOF 53 burden of proof shifts to the Respondent once controlled substance, other than in the course (suggesting patient had trouble sleeping in the Government has made its prima facie of the physician’s professional practice,’’ and response to his request that Mr. Cohen find case. [Medicine Shoppe, 73 Fed. Reg. 364, prescribing such substances ‘‘inappropriately a ‘‘creative way to deal with him.’’)]. 387 (DEA 2008); Thomas Johnston, 45 Fed. or in excessive or inappropriate quantities is Dr. Rubenstein found that the Reg. 72,311 (DEA 1980)]. not in the best interest of the patient and is Respondent’s physical examinations failed to As the Supreme Court recently explained, not in the course of the physician’s provide an adequate basis for his prescribing ‘‘the prescription requirement * * * ensures professional practice, without regard to his or of controlled substances. [See FOF 26, 27, patients use controlled substances under the her intent.’’ [Fla. Stat. § 458.331(q)(2009)]. 52]. Likewise, relying upon the MRI supervision of a doctor so as to prevent Rulemaking authority regarding the interpretation as a sole basis for prescribing addiction and recreational abuse. As a practice of medicine within the state of controlled substances is not appropriate. corollary, [it] also bars doctors from peddling Florida has been delegated to the Florida [FOF 24]. However, it appears that the to patients who crave the drugs for those Board of Medicine (Florida Board). [Fla. Stat. Respondent did so rely. For example, while prohibited uses.’’ [Gonzales v. Oregon, 546 § 458.326 (2009)]. Florida has promulgated a Mr. Hays experienced no pain during the U.S. 243, 274 (2006) (citing United States v. regulation, ‘‘Standards for the Use of neurological examination, the Respondent Moore, 423 U.S. 122, 135, 143 (1975))]. When Controlled Substances for Treatment of prescribed controlled substances for him. an administrative tribunal elects to disregard Pain,’’ Fla. Admin. Code r 64B8–9.013 (2009) [FOF 24, 26, 28, 52]. In addition, when the uncontradicted opinion of an expert, it (‘‘Florida Standards’’), which recognize that treating Mr. Martinez, the Respondent, per runs the risk of improperly declaring itself as ‘‘inappropriate prescribing of controlled Dr. Rubenstein, seemed only to treat the an interpreter of medical knowledge. [Ross v. substances . . . may lead to drug diversion pathology included in the MRI, while Gardner, 365 F.2d 554 (6th Cir. 1966)]. and abuse by individuals who seek them for ignoring the fact that Mr. Martinez had other than legitimate medical use.’’ [Id. at identified pain in his middle back and neck. 20 But see ALJ Exhibit 2 which shows that Order § 9.013(d)]. The language employed by the [FOF 67]. [See Laurence T. McKinney, 73 II had been served on the Respondent. regulation under the preamble section Fed. Reg. 43260, 43265 n. 22 (DEA 2008)]. 21 The Deputy Administrator has the authority to entitled ‘‘Pain Management Principles’’ Further, the Respondent prescribed make such determinations pursuant to 28 C.F.R. makes clear that the standards ‘‘are not controlled substances to Mr. Hays too often, §§ 0.100(b) and 0.104 (2011). intended to define complete or best practice, and in one instance prescribed controlled

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substances prior to the date he had told Mr. substance abuse, the physician should of controlled substances dispensed to Mr. Hays to return without even discussing the employ the use of a written agreement Hays. Yet Mr. Hays had not complained of early dispensing of controlled substances. between the physician and patient outlining break-through pain. [FOF 43, 47]. [FOF 39, 41, 42]. This occurred despite the patient responsibilities, including, but not b. Inventory and Audit Respondent’s assertion that he only gives out limited to: ‘‘1. Urine/serum medication levels pills for one month, and Mr. Cohen’s screening when requested; 2. Number and Under Florida law, a dispensing physician statement that Dr. Perper would not change frequency of all prescription refills; and 3. is required to abide by the statutory and a prescription for a patient that came back a Reasons for which drug therapy may be regulatory recordkeeping provisions identical week later. [FOF 25, 71]. Thus, based on the discontinued (i.e. violation of agreement.)’’ to those levied against a pharmacy. [Fla. Stat. foregoing, it is clear that the Respondent Yet the Respondent was provided with Ann. § 465.0276(2)(b) (2009)]. That includes issued prescriptions for excessive amounts information from the patients that clearly compliance with 21 C.F.R. § 1304.04, which without an adequate basis. Therefore, his showed a violation of the agreement, and the requires dispensed prescriptions to be prescriptions were for an illegitimate medical Respondent failed to take any action in maintained in a readily retrievable manner purpose in violation of both Federal and response. [FOF 48, 73]. [Fla. Admin. Code r for two years after dispensing. [ See Fla. Florida law. 64B8–9.003(3)(c)]. In addition, despite these Admin. Code r. 64B16–28.140 (2009) (stating Subsequent to the initiation of treatment, red flags of diversion, the Respondent failed a pharmacy must comply with § 1304.04)]. ‘‘the physician should adjust drug therapy to to follow up with urine screens beyond the In addition, under federal law, a the individual medical needs of each patient. first visit, to ensure the prescribed controlled dispensing physician is required to keep Other treatment modalities or a rehabilitation substances were being consumed by the certain records similar to those kept by retail program may be necessary depending on the patient and not diverted. [FOF 64]. Yet, the pharmacies. For example, 21 C.F.R etiology of the pain and the extent to which Respondent utilized pain management § 1304.03(d) requires a registered practitioner the pain is associated with physical and agreements. [FOF 20, 63]. who regularly dispenses to keep records of psychosocial impairment.’’ Fla. Admin. Code The Florida Standards direct that Schedule II–V controlled substances that he r 64B8–9.013(3)(b). Here, the Respondent ‘‘[p]hysicians should be diligent in dispenses. Specifically, the registrant is failed to meet this standard. The Respondent preventing the diversion of drugs for required to keep inventories of schedules I failed to discuss other treatment modalities illegitimate purposes.’’ [Id. at 9.013(1)(d). and II controlled substances. In addition, the or physical therapy with Mr. Martinez, Here, the Respondent and Mr. Cohen were registrant is required to keep inventories of despite an indication in his case, that non- given direct evidence of diversion and failed schedules III through V controlled substances controlled substances had been utilized to to act. Mr. Martinez clearly told the either separate from all other records of the control his pain in the past. [FOF 70, 77]. Respondent and Mr. Cohen that he had registrant or in a manner that is readily Although he ordered liver function tests, the purchased controlled substances off the retrievable. [§ 1304.04 (f)(1) and (2); See also Respondent failed to take action when the street. [FOF 68, 71, 76]. Yet neither one took § 1304.04(g) (imposing this requirement on patients refused to comply other than to any action in response to this information. registered practitioners required to maintain discuss their non-compliance. Both this Mr. Hays told Mr. Cohen that he had shared records)]. Federal regulations also set out in failure to comply and decision not to discuss his controlled substances with his girlfriend, detail the requirements of those inventories. other treatment options concerned Dr. and again, Mr. Cohen failed to take any [See § 1304.11(e)(3) (specifying that a Rubenstein. [FOF 44, 54, 58, 77]. action. [FOF 49]. A practitioner who takes no dispensing practitioner’s inventory of Further, the Respondent failed to adjust his ‘‘precautions against . . . misuse and Schedules I and II must be conducted by drug therapy to the individual medical needs diversion’’ exceeds the bounds of hand count but that Schedules III through V of each patient. Dr. Rubenstein found that the professional practice when he prescribes can be estimated provided the container doses and frequency of prescribing to Mr. controlled substances. [United States v. holds less than 1000 tablets and requiring the Hays were excessive given the medical Moore, 423 U.S. 122, 142–43 (1975)]. Such practitioner to maintain records identical to indications. [FOF 30, 34, 53]. Subsequently, inaction violates the standard of diligence those maintained by manufacturers under the Respondent 22 prescribed controlled expected of a DEA registrant. § 1304.11(e)(1)(iii) and (iv))]. substances at the patient’s request, without Florida law further provides that grounds Here, the Respondent failed to meet such medical justification for the increase in for such disciplinary action also include: requirements. Specifically, the Respondent controlled substances. [FOF 38, 39]. failed to conduct the required initial Failing to keep legible, as defined by inventory after moving to a new practice Likewise, Dr. Rubenstein found that the department rule in consultation with the location. [FOF 84]. Next, when conducting an Respondent’s prescribing to Mr. Martinez on board, medical records that identify the accountability audit, the DEA found that the the first visit ‘‘was excessive and not licensed physician . . . and that justify the Respondent was unable to account for, warranted based on the history and physical course of treatment of the patient, including, among other discrepancies, 23,993 dosage examination presented.’’ [FOF 69]. but not limited to, patient histories; units of oxycodone 30 mg tablets, [FOF 81], Another standard adopted by the Medical examination results; test results; records of and 2,565 dosage units of Endocet 10/325, Board, under the subheading ‘‘Informed drugs prescribed, dispensed, or administered; [FOF 83]. Consent and Agreement for Treatment,’’ is and reports of consultations and Factor Five: Such other conduct which may the directive that ‘‘[t]he physician should hospitalizations. threaten the public health and safety. discuss the risks and benefits of the use of [Id. § 458.331(m)]. Although factor five is quite broad, the controlled substances with the patient, Inherent in this law is the requirement that Deputy Administrator has qualified its persons designated by the patient, or with the the medical records accurately report the breadth by limiting the considerations made patient’s surrogate or guardian if the patient required data. [See Fla. Admin. Code r. under that factor to those where there is ‘‘a is incompetent.’’ [Fla. Admin. Code r 64B8– 64B8–9.013(3)]. Here, Mr. Martinez failed to substantial relationship between the conduct 9.003(3)(c)]. Here the Respondent failed to complete his intake documentation, leaving and the CSA’s purpose of preventing drug discuss the risks associated with the use of critical portions, such as his level of pain, abuse and diversion.’’ [Tony T. Bui, 75 Fed. controlled substances. [FOF 57]. blank. [FOF 60]. The Respondent did not Reg. 49,979, 49,988 (DEA 2010)]. The Florida Standards also state that, ‘‘if discuss the missing data with Mr. Martinez Here, I find that Mr. Cohen advised Mr. the patient is determined to be at high risk and made no effort to complete the medical Hays on ways to present prescriptions so that for medication abuse or have a history of history. [Id.]. the pharmacy would not be ‘‘suspicious.’’ Further, the Respondent charted Specifically, Mr. Hays was to hand in one of 22 The Respondent remains liable for Mr. Cohen’s inaccurately. For example, despite no the controlled substances prescriptions and actions. Florida law states that ‘‘[e]ach physician discussion about the relief of pain Mr. Hays then wait to hand in the other one. [FOF 49]. . . . supervising a licensed physician assistant must experienced from the Percocet, the Further, Mr. Cohen gave Mr. Hays a be qualified in the medical areas in which the Respondent wrote that Mr. Hays had prescription for ibuprofen, to be used to physician assistant is to perform and shall be individually . . . responsible and liable for the experienced ‘‘no relief (from) pain.’’ [FOF waylay the pharmacist’s suspicion. If the performance and the acts and omissions of [the] 33]. Likewise, the Respondent charted pharmacist was not suspicious, Mr. Hays was physician assistant.’’ Fla. Stat. Ann. § 458.347(3) ‘‘break-through pain’’ and utilized this to destroy the ibuprofen prescription. [FOF (2009). information to justify increasing the amount 49]. Such deception in handling

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prescriptions for controlled substances Inc., 500 Swedes Landing Road, U.S.C. 958(a); 21 U.S.C. 823(a); and 21 threatens the public health and safety, for it Wilmington, Delaware 19801–4417, CFR 1301.34(b), (c), (d), (e), and (f) are circumvents the checks and balances made application by renewal to the satisfied. available in the pharmacist’s corresponding liability for the dispensing of controlled Drug Enforcement Administration Dated: October 9, 2012. (DEA) for registration as an importer of substances. [See 21 C.F.R. 1306.04]. Joseph T. Rannazzisi, Next Mr. Cohen advised Mr. Martinez to go the following basic classes of controlled back to buying controlled substances on the substances: Deputy Assistant Administrator, Office of street if he needed more drugs than the ones Diversion Control, Drug Enforcement already prescribed. [FOF 71]. Advising Mr. Drug Schedule Administration. Martinez to engage in illegal activity in [FR Doc. 2012–25644 Filed 10–17–12; 8:45 am] purchasing controlled substances in this Phenylacetone (8501) ...... II BILLING CODE 4410–09–P manner promotes diversion and therefore, Opium, raw (9600) ...... II directly threatens the public health and Poppy Straw Concentrate (9670) II safety. Tapentadol (9780) ...... II Lastly, Dr. Rubenstein found that the DEPARTMENT OF JUSTICE Respondent lacked concern for patient safety. The company plans to import raw Drug Enforcement Administration He prescribed large amounts of controlled Opium (9600) and Poppy Straw substances to opioid naı¨ve patients. [FOF 30, 53, 56]. He also increased the amounts of Concentrate (9670) to manufacture other Importer of Controlled Substances, controlled substances he prescribed, and controlled substances. The company Notice of Registration, ISP Freetown such increases were unjustified and reflect a plans to import Tapentadol (9780) in Fine Chemicals lack of concern for patient safety. [FOF 69, intermediate form for the bulk 72–74]. Dr. Rubenstein concluded that the manufacture of Tapentadol (9780) for By Notice dated July 2, 2012, and increase in medication was not medically distribution to its customers. The published in the Federal Register on justified. [FOF 74]. company plans to import Phenylacetone July 11, 2012, 77 FR 40910, ISP The Respondent did not testify in this (8501) in bulk for the manufacture of a proceeding.23 Therefore, he neither took Freetown Fine Chemicals, 238 South responsibility for his misconduct nor controlled substance. Main Street, Assonet, Massachusetts provided any assurances that he has Comments and requests for hearings 02702, made application by renewal to implemented remedial measures to ensure on applications to import narcotic raw the Drug Enforcement Administration such conduct is not repeated. Such silence material are not appropriate. 72 FR 3417 (DEA) to be registered as an importer of weighs against the Respondent’s continued (2007). Phenylacetone (8501), a basic class of registration. [Medicine Shoppe, 73 Fed. Reg. In regard to the non-narcotic raw controlled substance listed in schedule at 387; see also Samuel S. Jackson, 72 Fed. material, any bulk manufacturer who is II. Reg. 23,848, 23,853 (DEA 2007)]. presently, or is applying to be, The company plans to import the registered with DEA to manufacture V. CONCLUSION AND controlled substance to manufacture RECOMMENDATION such basic classes of controlled amphetamine. Consistent with the analysis in this matter, substances listed in schedules I or II, I conclude that the Government has met its which fall under the authority of section No comments or objections have been burden and established its prima facie case 1002(a)(2)(B) of the Act (21 U.S.C. received. DEA has considered the for revocation. The Respondent has failed to 952(a)(2)(B)) may, in the circumstances factors in 21 U.S.C. 823(a) and 952(a), provide any explanation for his conduct or set forth in 21 U.S.C. 958(i), file and determined that the registration of any assurances regarding his future conduct. comments or objections to the issuance ISP Freetown Fine Chemicals to import Therefore, I recommend that the the basic class of controlled substance is Respondent’s viable DEA registrations of the proposed registration and may, at FP1312406, BP3429835, and BP8477639, be the same time, file a written request for consistent with the public interest, and revoked and any pending applications for a hearing on such application pursuant with United States obligations under renewal or modification of such registrations to 21 CFR 1301.43 and in such form as international treaties, conventions, or be denied. prescribed by 21 CFR 1316.47. protocols in effect on May 1, 1971. DEA Dated: July 19, 2011 Any such written comments or has investigated ISP Freetown Fine Gail A. Randall, Administrative Law Judge objections should be addressed, in Chemicals to ensure that the company’s quintuplicate, to the Drug Enforcement registration is consistent with the public [FR Doc. 2012–25618 Filed 10–17–12; 8:45 am] Administration, Office of Diversion interest. The investigation has included BILLING CODE 4410–09–P Control, Federal Register Representative inspection and testing of the company’s (ODL), 8701 Morrissette Drive, physical security systems, verification of the company’s compliance with state DEPARTMENT OF JUSTICE Springfield, Virginia 22152; and must be filed no later than November 19, 2012. and local laws, and a review of the Drug Enforcement Administration This procedure is to be conducted company’s background and history. simultaneously with, and independent Therefore, pursuant to 21 U.S.C. Importer of Controlled Substances, of, the procedures described in 21 CFR 952(a) and 958(a), and in accordance Notice of Application, Noramco, Inc. 1301.34(b), (c), (d), (e), and (f). As noted with 21 CFR 1301.34, the above named in a previous notice published in the Pursuant to Title 21, Code of Federal company is granted registration as an Federal Register on September 23, 1975, Regulations (CFR), 1301.34(a), this is importer of the basic class of controlled 40 FR 43745–46, all applicants for notice that on August 6, 2012, Noramco, substance listed. registration to import a basic class of Dated: October 9, 2012. 23 any controlled substance in schedules I The Government asks me to take an adverse Joseph T. Rannazzisi, inference from the Respondent’s failure to testify. or II are, and will continue to be, However, the Government does not assert what required to demonstrate to the Deputy Deputy Assistant Administrator, Office of adverse inference it believes such silence Assistant Administrator, Office of Diversion Control, Drug Enforcement establishes. Although I agree that the Government Diversion Control, Drug Enforcement Administration. is entitled to such an inference as established by the [FR Doc. 2012–25640 Filed 10–17–12; 8:45 am] cited case law, without a requested inference, I am Administration, that the requirements at a loss in granting the Government’s request. for such registration pursuant to 21 BILLING CODE 4410–09–P

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DEPARTMENT OF JUSTICE following basic classes of controlled The company plans to utilize small substances: quantities of the listed controlled Drug Enforcement Administration substance in the preparation of Drug Schedule analytical standards. Importer of Controlled Substances, No comments or objections have been Notice of Registration, Akorn, Inc. Codeine-N-oxide (9053) ...... I received. DEA has considered the Dihydromorphine (9145) ...... I By Notice dated July 17, 2012, and Morphine-N-oxide (9307) ...... I factors in 21 U.S.C. 823(a) and published in the Federal Register on Amphetamine (1100) ...... II determined that the registration of July 26, 2012, 77 FR 43861, Akorn, Inc., Methylphenidate (1724) ...... II Cambridge Isotope Lab to manufacture 1222 W. Grand Avenue, Decatur, Illinois Phenylacetone (8501) ...... II the listed basic class of controlled 62522, made application to the Drug Codeine (9050) ...... II substance is consistent with the public Enforcement Administration (DEA) to Dihydrocodeine (9120) ...... II interest at this time. DEA has Oxycodone (9143) ...... II be registered as an importer of investigated Cambridge Isotope Lab to Hydromorphone (9150) ...... II ensure that the company’s registration is Remifentanil (9739), a basic class of Hydrocodone (9193) ...... II controlled substance listed in schedule Morphine (9300) ...... II consistent with the public interest. The II. Oripavine (9330) ...... II investigation has included inspection The company plans to import Thebaine (9333) ...... II and testing of the company’s physical Remifentanil in bulk for use in dosage- Opium extracts (9610) ...... II security systems, verification of the form manufacturing. Opium fluid extract (9620) ...... II company’s compliance with state and No comments or objections have been Opium tincture (9630) ...... II local laws, and a review of the received. DEA has considered the Opium, powdered (9639) ...... II company’s background and history. Opium, granulated (9640) ...... II Therefore, pursuant to 21 U.S.C. factors in 21 U.S.C. 823(a) and 952(a), Oxymorphone (9652) ...... II and determined that the registration of Noroxymorphone (9668) ...... II 823(a), and in accordance with 21 CFR Akorn, Inc., to import the basic class of Tapentadol (9780) ...... II 1301.33, the above named company is controlled substance is consistent with granted registration as a bulk the public interest, and with United The company plans to manufacture manufacturer of the basic class of States obligations under international the listed controlled substances in bulk controlled substance listed. treaties, conventions, or protocols in for distribution to its customers. Dated: October 9, 2012. effect on May 1, 1971. DEA has Any other such applicant, and any Joseph T. Rannazzisi, investigated Akorn Inc., to ensure that person who is presently registered with Deputy Assistant Administrator, Office of the company’s registration is consistent DEA to manufacture such substances, Diversion Control, Drug Enforcement with the public interest. The may file comments or objections to the Administration. investigation has included inspection issuance of the proposed registration [FR Doc. 2012–25634 Filed 10–17–12; 8:45 am] and testing of the company’s physical pursuant to 21 CFR 1301.33(a). BILLING CODE 4410–09–P security systems, verification of the Any such written comments or company’s compliance with state and objections should be addressed, in local laws, and a review of the quintuplicate, to the Drug Enforcement DEPARTMENT OF JUSTICE company’s background and history. Administration, Office of Diversion Therefore, pursuant to 21 U.S.C. Control, Federal Register Representative Drug Enforcement Administration 952(a) and 958(a), and in accordance (ODL), 8701 Morrissette Drive, with 21 CFR 1301.34, the above named Springfield, Virginia 22152; and must be Manufacturer of Controlled company is granted registration as an filed no later than December 17, 2012. Substances; Notice of Registration; Chattem Chemicals, Inc. importer of the basic class of controlled Dated: October 9, 2012. substance listed. Joseph T. Rannazzisi, By Notice dated June 18, 2012, and Dated: October 9, 2012. Deputy Assistant Administrator, Office of published in the Federal Register on Joseph T. Rannazzisi, Diversion Control, Drug Enforcement June 26, 2012, 77 FR 38086, Chattem Deputy Assistant Administrator, Office of Administration. Chemicals, Inc., 3801 St. Elmo Avenue, Diversion Control, Drug Enforcement [FR Doc. 2012–25638 Filed 10–17–12; 8:45 am] Building 18, Chattanooga, Tennessee Administration. BILLING CODE 4410–09–P 37409, made application by renewal to [FR Doc. 2012–25643 Filed 10–17–12; 8:45 am] the Drug Enforcement Administration BILLING CODE 4410–09–P (DEA) to be registered as a bulk DEPARTMENT OF JUSTICE manufacturer of the following basic classes of controlled substances: DEPARTMENT OF JUSTICE Drug Enforcement Administration Drug Schedule Drug Enforcement Administration Manufacturer of Controlled Substances; Notice of Registration; Gamma Hydroxybutyric Acid I Manufacturer of Controlled Cambridge Isotope Lab (2010). Substances; Notice of Application; 4-Methoxyamphetamine (7411) ... I By Notice dated June 18, 2012, and Noramco, Inc. Dihydromorphine (9145) ...... I published in the Federal Register on Amphetamine (1100) ...... II Pursuant to § 1301.33(a), Title 21 of June 26, 2012, 77 FR 38086, Cambridge Methamphetamine (1105) ...... II the Code of Federal Regulations (CFR), Isotope Lab, 50 Frontage Road, Andover, Lisdexamfetamine (1205) ...... II this is notice that on July 27, 2012, Massachusetts 01810, made application Methylphenidate (1724) ...... II by renewal to the Drug Enforcement Pentobarbital (2270) ...... II Noramco, Inc., 500 Swedes Landing Codeine (9050) ...... II Road, Wilmington, Delaware 19801– Administration (DEA) to be registered as Dihydrocodeine (9120) ...... II 4417, made application by renewal to a bulk manufacturer of Morphine Oxycodone (9143) ...... II the Drug Enforcement Administration (9300), a basic class of controlled Hydromorphone (9150) ...... II (DEA) as a bulk manufacturer of the substance listed in schedule II. Hydrocodone (9193) ...... II

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Drug Schedule made application by renewal to the Methamphetamine (1105), a basic class Drug Enforcement Administration of controlled substance listed in Meperidine (9230) ...... II (DEA) to be registered as a bulk schedule II. Methadone (9250) ...... II manufacturer of the basic classes of The above listed controlled substance Methadone intermediate (9254) ... II controlled substances: is an intermediate in the manufacture of Morphine (9300) ...... II Benzphetamine, a schedule III non- Oripavine (9330) ...... II Drug Schedule Thebaine (9333) ...... II narcotic controlled substance. The Opium tincture (9630) ...... II methamphetamine will not be sold as a Tetrahydrocannabinols (7370) ..... I commercial product. The company Opium, powdered (9639) ...... II 3,4- I Opium, granulated (9640) ...... II Methylenedioxymethamphetam- plans to utilize a bulk active Oxymorphone (9652) ...... II ine (MDMA) (7405). pharmaceutical ingredient (API), as an Noroxymorphone (9668) ...... II Cocaine (9041) ...... II intermediate for the development of Alfentanil (9737) ...... II Oxycodone (9143) ...... II another controlled substance, and Remifentanil (9739) ...... II Hydrocodone (9193) ...... II Sufentanil (9740) ...... II further distribution to its customers. Methadone (9250) ...... II No comments or objections have been Tapentadol (9780) ...... II Dextropropoxyphene, bulk (non- II Fentanyl (9801) ...... II received. DEA has considered the dosage forms) (9273). factors in 21 U.S.C. 823(a), and Morphine (9300) ...... II The company plans to manufacture determined that the registration of the listed controlled substances in bulk The company plans to manufacture Chemica to manufacture the listed basic for distribution and sale to its the listed controlled substances as bulk class of controlled substance is customers. Regarding (9640) the reagents for use in drug abuse testing. consistent with the public interest at company plans to manufacture another No comments or objections have been this time. DEA has investigated Chemica controlled substance for sale to its received. DEA has considered the to ensure that the company’s customers. factors in 21 U.S.C. 823(a) and registration is consistent with the public No comments or objections have been determined that the registration of Lin interest. The investigation has included received. DEA has considered the Zhi International, Inc., to manufacture inspection and testing of the company’s factors in 21 U.S.C. 823(a) and the listed basic classes of controlled physical security systems, verification determined that the registration of substances is consistent with the public of the company’s compliance with state Chattem Chemicals, Inc., to manufacture interest at this time. DEA has and local laws, and a review of the the listed basic classes of controlled investigated Lin Zhi International Inc., company’s background and history. substances is consistent with the public to ensure that the company’s Therefore, pursuant to 21 U.S.C. 823, interest at this time. DEA has registration is consistent with the public and in accordance with 21 CFR 1301.33, investigated Chattem Chemicals, Inc., to interest. The investigation has included the above named company is granted ensure that the company’s registration is inspection and testing of the company’s registration as a bulk manufacturer of consistent with the public interest. The physical security systems, verification the basic class of controlled substance investigation has included inspection of the company’s compliance with state listed. and testing of the company’s physical and local laws, and a review of the Dated: October 9, 2012. security systems, verification of the company’s background and history. Joseph T. Rannazzisi, company’s compliance with state and Therefore, pursuant to 21 U.S.C. 823, Deputy Assistant Administrator, Office of local laws, and a review of the and in accordance with 21 CFR 1301.33, Diversion Control, Drug Enforcement company’s background and history. the above named company is granted Administration. Therefore, pursuant to 21 U.S.C. 823(a), registration as a bulk manufacturer of [FR Doc. 2012–25633 Filed 10–17–12; 8:45 am] and in accordance with 21 CFR 1301.33, the basic classes of controlled BILLING CODE 4410–09–P the above named company is granted substances listed. registration as a bulk manufacturer of Dated: October 9, 2012. the basic classes of controlled Joseph T. Rannazzisi, DEPARTMENT OF LABOR substances listed. Deputy Assistant Administrator, Office of Dated: October 9, 2012. Diversion Control, Drug Enforcement Mine Safety and Health Administration Joseph T. Rannazzisi, Administration. Affirmative Decisions on Petitions for Deputy Assistant Administrator, Office of [FR Doc. 2012–25635 Filed 10–17–12; 8:45 am] Modification Granted in Whole or in Diversion Control, Drug Enforcement BILLING CODE 4410–09–P Administration. Part [FR Doc. 2012–25637 Filed 10–17–12; 8:45 am] AGENCY: Mine Safety and Health BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Administration (MSHA), Labor. Drug Enforcement Administration ACTION: Notice. DEPARTMENT OF JUSTICE SUMMARY: Section 101(c) of the Federal Manufacturer of Controlled Mine Safety and Health Act of 1977 and Substances, Notice of Registration, Drug Enforcement Administration 30 CFR part 44 govern the application, Chemica processing, and disposition of petitions Manufacturer of Controlled for modification. This Federal Register Substances; Notice of Registration; By Notice dated June 18, 2012, and Notice notifies the public that MSHA Lin Zhi International, Inc. published in the Federal Register on June 26, 2012, 77 FR 38086, Chemica, has investigated and issued a final By Notice dated May 15, 2012, and 316 West 130th Street, Los Angeles, decision on certain mine operator published in the Federal Register on California 90061, made application by petitions to modify a safety standard. May 22, 2012, 77 FR 30326, Lin Zhi renewal to the Drug Enforcement ADDRESSES: Copies of the final decisions International, Inc., 670 Almanor Administration (DEA) to be registered as are posted on MSHA’s Web Site at Avenue, Sunnyvale, California 94085, a bulk manufacturer of http://www.msha.gov/indexes/

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petition.htm. The public may inspect Regulation Affected: 30 CFR 75.503 maintenance) and 30 CFR 18.35(a)(5)(i) the petitions and final decisions during (Permissible electric face equipment; (Portable (trailing) cables and cords). normal business hours in MSHA’s maintenance) and 30 CFR 18.35(a)(5)(i) • Docket Number: M–2011–027–C. Office of Standards, Regulations and (Portable (trailing) cables and cords). FR Notice: 76 FR 54804 (9/2/2011). Variances, 1100 Wilson Boulevard, • Docket Number: M–2011–005–C. Petitioner: Midland Trail Energy, LLC, Room 2349, Arlington, Virginia 22209. FR Notice: 76 FR 22153 (4/20/2011). 3301 Point Lick Drive, Charleston, West All visitors must first stop at the Petitioner: AMFIRE Mining Company, Virginia 25306. receptionist desk on the 21st Floor to LLC, One Energy Place, Latrobe, Mine: Blue Creek No. 1 Deep Mine, sign in. Pennsylvania 15650. MSHA I.D. No. 46–09297, located in FOR FURTHER INFORMATION CONTACT: Mine: Gillhouser Run Mine, MSHA Kanawha County, West Virginia. Roslyn B. Fontaine, Office of Standards, I.D. No. 36–09033, located in Indiana Regulation Affected: 30 CFR 75.1700 Regulations and Variances at 202–693– County, Pennsylvania. (Oil and gas wells). 9475 (Voice), [email protected] Regulation Affected: 30 CFR 75.503 • Docket Number: M–2011–041–C. (Email), or 202–693–9441 (Telefax), or (Permissible electric face equipment; FR Notice: 77 FR 811 (1/6/2012). Barbara Barron at 202–693–9447 maintenance) and 30 CFR 18.35(a)(5)(i) Petitioner: D & F Deep Mine, 15 (Voice), [email protected] (Portable (trailing) cables and cords). Motter Drive, Pine Grove, Pennsylvania (Email), or 202–693–9441 (Telefax). • Docket Number: M–2011–018–C. 17963. [These are not toll-free numbers]. FR Notice: 76 FR 37835 (6/28/2011). Mine: Buck Drift #2 Mine, MSHA I.D. No. 36–09963, located in Schuylkill SUPPLEMENTARY INFORMATION: Petitioner: Dominion Coal Corporation, P.O. Box 70, Vansant, County, Pennsylvania. I. Introduction Virginia 24656. Regulation Affected: 30 CFR Mine: Mine No. 36, MSHA I.D. No. 75.1200(d) & (i) (Mine map). Under section 101 of the Federal Mine • Safety and Health Act of 1977, a mine 44–06759, located in Buchanan County, Docket Number: M–2011–042–C. FR Notice: 77 FR 811 (1/6/2012). operator may petition and the Secretary Virginia. Petitioner: D & F Deep Mine, 15 of Labor (Secretary) may modify the Regulation Affected: 30 CFR 75.1700 Motter Drive, Pine Grove, Pennsylvania application of a mandatory safety (Oil and gas wells). • 17963. standard to that mine if the Secretary Docket Number: M–2011–020–C. Mine: Buck Drift #2 Mine, MSHA I.D. determines that: (1) An alternative FR Notice: 76 FR 37833 (6/28/2011). No. 36–099963, located in Schuylkill Petitioner: Luminant Mining method exists that will guarantee no County, Pennsylvania. less protection for the miners affected Company, 500 N Akard Street, Dallas, Regulation Affected: 30 CFR 75.1202 than that provided by the standard; or Texas 75201. and 75.1202–1(a) (Temporary notations, (2) that the application of the standard Mines: Bremond Strip Mine, MSHA revisions and requirements). will result in a diminution of safety to I.D. No. 41–02788, located in Robertson • Docket Number: M–2011–043–C. County, Texas; Three Oaks Strip Mine, the affected miners. FR Notice: 77 FR 811 (1/6/2012). MSHA bases the final decision on the MSHA I.D. No. 41–04085, located in Lee Petitioner: D & F Deep Mine, 15 petitioner’s statements, any comments County, Texas; Leesburg Strip Mine, Motter Drive, Pine Grove, Pennsylvania and information submitted by interested MSHA I.D. No. 41–04444, located in 17963. persons, and a field investigation of the Titus County, Texas; Kosse Strip Mine, Mine: Buck Drift #2 Mine, MSHA I.D. conditions at the mine. In some MSHA I.D. No. 41–04586, located in No. 36–09963, located in Schuylkill instances, MSHA may approve a Limestone County, Texas; and County, Pennsylvania. petition for modification on the Turlington Strip Mine, MSHA I.D. No. Regulation Affected: 30 CFR 75.1400 condition that the mine operator 41–04802, located in Freestone County, (Hoisting equipment; general). complies with other requirements noted Texas; • Docket Number: M–2012–004–C. in the decision. Regulation Affected: 30 CFR 77.803 FR Notice: 77 FR 14439 (3/9/2012). (Fail safe ground check circuits on high- II. Granted Petitions for Modification Petitioner: Little Buck Coal Company voltage resistance grounded systems). #2, 33 Pine Lane, Pine Grove, On the basis of the findings of • Docket Number: M–2011–021–C. Pennsylvania 17963. MSHA’s investigation, and as designee FR Notice: 76 FR 37834 (6/28/2011). Mine: Little Buck Slope Mine, MSHA of the Secretary, MSHA has granted or Petitioner: Buckskin Mining Company I.D. No. 36–09958, located in Schuylkill partially granted the following petitions (Previously Triton Coal Company), P.O. County, Pennsylvania. for modification: Box 3027, Gillette, Wyoming 87217– Regulation Affected: 30 CFR • Docket Number: M–2010–036–C. 3027. 75.1200(d) and (i) (Mine maps). FR Notice: 75 FR 75499 (12/3/2010). Mine: Buckskin Mine, MSHA I.D. No. • Docket Number: M–2012–005–C. Petitioner: Sequoia Energy, LLC, P.O. 48–01200, located in Campbell County, FR Notice: 77 FR 14439 (3/9/2012). Box 838, Middlesboro, Kentucky 40965. Wyoming. Petitioner: Little Buck Coal Company Mine: Sequoia Preparation Facility, Regulation Affected: 30 CFR #2, 33 Pine Lane, Pine Grove, MSHA I.D. No. 15–12428, located in 77.1607(u) (Loading and haulage Pennsylvania 17963. Harlan County, Kentucky. equipment; operation). Mine: Little Buck Slope Mine, MSHA Regulation Affected: 30 CFR 77.214 • Docket Number: M–2011–025–C. I.D. No. 36–09958, located in Schuylkill (Refuse piles; general). FR Notice: 76 FR 54803 (9/2/2011). County, Pennsylvania. • Docket Number: M–2011–004–C. Petitioner: AMFIRE Mining Company, Regulation Affected: 30 CFR 75.1202 FR Notice: 76 FR 22153 (4/20/2011). LLC, One Energy Place, Latrobe, and 75.1202–1(a) (Temporary notations, Petitioner: AMFIRE Mining Company, Pennsylvania 15650. revisions and requirements). LLC, One Energy Place, Latrobe, Mine: Dora 8 Mine, MSHA I.D. No. • Docket Number: M–2012–006–C. Pennsylvania 15650. 36–08704, located in Jefferson County, FR Notice: 77 FR 14439 (3/9/2012). Mine: Barrett Mine, MSHA I.D. No. Pennsylvania. Petitioner: Little Buck Coal Company 36–09342, located in Indiana County, Regulation Affected: 30 CFR 75.503 #2, 33 Pine Lane, Pine Grove, Pennsylvania. (Permissible electric equipment; Pennsylvania 17963.

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Mine: Little Buck Slope Mine, MSHA section 552b(c)(4) of Title 5 U.S.C., as NUCLEAR REGULATORY I.D. No. 36–09958, located in Schuylkill amended. I have made this COMMISSION County, Pennsylvania. determination under the authority Regulation Affected: 30 CFR 75.1400 granted me by the Chairman’s Advisory Committee on Reactor (Hoisting equipment; general). Delegation of Authority to Close Safeguards; Procedures for Meetings Dated: October 15, 2012. Advisory Committee Meetings dated Background July 19, 1993. George F. Triebsch, This notice describes procedures to be Director, Office of Standards, Regulations and Dated: October 11, 2012. followed with respect to meetings Variances. Lisette Voyatzis, conducted by the U.S. Nuclear [FR Doc. 2012–25658 Filed 10–17–12; 8:45 am] Committee Management Officer. Regulatory Commission’s (NRC’s) BILLING CODE 4510–43–P [FR Doc. 2012–25612 Filed 10–17–12; 8:45 am] Advisory Committee on Reactor Safeguards (ACRS) pursuant to the BILLING CODE 7536–01–P Federal Advisory Committee Act NATIONAL FOUNDATION ON THE (FACA). These procedures are set forth ARTS AND THE HUMANITIES so that they may be incorporated by reference in future notices for Arts and Artifacts Indemnity Panel NATIONAL TRANSPORTATION SAFETY BOARD individual meetings. Advisory Committee The ACRS is a statutory group AGENCY: Federal Council on the Arts Sunshine Act Meetings established by Congress to review and and the Humanities, National report on nuclear safety matters and applications for the licensing of nuclear Endowment for the Humanities. TIME AND DATE: 9:30 a.m., Tuesday, ACTION: Notice of meeting. facilities. The Committee’s reports October 30, 2012. become a part of the public record. SUMMARY: Pursuant to section 10(a)(2) of PLACE: NTSB Conference Center, 429 The ACRS meetings are conducted in the Federal Advisory Committee Act (5 L’Enfant Plaza SW., Washington, DC accordance with FACA; they are U.S.C. App.), notice is hereby given that 20594. normally open to the public and provide the Federal Council on the Arts and the opportunities for oral or written Humanities will hold a meeting of the STATUS: The one item is open to the statements from members of the public Arts and Artifacts International public. to be considered as part of the Indemnity Panel. The purpose of the Matter To Be Considered Committee’s information gathering meeting is for panel review, discussion, process. ACRS reviews do not normally evaluation, and recommendation of 8431A Highway Accident Report— encompass matters pertaining to applications for Certificates of Highway-Railroad Grade Crossing environmental impacts other than those Indemnity submitted to the Federal Collision, U.S. Highway 95, Miriam, related to radiological safety. Council on the Arts and the Humanities Nevada, June 24, 2011. The ACRS meetings are not for exhibitions beginning after January adjudicatory hearings such as those 1, 2013. NEWS MEDIA CONTACT: Telephone: (202) conducted by the NRC’s Atomic Safety DATES: The meeting will be held on 314–6100. and Licensing Board Panel as part of the Tuesday, November 13, 2012, from 9:00 The press and public may enter the Commission’s licensing process. a.m. to 5:00 p.m. NTSB Conference Center one hour prior General Rules Regarding ACRS Full ADDRESSES: The meeting will be held at to the meeting for set up and seating. Committee Meetings the Old Post Office Building, 1100 Individuals requesting specific An agenda will be published in the Pennsylvania Ave. NW., Washington, accommodations should contact Federal Register for each full DC 20506, in Room 730. Rochelle Hall at (202) 314–6305 by Committee meeting. There may be a FOR FURTHER INFORMATION CONTACT: Friday, October 26, 2012. need to make changes to the agenda to Lisette Voyatzis, Committee The public may view the meeting via facilitate the conduct of the meeting. Management Officer, 1100 Pennsylvania a live or archived webcast by accessing The Chairman of the Committee is Avenue NW., Room 529, Washington, empowered to conduct the meeting in a DC 20506, or call (202) 606–8322. a link under ‘‘News & Events’’ on the NTSB home page at www.ntsb.gov. manner that, in his/her judgment, will Hearing-impaired individuals are facilitate the orderly conduct of advised that information on this matter Schedule updates including weather- business, including making provisions may be obtained by contacting the related cancellations are also available to continue the discussion of matters National Endowment for the at www.ntsb.gov. not completed on the scheduled day on Humanities’ TDD terminal at (202) 606– FOR MORE INFORMATION CONTACT: another day of the same meeting. 8282. Candi Bing, (202) 314–6403 or by email at Persons planning to attend the meeting SUPPLEMENTARY INFORMATION: Because [email protected]. may contact the Designated Federal the meeting will consider proprietary Officer (DFO) specified in the Federal financial and commercial data provided FOR MEDIA INFORMATION CONTACT: Peter Register Notice prior to the meeting to in confidence by indemnity applicants, Knudson, (202) 314–6219 or by email at be advised of any changes to the agenda and material that is likely to disclose [email protected]. that may have occurred. trade secrets or other privileged or The following requirements shall Dated: October 12, 2012. confidential information, and because it apply to public participation in ACRS is important to keep the values of Candi R. Bing, full Committee meetings: objects to be indemnified and the Federal Register Liaison Officer. (a) Persons who plan to submit methods of transportation and security [FR Doc. 2012–25762 Filed 10–16–12; 11:15 am] written comments at the meeting should measures confidential, the meeting will BILLING CODE 7533–01–P provide 35 copies to the DFO at the be closed to the public pursuant to beginning of the meeting. Persons who

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cannot attend the meeting, but wish to (ADAMS) which is accessible from the made regarding the applicability of the submit written comments regarding the NRC Web site at http://www.nrc.gov/ agreement to the material that will be agenda items may do so by sending a reading-rm/adams.html or http:// discussed during the meeting. The readily reproducible copy addressed to www.nrc.gov/reading-rm/doc- minimum information provided should the DFO specified in the Federal collections/ (ACRS & ACNW Mtg include information regarding the date Register Notice, care of the Advisory schedules/agendas). of the agreement, the scope of material Committee on Reactor Safeguards, U.S. (f) Video teleconferencing service is included in the agreement, the project Nuclear Regulatory Commission, available for observing open sessions of or projects involved, and the names and Washington, DC 20555–0001. ACRS meetings. Those wishing to use titles of the persons signing the Comments should be limited to items this service for observing ACRS agreement. Additional information may being considered by the Committee. meetings should contact Mr. Theron be requested to identify the specific Comments should be in the possession Brown, ACRS Audio Visual Specialist, agreement involved. A copy of the of the DFO 5 days prior to the meeting (301–415–8066) between 7:30 a.m. and executed agreement should be provided to allow time for reproduction and 3:45 p.m. Eastern Time at least 10 days to the DFO prior to the beginning of the distribution. before the meeting to ensure the meeting for admittance to the closed (b) Persons desiring to make oral availability of this service. Individuals session. statements at the meeting should make or organizations requesting this service Dated: October 15, 2012. a request to do so to the DFO; if will be responsible for telephone line Annette L. Vietti-Cook, possible, the request should be made 5 charges and for providing the days before the meeting, identifying the equipment and facilities that they use to Secretary of the Commission. topic(s) on which oral statements will establish the video teleconferencing [FR Doc. 2012–25630 Filed 10–17–12; 8:45 am] be made and the amount of time needed link. The availability of video BILLING CODE 7590–01–P for presentation so that orderly teleconferencing services is not arrangements can be made. The guaranteed. Committee will hear oral statements on NUCLEAR REGULATORY topics being reviewed at an appropriate ACRS Subcommittee Meetings COMMISSION In accordance with the revised FACA, time during the meeting as scheduled by Advisory Committee on Reactor the agency is no longer required to the Chairman. Safeguards (ACRS) Meeting of the (c) Information regarding topics to be apply the FACA requirements to ACRS Subcommittee on Fukushima; discussed, changes to the agenda, meetings conducted by the Notice of Meeting whether the meeting has been canceled Subcommittees of the NRC Advisory or rescheduled, and the time allotted to Committees, if the Subcommittee’s The ACRS Subcommittee on present oral statements can be obtained recommendations would be Fukushima will hold a meeting on by contacting the DFO. independently reviewed by its parent October 31, 2012, Room T–2B1, 11545 (d) The use of still, motion picture, Committee. Rockville Pike, Rockville, Maryland. and television cameras will be The ACRS, however, chose to conduct The entire meeting will be open to permitted at the discretion of the its Subcommittee meetings in public attendance. Chairman and subject to the condition accordance with the procedures noted The agenda for the subject meeting that the use of such equipment will not above for ACRS full Committee shall be as follows: interfere with the conduct of the meetings, as appropriate, to facilitate Wednesday, October 31, 2012—1:00 meeting. The DFO will have to be public participation, and to provide a p.m. Until 5:00 p.m. notified prior to the meeting and will forum for stakeholders to express their authorize the use of such equipment views on regulatory matters being The Subcommittee will review and after consultation with the Chairman. considered by the ACRS. When discuss the staff’s development of a The use of such equipment will be Subcommittee meetings are held at position paper addressing the value of restricted as is necessary to protect locations other than at NRC facilities, filtered vents. The Subcommittee will proprietary or privileged information reproduction facilities may not be hear presentations by and hold that may be in documents, folders, etc., available at a reasonable cost. discussions with the NRC staff and in the meeting room. Electronic Accordingly, 50 copies of the materials other interested persons regarding this recordings will be permitted only to be used during the meeting should be matter. The Subcommittee will gather during those portions of the meeting provided for distribution at such information, analyze relevant issues and that are open to the public. meetings. facts, and formulate proposed positions (e) A transcript will be kept for certain and actions, as appropriate, for open portions of the meeting and will be Special Provisions When Proprietary deliberation by the Full Committee. available in the NRC Public Document Sessions Are To Be Held Members of the public desiring to Room (PDR), One White Flint North, If it is necessary to hold closed provide oral statements and/or written Room O–1F21, 11555 Rockville Pike, sessions for the purpose of discussing comments should notify the Designated Rockville, MD 20852–2738. A copy of matters involving proprietary Federal Official (DFO), Antonio Dias the certified minutes of the meeting will information, persons with agreements (Telephone 301–415–6805 or Email: be available at the same location 3 permitting access to such information [email protected]) five days prior to months following the meeting. Copies may attend those portions of the ACRS the meeting, if possible, so that may be obtained upon payment of meetings where this material is being appropriate arrangements can be made. appropriate reproduction charges. ACRS discussed upon confirmation that such Thirty-five hard copies of each meeting agenda, transcripts, and letter agreements are effective and related to presentation or handout should be reports are available through the PDR at the material being discussed. provided to the DFO thirty minutes [email protected], by calling the PDR at 1– The DFO should be informed of such before the meeting. In addition, one 800–394–4209, or from the Publicly an agreement at least 5 working days electronic copy of each presentation Available Records System (PARS) prior to the meeting so that it can be should be emailed to the DFO one day component of NRC’s document system confirmed, and a determination can be before the meeting. If an electronic copy

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cannot be provided within this Core Cooling Systems for Pressurized Dated: October 10, 2012. timeframe, presenters should provide Water Reactors,’’ Revision 2 and RG Antonio Dias, the DFO with a CD containing each 1.79.1, ‘‘Initial Test Program of Technical Advisor, Advisory Committee on presentation at least thirty minutes Emergency Core Cooling Systems for Reactor Safeguards. before the meeting. Electronic Boiling-Water Reactors,’’ Revision 0 [FR Doc. 2012–25631 Filed 10–17–12; 8:45 am] recordings will be permitted only (DG–1277).’’ The Subcommittee will BILLING CODE 7590–01–P during those portions of the meeting hear presentations by and hold that are open to the public. Detailed discussions with the NRC staff and procedures for the conduct of and other interested persons regarding this participation in ACRS meetings were matter. The Subcommittee will gather POSTAL REGULATORY COMMISSION published in the Federal Register on information, analyze relevant issues and October 17, 2011 (76 FR 64126–64127). facts, and formulate proposed positions [Docket No. CP2013–3; Order No. 1500] Detailed meeting agendas and meeting and actions, as appropriate, for Postal Rate and Classification transcripts are available on the NRC deliberation by the Full Committee. Web site at http://www.nrc.gov/reading- Changes Members of the public desiring to rm/doc-collections/acrs. Information provide oral statements and/or written AGENCY: Postal Regulatory Commission. regarding topics to be discussed, comments should notify the Designated ACTION: Notice. changes to the agenda, whether the meeting has been canceled or Federal Official (DFO), Zena Abdullahi (Telephone 301–415–8716 or Email: SUMMARY: This document provides the rescheduled, and the time allotted to public with notice that the Postal present oral statements can be obtained [email protected]) five days prior to the meeting, if possible, so that Service has filed notice of its intention from the Web site cited above or by of planned rate and classification contacting the identified DFO. appropriate arrangements can be made. Thirty-five hard copies of each changes for competitive postal products. Moreover, in view of the possibility that The changes have an anticipated the schedule for ACRS meetings may be presentation or handout should be provided to the DFO thirty minutes effective date of January 27, 2013. The adjusted by the Chairman as necessary Postal Service’s filing triggers a review before the meeting. In addition, one to facilitate the conduct of the meeting, process, which includes an opportunity electronic copy of each presentation persons planning to attend should check for the public to comment. This should be emailed to the DFO one day with these references if such document addresses the comment before the meeting. If an electronic copy rescheduling would result in a major process and other matters that pertain to cannot be provided within this inconvenience. the planned changes. If attending this meeting, please enter timeframe, presenters should provide DATES: Comments are due: October 26, through the One White Flint North the DFO with a CD containing each 2012. building, 11555 Rockville Pike, presentation at least thirty minutes Rockville, MD. After registering with before the meeting. Electronic ADDRESSES: Submit comments security, please contact Mr. Theron recordings will be permitted only electronically via the Commission’s Brown (Telephone 240–888–9835) to be during those portions of the meeting Filing Online system at escorted to the meeting room. that are open to the public. Detailed http:www.prc.gov. Commenters who procedures for the conduct of and cannot submit their views electronically Dated: October 10, 2012. participation in ACRS meetings were should contact the person identified in Hipolito Gonzalez, published in the Federal Register on the FOR FURTHER INFORMATION CONTACT Chief, Technical Support Branch, Advisory October 17, 2011, (76 FR 64127–64128). portion of the preamble for advice on Committee on Reactor Safeguards. Detailed meeting agendas and meeting alternatives to electronic filing. [FR Doc. 2012–25632 Filed 10–17–12; 8:45 am] transcripts are available on the NRC FOR FURTHER INFORMATION CONTACT: BILLING CODE 7590–01–P Web site at http://www.nrc.gov/reading- Stephen L. Sharfman, General Counsel, rm/doc-collections/acrs. Information at 202–789–6824. NUCLEAR REGULATORY regarding topics to be discussed, SUPPLEMENTARY INFORMATION: October COMMISSION changes to the agenda, whether the 11, 2012, the Postal Service filed notice meeting has been canceled or with the Commission concerning Advisory Committee on Reactor rescheduled, and the time allotted to changes in rates of general applicability Safeguards (ACRS) Meeting of the present oral statements can be obtained for competitive products.1 The Notice ACRS Subcommittee on Regulatory from the Web site cited above or by also includes related classification Policies & Practices; Notice of Meeting contacting the identified DFO. changes. The Postal Service represents Moreover, in view of the possibility that that, as required by the Commission’s The ACRS Subcommittee on the schedule for ACRS meetings may be rules, 39 CFR 3015.2(b), the Notice Regulatory Policies & Practices will hold adjusted by the Chairman as necessary includes an explanation and a meeting on October 30, 2012, Room T– to facilitate the conduct of the meeting, justification for the changes, the 2B3, 11545 Rockville Pike, Rockville, persons planning to attend should check effective date, and a schedule of the Maryland. with these references if such changed rates. The changes are The entire meeting will be open to rescheduling would result in a major public attendance. inconvenience. 1 The agenda for the subject meeting Notice of the United States Postal Service of Changes in Rates of General Applicability for shall be as follows: If attending this meeting, please enter Competitive Products Established in Governors’ through the One White Flint North Decision No. 12–2, October 11, 2012 (Notice). The Tuesday, October 30th, 2012—8:30 a.m. building, 11555 Rockville Pike, Notice is available on the Commission’s Web site, until 12:00 p.m. Rockville, MD. After registering with www.prc.gov. Pursuant to 39 U.S.C. 3632(b)(2), the Postal Service is obligated to publish the Governors’ The Subcommittee will review Draft security, please contact Mr. Theron Decision and record of proceedings in the Federal Final Regulatory Guides (RG) RG 1.79, Brown (240–888–9835) to be escorted to Register at least 30 days before the effective date of ‘‘‘‘Preoperational Testing of Emergency the meeting room. the new rates or classes.

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scheduled to become effective January Parcel Select. Parcel Select Service Express Guaranteed (GXG) service 27, 2013. prices increase, on average, by 9.0 prices increase, on average, by 9.6 Attached to the Notice is Governors’ percent. For destination entry parcels, percent. Express Mail International Decision No. 12–2, which evaluates the the average price increases 8.0 percent (EMI) service prices increase, on new prices and classification changes in for dropshipping at a destination average, by 13.2 percent. accordance with 39 U.S.C. 3632–33 and delivery unit, 4.9 percent for parcels For both GXG and EMI, most of the 39 CFR 3015.2. The Governors’ Decision entered at a destination sectional center existing price structure remains the provides an analysis of the competitive facility, and 4.8 percent for parcels same. However, the maximum weight of products’ price and classification entered at a destination Network the EMI Flat Rate Envelope will changes intended to demonstrate that Distribution Center (NDC). decrease from 20 pounds to 4 pounds. the changes comply with 39 U.S.C. For nondestination-entered parcels, Additionally, the Postal Service may 3633(a) and 39 CFR part 3015. the average price increase is 5.7 percent offer a promotional discount or rebate The attachment to the Governors’ for origin NDC presort, 4.3 percent for on certain GXG and EMI items. Decision sets forth the price changes NDC presort, and 4.2 percent for Priority Mail International. Overall, and includes draft Mail Classification nonpresort. Lightweight Parcel Select Priority Mail International (PMI) prices Schedule language for competitive (formerly Standard Mail commercial increase by 15.1 percent. The existing products of general applicability. parcels) prices increase by 9.8 percent. price structure of PMI Flat Rate, Retail, Selected highlights of the price and The Regional Ground category is Commercial Base, and Commercial Plus classification changes follow. eliminated. price categories is maintained. Classification changes include the Express Mail. Overall, Express Mail Parcel Return. Parcel Return Service prices increase, on average, by 4.8 availability of Electronic USPS Delivery prices increase by 5.8 percent. Retail percent. The price for returned parcels Confirmation International, which is prices increase, on average, by 6.5 retrieved at a NDC increases by 1.0 optionally provided on certain Priority percent. The existing structure of the percent, and the price for parcels picked Mail International Flat Rate Envelope pricing categories for zoned Retail, up at a return delivery unit increases by and Small Flat Rate Box offerings to Commercial Base, and Commercial Plus 8.5 percent. Additionally, the Postal select destinations at no change. price categories does not change. Prices Service introduces a full network return Electronic USPS Delivery Confirmation in the Commercial Base category, which solution for high-volume mailers of at International offers scan events for offers lower prices to customers who least 50,000 pieces annually. customers using certain software or use online or other authorized postage First-Class Package Service. First- online tools. Additionally, the Postal payment methods, increase by 2.0 Class Package Service prices increase, Service may offer a promotional percent. Prices in the Commercial Plus overall, by 3.0 percent, with no discount or rebate on certain PMI items. category, which offers even lower prices structural changes. First-Class Package International Priority Airmail. to large-volume customers, receive a 1.0 Service was transferred to the International Priority Airmail has a percent increase. Prices for Retail Flat competitive product list on April 6, price increase of 1.9 percent. Rate Envelopes and Legal Flat Rate 2011. International Surface Air Lift. Envelopes increase by 5.3 percent. The Parcel Post/Standard Post. On July International Surface Air Lift has a price recently-introduced Padded Flat Rate 20, 2012, the Commission conditionally increase of 4.4 percent. Envelope increases to $19.95. approved a Postal Service request to Airmail M-Bags. The published prices Priority Mail. Price increases for transfer Parcel Post from the market for Airmail M-Bags increase by 7.3 Priority Mail vary by rate cell and price dominant product list to the competitive percent. tier. Priority Mail prices increase by 6.3 product list. As part of the First-Class Package International percent overall, with average retail Commission’s conditional approval, the Service. On September 10, 2012, the prices increasing 9.0 percent. The Postal Postal Service must increase the prices Commission approved a Postal Service Service notes that approximately 3.0 for Parcel Post to achieve at least 100 request to transfer First-Class Mail percent of this 9.0 percent increase is percent cost coverage. To satisfy this International Packages and Rolls from due to the addition of free tracking. condition, the Postal Service proposes the market dominant product list to the Priority Mail Flat Rate Box prices to increase the prices for Parcel Post by competitive product list. The Postal change to the following: Small ($5.80), 21 percent to achieve 100 percent cost Service identifies the newly-transferred Medium ($12.35), Large ($16.85), and coverage in this docket. It also seeks to product as First-Class Package Large APO/FPO/DPO ($14.85). rename the transferred Parcel Post International Service (FCPIS). Due to The existing structure of Retail, product as Standard Post. anticipated cost increases and market Commercial Base, and Commercial Plus Domestic Extra Services. Premium conditions, FCPIS will receive a 58.6 price categories does not change. Forwarding Service prices increase by percent increase. As part of FCPIS, the Commercial Base category prices 10.5 percent. The weekly reshipment fee Postal Service will offer (1) Electronic increase by 3.7 percent. The increases to $17.00. On average, USPS Delivery Confirmation Commercial Plus category prices receive Address Enhancement Service prices International for certain FCPIS a 3.8 percent increase. The Commercial increase between 3.7 and 17.7 percent. mailpieces meeting certain physical Plus price category continues to offer Competitive Post Office Box prices characteristics sent to select Critical Mail letters and flats, a half- increase by 2.6 percent. The Pick-up On destinations; and (2) Commercial Base pound price, an assortment of Flat Rate Demand fee increases to $20.00. As a and Commercial Plus discounts. packaging, and Commercial Plus Cubic new offering, customers ordering flat Additionally, the Postal Service may pricing. rate packaging supplies online can pay offer a promotional discount or rebate As a new offering, customers sending a fee to get these supplies delivered on certain Outbound Single-Piece FCPIS Critical Mail letters and flats have the faster. This new service is priced at items. option of receiving a signature upon $2.50 and a price range will be International Ancillary Services. delivery. The new letter option is priced established by the Postal Service. Several international ancillary services at $4.60 while the flat option is priced Global Express Guaranteed and and paper money orders receive price at $5.35. Express Mail International. Global increases. Certificates of Mailing prices

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increase by 4.3 percent. Registered Mail 2. Comments on the Notice are due no FOR FURTHER INFORMATION CONTACT: prices increase by 10.2 percent. later than October 26, 2012. Elizabeth A. Reed, 202–268–3179. International Return Receipt also 3. The Commission appoints Emmett SUPPLEMENTARY INFORMATION: The receives price increases, and Rand Costich to serve as Public United States Postal Service® hereby International Postal Money Order prices Representative to represent the interests gives notice that, pursuant to 39 U.S.C. increase by 1.1 percent. The amount of of the general public in this proceeding. 3642 and 3632(b)(3), on October 10, merchandise insurance coverage 4. The Secretary shall arrange for 2012, it filed with the Postal Regulatory available for no fee increases from $100 publication of this Order in the Federal Commission a Request of the United to $200. Because the Postal Service is Register. States Postal Service to Add Express eliminating the $0.85 fee for the By the Commission. Mail & Priority Mail Contract 11 to $100.01–$200 merchandise insurance Shoshana M. Grove, Competitive Product List. Documents coverage tier, the overall price increase Secretary. are available at www.prc.gov, Docket for international ancillary services is Nos. MC2013–1, CP2013–1. [FR Doc. 2012–25655 Filed 10–17–12; 8:45 am] zero percent. Stanley F. Mires, Details of these changes may be found BILLING CODE 7710–FW–P in the attachment to Governors’ Attorney, Legal Policy & Legislative Advice. Decision No. 12–2 which is included as [FR Doc. 2012–25597 Filed 10–17–12; 8:45 am] part of the Notice. POSTAL SERVICE BILLING CODE 7710–12–P The Notice also includes three Product Change—Priority Mail additional attachments: Negotiated Service Agreement • A redacted table showing FY 2013 SECURITIES AND EXCHANGE projected volumes, revenues, AGENCY: Postal ServiceTM. COMMISSION attributable costs, contribution, and cost ACTION: Notice. Proposed Collection; Comment coverage for each product, assuming Request implementation of the new prices on SUMMARY: The Postal Service gives January 27, 2013. notice of filing a request with the Postal Upon Written Request Copies Available • A redacted table showing FY 2013 Regulatory Commission to add a From: Securities and Exchange projected volumes, revenues, domestic shipping services contract to Commission, Office of Investor attributable costs, contribution, and cost the list of Negotiated Service Education and Advocacy, coverage for each product, assuming a Agreements in the Mail Classification Washington, DC 20549–0213. Schedule’s Competitive Products List. hypothetical implementation of the new Extension: prices on October 1, 2012. DATES: Effective date: October 18, 2012. Rule 17Ad–13; SEC File No. 270–263; • An application for non-public FOR FURTHER INFORMATION CONTACT: OMB Control No. 3235–0275. treatment of the attributable costs, Elizabeth A. Reed, 202–268–3179. Notice is hereby given that pursuant contribution, and cost coverage data in SUPPLEMENTARY INFORMATION: The to the Paperwork Reduction Act of 1995 ® the unredacted version of the annex to United States Postal Service hereby (44 U.S.C. 3501 et seq.) (‘‘PRA’’), the Governors’ Decision No. 12–2, as well as gives notice that, pursuant to 39 U.S.C. Securities and Exchange Commission the supporting materials for the data. 3642 and 3632(b)(3), on October 10, (‘‘Commission’’) is soliciting comments The table referenced above shows that 2012, it filed with the Postal Regulatory on the collection of information the share of institutional cost generated Commission a Request of the United summarized below. The Commission by competitive products, assuming States Postal Service to Add Priority plans to submit this existing collection implementation of new prices on Mail Contract 44 to Competitive Product of information to the Office of January 27, 2013, is expected to be 10.4 List. Documents are available at Management and Budget (‘‘OMB’’) for percent. www.prc.gov, Docket Nos. MC2013–2, extension and approval. Notice. The Commission establishes CP2013–2. Rule 17Ad–13 (17 CFR 240.17Ad–13) Docket No. CP2013–3 to consider the requires an annual study and evaluation Stanley F. Mires, Postal Service’s Notice. Interested of internal accounting controls under persons may express views and offer Attorney, Legal Policy & Legislative Advice. the Securities Exchange Act of 1934 (15 comments on whether the planned [FR Doc. 2012–25596 Filed 10–17–12; 8:45 am] U.S.C. 78a et seq.). It requires changes are consistent with 39 U.S.C. BILLING CODE 7710–12–P approximately 150 registered transfer 3632, 3633, 3642, 39 CFR part 3015, and agents to obtain an annual report on the 39 CFR 3020 subparts B and E. adequacy of their internal accounting Comments are due no later than October POSTAL SERVICE controls from an independent 26, 2012. Product Change—Express Mail and accountant. In addition, transfer agents Pursuant to 39 U.S.C. 505, Emmett Priority Mail Negotiated Service must maintain copies of any reports Rand Costich is appointed to serve as Agreement prepared pursuant to Rule 17Ad–13 Public Representative to represent the plus any documents prepared to notify interests of the general public in this AGENCY: Postal ServiceTM. the Commission and appropriate docket. ACTION: Notice. regulatory agencies in the event that the It is ordered: transfer agent is required to take any 1. The Commission establishes Docket SUMMARY: The Postal Service gives corrective action. These recordkeeping No. CP2013–3 to provide interested notice of filing a request with the Postal requirements assist the Commission and persons an opportunity to express views Regulatory Commission to add a other regulatory agencies with and offer comments on whether the domestic shipping services contract to monitoring transfer agents and ensuring planned changes are consistent with 39 the list of Negotiated Service compliance with the rule. Small transfer U.S.C. 3632, 3633, 3642, 39 CFR part Agreements in the Mail Classification agents are exempt from Rule 17Ad–13 3015, and 39 CFR 3020 subparts B and Schedule’s Competitive Products List. as are transfer agents that service only E. DATES: Effective date: October 18, 2012. their own companies’ securities.

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Approximately 150 independent, subject to any penalty for failing to and basis for, the proposed rule change professional transfer agents must file the comply with a collection of information and discussed any comments it received independent accountant’s report subject to the PRA that does not display on the proposed rule change. The text annually. We estimate that the annual a valid OMB control number. of those statements may be examined at internal time burden for each transfer Please direct your written comments the places specified in Item IV below. agent to comply with Rule 17Ad–13 by to Thomas Bayer, Director/Chief The Exchange has prepared summaries, submitting the report prepared by the Information Officer, Securities and set forth in sections A, B, and C below, independent accountant to the Exchange Commission, c/o Remi Pavlik- of the most significant parts of such Commission is minimal. The time Simon, 6432 General Green Way, statements. required for the independent accountant Alexandria, Virginia 22312; or send an to prepare the accountant’s report varies email to: PRA Mail [email protected]. A. Self-Regulatory Organization’s Statement of the Purpose of, and with each transfer agent depending on Dated: October 12, 2012. the size and nature of the transfer Statutory Basis for, the Proposed Rule Kevin M. O’Neill, Change agent’s operations. The Commission Deputy Secretary. estimates that, on average, each report 1. Purpose can be completed by the independent [FR Doc. 2012–25602 Filed 10–17–12; 8:45 am] BX is amending its fee schedule accountant in 120 hours, resulting in a BILLING CODE 8011–01–P governing order execution and routing. total of 18,000 external hours annually The general purposes of the fee changes (120 hours × 150 reports). The burden SECURITIES AND EXCHANGE are to (i) encourage greater provision of was estimated using Commission review COMMISSION liquidity through BX by expanding BX’s of filed Rule 17Ad–13 reports and Qualified Liquidity Provider program, Commission conversations with transfer [Release No. 34–68051; File No. SR–BX– and (ii) increase fees for routing orders agents and accountants. The 2012–067] to the New York Stock Exchange Commission estimates that, on average, Self-Regulatory Organizations; 120 hours are needed to perform the (‘‘NYSE’’) to reflect announced price NASDAQ OMX BX, Inc.; Notice of Filing 3 study, prepare the report, and retain the increases by that exchange. All of the and Immediate Effectiveness of required records on an annual basis. changes pertain to securities priced at Proposed Rule Change To Modify BX’s Assuming an average hourly rate of an $1 or more per share. Fee Schedule Governing Order First, BX is expanding its Qualified independent accountant of $60, the Execution and Routing Liquidity Provider program. Under the average total annual cost of the report is program, a qualifying member is eligible $7,200. The total annual cost for the October 12, 2012. to pay a reduced fee for liquidity- approximate 150 respondents is Pursuant to Section 19(b)(1) of the approximately $1,080,000. providing orders ($0.0015 per share Securities Exchange Act of 1934 executed versus the usual fee of $0.0018 The retention period for the 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, per share executed) entered through an recordkeeping requirement under Rule notice is hereby given that on October 17Ad–13 is three years following the eligible market participant identifier 1, 2012, NASDAQ OMX BX, Inc. (‘‘BX’’ (‘‘MPID’’). Currently, a Qualified date of a report prepared pursuant to the or the ‘‘Exchange’’) filed with the rule. The recordkeeping requirement Liquidity Provider must have (i) shares Securities and Exchange Commission of liquidity provided and (ii) total under Rule 17Ad–13 is mandatory to (‘‘Commission’’) a proposed rule change assist the Commission and other shares of liquidity accessed and as described in Items I, II, and III below, provided in all securities through one or regulatory agencies with monitoring which Items have been prepared by the transfer agents and ensuring compliance more of its NASDAQ OMX BX Equities Exchange. The Commission is System MPIDs that represent more than with the rule. This rule does not involve publishing this notice to solicit 0.40% and 0.50%, respectively, of the the collection of confidential comments on the proposed rule change total consolidated volume reported to information. from interested persons. Written comments are invited on: (a) all consolidated transaction reporting Whether this proposed collection of I. Self-Regulatory Organization’s plans by all exchanges and trade information is necessary for the Statement of the Terms of the Substance reporting facilities (‘‘Consolidated performance of the functions of the of the Proposed Rule Change Volume’’) during the month. If a agency, including whether the BX proposes to modify BX’s fee member satisfies these criteria, it is then information will have any practical schedule governing order execution and eligible to pay the reduced fee for utility; (b) the accuracy of the agency’s routing. BX will implement the liquidity-providing orders entered estimate of the burden imposed by the proposed change on October 1, 2012. through a ‘‘Qualified MPID.’’ A collection of information; (c) ways to The text of the proposed rule change is Qualified MPID is an MPID of a enhance the quality, utility, and clarity available at http:// Qualified Liquidity Provider through of the information collected; and (d) nasdaqomxbx.cchwallstreet.com/, at which, for at least 150 securities, it ways to minimize the burden of the BX’s principal office, and at the quotes at the national best bid or offer collection of information on Commission’s Public Reference Room. (‘‘NBBO’’) an average of at least 25% of respondents, including through the use the time during regular market hours of automated collection techniques or II. Self-Regulatory Organization’s (9:30 a.m. through 4:00 p.m.) during the other forms of information technology. Statement of the Purpose of, and month. Under the proposed change, BX Consideration will be given to Statutory Basis for, the Proposed Rule will add an additional means of comments and suggestions submitted in Change becoming a Qualified Liquidity writing within 60 days of this In its filing with the Commission, the Provider. Specifically, a Qualified publication. self-regulatory organization included Liquidity Provider may also be a The Commission may not conduct or statements concerning the purpose of, member with (i) shares of liquidity sponsor a collection of information provided and (ii) total shares of unless it displays a currently valid OMB 1 15 U.S.C. 78s(b)(1). control number. No person shall be 2 17 CFR 240.19b–4. 3 See SR–NYSE–2012–50 (September 26, 2012).

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liquidity accessed and provided in all pricing reduction does not result in an C. Self-Regulatory Organization’s securities through one or more of its excessive deviation from the otherwise Statement on Comments on the NASDAQ OMX BX Equities System prevailing charge to access liquidity, Proposed Rule Change Received From MPIDs that represent more than 0.35% and because the change has the Members, Participants, or Others and 0.45%, respectively, of potential to benefit other market Written comments were neither Consolidated Volume during the month. participants by enhancing market solicited nor received. For a member qualifying under this quality. method, a Qualified MPID is an MPID III. Date of Effectiveness of the through which, for at least 400 The change to routing fees is Proposed Rule Change and Timing for securities, the member quotes at the reasonable because the proposed fees for Commission Action NBBO an average of at least 25% of the routing orders to NYSE reflect the The foregoing rule change has become time during regular market hours during increase in the fee that will be charged effective pursuant to Section the month. The change is designed to by NYSE to BX with respect to such 19(b)(3)(A)(ii) of the Act.6 At any time encourage more members to become orders. The change is consistent with an within 60 days of the filing of the active liquidity providers in a wider equitable allocation of fees because it proposed rule change, the Commission range of securities, thereby enhancing will bring the economic attributes of summarily may temporarily suspend the number of stock [sic] in which BX routing orders to NYSE in line with the such rule change if it appears to the is able to provide liquidity at the NBBO cost of executing orders there. Finally, Commission that such action is and the depth of such liquidity. the change is not unfairly necessary or appropriate in the public Second, to reflect recent increases in discriminatory because it solely applies interest, for the protection of investors, the fees charged by NYSE with respect to members that opt to route orders to or otherwise in furtherance of the to orders routed to it by BX, BX is NYSE. purposes of the Act. If the Commission raising the fee for BSTG, BSCN, and takes such action, the Commission shall Finally, BX notes that it operates in a BTFY orders routed to NYSE from institute proceedings to determine highly competitive market in which $0.0023 per share executed to $0.0025 whether the proposed rule should be per share executed; and the fee for market participants can readily favor approved or disapproved. BMOP orders routed to NYSE from competing venues if they deem fee $0.0025 per share executed to $0.0027 levels at a particular venue to be IV. Solicitation of Comments per share executed. excessive. In such an environment, BX Interested persons are invited to must continually adjust its fees to 2. Statutory Basis submit written data, views, and remain competitive with other arguments concerning the foregoing, BX believes that the proposed rule exchanges and with alternative trading including whether the proposed rule change is consistent with the provisions systems that have been exempted from change is consistent with the Act. 4 of Section 6 of the Act, in general, and compliance with the statutory standards Comments may be submitted by any of 5 with Sections 6(b)(4) and (5) of the Act, applicable to exchanges. BX believes the following methods: in particular, in that it provides for the that the proposed rule change reflects equitable allocation of reasonable dues, Electronic Comments this competitive environment because it fees and other charges among members • Use the Commission’s Internet is designed to use pricing incentives to and issuers and other persons using any comment form (http://www.sec.gov/ facility or system which BX operates or attract liquidity at the NBBO to BX, and rules/sro.shtml); or controls, and is not designed to permit to ensure that the charges for use of the • Send an email to rule- unfair discrimination between BX routing facility to route to NYSE [email protected]. Please include File customers, issuers, brokers or dealers. reflect an increase in the cost of such Number SR–BX–2012–067 on the All similarly situated members are routing. subject line. subject to the same fee structure, and B. Self-Regulatory Organization’s Paper Comments access to BX is offered on fair and non- Statement on Burden on Competition • discriminatory terms. Send paper comments in triplicate BX believes that the proposed BX does not believe that the proposed to Elizabeth M. Murphy, Secretary, expansion of the Qualified Liquidity rule change will result in any burden on Securities and Exchange Commission, 100 F Street NE., Washington, DC Provider program is reasonable because competition that is not necessary or 20549–1090. it will enable fee reductions for appropriate in furtherance of the members that opt to provide and add purposes of the Act, as amended. All submissions should refer to File Number SR–BX–2012–067. This file liquidity and maintain quotes at the Because the market for order execution number should be included on the NBBO to the extent required by either is extremely competitive, members may subject line if email is used. To help the of the two tiers established under the readily opt to disfavor BX’s execution program. The proposed change is Commission process and review your and routing services if they believe that consistent with an equitable allocation comments more efficiently, please use alternatives offer them better value. The of fees because it uses pricing incentives only one method. The Commission will in order encourage [sic] usage of the proposed change is designed to enhance post all comments on the Commission’s market and the quoting of a range of competition by using pricing incentives Internet Web site (http://www.sec.gov/ securities at the NBBO for a significant to encourage greater use of BX’s trading rules/sro.shtml). Copies of the portion of the trading day, activities that services. The proposed change is also submission, all subsequent benefit both the exchange and its other designed to ensure that the charges for amendments, all written statements market participants. Finally, the use of the BX routing facility to route to with respect to the proposed rule proposed change is not unfairly NYSE reflect an increase in the cost of change that are filed with the discriminatory because the offered such routing, thereby ensuring that BX Commission, and all written does not incur a loss when routing to communications relating to the 4 15 U.S.C. 78f. NYSE. 5 15 U.S.C. 78f(b)(4) and (5). 6 15 U.S.C. 78s(b)(3)(a)(ii).

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proposed rule change between the is publishing this notice to solicit York Mellon (‘‘BNY’’) will serve as Commission and any person, other than comments on the proposed rule change custodian, Fund accounting agent, and those that may be withheld from the from interested persons. transfer agent for the Fund. ALPS public in accordance with the I. Self-Regulatory Organization’s Distributors, Inc. will be the Fund’s provisions of 5 U.S.C. 552, will be 6 Statement of the Terms of Substance of distributor (‘‘Distributor’’). available for Web site viewing and the Proposed Rule Change The Adviser is affiliated with a printing in the Commission’s Public broker-dealer and will implement and Reference Room on official business The Exchange proposes to list and days between the hours of 10:00 a.m. trade shares of the following issue under maintain procedures designed to and 3:00 p.m. Copies of such filing also Commentary .01 to NYSE Arca Equities prevent the use and dissemination of will be available for inspection and Rule 5.2(j)(3) (‘‘Investment Company material, non-public information copying at the principal offices of the Units’’): NYSE Arca U.S. Equity regarding the Fund’s portfolio. The Sub- Exchange. All comments received will Synthetic Reverse Convertible Index Adviser is not affiliated with a broker- be posted without change; the Fund. The text of the proposed rule dealer. In the event (a) the Sub-Adviser Commission does not edit personal change is available on the Exchange’s becomes newly affiliated with a broker- identifying information from Web site at www.nyse.com, at the dealer, or (b) any new adviser or sub- submissions. You should submit only principal office of the Exchange, and at adviser becomes affiliated with a broker- information that you wish to make the Commission’s Public Reference dealer, it will implement a fire wall and available publicly. All submissions Room. maintain procedures designed to should refer to File Number SR–BX– II. Self-Regulatory Organization’s prevent the use and dissemination of 2012–067, and should be submitted on Statement of the Purpose of, and material, non-public information or before November 8, 2012. Statutory Basis for, the Proposed Rule regarding the Fund’s portfolio. For the Commission, by the Division of Change NYSE Arca will be the ‘‘Index Trading and Markets, pursuant to delegated Provider’’ for the Fund. NYSE Arca is authority.7 In its filing with the Commission, the self-regulatory organization included not affiliated with the Trust, the Kevin M. O’Neill, statements concerning the purpose of, Adviser, the Sub-Adviser, or the Deputy Secretary. and basis for, the proposed rule change Distributor. NYSE Arca is affiliated with [FR Doc. 2012–25653 Filed 10–17–12; 8:45 am] and discussed any comments it received a broker-dealer and will implement a BILLING CODE 8011–01–P on the proposed rule change. The text fire wall and maintain procedures of those statements may be examined at designed to prevent the use and the places specified in Item IV below. dissemination of material, non-public SECURITIES AND EXCHANGE The Exchange has prepared summaries, information regarding the Index. COMMISSION set forth in sections A, B, and C below, [Release No. 34–68043; File No. SR– of the most significant parts of such Advisers Act of 1940 (‘‘Advisers Act’’). As a result, NYSEArca–2012–108] statements. the Adviser and Sub-Adviser and their related personnel are subject to the provisions of Rule Self-Regulatory Organizations; NYSE A. Self-Regulatory Organization’s 204A–1 under the Advisers Act relating to codes of Arca, Inc.; Notice of Filing of Proposed Statement of the Purpose of, and ethics. This Rule requires investment advisers to adopt a code of ethics that reflects the fiduciary Rule Change and Amendment No. 1 Statutory Basis for, the Proposed Rule nature of the relationship to clients as well as Thereto Relating to the Listing and Change compliance with other applicable securities laws. Trading of Shares of the NYSE Arca 1. Purpose Accordingly, procedures designed to prevent the U.S. Equity Synthetic Reverse communication and misuse of non-public The Exchange proposes to list and information by an investment adviser must be Convertible Index Fund Under NYSE consistent with Rule 204A–1 under the Advisers Arca Equities Rule 5.2(j)(3) trade shares (‘‘Shares’’) of the NYSE Act. In addition, Rule 206(4)–7 under the Advisers Arca U.S. Equity Synthetic Reverse Act makes it unlawful for an investment adviser to October 12, 2012. Convertible Index Fund (‘‘Fund’’) under provide investment advice to clients unless such Pursuant to Section 19(b)(1) of the Commentary .01 to NYSE Arca Equities investment adviser has (i) adopted and Securities Exchange Act of 1934 (‘‘Act’’ Rule 5.2(j)(3), which governs the listing implemented written policies and procedures 1 reasonably designed to prevent violation, by the or ‘‘Exchange Act’’) and Rule 19b–4 and trading of Investment Company investment adviser and its supervised persons, of thereunder,2 notice is hereby given that, Units.4 The Shares will be issued by the the Advisers Act and the Commission rules adopted on September 27, 2012, NYSE Arca, Inc. ALPS ETF Trust (‘‘Trust’’). ALPS thereunder; (ii) implemented, at a minimum, an (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed annual review regarding the adequacy of the Advisors, Inc. will be the Fund’s policies and procedures established pursuant to with the Securities and Exchange investment adviser (‘‘Adviser’’), and subparagraph (i) above and the effectiveness of their Commission (‘‘Commission’’) the Rich Investment Solutions, LLC, will be implementation; and (iii) designated an individual proposed rule change as described in the Fund’s investment sub-adviser (who is a supervised person) responsible for Items I, II, and III below, which Items 5 administering the policies and procedures adopted (‘‘Sub-Adviser’’). The Bank of New under subparagraph (i) above. have been prepared by the Exchange. 6 The Trust is registered under the Investment On October 2, 2012, the Exchange value of the components of the Index, is not Company Act of 1940 (15 U.S.C. 80a–1) (‘‘1940 submitted Amendment No. 1 to the available or not disseminated as required. Act’’). On June 22, 2012, the Trust filed with the proposed rule change.3 The Commission 4 NYSE Arca Equities Rule 5.2(j)(3)(A) provides Commission an amendment to its registration that an Investment Company Unit is a security that statement on Form N–1A under the Securities Act represents an interest in a registered investment of 1933 (15 U.S.C. 77a), and under the 1940 Act 7 17 CFR 200.30–3(a)(12). company that holds securities comprising, or relating to the Fund (File Nos. 333–148826 and 1 15 U.S.C. 78s(b)(1). otherwise based on or representing an interest in, 811–22175) (‘‘Registration Statement’’). The 2 17 CFR 240.19b–4. an index or portfolio of securities (or holds description of the operation of the Trust and the 3 In Amendment No. 1, the Exchange amended securities in another registered investment Fund herein is based, in part, on the Registration the filing to specify that a list of components of the company that holds securities comprising, or Statement. In addition, the Commission has issued Index (as defined below), with percentage otherwise based on or representing an interest in, an order granting certain exemptive relief to the weightings, will be available on the Exchange’s Web an index or portfolio of securities). Trust under the 1940 Act. See Investment Company site, and that the Exchange may halt trading in the 5 An investment adviser to an open-end fund is Act Release No. 812–13430 (May 1, 2008) Shares (as defined below) if the Index value, or the required to be registered under the Investment (‘‘Exemptive Order’’).

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Description of the Fund types of options are found in ‘‘reverse to 1/20th of the cash amount in the According to the Registration convertible’’ securities, which convert Index at the beginning of each quarter. Statement, the Fund will seek into the underlying stock (or settle in The cash amount (initially 1,000 for the investment results that correspond cash) only upon a decline in the value origination date of the Index) will be generally to the performance, before the of the underlying stock rather than a rise incremented by premiums generated Fund’s fees and expenses, of the NYSE (as is the case with typical convertible each quarter from the 20 down-and-in Arca U.S. Equity Synthetic Reverse instruments). puts sold, then decremented by cash Convertible Index (‘‘Index’’). The Index According to the Registration settlements of any down-and-in puts reflects the performance of a portfolio Statement, each option included in the expiring in-the-money and the consisting of short over-the-counter Index is a ‘‘European-style’’ option (i.e., distribution amount (as defined below). (‘‘OTC’’) put options that have been an option which can only be exercised The cash amount will be invested in T- written on 20 of the most volatile U.S. at its expiration) with a 90-day term. Bills and will accrete by interest earned stocks that also have market The strike prices of the option positions on the T-Bills. capitalization of at least $5 billion. included in the Index are determined The End of Day Index Value will be In seeking to replicate, before based on the closing prices of the calculated as follows: End of Day Index expenses, the performance of the Index, options’ underlying stocks as of the Value = Beginning of Quarter Index beginning of each 90-day period. The Value + Premium Generated ¥ Option the Fund will generally sell (i.e., write) ¥ 90-day OTC ‘‘down and in’’ put options, barrier price of each such option is 80% Values + Accrued Interest as described below, in proportion to of the strike price. At the expiration of distribution amount, where: • Beginning of Quarter Index Value is their weightings in the Index on each 90-day period, if an underlying 1,000 for the origination date of the economic terms which mirror those of stock closes at or below its respective Index; thereafter, it is the previous the Index. Each option written by the barrier price, a cash settlement payment in an amount equal to the difference quarter-end End of Day Index Value; Fund will be covered through • Premium Generated is the sum of investments in three month Treasury between the strike price and the closing price of the stock is deemed to be made, Option Values for each of the 20 down- bills (‘‘T-bills’’) at least equal to the and-in puts sold by the Index at the end Fund’s maximum liability under the and the Index value is correspondingly reduced. If the underlying stock does of the previous quarter; option (i.e., the strike price). The Sub- • not close at or below the barrier price, Option Value is the value of each of Adviser will seek a correlation over time the 20 down-and-in puts written by the of 0.95 or better between the Fund’s then the option expires worthless and the entire amount of the premium Index at the end of each quarter. The performance and the performance of the notional amount of each down-and-in Index. A figure of 1.00 would represent payment is retained within the Index. The components of the Index will be put sold by the Index for the current perfect correlation.7 OTC down and in puts written on 20 quarter is 1/20th of the Beginning of Index Methodology and Construction equally weighted stocks selected based Quarter Index Value; • on the following screening parameters: Accrued Interest is the daily According to the Registration interest earned on the cash amount held Statement, the Index measures the (1) U.S. listing of U.S. companies; (2) Publicly listed and traded options by the Index and invested in T-Bills; return of a hypothetical portfolio available; • Cash amount of the Index for any consisting of OTC put options which (3) Listed market capitalization quarter is the Beginning of Quarter have been written on each of 20 stocks greater than $5 billion; Index Value plus the Premium and a cash position calculated as (4) Top 20 stocks when ranked by 3- Generated for that quarter; described below. The 20 stocks on month implied volatility; • Distribution amount for any quarter which options will be written are those (5) The underlying company equity and paid out at the beginning of the next 20 stocks from a selection of the largest securities will have a minimum trading relevant quarter is 2.5% of the End of capitalized (over $5 billion in market volume of at least 50 million shares for Day Index Value for the final day of the capitalization) stocks which also have the preceding six months; and relevant quarter. If 2.5% of the End of listed options and which have the (6) Underlying company equity Day Index Value for the final day of the highest volatility, as determined by the securities will have a minimum average relevant quarter exceeds the amount of Index Provider. These stocks will be daily trading volume of at least one the Premium Generated, then the NMS stocks as defined in Rule 600 of million shares and a minimum average distribution amount will equal the Regulation NMS under the Exchange daily trading value of at least $10 Premium Generated. Act.8 million for the preceding six months. • A total return level for the Index The options are of the type known as The selection of the twenty will be calculated and published at the ‘‘down and in’’ put options. A down underlying stocks will occur each end of each day. The total return and in option is a contract that becomes quarter (March, June, September, and calculation will assume the quarterly a typical option (i.e., the option ‘‘knocks December) two days prior to the third index distribution is invested directly in in’’ at a predetermined strike price) once Friday of the month, in line with option the Index at the beginning of the quarter the underlying stock declines to a expiration for listed options. The in which it is paid. specified price (‘‘barrier price’’). These selection of the twenty underlying The Registration Statement provides stocks will not, however, be limited to the following example. A stock ‘‘ABC’’ 7 According to the Registration Statement, while those with listed options expiring in trades at $50 per share at the start of the the Fund will not invest in traditional reverse March, June, September, or December. 90-day period, and a down and in 90- convertible securities (i.e., those which convert into the underlying stock), the down and in put options The Index value will reflect a cash day put was written at an 80% barrier written by the Fund will have the effect of exposing amount invested in on-the-run 3-month (resulting in a strike price of $50 per the Fund to the return of reverse convertible T-Bills plus the premium collected on share and a barrier price of $40 per securities (based on equity securities) as if the Fund the short position in the 20 down-and- share) for a premium of $4 per share: owned such reverse convertible securities directly. Settlement above the barrier price: If 8 Terms relating to the Trust, the Fund, and the in puts written by the Index each Shares referred to, but not defined, herein are quarter. The notional amount of each of at the end of 90 days the ABC stock defined in the Registration Statement. the 20 down-and-in puts will be equal closed at any value above the barrier

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price of $40, then the option would in T- Bills which will be collateral for redeems Shares in Creation Unit size expire worthless and the Index’s value the options positions. The Fund will during a 90-day period, the Fund will would reflect the retention of the $4 per invest in the option positions terminate the appropriate portion of the share premium. The Index’s value thus determined by the Index Provider by options it has sold accordingly. would be increased by $4 per share on writing (i.e., selling) OTC 90-day down Secondary Investment Strategies the ABC option position. and in put options in proportion to their Settlement at the barrier price: If at weightings in the Index on economic The Fund may invest its remaining the end of 90 days ABC closed at the terms which mirror those of the Index. assets in money market instruments,11 barrier price of $40, then the option By writing an option, the Fund will including repurchase agreements 12 or would settle in cash at the closing price receive premiums from the buyer of the other funds which invest exclusively in of $40, and the Index’s value would be option, which will increase the Fund’s money market instruments, convertible reduced by $10 per share to reflect the return if the option does not ‘‘knock in’’ securities, structured notes (notes on settlement of the option. However, the and thus expires worthless. However, if which the amount of principal Index’s value would reflect the retention the option’s underlying stock declines repayment and interest payments are of the $4 per share premium, so the net by a specified amount (or more), the based on the movement of one or more loss to the Index’s value would be $6 option will ‘‘knock in’’ and the Fund specified factors, such as the movement per share on the ABC option position. will be required to pay the buyer the of a particular stock or stock index), Settlement below the barrier price: If difference between the option’s strike forward foreign currency exchange at the end of 90 days, ABC closed at price and the closing price. Therefore, contracts, and in swaps,13 options (other $35, then the option would settle in by writing a put option, the Fund will than options in which the Fund cash at the closing price of $35, and the be exposed to the amount by which the principally will invest), and futures Index’s value would be reduced by $15 price of the underlying is less than the per share to reflect the settlement of the strike price. Accordingly, the potential 11 The Fund may invest a portion of its assets in option. However, the Index’s value return to the Fund will be limited to the high-quality money market instruments on an would reflect the retention of the $4 per amount of option premiums it receives, ongoing basis to provide liquidity. The instruments share premium, so the net loss to the in which the Fund may invest include: (i) Short- while the Fund can potentially lose up term obligations issued by the U.S. Government; (ii) Index’s value would be $11 per share on to the entire strike price of each option the ABC option position. negotiable certificates of deposit (‘‘CDs’’), fixed time it sells. Further, if the value of the deposits, and bankers’ acceptances of U.S. and According to the Registration stocks underlying the options sold by foreign banks and similar institutions; (iii) Statement, the Index’s value is equal to the Fund increases, the Fund’s returns commercial paper rated at the date of purchase the value of the options positions ‘‘Prime-1’’ by Moody’s Investors Service, Inc. or will not increase accordingly. ‘‘A–1+’’ or ‘‘A–1’’ by Standard & Poor’s or, if comprising the Index plus a cash Typically, the writer of a put option position. The cash position starts at a unrated, of comparable quality as determined by the incurs an obligation to buy the Adviser; (iv) repurchase agreements; and (v) money base of 1,000. The cash position is underlying instrument from the market mutual funds. CDs are short-term negotiable increased by option premiums obligations of commercial banks. Time deposits are purchaser of the option at the option’s generated by the option positions non-negotiable deposits maintained in banking exercise price, upon exercise by the comprising the Index and interest on the institutions for specified periods of time at stated option purchaser. However, the put interest rates. Banker’s acceptances are time drafts cash position at an annual rate equal to options to be sold by the Fund will be drawn on commercial banks by borrowers, usually the three month T-Bill rate. The cash in connection with international transactions. settled in cash only. The Fund may position is decreased by cash settlement 12 Repurchase agreements are agreements need to sell down and in put options on on options which ‘‘knock in’’ (i.e., pursuant to which securities are acquired by the stocks other than those underlying the Fund from a third party with the understanding that where the closing price of the option positions contained in the Index they will be repurchased by the seller at a fixed underlying stock at the end of the 90- if the Fund is unable to obtain a price on an agreed date. These agreements may be day period is at or below the barrier made with respect to any of the portfolio securities price). The cash position is also competitive market from OTC option in which the Fund is authorized to invest. decreased by a deemed quarterly cash dealers on a stock underlying a Repurchase agreements may be characterized as particular option position in the Index, loans secured by the underlying securities. The distribution, currently targeted at the Fund may enter into repurchase agreements with (i) thus preventing the Fund from writing member banks of the Federal Reserve System rate of 2.5% of the value of the Index. 10 However, if the option premiums an option on that stock. having total assets in excess of $500 million and (ii) Every 90 days, the options included securities dealers (‘‘Qualified Institutions’’). The generated during the quarter are less Adviser will monitor the continued than 2.5%, the deemed distribution will within the Index are cash settled or expire, and new option positions are creditworthiness of Qualified Institutions. The be reduced by the amount of the Fund also may enter into reverse repurchase shortfall. established. The Fund will enter into agreements, which involve the sale of securities new option positions accordingly. This with an agreement to repurchase the securities at The Fund’s Investments 90-day cycle likely will cause the Fund an agreed-upon price, date, and interest payment to have frequent and substantial and have the characteristics of borrowing. According to the Registration 13 Swap agreements are contracts between parties Statement, the Fund, under normal portfolio turnover. If the Fund receives in which one party agrees to make periodic circumstances,9 will invest at least 80% additional inflows (and issues more payments to the other party (‘‘Counterparty’’) based of its total assets in component Shares accordingly in large numbers on the change in market value or level of a specified known as ‘‘Creation Units,’’ as further rate, index, or asset. In return, the Counterparty securities that comprise the Index and agrees to make periodic payments to the first party defined below) during a 90-day period, based on the return of a different specified rate, 9 The term ‘‘under normal circumstances’’ the Fund will sell additional OTC down index, or asset. Swap agreements will usually be includes, but is not limited to, the absence of and in put options which will be done on a net basis, the Fund receiving or paying extreme volatility or trading halts in the equities or exercised or expire at the end of such only the net amount of the two payments. The net options markets or the financial markets generally; amount of the excess, if any, of the Fund’s operational issues causing dissemination of 90-day period. Conversely, if the Fund obligations over its entitlements with respect to inaccurate market information; or force majeure each swap will be accrued on a daily basis and an type events such as systems failure, natural or man- 10 The Fund will transact only with OTC options amount of cash or highly liquid securities having made disaster, act of God, armed conflict, act of dealers that have in place an International Swaps an aggregate value at least equal to the accrued terrorism, riot or labor disruption, or any similar and Derivatives Association agreement with the excess will be maintained in an account at the intervening circumstance. Fund. Trust’s custodian bank.

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contracts.14 Swaps, options (other than or other restrictions on resale and other million for the preceding six months. As options in which the Fund principally instruments that lack readily available such, the Exchange believes that the will invest), and futures contracts (and markets as determined in accordance Index is sufficiently broad based in convertible securities and structured with Commission staff guidance.17 scope and, as such, is less susceptible to notes) may be used by the Fund in The Fund intends to qualify for and potential manipulation in view of the seeking performance that corresponds to to elect to be treated as a separate market capitalization and liquidity the Index and in managing cash flows.15 regulated investment company (‘‘RIC’’) criteria. The Fund will not invest in money under Subchapter M of the Internal market instruments as part of a Revenue Code of 1986, as amended.18 Pricing Fund Shares temporary defensive strategy to protect As a RIC, the Fund will not be subject According to the Registration against potential stock market declines. to U.S. federal income tax on the Statement, the Fund’s OTC put options The Adviser anticipates that it may take portion of its taxable investment income on equity securities will be valued approximately three business days (i.e., and capital gain it distributes to its pursuant to a third-party option pricing each day the New York Stock Exchange shareholders. To qualify for treatment as model. Debt securities will be valued at (‘‘NYSE’’) is open) for additions and a RIC, a company must annually the mean between the last available bid deletions to the Index to be reflected in distribute at least 90% of its net and ask prices for such securities or, if the portfolio composition of the Fund. investment company taxable income such prices are not available, at prices The Fund may invest in the securities (which includes dividends, interest, and for securities of comparable maturity, of other investment companies net capital gains) and meet several other quality, and type. Securities for which (including money market funds). Under requirements relating to the nature of its market quotations are not readily the 1940 Act, the Fund’s investment in income and the diversification of its available, including restricted securities, investment companies is limited to, assets. If the Fund fails to qualify for will be valued by a method that the subject to certain exceptions, (i) 3% of any taxable year as a RIC, all of its Fund’s Board of Trustees believe the total outstanding voting stock of any taxable income will be subject to tax at accurately reflects fair value. Securities one investment company, (ii) 5% of the regular corporate income tax rates will be valued at fair value when market Fund’s total assets with respect to any without any deduction for distributions quotations are not readily available or one investment company, and (iii) 10% to shareholders, and such distributions are deemed unreliable, such as when a of the Fund’s total assets of investment generally will be taxable to shareholders security’s value or meaningful portion companies in the aggregate.16 as ordinary dividends to the extent of of the Fund’s portfolio is believed to The Fund may hold up to an aggregate the Fund’s current and accumulated have been materially affected by a amount of 15% of its net assets in earnings and profits. significant event. Such events may illiquid securities (calculated at the time The Fund will not invest in non-U.S. include a natural disaster, an economic of investment), including Rule 144A equity securities. The Fund’s event like a bankruptcy filing, trading securities. The Fund will monitor its investments will be consistent with the halt in a security, an unscheduled early portfolio liquidity on an ongoing basis Fund’s investment objective and will market close, or a substantial fluctuation to determine whether, in light of current not be used to enhance leverage. in domestic and foreign markets that has circumstances, an adequate level of As described above, the Index occurred between the close of the liquidity is being maintained, and will components must be based upon 20 principal exchange and the NYSE. In consider taking appropriate steps in equally weighted U.S. listed U.S. such a case, the value for a security is order to maintain adequate liquidity if, companies and have publicly listed and likely to be different from the last through a change in values, net assets, traded options. In addition, the quoted market price. In addition, due to or other circumstances, more than 15% underlying companies will have a the subjective and variable nature of fair of the Fund’s net assets are held in market capitalization greater than $5 market value pricing, it is possible that illiquid securities. Illiquid securities billion. Furthermore, the underlying the value determined for a particular include securities subject to contractual company equity securities will have a asset may be materially different from minimum trading volume of at least 50 the value realized upon such asset’s 14 The Fund may utilize U.S. listed exchange- million shares for each of the preceding sale. traded futures. According to the Registration six months and a minimum average Statement, the Commodity Futures Trading Commission has eliminated limitations on futures daily trading value of at least $10 Creations and Redemptions trading by certain regulated entities, including Creation of Shares registered investment companies, and consequently 17 The Commission has stated that long-standing registered investment companies may engage in Commission guidelines have required open-end The Trust will issue and sell Shares unlimited futures transactions and options thereon funds to hold no more than 15% of their net assets of the Fund only in Creation Units of provided that the investment adviser to the in illiquid securities and other illiquid assets. See 100,000 Shares each on a continuous company claims an exclusion from regulation as a Investment Company Act Release No. 28193 (March commodity pool operator. In connection with its 11, 2008), 73 FR 14618 (March 18, 2008), footnote basis through the Distributor, without a management of the Trust, the Adviser has claimed 34. See also Investment Company Act Release No. sales load, at its net asset value (‘‘NAV’’) such an exclusion from registration as a commodity 5847 (October 21, 1969), 35 FR 19989 (December next determined after receipt, on any pool operator under the Commodity Exchange Act 31, 1970) (Statement Regarding ‘‘Restricted business day, of an order in proper (7 U.S.C. 1) (‘‘CEA’’). Therefore, it is not subject to Securities’’); Investment Company Act Release No. the registration and regulatory requirements of the 18612 (March 12, 1992), 57 FR 9828 (March 20, form. Creation Units of the Fund CEA, and there are no limitations on the extent to 1992) (Revisions of Guidelines to Form N–1A). A generally will be sold for cash only, which the Fund may engage in non-hedging fund’s portfolio security is illiquid if it cannot be calculated based on the NAV per Share transactions involving futures and options thereon, disposed of in the ordinary course of business multiplied by the number of Shares except as set forth in the Registration Statement. within seven days at approximately the value 15 Swaps, options (other than options in which ascribed to it by the fund. See Investment Company representing a Creation Unit (‘‘Deposit the Fund principally will invest), and futures Act Release No. 14983 (March 12, 1986), 51 FR Cash’’), plus a transaction fee. contracts will not be included in the Fund’s 9773 (March 21, 1986) (adopting amendments to The Custodian, through the National investment, under normal market circumstances, of Rule 2a–7 under the 1940 Act); Investment Securities Clearing Corporation at least 80% of its total assets in component Company Act Release No. 17452 (April 23, 1990), securities that comprise the Index and in T-Bills, as 55 FR 17933 (April 30, 1990) (adopting Rule 144A (‘‘NSCC’’), will make available on each described above. under the 1933 Act). business day, prior to the opening of 16 15 U.S.C. 80a–12(d). 18 26 U.S.C. 851. business on NYSE Arca (currently 9:30

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a.m. Eastern Time (‘‘E.T.’’)), the amount Component Stocks themselves. The The NAV per Share for the Fund will of the Deposit Cash to be deposited in Exchange represents that, for initial be determined once daily as of the close exchange for a Creation Unit of the and/or continued listing, the Fund will of the NYSE, usually 4:00 p.m. E.T., Fund. be in compliance with Rule 10A–3 each day the NYSE is open for trading. To be eligible to place orders with the under the Exchange Act,20 as provided NAV per Share will be determined by Distributor and to create a Creation Unit by NYSE Arca Equities Rule 5.3. A dividing the value of the Fund’s of the Fund, an entity must be (i) a minimum of 100,000 Shares will be portfolio securities, cash and other ‘‘Participating Party,’’ i.e., a broker- outstanding at the commencement of assets (including accrued interest), less dealer or other participant in the trading on the Exchange. The Exchange all liabilities (including accrued clearing process through the Continuous will obtain a representation from the expenses), by the total number of Shares Net Settlement System of the NSCC issuer of the Shares that the NAV will outstanding. (‘‘Clearing Process’’); or (ii) a Depository be calculated daily and made available Trust Company (‘‘DTC’’) participant, to all market participants at the same Investors can also obtain the Trust’s and, in each case, must have executed time. Statement of Additional Information an agreement with the Distributor, with (‘‘SAI’’), the Fund’s Shareholder respect to creations and redemptions of Availability of Information Reports, and its Form N–CSR and Form Creation Units. A Participating Party The Fund’s Web site N–SAR, filed twice a year. The Trust’s and DTC participant are collectively (www.alpsetfs.com), which will be SAI and Shareholder Reports are referred to as an ‘‘Authorized publicly available prior to the public available free upon request from the Participant.’’ offering of the Shares, will include a Trust, and those documents and the All orders to create Creation Units, form of the prospectus for the Fund that Form N–CSR and Form N–SAR may be whether through a Participating Party or may be downloaded. The Fund’s Web viewed on-screen or downloaded from a DTC participant, must be received by site will include additional quantitative the Commission’s Web site at the Distributor no later than the closing information updated on a daily basis, www.sec.gov. Information regarding time of the regular trading session on including, for the Fund, (1) daily trading market price and trading volume of the the NYSE (ordinarily 4:00 p.m. E.T.) in volume, the prior business day’s Shares will be continually available on each case on the date such order is reported closing price, NAV and mid- a real-time basis throughout the day on placed in order for creation of Creation point of the bid/ask spread at the time brokers’ computer screens and other Units to be effected based on the NAV of calculation of such NAV (‘‘Bid/Ask electronic services. Information of Shares of the Fund as next Price’’),21 and a calculation of the regarding the previous day’s closing determined on such date after receipt of premium and discount of the Bid/Ask price and trading volume information the order in proper form. Price against the NAV, and (2) data in will be published daily in the financial Redemption of Shares chart format displaying the frequency section of newspapers. Quotation and distribution of discounts and premiums last-sale information for the Shares will Fund Shares may be redeemed only in of the daily Bid/Ask Price against the Creation Units at the NAV next be available via the Consolidated Tape NAV, within appropriate ranges, for Association (‘‘CTA’’) high-speed line. determined after receipt of a redemption each of the four previous calendar request in proper form by the Fund The value of the Index and the values quarters.22 of the OTC put options components in through BNY and only on a business On a daily basis, the Adviser will day. The Fund will not redeem Shares the Index (which will each be weighted disclose for each portfolio security and at 1/20 of the Index value) will be in amounts less than a Creation Unit. other financial instrument of the Fund With respect to the Fund, BNY, published by one or more major market the following information: ticker symbol through the NSCC, will make available data vendors every 15 seconds during (if applicable), name of security and prior to the opening of business on the NYSE Arca Core Trading Session of financial instrument, number of NYSE Arca (currently 9:30 a.m. E.T.) on 9:30 a.m. E.T. to 4:00 p.m. E.T. A list of securities or dollar value of financial each business day, the amount of cash components of the Index, with instruments held in the portfolio, and that will be paid (subject to possible percentage weightings, will be available percentage weighting of the security and amendment or correction) in respect of on the Exchange’s Web site. Each of the financial instrument in the portfolio. redemption requests received in proper stocks underlying the OTC put options The Fund’s portfolio holdings, form on that day (‘‘Redemption Cash’’). in the Index also will underlie including information regarding its The redemption proceeds for a standardized options contracts traded Creation Unit generally will consist of option positions, will be disclosed each day on the Fund’s Web site. The Web on U.S. options exchanges, which will the Redemption Cash, as announced on disseminate quotation and last-sale the business day of the request for site information will be publicly available at no charge. information with respect to such redemption received in proper form, contracts. In addition, the Intraday less a redemption transaction fee. of which is registered under Sections 12(b) or 12(g) Indicative Value will be widely Initial and Continued Listing of the Exchange Act. disseminated by one or more major 20 17 CFR 240.10A–3. market data vendors at least every 15 The Shares will conform to the initial 21 The Bid/Ask Price of the Fund will be seconds during the Core Trading and continued listing criteria under determined using the mid-point of the highest bid Session.23 The dissemination of the NYSE Arca Equities Rules 5.2(j)(3) and and the lowest offer on the Exchange as of the time Intraday Indicative Value will allow 5.5(g)(2), except that the Index is of calculation of the Fund’s NAV. The records relating to Bid/Ask Prices will be retained by the investors to determine the value of the comprised of options based on ‘‘US Fund and its service providers. 19 underlying portfolio of the Fund on a Component Stocks’’ rather than US 22 Under accounting procedures followed by the daily basis and to provide a close Fund, trades made on the prior business day (‘‘T’’) 19 NYSE Arca Equities Rule 5.2(j)(3) defines the will be booked and reflected in NAV on the current term ‘‘US Component Stock’’ to mean an equity business day (‘‘T+1’’). Accordingly, the Fund will 23 Currently, it is the Exchange’s understanding security that is registered under Sections 12(b) or be able to disclose at the beginning of the business that several major market data vendors display and/ 12(g) of the Exchange Act or an American day the portfolio that will form the basis for the or make widely available Intraday Indicative Values Depositary Receipt, the underlying equity security NAV calculation at the end of the business day. taken from the CTA or other data feeds.

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estimate of that value throughout the Sessions). The Exchange has concerning the customer’s financial trading day. appropriate rules to facilitate status, tax status, investment objectives, Additional information regarding the transactions in the Shares during all and any other information that such Trust and the Shares, including trading sessions. As provided in NYSE ETP Holder believes would be useful to investment strategies, risks, creation and Arca Equities Rule 7.6, Commentary .03, make a recommendation. redemption procedures, fees, portfolio the minimum price variation (‘‘MPV’’) Prior to the commencement of holdings disclosure policies, for quoting and entry of orders in equity trading, the Exchange will inform its distributions, and taxes is included in securities traded on the NYSE Arca ETP Holders of the suitability the Registration Statement. Marketplace is $0.01, with the exception requirements of NYSE Arca Equities of securities that are priced less than Rule 9.2(a) in an Information Bulletin Trading Halts $1.00 for which the MPV for order entry (‘‘Bulletin’’). Specifically, ETP Holders With respect to trading halts, the is $0.0001. will be reminded in the Information Exchange may consider all relevant Bulletin that, in recommending factors in exercising its discretion to Surveillance transactions in these securities, they halt or suspend trading in the Shares of The Exchange intends to utilize its must have a reasonable basis to believe the Fund.24 Trading in Shares of the existing surveillance procedures that (1) the recommendation is suitable Fund will be halted if the circuit breaker applicable to derivative products (which for a customer given reasonable inquiry parameters in NYSE Arca Equities Rule include Investment Company Units) to concerning the customer’s investment 7.12 have been reached. Trading also monitor trading in the Shares. The objectives, financial situation, needs, may be halted because of market Exchange represents that these and any other information known by conditions or for reasons that, in the procedures are adequate to properly such member, and (2) the customer can view of the Exchange, make trading in monitor Exchange trading of the Shares evaluate the special characteristics, and the Shares inadvisable. These may in all trading sessions and to deter and is able to bear the financial risks, of an include: (1) The extent to which trading detect violations of Exchange rules and investment in the Shares. In connection is not occurring in the securities applicable federal securities laws. with the suitability obligation, the comprising the Fund’s portfolio The Exchange’s current trading Information Bulletin will also provide holdings and/or the financial surveillance focuses on detecting that members must make reasonable instruments of the Fund; or (2) whether securities trading outside their normal efforts to obtain the following other unusual conditions or patterns. When such situations are information: (1) The customer’s circumstances detrimental to the detected, surveillance analysis follows financial status; (2) the customer’s tax maintenance of a fair and orderly and investigations are opened, where status; (3) the customer’s investment market are present. appropriate, to review the behavior of objectives; and (4) such other If the Intraday Indicative Value, the all relevant parties for all relevant information used or considered to be Index value, or the value of the trading violations. reasonable by such member or components of the Index is not available The Exchange may obtain information registered representative in making or is not being disseminated as required, via the Intermarket Surveillance Group recommendations to the customer. the Exchange may halt trading during (‘‘ISG’’) from other exchanges that are In addition, FINRA has issued a the day in which the disruption occurs; members of ISG or with which the regulatory notice relating to sales if the interruption persists past the day Exchange has entered into a practice procedures applicable to in which it occurred, the Exchange will comprehensive surveillance sharing recommendations to customers by halt trading no later than the beginning agreement.25 FINRA members of reverse convertibles, of the trading day following the In addition, the Exchange also has a as described in FINRA Regulatory interruption. The Exchange will obtain general policy prohibiting the Notice 10–09 (February 2010) (‘‘FINRA a representation from the Fund that the distribution of material, non-public Regulatory Notice’’).26 As described NAV for the Fund will be calculated information by its employees. above, while the Fund will not invest in traditional reverse convertible daily and will be made available to all Suitability market participants at the same time. securities, the down and in put options Under NYSE Arca Equities Rule Currently, NYSE Arca Equities Rule written by the Fund will have the effect 7.34(a)(5), if the Exchange becomes 9.2(a) (Diligence as to Accounts) of exposing the Fund to the return of aware that the NAV for the Fund is not provides that an Equity Trading Permit reverse convertible securities as if the being disseminated to all market (‘‘ETP’’) Holder, before recommending a Fund owned such reverse convertible participants at the same time, it will halt transaction in any security, must have securities directly. Therefore, the trading in the Shares until such time as reasonable grounds to believe that the Bulletin will state that ETP Holders that the NAV is available to all market recommendation is suitable for the carry customer accounts should follow participants. customer based on any facts disclosed the FINRA guidance set forth in the by the customer as to its other security FINRA Regulatory Notice. Trading Rules holdings and as to its financial situation As disclosed in the Registration The Exchange deems the Shares to be and needs. Further, the rule provides, Statement, the Fund is designed for equity securities, thus rendering trading with a limited exception, that prior to investors who seek to obtain income in the Shares subject to the Exchange’s the execution of a transaction through selling options on select equity existing rules governing the trading of recommended to a non-institutional securities which the Index Provider equity securities. Shares will trade on customer, the ETP Holder must make determines to have the highest the NYSE Arca Marketplace from 4:00 reasonable efforts to obtain information volatility. Because of the high volatility a.m. to 8:00 p.m. E.T. in accordance of the stocks underlying the options with NYSE Arca Equities Rule 7.34 25 For a list of the current members of ISG, see (Opening, Core, and Late Trading www.isgportal.org. The Exchange notes that not all 26 The Exchange notes that NASD Rule 2310 components of the portfolio for the Fund may trade relating to suitability, referenced in the FINRA on markets that are members of ISG or with which Regulatory Notice, has been superseded by FINRA 24 See NYSE Arca Equities Rule 7.12, the Exchange has in place a comprehensive Rule 2111. See FINRA Regulatory Notice 12–25 Commentary .04. surveillance sharing agreement. (May 2012).

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sold by the Fund, it is possible that the trade, to remove impediments to, and may halt trading during the day in value of such stocks will decline in perfect the mechanism of a free and which the disruption occurs; if the sufficient magnitude to trigger the open market, and, in general, to protect interruption persists past the day in exercise of the options and cause a loss investors and the public interest. which it occurred, the Exchange will which may outweigh the income from The Exchange believes that the halt trading no later than the beginning selling such options. The Registration proposed rule change is designed to of the trading day following the Statement states that, accordingly, the prevent fraudulent and manipulative interruption. The Exchange will obtain Fund should be considered a acts and practices in that the Shares will a representation from the Fund that the speculative trading instrument and is be listed and traded on the Exchange NAV for the Fund will be calculated not necessarily appropriate for investors pursuant to the initial listing criteria in daily and will be made available to all who seek to avoid or minimize their NYSE Arca Equities Rule 5.2(j)(3) and market participants at the same time. exposure to stock market volatility. The Commentary .01 thereto and continued Under NYSE Arca Equities Rule Exchange’s Information Bulletin listing criteria in NYSE Arca Equities 7.34(a)(5), if the Exchange becomes regarding the Fund, described below, Rule 5.5(g)(2). The Exchange has in aware that the NAV for the Fund is not will provide information regarding the place surveillance procedures that are being disseminated to all market suitability of an investment in the adequate to properly monitor trading in participants at the same time, it will halt Shares, as stated in the Registration the Shares in all trading sessions and to trading in the Shares until such time as Statement. deter and detect violations of Exchange the NAV is available to all market rules and applicable federal securities Information Bulletin participants. The Fund’s portfolio laws. The Exchange may obtain holdings, including information Prior to the commencement of information via ISG from other regarding its option positions, will be trading, the Exchange will inform its exchanges that are members of ISG or disclosed each day on the Fund’s Web ETP Holders in the Bulletin of the with which the Exchange has entered site. The Web site information will be special characteristics and risks into a comprehensive surveillance publicly available at no charge. associated with trading the Shares. sharing agreement. The 20 stocks on Information regarding market price and Specifically, the Bulletin will discuss which options will be written will be trading volume of the Shares will be the following: (1) The procedures for from a selection of the largest continually available on a real-time purchases and redemptions of Shares in capitalized (over $5 billion in market basis throughout the day on brokers’ Creation Units (and that Shares are not capitalization) stocks which also have computer screens and other electronic individually redeemable); (2) NYSE listed options and which have the services. Quotation and last-sale Arca Equities Rule 9.2(a), which highest volatility, as determined by the information for the Shares will be imposes a duty of due diligence on its Index Provider, and will be NMS stocks available via the CTA high-speed line. ETP Holders to learn the essential facts as defined in Rule 600 of Regulation The value of the Index and the values relating to every customer prior to NMS under the Exchange Act. Each of the OTC put options components in trading the Shares; (3) the risks involved option written by the Fund will be the Index (which will each be weighted in trading the Shares during the covered through investments in three at 1/20 of the Index value) will be Opening and Late Trading Sessions month T-Bills at least equal to the published by one or more major market when an updated Intraday Indicative Fund’s maximum liability under the data vendors every 15 seconds during Value will not be calculated or publicly option (i.e., the strike price). The Fund the NYSE Arca Core Trading Session of disseminated; (4) how information will not invest in non-U.S. equity 9:30 a.m. E.T. to 4:00 p.m. E.T. A list of regarding the Intraday Indicative Value securities and the Fund’s investments components of the Index, with is disseminated; (5) the requirement that will be consistent with the Fund’s percentage weightings, will be available ETP Holders deliver a prospectus to investment objective and will not be on the Exchange’s Web site. Each of the investors purchasing newly issued used to enhance leverage. FINRA has stocks underlying the OTC put options Shares prior to or concurrently with the issued a regulatory notice relating to in the Index also will underlie confirmation of a transaction; and (6) sales practice procedures applicable to standardized options contracts traded trading information. recommendations to customers by on U.S. options exchanges, which will In addition, the Bulletin will FINRA members of reverse convertibles, disseminate quotation and last-sale reference that the Fund is subject to as described in the FINRA Regulatory information with respect to such various fees and expenses described in Notice, and ETP Holders that carry contracts. In addition, the Intraday the Registration Statement. The Bulletin customer accounts should follow the Indicative Value will be disseminated will discuss any exemptive, no-action, FINRA guidance set forth therein. Prior by one or more major market data and interpretive relief granted by the to the commencement of trading, the vendors at least every 15 seconds during Commission from any rules under the Exchange will inform its ETP Holders in the NYSE Arca Core Trading Session. Exchange Act. The Bulletin will also an Information Bulletin of the special disclose that the NAV for the Shares characteristics and risks associated with The proposed rule change is designed will be calculated after 4:00 p.m. E.T. trading the Shares. The Information to perfect the mechanism of a free and each trading day. Bulletin will state that ETP Holders that open market and, in general, to protect carry customer accounts should follow investors and the public interest in that 2. Statutory Basis FINRA guidance set forth in the FINRA it will facilitate the listing and trading The basis under the Exchange Act for Regulatory Notice. of an additional type of exchange-traded this proposed rule change is the The proposed rule change is designed product that will enhance competition requirement under Section 6(b)(5) 27 to promote just and equitable principles among market participants, to the that an exchange have rules that are of trade and to protect investors and the benefit of investors and the marketplace. designed to prevent fraudulent and public interest in that, if the Intraday As noted above, the Exchange has in manipulative acts and practices, to Indicative Value, the Index value, or the place surveillance procedures relating to promote just and equitable principles of value of the components of the Index is trading in the Shares and may obtain not available or is not being information via ISG from other 27 15 U.S.C. 78f(b)(5). disseminated as required, the Exchange exchanges that are members of ISG or

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with which the Exchange has entered All submissions should refer to File thereunder,2 notice is hereby given that, into a comprehensive surveillance Number SR–NYSEArca–2012–108. This on September 27, 2012, NYSE Arca, Inc. sharing agreement. In addition, as noted file number should be included on the (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed above, investors will have ready access subject line if email is used. To help the with the Securities and Exchange to information regarding the Fund’s Commission process and review your Commission (‘‘Commission’’) the portfolio holdings, the Intraday comments more efficiently, please use proposed rule change as described in Indicative Value, and quotation and only one method. The Commission will Items I, II, and III below, which Items last-sale information for the Shares. post all comments on the Commission’s have been prepared by the Exchange. Internet Web site (http://www.sec.gov/ The Commission is publishing this B. Self-Regulatory Organization’s rules/sro.shtml). Copies of the notice to solicit comments on the Statement on Burden on Competition submission, all subsequent proposed rule change from interested The Exchange does not believe that amendments, all written statements persons. the proposed rule change will impose with respect to the proposed rule I. Self-Regulatory Organization’s any burden on competition that is not change that are filed with the Statement of the Terms of Substance of necessary or appropriate in furtherance Commission, and all written the Proposed Rule Change of the purposes of the Act. communications relating to the proposed rule change between the The Exchange proposes to list and C. Self-Regulatory Organization’s Commission and any person, other than trade shares of the following issue under Statement on Comments on the those that may be withheld from the NYSE Arca Equities Rule 5.2(j)(3) Proposed Rule Change Received From public in accordance with the (‘‘Investment Company Units’’): the U.S. Members, Participants, or Others provisions of 5 U.S.C. 552, will be Equity High Volatility Put Write Index No written comments were solicited available for Web site viewing and Fund. The text of the proposed rule or received with respect to the proposed printing in the Commission’s Public change is available on the Exchange’s rule change. Reference Section, 100 F Street NE., Web site at www.nyse.com, at the Washington, DC 20549–1090, on official principal office of the Exchange, and at III. Date of Effectiveness of the business days between 10:00 a.m. and the Commission’s Public Reference Proposed Rule Change and Timing for 3:00 p.m. Copies of the filing will also Room. Commission Action be available for inspection and copying at the NYSE’s principal office and on its II. Self-Regulatory Organization’s Within 45 days of the date of Statement of the Purpose of, and publication of this notice in the Federal Internet Web site at www.nyse.com. All comments received will be posted Statutory Basis for, the Proposed Rule Register or within such longer period (i) Change as the Commission may designate up to without change; the Commission does 90 days of such date if it finds such not edit personal identifying In its filing with the Commission, the longer period to be appropriate and information from submissions. You self-regulatory organization included publishes its reasons for so finding or should submit only information that statements concerning the purpose of, (ii) as to which the self-regulatory you wish to make available publicly. All and basis for, the proposed rule change organization consents, the Commission submissions should refer to File and discussed any comments it received will: Number SR–NYSEArca–2012–108 and on the proposed rule change. The text (A) By order approve or disapprove should be submitted on or before of those statements may be examined at November 8, 2012. the proposed rule change, or the places specified in Item IV below. (B) institute proceedings to determine For the Commission, by the Division of The Exchange has prepared summaries, whether the proposed rule change Trading and Markets, pursuant to delegated set forth in sections A, B, and C below, authority.28 should be disapproved. of the most significant parts of such Kevin M. O’Neill, statements. IV. Solicitation of Comments Deputy Secretary. A. Self-Regulatory Organization’s Interested persons are invited to [FR Doc. 2012–25598 Filed 10–17–12; 8:45 am] Statement of the Purpose of, and the submit written data, views, and BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule arguments concerning the foregoing, Change including whether the proposed rule change is consistent with the Act. SECURITIES AND EXCHANGE 1. Purpose Comments may be submitted by any of COMMISSION The Exchange proposes to list and the following methods: [Release No. 34–68044; File No. SR– trade shares (‘‘Shares’’) of the U.S. NYSEArca–2012–109] Electronic Comments Equity High Volatility Put Write Index Fund (‘‘Fund’’) under Commentary .01 • Use the Commission’s Internet Self-Regulatory Organizations; NYSE to NYSE Arca Equities Rule 5.2(j)(3), comment form (http://www.sec.gov/ Arca, Inc.; Notice of Filing of Proposed which governs the listing and trading of rules/sro.shtml); or Rule Change Relating to the Listing Investment Company Units.3 The Shares • Send an email to rule- and Trading of Shares of the U.S. will be issued by the ALPS ETF Trust [email protected]. Please include File Equity High Volatility Put Write Index Number SR–NYSEArca–2012–108 on Fund Under NYSE Arca Equities Rule 2 17 CFR 240.19b–4. the subject line. 5.2(j)(3) 3 NYSE Arca Equities Rule 5.2(j)(3)(A) provides that an Investment Company Unit is a security that Paper Comments October 12, 2012. represents an interest in a registered investment Pursuant to Section 19(b)(1) of the company that holds securities comprising, or • Send paper comments in triplicate Securities Exchange Act of 1934 (‘‘Act’’ otherwise based on or representing an interest in, to Elizabeth M. Murphy, Secretary, 1 an index or portfolio of securities (or holds or ‘‘Exchange Act’’) and Rule 19b–4 securities in another registered investment Securities and Exchange Commission, company that holds securities comprising, or 100 F Street NE., Washington, DC 28 17 CFR 200.30–3(a)(12). otherwise based on or representing an interest in, 20549–1090. 1 15 U.S.C. 78s(b)(1). an index or portfolio of securities).

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(‘‘Trust’’).4 ALPS Advisors, Inc. will be Distributor. NYSE Arca is affiliated with 2M_PUT_IMP_VOL_50DELTA_DFLT, the Fund’s investment adviser a broker-dealer and will implement a which is derived from at the money (‘‘Adviser’’), and Rich Investment fire wall and maintain procedures listed put options on each of such Solutions, LLC will be the Fund’s designed to prevent the use and stocks.7 The 20 stocks with the highest investment sub-adviser (‘‘Sub- dissemination of material non-public volatility are selected for inclusion. The Adviser’’).5 The Bank of New York information regarding the Index. industry sector of each stock is also Mellon (‘‘BNY’’) will serve as custodian, noted, and the Index will not allow Description of the Fund fund accounting agent, and transfer more than 10 of the 20 stocks to be from agent for the Fund. ALPS Distributors, According to the Registration any one industry sector. Inc. will be the Fund’s distributor Statement, the Fund will seek Each listed put option included in the (‘‘Distributor’’). investment results that correspond Index will be an ‘‘American-style’’ The Adviser is affiliated with a generally to the performance, before the option (i.e., an option which can be broker-dealer and will implement and Fund’s fees and expenses, of the NYSE exercised at the strike price at any time maintain procedures designed to Arca U.S. Equity High Volatility Put prior to its expiration) and have a 60- prevent the use and dissemination of Write Index (‘‘Index’’). The Index day term. The strike price (i.e., the price material non-public information measures the return of a hypothetical at which a put option can be exercised) regarding the Fund’s portfolio. The Sub- portfolio consisting of U.S. exchange of each put option included in the Index Adviser is not affiliated with a broker- traded put options which have been must be as close as possible to 85% of dealer. In the event (a) the Sub-Adviser sold on each of 20 stocks and a cash the closing price of the option’s becomes newly affiliated with a broker- position calculated as described below. underlying stock price as of the dealer, or (b) any new adviser or sub- The 20 stocks on which options are sold beginning of each 60-day period.8 The adviser becomes affiliated with a broker- (‘‘written’’) are those 20 stocks from a listed put options included in the Index dealer, it will implement and maintain selection of the largest capitalized (over can be exercised at any time prior to procedures designed to prevent the use $5 billion in market capitalization) their expiration, but the Index will and dissemination of material non- stocks which also have listed options reflect the value of each such option public information regarding the Fund’s and which have the highest volatility, as throughout the 60-day period as if the portfolio. determined by the Index Provider. option is not exercised until its NYSE Arca will be the ‘‘Index The Sub-Adviser will seek a expiration. Each such option will Provider’’ for the Fund. NYSE Arca is correlation over time of 0.95 or better automatically be deemed exercised on not affiliated with the Trust, the between the Fund’s performance and its expiration date if its underlying stock Adviser, the Sub-Adviser, or the the performance of the Index. A figure price is below its strike price. If the of 1.00 would represent perfect stock underlying the put option closes 4 The Trust is registered under the Investment correlation. below the option’s strike price, a cash Company Act of 1940 (15 U.S.C. 80a–1) (‘‘1940 settlement payment in an amount equal Act’’). On May 3, 2012, the Trust filed with the Index Methodology and Construction to the difference between the strike Commission an amendment to its registration According to the Registration price and the closing price of the stock statement on Form N–1A under the Securities Act of 1933 (15 U.S.C. 77a), and under the 1940 Act Statement, the Index consists of at least is deemed to be made and the Index relating to the Fund (File Nos. 333–148826 and twenty components (‘‘Index value is correspondingly reduced. If the 811–22175) (‘‘Registration Statement’’). The Components’’), selected in accordance underlying stock does not close below description of the operation of the Trust and the with NYSE Arca’s rules-based its strike price, then the option expires Fund herein is based, in part, on the Registration Statement. In addition, the Commission has issued methodology for the Index. In selecting worthless and the entire amount of the an order granting certain exemptive relief to the the stocks underlying the Index premium payment is retained within the Trust under the 1940 Act. See Investment Company Components, the Index Provider begins Index.9 Act Release No. 28262 (May 1, 2008) (File No. 812– with the universe of all U.S. exchange- The Registration Statement provides 13430) (‘‘Exemptive Order’’). the following example. Suppose a stock 5 An investment adviser to an open-end fund is listed stocks, and then screens for those required to be registered under the Investment stocks that meet the following criteria: ‘‘ABC’’ trades at $50 per share at the Advisers Act of 1940 (‘‘Advisers Act’’). As a result, (1) Minimum market capitalization of at start of the 60 day period, and a listed the Adviser and Sub-Adviser and their related least $5 billion; (2) minimum trading put option with a term of 60 days was personnel are subject to the provisions of Rule volume of at least 50 million shares sold with a strike price of $42.50 per 204A–1 under the Advisers Act relating to codes of share for a premium of $2 per share: ethics. This Rule requires investment advisers to during the preceding 6 months; (3) adopt a code of ethics that reflects the fiduciary minimum average daily trading volume Settlement at or above the strike price: nature of the relationship to clients as well as of one million shares during the If at the end of 60 days the ABC stock compliance with other applicable securities laws. preceding 6 months; (4) minimum closed at or above the strike price of Accordingly, procedures designed to prevent the $42.50, then the option would expire communication and misuse of non-public average daily trading value of at least information by an investment adviser must be $10 million during the preceding 6 7 consistent with Rule 204A–1 under the Advisers months; (5) share price of $10 or higher; The Adviser represents that Bloomberg defines Act. In addition, Rule 206(4)–7 under the Advisers implied volatility as Delta Ivol, which is volatility Act makes it unlawful for an investment adviser to (6) the availability of U.S. exchange- as expressed in delta. Delta values range from 0 to provide investment advice to clients unless such listed options.6 The Index is 100, with 50 delta as the theoretical at-the-money investment adviser has (i) adopted and reconstituted/rebalanced every two strike. A delta of less than 50 is considered out-of- implemented written policies and procedures months (i.e., six times a year). the-money, while a delta of greater than 50 is reasonably designed to prevent violation, by the considered in-the-money. investment adviser and its supervised persons, of Stocks meeting the above criteria are 8 The Adviser represents that a specific the Advisers Act and the Commission rules adopted then sorted in descending order based percentage cannot be indicated because options are thereunder; (ii) implemented, at a minimum, an upon the two month implied volatility listed by an exchange in pre-defined increments annual review regarding the adequacy of the as measured on Bloomberg using the (i.e., 1, 1.5, or 2 increments) around the market policies and procedures established pursuant to price of the stock, rounded to the nearest dollar. subparagraph (i) above and the effectiveness of their field labeled 9 The Adviser anticipates that it may take implementation; and (iii) designated an individual approximately three business days (i.e., each day (who is a supervised person) responsible for 6 Terms relating to the Trust, the Fund, and the the New York Stock Exchange (‘‘NYSE’’) is open) administering the policies and procedures adopted Shares referred to, but not defined, herein are for additions and deletions to the Index to be under subparagraph (i) above. defined in the Registration Statement. reflected in the portfolio composition of the Fund.

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worthless and the Index’s value would listed 60-day put options in proportion including repurchase agreements 13 or reflect the retention of the $2 per share to their weightings in the Index. By other funds which invest exclusively in premium. The Index’s value thus would selling an option, the Fund will receive money market instruments, convertible be increased by $2 per share on the ABC premiums from the buyer of the option, securities, and structured notes (notes option position. which will increase the Fund’s return if on which the amount of principal Settlement below the strike price: If at the option is not exercised and thus repayment and interest payments are the end of 60 days, ABC closed at $35, expires worthless. However, if the based on the movement of one or more then the option would automatically be option’s underlying stock declines specified factors, such as the movement deemed exercised on its expiration date. below the strike price, the option will of a particular stock or stock index). The Index’s value would change as if finish in-the-money and the Fund will Furthermore, the Fund may invest in the Index had been put (i.e., would buy) be required to buy the underlying stock one or more financial instruments, ABC at the strike price of $42.50 and at the strike price, effectively paying the including but not limited to futures would sell ABC immediately at the buyer the difference between the strike contracts, swap agreements 14 and closing price of $35. As a result, the price and the closing price. Therefore, forward contracts, and options on Index’s value would be reduced by by writing a put option, the Fund will securities (other than options in which $7.50 per share. However, the Index’s be exposed to the amount by which the the Fund principally will invest), value would also reflect the retention of price of the underlying stock is less than indices and futures contracts.15 Swaps, the $2 per share premium, so the net the strike price. As the seller of a listed options (other than options in which the loss to the Index’s value would be $5.50 put option, the Fund will incur an Fund principally will invest), and per share on the ABC option position. obligation to buy the underlying futures contracts 16 may be used by the The Index’s value is equal to the value instrument from the purchaser of the of the options positions comprising the option at the option’s strike price, upon are short-term negotiable obligations of commercial Index plus a cash position. The options exercise by the option purchaser. If a banks. Time deposits are non-negotiable deposits positions are equally weighted in the maintained in banking institutions for specified listed put option sold by the Fund is periods of time at stated interest rates. Banker’s Index and the Fund’s portfolio; that is, exercised prior to the end of a 60-day acceptances are time drafts drawn on commercial 1/20th of the net asset value (‘‘NAV’’) of period, the Fund will buy the banks by borrowers, usually in connection with Shares of the Fund will be invested in underlying stock at the time of exercise international transactions. The Fund will not invest each option position at the beginning of in money market instruments as part of a temporary and at the strike price, and will hold the defensive strategy to protect against potential stock the applicable 60-day period. The cash stock until the end of the 60-day period. market declines. position starts at a base of 1,000. The Each put option sold by the Fund will 13 Repurchase agreements are agreements cash position is increased by option be covered through investments in three pursuant to which securities are acquired by the premiums generated by the option Fund from a third party with the understanding that month T-Bills at least equal to the they will be repurchased by the seller at a fixed positions comprising the Index and Fund’s maximum liability under the price on an agreed date. These agreements may be interest on the cash position at an option (i.e., the strike price). made with respect to any of the portfolio securities annual rate equal to the three month Every 60 days, the options included in which the Fund is authorized to invest. Treasury-bill (‘‘T-Bill’’) rate. The cash Repurchase agreements may be characterized as within the Index are exercised or expire loans secured by the underlying securities. The position is decreased by cash settlement and new option positions are Fund may enter into repurchase agreements with (i) on options which finish in the money established, and the Fund will enter member banks of the Federal Reserve System (i.e., where the closing price of the into new option positions accordingly having total assets in excess of $500 million and (ii) underlying stock at the end of the 60- securities dealers (‘‘Qualified Institutions’’). The and sell any underlying stocks it owns Adviser will monitor the continued day period is below the strike price). as a result of the Fund’s prior option creditworthiness of Qualified Institutions. The The cash position is also decreased by positions having been exercised. This Fund also may enter into reverse repurchase a deemed cash distribution paid 60-day cycle likely will cause the Fund agreements, which involve the sale of securities following each 60-day period, currently with an agreement to repurchase the securities at to have frequent and substantial an agreed-upon price, date, and interest payment targeted at the rate of 1.5% of the value portfolio turnover.11 and have the characteristics of borrowing. of the Index. However, if the option 14 Swap agreements are contracts between parties premiums generated during the period Secondary Investment Strategies in which one party agrees to make periodic are less than 1.5%, the deemed The Fund may invest its remaining payments to the other party (‘‘Counterparty’’) based on the change in market value or level of a specified distribution will be reduced by the 12 assets in money market instruments, rate, index, or asset. In return, the Counterparty amount of the shortfall. agrees to make periodic payments to the first party Primary Investments 11 If the Fund receives additional inflows (and based on the return of a different specified rate, issues more Shares accordingly in large numbers index, or asset. Swap agreements will usually be The Fund under normal known as ‘‘Creation Units,’’ as further described done on a net basis, the Fund receiving or paying circumstances 10 will invest at least 80% below under ‘‘Creation of Shares’’) during a 60-day only the net amount of the two payments. The net period, the Fund will sell additional listed put amount of the excess, if any, of the Fund’s of its total assets in component options which will be exercised or expire at the end obligations over its entitlements with respect to securities that comprise the Index (i.e., of such 60-day period. Conversely, if the Fund each swap will be accrued on a daily basis and an the Fund’s option positions) and in T- redeems Shares in Creation Unit size during a 60- amount of cash or highly liquid securities having Bills. day period, the Fund will terminate the appropriate an aggregate value at least equal to the accrued The Fund will seek to track the portion of the options it has sold accordingly. excess will be maintained in an account at the 12 The Fund may invest a portion of its assets in Trust’s custodian bank. performance of the Index by selling high-quality money market instruments on an 15 As an example of the use of such financial ongoing basis to provide liquidity. The instruments instruments, the Fund may use total return swaps 10 The term ‘‘under normal circumstances’’ in which the Fund may invest include: (i) short- on one or more Index Components in order to includes, but is not limited to, the absence of term obligations issued by the U.S. Government; (ii) achieve exposures that are similar to those of the extreme volatility or trading halts in the equities or negotiable certificates of deposit (‘‘CDs’’), fixed time Index. options markets or the financial markets generally; deposits, and bankers’ acceptances of U.S. and 16 The Fund may utilize U.S. listed exchange- operational issues causing dissemination of foreign banks and similar institutions; (iii) traded futures. According to the Registration inaccurate market information; or force majeure commercial paper rated at the date of purchase Statement, the Commodity Futures Trading type events such as systems failure, natural or man- ‘‘Prime-1’’ by Moody’s Investors Service, Inc. or Commission has eliminated limitations on futures made disaster, act of God, armed conflict, act of ‘‘A¥1+’’ or ‘‘A¥1’’ by Standard & Poor’s or, if trading by certain regulated entities, including terrorism, riot or labor disruption, or any similar unrated, of comparable quality as determined by the registered investment companies, and consequently intervening circumstance. Adviser; and (iv) money market mutual funds. CDs registered investment companies may engage in

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Fund in seeking performance that illiquid securities (calculated at the time enhance leverage. The Fund will not corresponds to the Index and in of investment). The Fund will monitor invest in non-U.S. equity securities. managing cash flows.17 its portfolio liquidity on an ongoing Pricing Fund Shares The Fund may invest up to 20% of its basis to determine whether, in light of net assets in investments not included current circumstances, an adequate The NAV per Share for the Fund will in its Index, but which the Adviser level of liquidity is being maintained, be determined once daily as of the close believes will help the Fund track the and will consider taking appropriate of the NYSE, usually 4:00 p.m. Eastern Index. For example, there may be steps in order to maintain adequate time (‘‘E.T.’’), each day the NYSE is instances in which the Adviser may liquidity if, through a change in values, open for trading. NAV per Share will be choose to purchase (or sell) securities net assets, or other circumstances, more determined by dividing the value of the not in the Index which the Adviser than 15% of the Fund’s net assets are Fund’s portfolio securities, cash, and believes are appropriate to substitute for held in illiquid securities. Illiquid other assets (including accrued interest), one or more Index Components in securities include securities subject to less all liabilities (including accrued seeking to replicate, before fees and contractual or other restrictions on expenses), by the total number of Shares expenses, the performance of the Index. resale and other instruments that lack outstanding. The Fund may borrow money from a readily available markets as determined The Fund’s listed put options, as well bank up to a limit of 10% of the value in accordance with Commission staff as equity securities held by the Fund, if of its assets, but only for temporary or guidance.20 any, will be valued at the last reported emergency purposes. sale price on the principal exchange on The Fund may not invest 25% of its The Fund intends to qualify for and which such securities are traded, as of total assets in the securities of issuers to elect to be treated as a separate the close of regular trading on the NYSE conducting their principal business regulated investment company (‘‘RIC’’) on the day the securities are being activities in the same industry or group under Subchapter M of the Internal valued or, if there are no sales, at the 21 of industries (excluding the U.S. Revenue Code of 1986, as amended. mean of the most recent bid and ask government or any of its agencies or As a RIC, the Fund will not be subject prices. Debt securities will be valued at instrumentalities). Nonetheless, to the to U.S. federal income tax on the the mean between the last available bid extent the Fund’s Index is concentrated portion of its taxable investment income and asked prices for such securities or, in a particular industry or group of and capital gain it distributes to its if such prices are not available, at prices industries, the Fund’s investments will shareholders. To qualify for treatment as for securities of comparable maturity, exceed this 25% limitation to the extent a RIC, a company must annually quality, and type. Securities for which that it is necessary to gain exposure to distribute at least 90% of its net market quotations are not readily Index Components to track its Index.18 investment company taxable income available, including restricted securities, The Fund may invest in the securities (which includes dividends, interest, and will be valued by a method that the of other investment companies net capital gains) and meet several other Fund’s Board of Trustees believes (including money market funds). Under requirements relating to the nature of its accurately reflects fair value. Securities the 1940 Act, the Fund’s investment in income and the diversification of its will be valued at fair value when market investment companies is limited to, assets. If the Fund fails to qualify for quotations are not readily available or subject to certain exceptions, (i) 3% of any taxable year as a RIC, all of its are deemed unreliable, such as when a the total outstanding voting stock of any taxable income will be subject to tax at security’s value or meaningful portion one investment company, (ii) 5% of the regular corporate income tax rates of the Fund’s portfolio is believed to Fund’s total assets with respect to any without any deduction for distributions have been materially affected by a one investment company, and (iii) 10% to shareholders, and such distributions significant event. Such events may of the Fund’s total assets of investment generally will be taxable to shareholders include a natural disaster, an economic companies in the aggregate.19 as ordinary dividends to the extent of event like a bankruptcy filing, a trading The Fund may hold up to an aggregate the Fund’s current and accumulated halt in a security, an unscheduled early amount of 15% of its net assets in earnings and profits. market close, or a substantial fluctuation The Fund’s investments will be in domestic and foreign markets that has unlimited futures transactions and options thereon consistent with the Fund’s investment occurred between the close of the provided that the investment adviser to the company claims an exclusion from regulation as a objective and will not be used to principal exchange and the NYSE. In commodity pool operator. In connection with its such a case, the value for a security is management of the Trust, the Adviser has claimed 20 The Commission has stated that long-standing likely to be different from the last such an exclusion from registration as a commodity Commission guidelines have required open-end quoted market price. In addition, due to pool operator under the Commodity Exchange Act funds to hold no more than 15% of their net assets the subjective and variable nature of fair (7 U.S.C. 1) (‘‘CEA’’). Therefore, it is not subject to in illiquid securities and other illiquid assets. See the registration and regulatory requirements of the Investment Company Act Release No. 28193 (March market value pricing, it is possible that CEA, and there are no limitations on the extent to 11, 2008), 73 FR 14618 (March 18, 2008), footnote the value determined for a particular which the Fund may engage in non-hedging 34. See also Investment Company Act Release No. asset may be materially different from transactions involving futures and options thereon, 5847 (October 21, 1969), 35 FR 19989 (December the value realized upon such asset’s except as set forth in the Registration Statement. 31, 1970) (Statement Regarding ‘‘Restricted 17 Swaps, options (other than options in which Securities’’); Investment Company Act Release No. sale. the Fund principally will invest), and futures 18612 (March 12, 1992), 57 FR 9828 (March 20, Creation of Shares contracts will not be included in the Fund’s 1992) (Revisions of Guidelines to Form N–1A). A investment, under normal market circumstances, of fund’s portfolio security is illiquid if it cannot be The Trust will issue and sell Shares at least 80% of its total assets in component disposed of in the ordinary course of business of the Fund only in Creation Units of securities that comprise the Index and in T-Bills, as within seven days at approximately the value described above. ascribed to it by the fund. See Investment Company 100,000 Shares each on a continuous 18 See Form N–1A, Item 9. The Commission has Act Release No. 14983 (March 12, 1986), 51 FR basis through the Distributor, without a taken the position that a fund is concentrated if it 9773 (March 21, 1986) (adopting amendments to sales load, at its NAV next determined invests more than 25% of the value of its total Rule 2a–7 under the 1940 Act); Investment after receipt, on any business day, of an assets in any one industry. See, e.g., Investment Company Act Release No. 17452 (April 23, 1990), Company Act Release No. 9011 (October 30, 1975), 55 FR 17933 (April 30, 1990) (adopting Rule 144A order in proper form. Creation Units of 40 FR 54241 (November 21, 1975). under the Securities Act of 1933). the Fund generally will be sold for cash 19 15 U.S.C. 80a–12(d). 21 26 U.S.C. 851. only, calculated based on the NAV per

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Share multiplied by the number of comprised of U.S. exchange-listed the portfolio. The Fund’s portfolio Shares representing a Creation Unit options based on ‘‘US Component holdings, including information (‘‘Deposit Cash’’), plus a transaction fee. Stocks’’ 22 rather than US Component regarding its option positions, will be The Custodian, through the National Stocks themselves. The Exchange disclosed each day on the Fund’s Web Securities Clearing Corporation represents that, for initial and/or site. The Web site information will be (‘‘NSCC’’), will make available on each continued listing, the Fund will be in publicly available at no charge. business day, prior to the opening of compliance with Rule 10A–3 under the An ‘‘Intraday Indicative Value’’ business on NYSE Arca (currently 9:30 Exchange Act,23 as provided by NYSE (‘‘IIV’’) of Shares of the Fund will be a.m. E.T.), the amount of the Deposit Arca Equities Rule 5.3. A minimum of calculated and widely disseminated by Cash to be deposited in exchange for a 100,000 Shares will be outstanding at one or more major market data vendors Creation Unit of the Fund. the commencement of trading on the every fifteen seconds during the NYSE To be eligible to place orders with the Exchange. The Exchange will obtain a Arca Core Trading Session of 9:30 a.m. Distributor and to create a Creation Unit representation from the issuer of the E.T. to 4:00 p.m. E.T.26 The Exchange of the Fund, an entity must be (i) a Shares that the NAV will be calculated will calculate the IIV by dividing the ‘‘Participating Party,’’ i.e., a broker- daily and made available to all market ‘‘Estimated Fund Value’’ (as defined dealer or other participant in the participants at the same time. below) as of the time of the calculation clearing process through the Continuous by the total number of outstanding Availability of Information Net Settlement System of the NSCC Shares. ‘‘Estimated Fund Value’’ is the (‘‘Clearing Process’’); or (ii) a Depository The Fund’s Web site sum of the estimated amount of cash Trust Company (‘‘DTC’’) participant, (www.alpsetfs.com), which will be held in the Fund’s portfolio, the and, in each case, must have executed publicly available prior to the public estimated amount of accrued interest an agreement with the Distributor, with offering of Shares, will include a form owing to the Fund, and the estimated respect to creations and redemptions of of the prospectus for the Fund that may value of the securities held in the Creation Units. A Participating Party be downloaded. The Fund’s Web site Fund’s portfolio, minus the estimated and DTC participant are collectively will include additional quantitative amount of liabilities. The IIV will be referred to as an ‘‘Authorized information updated on a daily basis, calculated based on the same portfolio Participant.’’ including, for the Fund, (1) daily trading holdings disclosed on the Fund’s Web All orders to create Creation Units, volume, the prior business day’s site. whether through a Participating Party or reported closing price, NAV and mid- The dissemination of the IIV will a DTC participant, must be received by point of the bid/ask spread at the time allow investors to determine the value the Distributor no later than the closing of calculation of such NAV (‘‘Bid/Ask of the underlying portfolio of the Fund time of the regular trading session on Price’’),24 and a calculation of the on a daily basis and to provide a close the NYSE (ordinarily 4:00 p.m. E.T.) in premium and discount of the Bid/Ask estimate of that value throughout the each case on the date such order is Price against the NAV, and (2) data in trading day. The IIV should not be placed in order for creation of Creation chart format displaying the frequency viewed as a ‘‘real-time’’ update of the Units to be effected based on the NAV distribution of discounts and premiums NAV per Share of the Fund because it of Shares of the Fund as next of the daily Bid/Ask Price against the may not be calculated in the same determined on such date after receipt of NAV, within appropriate ranges, for manner as the NAV, which will be the order in proper form. each of the four previous calendar computed once a day, generally at the quarters.25 end of the business day. Redemption of Shares On a daily basis, the Adviser will Investors can also obtain the Trust’s Fund Shares may be redeemed only in disclose for each portfolio security and Statement of Additional Information Creation Units at the NAV next other financial instrument of the Fund (‘‘SAI’’), the Fund’s Shareholder determined after receipt of a redemption the following information: ticker symbol Reports, and its Form N–CSR and Form request in proper form by the Fund (if applicable), name of security and N–SAR, filed twice a year. The Trust’s through BNY and only on a business financial instrument, number of SAI and Shareholder Reports are day. The Fund will not redeem Shares securities or dollar value of securities available free upon request from the in amounts less than a Creation Unit. and financial instruments held in the Trust, and those documents and the With respect to the Fund, BNY, portfolio, and percentage weighting of Form N–CSR and Form N–SAR may be through the NSCC, will make available the security and financial instrument in viewed on-screen or downloaded from prior to the opening of business on the Commission’s Web site at NYSE Arca (currently 9:30 a.m. E.T.) on 22 NYSE Arca Equities Rule 5.2(j)(3) defines the www.sec.gov. Information regarding term ‘‘US Component Stock’’ to mean an equity market price and trading volume of the each business day, the amount of cash security that is registered under Sections 12(b) or that will be paid (subject to possible 12(g) of the Exchange Act or an American Shares will be continually available on amendment or correction) in respect of Depositary Receipt, the underlying equity security a real-time basis throughout the day on redemption requests received in proper of which is registered under Sections 12(b) or 12(g) brokers’ computer screens and other of the Exchange Act. electronic services. Information form on that day (‘‘Redemption Cash’’). 23 17 CFR 240.10A–3. regarding the previous day’s closing The redemption proceeds for a 24 The Bid/Ask Price of Shares of the Fund will Creation Unit generally will consist of be determined using the mid-point of the highest price and trading volume information the Redemption Cash, as announced on bid and the lowest offer on the Exchange as of the for the Shares will be published daily in the business day of the request for time of calculation of the Fund’s NAV. The records the financial section of newspapers. relating to Bid/Ask Prices will be retained by the redemption received in proper form, Quotation and last-sale information for Fund and its service providers. the Shares will be available via the CTA less a redemption transaction fee. 25 Under accounting procedures to be followed by the Fund, trades made on the prior business day high-speed line. The value of the Index Initial and Continued Listing (‘‘T’’) will be booked and reflected in NAV on the The Shares will conform to the initial current business day (‘‘T+1’’). Accordingly, the 26 Currently, it is the Exchange’s understanding and continued listing criteria under Fund will be able to disclose at the beginning of the that several major market data vendors display and/ business day the portfolio that will form the basis or make widely available IIVs taken from the NYSE Arca Equities Rules 5.2(j)(3) and for the NAV calculation at the end of the business Consolidated Tape Association (‘‘CTA’’) or other 5.5(g)(2), except that the Index is day. data feeds.

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will be published by one or more major registered representative in making the Fund.28 Trading in Shares of the market data vendors every 15 seconds recommendations to the customer. Fund will be halted if the circuit breaker during the NYSE Arca Core Trading As described above, the Fund will parameters in NYSE Arca Equities Rule Session. seek to track the performance of the 7.12 have been reached. Trading also Pricing information for the Index Index by selling listed 60-day put may be halted because of market Components is available from the U.S. options in proportion to their conditions or for reasons that, in the options exchanges on which such weightings in the Index. If the option’s view of the Exchange, make trading in components are listed and traded. A list underlying stock declines below the the Shares inadvisable. These may of the Index Components, with strike price, the option will finish in- include: (1) The extent to which trading percentage weightings, will be available the-money and the Fund will be is not occurring in the securities and/or on the Exchange’s Web site. required to buy the underlying stock at financial instruments comprising the Additional information regarding the the strike price, effectively paying the portfolio of the Fund; or (2) whether Trust and the Shares, including buyer the difference between the strike other unusual conditions or investment strategies, risks, creation and price and the closing price. Therefore, circumstances detrimental to the redemption procedures, fees, portfolio by writing a put option, the Fund is maintenance of a fair and orderly holdings disclosure policies, exposed to the amount by which the market are present. distributions, and taxes is included in price of the underlying stock is less than If the IIV, the Index value, or the the Registration Statement. the strike price. FINRA has issued a value of the Index Components is not Suitability regulatory notice relating to sales available or is not being disseminated as practice procedures applicable to required, the Exchange may halt trading Currently, NYSE Arca Equities Rule recommendations to customers by during the day in which the disruption 9.2(a) (Diligence as to Accounts) FINRA members of reverse convertibles, occurs; if the interruption persists past provides that an Equity Trading Permit as described in FINRA Regulatory the day in which it occurred, the (‘‘ETP’’) Holder, before recommending a Notice 10–09 (February 2010) (‘‘FINRA Exchange will halt trading no later than transaction in any security, must have Regulatory Notice’’).27 While the Fund the beginning of the trading day reasonable grounds to believe that the will not invest in reverse convertibles, following the interruption. The recommendation is suitable for the the Fund’s options strategies may raise Exchange will obtain a representation customer based on any facts disclosed issues similar to those raised in the from the Fund that the NAV for the by the customer as to its other security FINRA Regulatory Notice. Therefore, the Fund will be calculated daily and will holdings and as to its financial situation Bulletin will state that ETP Holders that be made available to all market and needs. Further, the rule provides, carry customer accounts should follow participants at the same time. Under with a limited exception, that prior to the FINRA Regulatory Notice with NYSE Arca Equities Rule 7.34(a)(5), if the execution of a transaction respect to suitability. the Exchange becomes aware that the recommended to a non-institutional As disclosed in the Registration NAV for the Fund is not being customer, the ETP Holder must make Statement, the Fund is designed for disseminated to all market participants reasonable efforts to obtain information investors who seek to obtain income at the same time, it will halt trading in concerning the customer’s financial through selling put options on select the Shares until such time as the NAV status, tax status, investment objectives, equity securities which the Index is available to all market participants. and any other information that such Provider determines to have the highest ETP Holder believes would be useful to volatility. Because of the high volatility Trading Rules make a recommendation. of the stocks underlying the put options The Exchange deems the Shares to be Prior to the commencement of sold by the Fund, it is possible that the equity securities, thus rendering trading trading, the Exchange will inform its value of such stocks will decline in in the Shares subject to the Exchange’s ETP Holders of the suitability sufficient magnitude to trigger the existing rules governing the trading of requirements of NYSE Arca Equities exercise of the put options and cause a equity securities. Shares will trade on Rule 9.2(a) in an Information Bulletin loss which may outweigh the income the NYSE Arca Marketplace from 4:00 (‘‘Bulletin’’). Specifically, ETP Holders from selling such put options. a.m. to 8:00 p.m. E.T. in accordance will be reminded in the Bulletin that, in Accordingly, the Fund should be with NYSE Arca Equities Rule 7.34 recommending transactions in these considered a speculative trading (Opening, Core, and Late Trading securities, they must have a reasonable instrument and is not necessarily Sessions). The Exchange has basis to believe that (1) the appropriate for investors who seek to appropriate rules to facilitate recommendation is suitable for a avoid or minimize their exposure to transactions in the Shares during all customer given reasonable inquiry stock market volatility. The Exchange’s trading sessions. As provided in NYSE concerning the customer’s investment Bulletin regarding the Fund, described Arca Equities Rule 7.6, Commentary .03, objectives, financial situation, needs, below, will provide information the minimum price variation (‘‘MPV’’) and any other information known by regarding the suitability of an for quoting and entry of orders in equity such member, and (2) the customer can investment in the Shares, as stated in securities traded on the NYSE Arca evaluate the special characteristics, and the Registration Statement. Marketplace is $0.01, with the exception is able to bear the financial risks, of an of securities that are priced less than investment in the Shares. In connection Trading Halts With respect to trading halts, the $1.00 for which the MPV for order entry with the suitability obligation, the is $0.0001. Bulletin will also provide that members Exchange may consider all relevant must make reasonable efforts to obtain factors in exercising its discretion to Surveillance the following information: (1) The halt or suspend trading in the Shares of The Exchange intends to utilize its customer’s financial status; (2) the existing surveillance procedures customer’s tax status; (3) the customer’s 27 The Exchange notes that NASD Rule 2310 relating to suitability, referenced in the FINRA applicable to derivative products (which investment objectives; and (4) such Regulatory Notice, has been superseded by FINRA other information used or considered to Rule 2111. See FINRA Regulatory Notice 12–25 28 See NYSE Arca Equities Rule 7.12, be reasonable by such member or (May 2012). Commentary .04.

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include Investment Company Units) to disclose that the NAV for the Shares not available or is not being monitor trading in the Shares. The will be calculated after 4:00 p.m. E.T. disseminated as required, the Exchange Exchange represents that these each trading day. may halt trading during the day in procedures are adequate to properly which the disruption occurs; if the 2. Statutory Basis monitor Exchange trading of the Shares interruption persists past the day in in all trading sessions and to deter and The basis under the Exchange Act for which it occurred, the Exchange will detect violations of Exchange rules and this proposed rule change is the halt trading no later than the beginning applicable federal securities laws. requirement under Section 6(b)(5) 30 of the trading day following the The Exchange’s current trading that an exchange have rules that are interruption. The Fund may hold up to surveillance focuses on detecting designed to prevent fraudulent and an aggregate amount of 15% of its net securities trading outside their normal manipulative acts and practices, to assets in illiquid securities. The Fund’s patterns. When such situations are promote just and equitable principles of investments will be consistent with the detected, surveillance analysis follows trade, to remove impediments to, and Fund’s investment objective and will and investigations are opened, where perfect the mechanism of a free and not be used to enhance leverage. The appropriate, to review the behavior of open market, and, in general, to protect Fund will not invest in non-U.S. equity all relevant parties for all relevant investors and the public interest. securities. The Fund’s portfolio trading violations. The Exchange believes that the holdings, including information The Exchange may obtain information proposed rule change is designed to regarding its option positions, will be via the Intermarket Surveillance Group prevent fraudulent and manipulative disclosed each day on its Web site. Prior (‘‘ISG’’) from other exchanges that are acts and practices in that the Shares will to the commencement of trading, the members of ISG, including all U.S. be listed and traded on the Exchange Exchange will inform its ETP Holders in options exchanges on which Index pursuant to the initial and continued an Information Bulletin of the special 29 listing criteria in NYSE Arca Equities Components are listed and traded. characteristics and risks associated with Rule 5.2(j)(3). The Exchange has in In addition, the Exchange also has a trading the Shares. The Information place surveillance procedures that are general policy prohibiting the Bulletin will state that ETP Holders that distribution of material, non-public adequate to properly monitor trading in carry customer accounts should follow information by its employees. the Shares in all trading sessions and to the FINRA Regulatory Notice with deter and detect violations of Exchange Information Bulletin respect to suitability. rules and applicable federal securities Prior to the commencement of laws. The Adviser is affiliated with a The proposed rule change is designed trading, the Exchange will inform its broker-dealer and will implement and to promote just and equitable principles ETP Holders in the Bulletin of the maintain procedures designed to of trade and to protect investors and the special characteristics and risks prevent the use and dissemination of public interest in that the Exchange will associated with trading the Shares. material non-public information obtain a representation from the issuer Specifically, the Bulletin will discuss regarding the Index. The Sub-Adviser is of the Shares that the NAV will be made the following: (1) The procedures for not affiliated with a broker-dealer. available to all market participants at purchases and redemptions of Shares in NYSE Arca is affiliated with a broker- the same time. In addition, a large Creation Units (and that Shares are not dealer and will implement and maintain amount of information will be publicly individually redeemable); (2) NYSE procedures designed to prevent the use available regarding the Fund and the Arca Equities Rule 9.2(a), which and dissemination of material non- Shares, thereby promoting market imposes a duty of due diligence on its public information regarding the Index. transparency. Quotation and last-sale ETP Holders to learn the essential facts In selecting the stocks underlying the information for the Shares will be relating to every customer prior to Index Components, the Index Provider available via the CTA high-speed line. trading the Shares; (3) the risks involved begins with the universe of all U.S. The value of the Index will be published in trading the Shares during the exchange-listed stocks, and then screens by one or more major market data Opening and Late Trading Sessions for those stocks that meet the following vendors every 15 seconds during the when an updated IIV will not be criteria: (1) Minimum market NYSE Arca Core Trading Session. In calculated or publicly disseminated; (4) capitalization of at least $5 billion; (2) addition, the IIV will be widely how information regarding the IIV is minimum trading volume of at least 50 disseminated by one or more major disseminated; (5) the requirement that million shares during the preceding 6 market data vendors at least every 15 ETP Holders deliver a prospectus to months; (3) minimum average daily seconds during the Core Trading investors purchasing newly issued trading volume of one million shares Session. The Fund’s Web site will Shares prior to or concurrently with the during the preceding 6 months; (4) include a form of the prospectus for the confirmation of a transaction; and (6) minimum average daily trading value of Fund that may be downloaded. The trading information. at least $10 million during the Fund’s Web site will include additional In addition, the Bulletin will preceding 6 months; (5) share price of quantitative information updated on a reference that the Fund is subject to $10 or higher; (6) the availability of U.S. daily basis, including, for the Fund, (1) various fees and expenses described in exchange-listed options. The put daily trading volume, the prior business the Registration Statement. The Bulletin options which the Fund will sell will be day’s reported closing price, NAV and will discuss any exemptive, no-action, listed on a national securities exchange. mid-point of the bid/ask spread at the and interpretive relief granted by the The Exchange may obtain information time of calculation of such NAV, and a Commission from any rules under the via ISG from other exchanges that are calculation of the premium and Exchange Act. The Bulletin will also members of ISG or with which the discount of the Bid/Ask Price against Exchange has entered into a the NAV, and (2) data in chart format 29 For a list of the current members of ISG, see comprehensive surveillance sharing displaying the frequency distribution of www.isgportal.org. The Exchange notes that not all agreement. If the IIV, the Index value, or discounts and premiums of the daily components of the portfolio for the Fund may trade on markets that are members of ISG or with which the value of the Index Components is Bid/Ask Price against the NAV, within the Exchange has in place a comprehensive appropriate ranges, for each of the four surveillance sharing agreement. 30 15 U.S.C. 78f(b)(5). previous calendar quarters. On a daily

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basis, the Adviser will disclose for each organization consents, the Commission Number SR–NYSEArca–2012–109 and portfolio security and other financial will: should be submitted on or before instrument of the Fund the following (A) By order approve or disapprove November 8, 2012. information: ticker symbol (if the proposed rule change, or For the Commission, by the Division of applicable), name of security and (B) institute proceedings to determine Trading and Markets, pursuant to delegated financial instrument, number of shares whether the proposed rule change authority.31 or dollar value of securities and should be disapproved. Kevin M. O’Neill, financial instruments held in the IV. Solicitation of Comments Deputy Secretary. portfolio, and percentage weighting of [FR Doc. 2012–25599 Filed 10–17–12; 8:45 am] the security and financial instrument in Interested persons are invited to the portfolio. The Fund’s portfolio submit written data, views, and BILLING CODE 8011–01–P holdings, including information arguments concerning the foregoing, regarding its option positions, will be including whether the proposed rule change is consistent with the Act. SECURITIES AND EXCHANGE disclosed each day on the Fund’s Web COMMISSION site. The Web site information will be Comments may be submitted by any of publicly available at no charge. A list of the following methods: [Release No. 34–68042; File No. SR– the Index Components, with percentage Electronic Comments NASDAQ–2012–117] weightings, will be available on the • Use the Commission’s Internet Self-Regulatory Organizations; The Exchange’s Web site. The proposed rule change is designed comment form (http://www.sec.gov/ NASDAQ Stock Market LLC; Notice of to perfect the mechanism of a free and rules/sro.shtml); or Filing of Proposed Rule Change With • Send an email to rule- open market and, in general, to protect Respect to INAV Pegged Orders for [email protected]. Please include File investors and the public interest in that ETFs Number SR–NYSEArca–2012–109 on it will facilitate the listing and trading the subject line. October 12, 2012. of an additional type of issue of Pursuant to Section 19(b)(1) of the Investment Company Units that will Paper Comments Securities Exchange Act of 1934 enhance competition among market • Send paper comments in triplicate (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 participants, to the benefit of investors to Elizabeth M. Murphy, Secretary, notice is hereby given that, on October and the marketplace. As noted above, Securities and Exchange Commission, 2, 2012, The NASDAQ Stock Market the Exchange has in place surveillance 100 F Street NE., Washington, DC LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed procedures relating to trading in the 20549–1090. with the Securities and Exchange Shares and may obtain information via All submissions should refer to File Commission (‘‘Commission’’) the ISG from other exchanges that are Number SR–NYSEArca–2012–109. This proposed rule change as described in members of ISG or with which the file number should be included on the Items I, II, and III below, which Items Exchange has entered into a subject line if email is used. To help the have been substantially prepared by the comprehensive surveillance sharing Commission process and review your Exchange. The Commission is agreement. In addition, as noted above, comments more efficiently, please use publishing this notice to solicit investors will have ready access to only one method. The Commission will comments on the proposed rule change information regarding the Fund’s post all comments on the Commission’s from interested persons. holdings, the IIV, and quotation and Internet Web site (http://www.sec.gov/ last-sale information for the Shares. I. Self-Regulatory Organization’s rules/sro.shtml ). Copies of the Statement of the Terms of Substance of B. Self-Regulatory Organization’s submission, all subsequent the Proposed Rule Change Statement on Burden on Competition amendments, all written statements NASDAQ proposes to amend Rule The Exchange does not believe that with respect to the proposed rule change that are filed with the 4751(f)(4) to include a new Intraday Net the proposed rule change will impose Asset Value (‘‘INAV’’) Pegged Order for any burden on competition that is not Commission, and all written communications relating to the Exchange-Traded Funds (‘‘ETFs’’) where necessary or appropriate in furtherance the component stocks underlying the of the purposes of the Act. proposed rule change between the Commission and any person, other than ETFs are U.S. Component Stocks as C. Self-Regulatory Organization’s those that may be withheld from the defined by Rule 5705(a)(1)(C) and Statement on Comments on the public in accordance with the 5705(b)(1)(D)—hereafter defined as Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be ‘‘U.S. Component Stock ETFs.’’ Members, Participants, or Others available for Web site viewing and The text of the proposed rule change printing in the Commission’s Public is set forth below. Proposed new text is No written comments were solicited in italics and deleted text is in brackets. or received with respect to the proposed Reference Section, 100 F Street NE., rule change. Washington, DC 20549–1090, on official 4751. Definitions business days between 10:00 a.m. and III. Date of Effectiveness of the The following definitions apply to the 3:00 p.m. Copies of the filing will also Rule 4600 and 4750 Series for the Proposed Rule Change and Timing for be available for inspection and copying Commission Action trading of securities listed on Nasdaq or at the NYSE’s principal office and on its a national securities exchange other Within 45 days of the date of Internet Web site at www.nyse.com. All than Nasdaq. publication of this notice in the Federal comments received will be posted (a)–(e) No change. Register or within such longer period (i) without change; the Commission does (f) The term ‘‘Order Type’’ shall mean as the Commission may designate up to not edit personal identifying the unique processing prescribed for 90 days of such date if it finds such information from submissions. You longer period to be appropriate and should submit only information that 31 17 CFR 200.30–3(a)(12). publishes its reasons for so finding or you wish to make available publicly. All 1 15 U.S.C. 78s(b)(1). (ii) as to which the self-regulatory submissions should refer to File 2 17 CFR 240.19b–4.

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designated orders that are eligible for A. Self-Regulatory Organization’s in nature. Unfavorable executions occur entry into the System, and shall include: Statement of the Purpose of, and in the ETF marketplace and this can be (1)–(3) No change. Statutory Basis for, the Proposed Rule as a result of market participants not (4) ‘‘Pegged Orders’’ are orders that, Change recognizing the liquidity characteristics of the product they are trading. after entry, have their price 1. Purpose automatically adjusted by the System in Executions can occur with drastic response to changes in either the NASDAQ proposes to amend Rule variance from the INAV, usually as a Nasdaq Market Center inside bid or 4751(f)(4) to establish INAV Pegged result of participants relying on market offer, [or] bids or offers in the national Orders which will be available for U.S. orders for execution. The INAV Pegged market system, or in respect of Component Stock ETFs. This new order Order type will be available for all U.S. Exchange Traded Funds of U.S. type will serve market participants that Component Stock ETFs where there is Component Stocks (as defined in Rule utilize these ETFs as a vehicle to invest dynamic INAV data and will offer 5705), changes in the intraday net asset or trade in addition to serving the needs market participants a greater level of value (‘‘INAV’’), as appropriate. A and interests of the Sponsors/Issuers of transparency as to fair value, by Pegged Order can specify that its price ETFs. bringing what has historically been a will equal the inside quote on the same The ETF INAV Pegged Order will be post-trade analytics tool into the pre- side of the market (‘‘Primary Peg’’), the priced relative to the Intraday Net Asset trade environment. More importantly, Value of the fund’s underlying portfolio. opposite side of the market (‘‘Market the INAV Pegged Order should The term ‘‘INAV’’ is synonymous with Peg’’), or the midpoint of the national minimize the disparity between the commonly used terms such as Intraday best bid and offer (‘‘Midpoint Peg’’) or, market execution price and the Indicative Value (IIV), Intraday in the case of Exchange Traded Funds underlying fund’s value. Optimized Portfolio Value (IOPV) and of U.S. Component Stocks, the INAV Pegged Orders are orders that, once Intraday Portfolio Value (IPV) amongst (‘‘INAV Peg’’). A Pegged Order may entered, adjust in price automatically in others. The INAV is intended to have a limit price beyond which the response to changes in factors such as approximate the fair value of the order shall not be executed. In addition, the NBBO, depending upon the type of securities held in the portfolio by the the Primary Peg, [and] Market Peg and Pegged Order. An INAV Pegged Order ETF and should closely represent the will specify that its price will equal (or, INAV Peg Orders may also establish value of the fund during the trading day. to the extent an offset is used, be offset their pricing relative to the appropriate Pursuant to NASDAQ listing rules, the from) the prevailing INAV for the bids, [or] offers or INAV by the selection INAV for NASDAQ-listed stocks is relevant ETF. As the INAV changes, so of one or more offset amounts that will disseminated widely to vendors and move the INAV Pegged Orders. In the adjust the price of the order by the offset their subscribers via multiple data feeds, event that the INAV data feed for a amount selected. A Midpoint Peg Order including UTP Level 1, NASDAQ Basic, particular ETF were to be compromised is priced based upon the national best NASDAQ Level 2, and NASDAQ or temporarily stopped being bid and offer, excluding the effect that TotalView. INAVs are typically disseminated, the use of the INAV the Midpoint Peg Order itself has on the disseminated at least once every 15 Pegged Order type for that ETF would inside bid or inside offer. Midpoint seconds. Rule 5705(a)(3)(C), for Pegged Orders will never be displayed. example, requires that the IIV for be suspended (i.e., no new INAV Pegged A Midpoint Pegged Order may be NASDAQ listed portfolio depository Orders would be accepted into the executed in sub-pennies if necessary to receipts be disseminated at least every system) and orders utilizing the INAV obtain a midpoint price. A new 15 seconds. pegged functionality for that ETF timestamp is created for the order each Typically, INAVs are calculated using already in the system would be time it is automatically adjusted. the last sale prices of the fund’s cancelled. The suspension of new INAV (5)–(15) No change. components. INAVs can vary from the Pegged Orders would remain in effect (g)–(i) No change. fund’s market price and/or can be until such time as the Exchange was * * * * * valued outside of the fund’s prevailing confident that the integrity of the INAV The text of the proposed rule change bid/ask spread as a result of the supply data feed had been restored. is available on the Exchange’s Web site and demand characteristics of the fund The proposed rule change is in at http://nasdaq.cchwallstreet.com, at and/or liquidity present in the accordance with Rule 612 of Regulation 3 the principal office of the Exchange, and marketplace. The INAV may remain NMS, which governs sub-penny at the Commission’s Public Reference unchanged for a certain period of time quoting of National Market System Room. if the underlying values do not change, stocks (‘‘Sub-Penny Rule’’). The particularly in periods of low volatility. proposed rule change would not result II. Self-Regulatory Organization’s Additionally, the INAV may become in the display, rank, or acceptance of a Statement of the Purpose of, and stale as a result of a compromised data bid or offer, an order, quotation, or Statutory Basis for, the Proposed Rule feed or disruption to the calculation indication of interest in any NMS stock Change and/or dissemination agent or other that is priced in an increment smaller In its filing with the Commission, the technology related malfunction. than $0.01 per share, unless the price of Exchange included statements The fair market price of an ETF is the bid or offer, order, indication of concerning the purpose of and basis for more objective than the market price of interest is priced less than $1.00 per the proposed rule change and discussed a cash equity. Mainly, the price of an share. any comments it received on the ETF is based upon the price of the NASDAQ intends to use an INAV as proposed rule change. The text of these underlying portfolio of the ETF. opposed to the end of day net asset statements may be examined at the Therefore, if the components of the value (‘‘ED NAV’’) for a number of places specified in Item IV below. The portfolio increase in value, so does the reasons. While the ED NAV is more Exchange has prepared summaries, set fund and, conversely, if the components 3 17 CFR 242.600 et seq. See also Securities forth in sections A, B, and C below, of of the portfolio decrease in value, so Exchange Act Release No. 51808 (June 9, 2005), 70 the most significant aspects of such does the fund. In the cash equities FR 37496 (June 29, 2005) (‘‘Regulation NMS statements. marketplace, pricing is more subjective Adopting Release’’).

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definitive in nature, it does not allow for • The best offer would remain at therefore resulting in an inferior an intraday fund valuation, thus $20.06. execution, as the order will be limiting one of the greatest advantages dynamically repriced/updated Example 2 of the ETF structure, mainly the ability throughout the life of the order as the to trade throughout the entire trading • The best bid is $20.00 and the best value of the underlying portfolio session, as compared to the traditional offer is $20.06 at 10:00:00. INAV is changes. Additionally, it provides a Mutual Fund (which uses ED NAV updated and published as $19.98 at more intelligent form of market order. based execution). Conversely, use of the 10:00:02. Instead of having the order execute at • INAV, while only indicative of the An INAV Peg Order to sell entered the prevailing price (regardless of what ETF’s value, offers investors a trade at 10:00:04 would be priced at $19.98 that price might be relative to the fund’s execution tool which should lead to a and subsequently execute at $20.00 (at value) the INAV Pegged Order gives greater level of transparency as it relates approximately 10:00:04). participants the option to collar the to the ETF’s current value. Relative to Example 3 execution at a price that relates to the the current intraday order entry/ actual value of the fund’s components. • The best bid is $20.00 and the best execution order types, the INAV Pegged Whilst it is acknowledged that there is offer is $20.10 at 10:00:00 a.m. INAV is Order type would allow certainty of an inherent lack of execution updated and published as $20.03 at execution with a greater correlation to determinism with a Pegged Order, the ETF’s fair value for those seeking to 10:00:02. • An INAV Peg Order to buy with a market participants will be free to elect invest on a more informed basis. this order type for U.S. Component However, despite NASDAQ’s rationale +.03 offset entered at 10:00:04 would be priced at $20.06 ($20.03 +.03) (at Stock ETFs where there is dynamic for using the INAV, investors should INAV data, but they will not be limited note that the INAV is only an estimation approximately 10:00:04). • The best bid would update to to this option, or required to use this of a fund’s value, and this might differ option. For those market participants from the ED NAV which is more $20.06 (approximately 10:00:04). • The best offer would remain at who are more interested in securing definitive and disseminated on a daily $20.10. execution certainty, a conventional basis at the end of the trading day. INAV Peg Orders will allow the market order will still be available. Investors should also note that INAVs market participant to achieve a greater are only calculated and disseminated The Exchange believes that the sense of control over the execution price during the regular market session. proposed change to Rule 4751(f)(4) as it relates to the fund’s value by meets the requirements of Section A Pegged Order may have a limit benchmarking to the estimated intraday 6(b)(5) of the Act 6 in that it will price beyond which the order shall not fund’s value. This added value to the be executed. Currently, Primary Peg and improve the stability, quality, and investing public will be strongly transparency of the national market Market Peg Orders may establish their supported by the ETF Sponsor pricing relative to the appropriate bids system. In the event that the INAV data community. ETF Sponsors routinely feed were to be compromised or or offers by selecting one or more offset deal with investors that have been amounts that will adjust the price of the temporarily stopped being subject to inferior executions. These disseminated, the use of the INAV order by the offset amount selected. We complaints are almost unanimously as a propose to introduce this functionality Pegged Order type would be suspended result of people using market orders (i.e., no new INAV Pegged Orders would for the INAV Peg also. where the prevailing bid/ask in the A Pegged Order (other than a be accepted into the system) until such market does not necessarily correlate to time as the Exchange was confident that Midpoint Peg Order) may be both the fund’s value, and the quoted size displayed or non-displayed. We propose the integrity of the INAV data feed had does not meet the demand of the order. been restored and orders utilizing the to introduce this functionality for the The INAV Peg will also help to protect INAV Peg also. Where market INAV pegged functionality already in investors against any unintended the system would be cancelled. In participants see value in anonymity overpayment for the security. they can utilize the non-displayed order addition, the Exchange is not aware of type, though by doing so, they will be 2. Statutory Basis any circumstance where this order type placed lower in the priority queue could be used to manipulate the The proposed rule change is underlying value of the fund, and within each price point. Conversely, consistent with Section 6(b) of the Act,4 those that do not value anonymity can Nasdaq MarketWatch will perform all in general, and furthers the objectives of usual market surveillance activity on utilize a displayed order type and Section 6(b)(5),5 in particular, in that it the use of the INAV Pegged Order. benefit from a higher priority in the is designed to prevent fraudulent and execution queue. manipulative acts and practices, to B. Self-Regulatory Organization’s The following examples illustrate promote just and equitable principles of Statement on Burden on Competition how the proposed rule change would trade, to foster cooperation and operate (note that the price of the order coordination with persons engaged in The Exchange does not believe that updates in response to changes in the facilitating transactions in securities, the proposed rule change will result in INAV): and to remove impediments to and any burden on competition that is not necessary or appropriate in furtherance Example 1 perfect the mechanism of a free and open market and a national market of the purposes of the Act. To the • The best bid is $20.00 and the best system. The INAV Pegged Order will contrary, NASDAQ believes that the offer is $20.06 at 10:00:00 a.m. INAV is allow market participants the option to INAV Peg Order is pro-competitive in updated and published as $20.03 at enter an order without concern about that it will offer enhance [sic] the 10:00:02. the value of the fund’s underlying attractiveness of NASDAQ’s listings and • An INAV Peg Order to buy entered portfolio being drastically different and trading venues.7 at 10:00:04 would be priced at $20.03. • The best bid would update to 4 15 U.S.C. 78f(b). 6 Id. $20.03 (at approximately 10:00:04). 5 15 U.S.C. 78f(b)(5). 7 See Form 19b–4 at 11.

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C. Self-Regulatory Organization’s public in accordance with the routing through its NASDAQ OMX PSX Statement on Comments on the provisions of 5 U.S.C. 552, will be (‘‘PSX’’) facility. Phlx will implement Proposed Rule Change Received From available for Web site viewing and the proposed change on October 1, Members, Participants, or Others printing in the Commission’s Public 2012. The text of the proposed rule Written comments were neither Reference Room, 100 F Street NE., change is available at http:// Washington, DC 20549, on official solicited nor received. nasdaqomxphlx.cchwallstreet.com/ business days between the hours of nasdaqomxphlx/phlx/, at Phlx’s III. Date of Effectiveness of the 10:00 a.m. and 3:00 p.m. Copies of the principal office, and at the Proposed Rule Change and Timing for filing also will be available for Commission’s Public Reference Room. Commission Action inspection and copying at the principal office of the Exchange. All comments II. Self-Regulatory Organization’s Within 45 days of the date of Statement of the Purpose of, and publication of this notice in the Federal received will be posted without change; the Commission does not edit personal Statutory Basis for, the Proposed Rule Register or within such longer period (i) Change as the Commission may designate up to identifying information from 90 days of such date if it finds such submissions. You should submit only In its filing with the Commission, the information that you wish to make longer period to be appropriate and self-regulatory organization included available publicly. All submissions publishes its reasons for so finding or statements concerning the purpose of, should refer to File Number SR– (ii) as to which the Exchange consents, and basis for, the proposed rule change NASDAQ–2012–117 and should be the Commission shall: and discussed any comments it received submitted on or before November 8, A. By order approve or disapprove on the proposed rule change. The text 2012. such proposed rule change, or of those statements may be examined at B. institute proceedings to determine For the Commission, by the Division of the places specified in Item IV below. Trading and Markets, pursuant to delegated The Exchange has prepared summaries, whether the proposed rule change 8 should be disapproved. authority. set forth in sections A, B, and C below, Kevin M. O’Neill, of the most significant parts of such IV. Solicitation of Comments Deputy Secretary. statements. Interested persons are invited to [FR Doc. 2012–25600 Filed 10–17–12; 8:45 am] A. Self-Regulatory Organization’s submit written data, views, and BILLING CODE 8011–01–P Statement of the Purpose of, and arguments concerning the foregoing, Statutory Basis for, the Proposed Rule including whether the proposed rule Change change is consistent with the Act. SECURITIES AND EXCHANGE Comments may be submitted by any of COMMISSION 1. Purpose the following methods: [Release No. 34–68052; File No. SR–PHLX– Phlx is proposing to modify its fee Electronic Comments 2012–119] schedule governing order execution and routing on PSX. The general purposes of • Use the Commission’s Internet Self-Regulatory Organizations; the fee changes are to (i) encourage comment form (http://www.sec.gov/ NASDAQ OMX PHLX LLC; Notice of greater provision of liquidity through rules/sro.shtml); or Filing and Immediate Effectiveness of PSX by instituting an increase in the • Send an email to rule- Proposed Rule Change To Modify rebates paid with respect to liquidity- [email protected]. Please include File Phlx’s Fee Schedule Governing Order providing orders, (ii) make certain Number SR–NASDAQ–2012–117 on the Execution on Its NASDAQ OMX PSX increases to the fees for accessing subject line. Facility liquidity and routing orders, and (iii) Paper Comments October 12, 2012. increase fees for routing orders to the New York Stock Exchange (‘‘NYSE’’) to • Send paper comments in triplicate Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 reflect an announced price increase by to Elizabeth M. Murphy, Secretary, 3 1 2 that exchange. All of the changes Securities and Exchange Commission, (‘‘Act’’), and Rule 19b–4 thereunder, notice is hereby given that on October pertain to securities priced at $1 or more 100 F Street NE., Washington, DC per share. Phlx is, however, moving the 20549–1090. 1, 2012, NASDAQ OMX PHLX LLC (‘‘Phlx’’ or the ‘‘Exchange’’) filed with fees governing execution and routing of All submissions should refer to File the Securities and Exchange orders for securities priced at less than Number SR–NASDAQ–2012–117.This Commission (‘‘Commission’’) a $1 per share to a new paragraph of the file number should be included on the proposed rule change as described in fee schedule. subject line if email is used. To help the Items I, II, and III below, which Items Under the change, PSX will pay a Commission process and review your have been prepared by the Exchange. rebate of $0.0028 per share executed for comments more efficiently, please use The Commission is publishing this displayed orders entered through a only one method. The Commission will notice to solicit comments on the NASDAQ OMX PSX market participant post all comments on the Commission’s proposed rule change from interested identifier (‘‘MPID’’) through which a Internet Web site (http://www.sec.gov/ persons. member organization provides shares of rules/sro.shtml). Copies of the liquidity that represent more than submission, all subsequent I. Self-Regulatory Organization’s 0.10% of the total consolidated volume amendments, all written statements Statement of the Terms of the Substance reported to all consolidated transaction with respect to the proposed rule of the Proposed Rule Change reporting plans by all exchanges and change that are filed with the Phlx proposes to a modify Phlx’s fee trade reporting facilities (‘‘Consolidated Commission, and all written schedule governing order execution and Volume’’) during the month. In communications relating to the addition, in recognition of the proposed rule change between the 8 17 CFR 200.30–3(a)(12). convergence of trading in which Commission and any person, other than 1 15 U.S.C. 78s(b)(1). those that may be withheld from the 2 17 CFR 240.19b–4. 3 See SR–NYSE–2012–50 (September 26, 2012).

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member organizations simultaneously represent more than 0.10% of structure, and access to Phlx is offered trade different asset classes, Phlx is Consolidated Volume during the month. on fair and non-discriminatory terms. introducing a pricing incentive to PSX will also charge $0.0028 per share The Exchange believes that the encourage market participants that are executed with respect to the execution proposed fees for accessing liquidity are active in the Phlx Options Market also on PSX of any order that is designated reasonable because they are consistent to trade on PSX.4 Specifically, Phlx will as eligible for routing, and $0.0030 per with the limitations imposed by SEC also pay a rebate of $0.0028 per share share executed for all other orders that Rule 610 8 on access fees. The Exchange executed with respect to displayed execute on PSX. The discount for further believes that the proposed access orders entered through a NASDAQ routable orders, as compared with non- fees are consistent with an equitable OMX PSX MPID through which the routable orders, is designed to provide allocation of fees, in that they are set at member organization provides shares of incentives for member organizations to levels that allow the Exchange to pay a liquidity that represent more than make use of PSX’s routing services. By credit to liquidity providers. Because 0.05% of Consolidated Volume during contrast, PSX had previously charged the payment of such credits encourages the month; provided that the member $0.0019 per share executed for orders in liquidity providers to post orders in organization and any affiliated member securities listed on NSYE and $0.0027 PSX, they also benefit liquidity 5 organizations also have an average per share executed for other orders. The accessors by increasing the likelihood of daily volume during the month of 1,000 increases are necessary to ensure that execution at or near the inside market. or more electronically-delivered and Phlx covers the costs associated with Phlx further believes that the executed customer contracts that add the increased rebates it is offering. discounted access fees for orders liquidity on Phlx’s Options Market. Phlx entered through MPIDs that satisfy a will pay a rebate of $0.0026 per share With respect to fees for executions on volume requirement are not executed with respect to all other other markets of routed orders, PSX is unreasonably discriminatory because displayed orders that provide liquidity, adopting minor increases in the fees they are designed to provide incentives and will pay a rebate of $0.0010 per charged for certain orders that execute to member organizations to increase share executed with respect to non- on the other trading venues. Thus, with their participation in PSX and are displayed orders that provide liquidity. respect to PSTG and PSCN orders that consistent in their purpose with similar These new rebate provisions replace execute on venues other than NYSE or volume-based pricing incentives offered provisions under which Phlx paid a NASDAQ OMX BX, and with respect to by numerous other exchanges. maximum rebate of $0.0026 per share PTFY and PCRT orders that execute at Similarly, Phlx believes that the executed with respect to minimum life the NASDAQ Stock Market, Phlx is discounted fee for orders that are orders and displayed orders with an increasing the fee from $0.0027 per eligible for routing is not unreasonably original size of 2,000 shares or more, but share executed to $0.0028 per share discriminatory because it is a reasonable lower rebates with respect to orders for executed. These changes will ensure means of encouraging member securities listed on NYSE, displayed that routable orders that execute at other organizations to make use of PSX’s orders with a smaller size, and non- venues pay a fee that is consistent with routing services but does not differ to a displayed orders. Under the proposed the fee paid with respect to such orders great extent from the fees otherwise change, the rebate paid with respect to when they execute at PSX. charged for order execution. Finally, both displayed and non-displayed Finally, to reflect recent increases in PSX believes that these discounts are orders that provide liquidity will equal the fees charged by NYSE with respect consistent with an equitable allocation or exceed currently available rebates in to orders routed to it by PSX, Phlx is of fees because they are designed to all cases. raising the fee for PSTG and PSCN serve the appropriate purposes of In order to offset the cost of these orders routed to NYSE from $0.0023 per encouraging greater use of PSX’s higher rebates, Phlx is making share executed to $0.0025 per share execution and routing facilities but do corresponding changes to the fees executed; the fee for PMOP orders not deviate to an unreasonable extent charged for accessing liquidity. routed to NYSE from $0.0025 per share from the access fee otherwise charged Specifically, PSX will charge $0.0028 executed to $0.0027 per share executed; by PSX. Phlx further believes that the per share executed for orders entered and the fee for PTFY orders routed to proposed rebates for liquidity providers through a NASDAQ OMX PSX MPID NYSE from $0.0022 per share executed are reasonable because they are set at through which a member organization to $0.0024 per share executed. provides shares of liquidity that levels that are equal to or higher than 2. Statutory Basis the rebates currently offered, and are 4 The incentive is similar to pricing incentives in designed to attract greater numbers of place at the NASDAQ Stock Market with respect to Phlx believes that the proposed rule liquidity-providing orders to PSX. In its members that are also active in the NASDAQ change is consistent with the provisions addition, Phlx believes that the Options Market. See NASDAQ Rule 7018. of Section 6 of the Act,6 in general, and 5 For this purpose, member organizations are proposed rebates reflect an equitable 7 deemed affiliates if there is at least 75% common with Sections 6(b)(4) and (5) of the Act, allocation of fees because they are set at ownership of the member organizations. This in particular, in that it provides for the levels that do not deviate significantly standard corresponds to standards currently used equitable allocation of reasonable dues, from the access fees charged by PSX. under the NASDAQ OMX PHLX Pricing Schedule for options. See, e.g., NASDAQ OMX PHLX Pricing fees and other charges among members Phlx further believes that the proposed Schedule, Chapter II (Multiply Listed Options Fees and issuers and other persons using any higher rebates for displayed liquidity (Includes options overlying equities, ETFs, ETNs, facility or system which Phlx operates provided through MPIDs that satisfy a indexes and HOLDRS which are Multiply Listed)) or controls, and is not designed to volume requirement are not (‘‘Specialists and Market Makers are subject to a ‘Monthly Market Maker Cap’ of $550,000 for equity permit unfair discrimination between unreasonably discriminatory because option transaction fees and QCC Transaction Fees, customers, issuers, brokers or dealers. they are designed to provide incentives as defined in this section above. The trading All similarly situated member to member organizations to increase activity of separate Specialist and Market Maker organizations are subject to the same fee their participation in PSX and are member organizations will be aggregated in calculating the Monthly Market Maker Cap if there consistent in their purpose with similar is at least 75% common ownership between the 6 15 U.S.C. 78f. member organizations.’’). 7 15 U.S.C. 78f(b)(4) and (5). 8 17 CFR 242.610.

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volume-based pricing incentives offered circumstances to charge a fee for routing institute proceedings to determine by numerous other exchanges. the orders to other venues that is more whether the proposed rule should be Similarly, Phlx believes that the consistent with PSX’s own execution approved or disapproved. proposed higher rebate with respect to fee. Finally, the change is not displayed liquidity provided by certain unreasonably discriminatory because it IV. Solicitation of Comments member organizations that are active in applies solely to member organizations Interested persons are invited to both PSX and Phlx’s Options Market is that opt to use the routing strategies submit written data, views, and not unreasonably discriminatory subject to the price change. arguments concerning the foregoing, Phlx also notes that it operates in a because it is responsive to the including whether the proposed rule highly competitive market in which convergence of trading in which change is consistent with the Act. member organization [sic] market participants can readily favor Comments may be submitted by any of simultaneously trade different asset competing venues if they deem fee the following methods: classes within a single strategy. Phlx levels at a particular venue to be also notes that cash equities and options excessive. In such an environment, Phlx Electronic Comments markets are linked, with liquidity and must continually adjust its fees to trading patterns on one market affecting remain competitive with other • Use the Commission’s Internet those on the other. Accordingly, pricing exchanges and with alternative trading comment form (http://www.sec.gov/ incentives that encourage market systems that have been exempted from rules/sro.shtml); or participant activity in both markets compliance with the statutory standards • Send an email to rule- recognize that activity in the options applicable to exchanges. Phlx believes [email protected]. Please include File markets may also support price that the proposed rule change reflects Number SR–PHLX–2012–119 on the discovery and liquidity provision in this competitive environment because it subject line. PSX. This proposed rebate is also not is designed to create pricing incentives unreasonably discriminatory because for greater use of PSX’s trading and Paper Comments the Exchange is offering an alternative routing services. • means of earning an identical rebate that Send paper comments in triplicate does not require participation in Phlx’s B. Self-Regulatory Organization’s to Elizabeth M. Murphy, Secretary, Options Market. Phlx further believes Statement on Burden on Competition Securities and Exchange Commission, that the proposal to pay higher rebates Phlx does not believe that the 100 F Street NE., Washington, DC with respect to displayed orders than proposed rule change will result in any 20549–1090. with respect to non-displayed orders is burden on competition that is not All submissions should refer to File not unreasonably discriminatory necessary or appropriate in furtherance Number SR–PHLX–2012–119. This file because Phlx believes that it is of the purposes of the Act, as amended. number should be included on the reasonable to use pricing incentives to Because the market for order execution subject line if email is used. To help the encourage the use of displayed orders, is extremely competitive, member Commission process and review your which contribute more to price organizations may readily opt to comments more efficiently, please use discovery and market transparency, disfavor Phlx’s execution and routing only one method. The Commission will than non-displayed orders. services if they believe that alternatives post all comments on the Commission’s The proposed changes to fees for offer them better value. The proposed Internet Web site (http://www.sec.gov/ routing orders to NYSE are reasonable change is designed to enhance rules/sro.shtml). Copies of the because they reflect the increase in the competition by using pricing incentives submission, all subsequent fee that will be charged by NYSE to Phlx to encourage greater use of PSX’s amendments, all written statements with respect to such orders. The change trading and routing services. with respect to the proposed rule is consistent with an equitable change that are filed with the allocation of fees because it will bring C. Self-Regulatory Organization’s Commission, and all written the economic attributes of routing Statement on Comments on the communications relating to the orders to NYSE in line with the cost of Proposed Rule Change Received From proposed rule change between the executing orders there. Finally, the Members, Participants, or Others Commission and any person, other than change is not unfairly discriminatory Written comments were neither those that may be withheld from the because it solely applies to member solicited nor received. organizations that opt to route orders to public in accordance with the III. Date of Effectiveness of the NYSE. provisions of 5 U.S.C. 552, will be The other proposed increases in Proposed Rule Change and Timing for available for Web site viewing and routing fees are reasonable because they Commission Action printing in the Commission’s Public are very small in magnitude ($0.0001 The foregoing rule change has become Reference Room on official business per share executed for affected orders). effective pursuant to Section days between the hours of 10:00 a.m. The changes are consistent with an 19(b)(3)(A)(ii) of the Act.9 At any time and 3:00 p.m. Copies of such filing also equitable allocation of fees because the within 60 days of the filing of the will be available for inspection and resulting fees are consistent with the fee proposed rule change, the Commission copying at the principal offices of the charged for the execution of routable summarily may temporarily suspend Exchange. All comments received will orders at PSX. Thus, member such rule change if it appears to the be posted without change; the organizations are encouraged to use Commission that such action is Commission does not edit personal routable orders through a favorable necessary or appropriate in the public identifying information from execution rate and the increased interest, for the protection of investors, submissions. You should submit only likelihood of finding liquidity at PSX or otherwise in furtherance of the information that you wish to make that may be promoted through the purposes of the Act. If the Commission available publicly. All submissions higher liquidity provider rebates takes such action, the Commission shall should refer to File Number SR–PHLX– adopted through the proposal. Phlx 2012–119, and should be submitted on believes that it is equitable under these 9 15 U.S.C. 78s(b)(3)(a)(ii). or before November 8, 2012.

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For the Commission, by the Division of Transaction Fees’’, Section A titled the fees included in the Monthly Market Trading and Markets, pursuant to delegated ‘‘PIXL Pricing’’; and amend and relocate Maker Cap. Today, the Exchange authority.10 the Customer Rebate Program in Section includes fees related to an order or Kevin M. O’Neill, II to a new Section A. quote that is contra to a PIXL Order or Deputy Secretary. The text of the proposed rule change specifically responding to a PIXL [FR Doc. 2012–25654 Filed 10–17–12; 8:45 am] is available on the Exchange’s Web site auction executed resting and responding 7 BILLING CODE 8011–01–P at http://www.nasdaqtrader.com/micro. orders that execute against a PIXL aspx?id=PHLXfilings, at the principal Initiating Order in the Monthly Market office of the Exchange, and at the Maker Cap calculation. The Exchange SECURITIES AND EXCHANGE Commission’s Public Reference Room. proposes to clarify the Pricing Schedule COMMISSION II. Self-Regulatory Organization’s by specifically delineating the various fees that are calculated to arrive at the [Release No. 34–68047; File No. SR–Phlx– Statement of the Purpose of, and 2012–121] Statutory Basis for, the Proposed Rule Monthly Market Maker Cap. The Change Exchange proposes to amend the Pricing Self-Regulatory Organizations; Schedule to note that in addition to NASDAQ OMX PHLX LLC; Notice of In its filing with the Commission, the equity options transaction fees and QCC Filing and Immediate Effectiveness of Exchange included statements Transaction Fees, fee related to an order Proposed Rule Change Relating to a concerning the purpose of and basis for or quote that is contra to a PIXL Order Customer Rebate Program, Multiply the proposed rule change and discussed or specifically responding to a PIXL any comments it received on the Listed Options Transaction Charges Auction are included in the Monthly proposed rule change. The text of these and PIXL Market Maker Cap calculation. statements may be examined at the The Exchange also proposes to amend October 12, 2012. places specified in Item IV below. The a fee which is assessed once a Pursuant to Section 19(b)(1) of the Exchange has prepared summaries, set Specialist 8 or Market Maker 9 has Securities Exchange Act of 1934 forth in sections A, B, and C below, of reached the Monthly Market Maker Cap. (‘‘Act’’),1 and Rule 19b–4 2 thereunder, the most significant aspects of such Currently, Specialists and Market notice is hereby given that, on October statements. Makers that (i) are on the contra-side of 1, 2012, NASDAQ OMX PHLX LLC A. Self-Regulatory Organization’s an electronically-delivered and (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Statement of the Purpose of, and executed Customer order; and (ii) have Securities and Exchange Commission Statutory Basis for, the Proposed Rule reached the Monthly Market Maker Cap (‘‘SEC’’ or ‘‘Commission’’) the proposed Change are assessed a $0.12 per contract fee, rule change as described in Items I, II excluding PIXL Orders.10 The Exchange and III below, which Items have been 1. Purpose is proposing to increase this fee from prepared by the Exchange. The The purpose of the proposed rule $0.12 per contract to $0.16 per contract Commission is publishing this notice to change is to amend Sections II and III and also remove the exclusion for PIXL solicit comments on the proposed rule of the Exchange’s Pricing Schedule and Orders. The proposal would assess change from interested persons. create a new Section A. Specifically, the Specialists and Market Makers that (i) are on the contra-side of an I. Self-Regulatory Organization’s Exchange is proposing to clarify its Pricing Schedule with respect to fees electronically-delivered and executed Statement of the Terms of Substance of Customer order; and (ii) have reached the Proposed Rule Change related to an order or quote that is contra to a PIXL Order and included in the Monthly Market Maker Cap a $0.16 The Exchange proposes to amend the the Monthly Market Maker Cap per contract fee and this would now Exchange’s Pricing Schedule to: (i) calculation, increase the fee for certain include PIXL Orders. The Exchange Clarify the Monthly Market Maker Cap 3 orders executed once the Monthly in Section II titled ‘‘Multiply Listed Market Maker Cap has been exceeded dividend, merger, short stock interest and reversal Options Fees’’; 4 (ii) amend PIXL and relocate the Customer Rebate and conversion strategy executions (as defined in 5 this Section II of the Pricing Schedule) are excluded pricing in Section IV titled ‘‘Other Program from Section II to Section A from the Monthly Market Maker Cap. and amend various pricing for that 7 When the Exchange receives a PIXL Order for 10 17 CFR 200.30–3(a)(12). program. Also, the Exchange proposes auction processing, a PIXL Auction Notification 1 15 U.S.C. 78s(b)(1). to amend Section IV related to PIXL (‘‘PAN’’) message is sent over the Exchange’s TOPO 2 17 CFR 240.19b–4. Plus Orders data feed detailing the side, size, and 3 Today, the Monthly Market Maker Cap is Pricing. Each of the amendments will be the stop price of the PIXL Order. Any person or $550,000 for equity option transaction fees and QCC described below in greater detail. entity may submit a PAN response, provided such Transaction Fees. The trading activity of separate response is properly marked specifying the price, Specialist and Market Maker member organizations Section II Amendments size, and side of the market. See Rule 1080(n). is aggregated in calculating the Monthly Market The Exchange is proposing to amend 8 A Specialist is an Exchange member who is Maker Cap if there is at least 75% common registered as an options specialist pursuant to Rule ownership between the member organizations. All the Monthly Market Maker Cap. 1020(a). dividend, merger, short stock interest and reversal Currently, the Monthly Market Maker 9 A ‘‘market maker’’ includes Specialists (see Rule and conversion strategy executions are excluded Cap is $550,000 for equity options 1020) and ROTs (Rule 1014(b)(i) and (ii), which from the Monthly Market Maker Cap. transaction fees and Qualified includes SQTs (see Rule 1014(b)(ii)(A)) and RSQTs 4 Section II includes options overlying equities, Contingent Cross (‘‘QCC’’) Transaction (see Rule 1014(b)(ii)(B))). Directed Participants are ETFs, ETNs, indexes and HOLDRs which are 6 also market makers. Multiply Listed. Fees. The Exchange proposes to clarify 10 A member may electronically submit for 5 PIXL is the Exchange’s price-improvement execution an order it represents as agent on behalf mechanism where a member may electronically Auction (‘‘Auction’’) pursuant to Rule 1080. See of a public customer, broker-dealer, or any other submit for execution an order it represents as agent Exchange Rule 1080(n). entity (‘‘PIXL Order’’) against principal interest or on behalf of a public customer, broker-dealer, or 6 QCC Transaction Fees are defined in Rules against any other order (except as provided in Rule any other entity (‘‘PIXL Order’’) against principal 1064(e) and 1080(o). The trading activity of separate 1080(n)(i)(E)) it represents as agent (‘‘Initiating interest or against any other order (except as Specialist and Market Maker member organizations Order’’) provided it submits the PIXL order for provided in Rule 1080(n)(i)(E)) it represents as is aggregated in calculating the Monthly Market electronic execution into the PIXL Auction agent (‘‘Initiating Order’’) provided it submits the Maker Cap if there is at least 75% common (‘‘Auction’’) pursuant to Rule 1080. See Exchange PIXL order for electronic execution into the PIXL ownership between the member organizations. All Rule 1080(n).

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believes that this amendment will also offering the opportunity to obtain higher The Exchange is proposing to amend permit the Exchange to pay certain rebates, as described below, will these Categories as follows: Customer Rebates which are described incentivize market participants to send • Category A: Rebate will be paid to below. order flow to the Exchange. members executing electronically- The Exchange is also proposing to The Exchange also proposes to amend delivered Customer Simple Orders in amend Categories A, B, C and D, which and relocate its Customer Rebate Penny Pilot Options and Customer currently require the following: Simple Orders in Non-Penny Pilot Program from Section II of the Pricing • Category A: Rebate will be paid to Schedule to a new ‘‘Section A’’ which Options in Section II. Rebate will be members executing electronically- paid on PIXL Orders in Section II would be located before Section I in the delivered Customer Simple Orders in Pricing Schedule.11 The Exchange is symbols that execute against non- Penny Pilot Options, Simple Orders in Initiating Order interest. proposing to expand the three tier Non-Penny Pilot Options that remove • Category B: Rebate will be paid to Customer Rebate Program to a four tier liquidity and Complex Orders in Non- members executing electronically- Customer Rebate Program. Currently, Penny Pilot Options. the Exchange pays rebates for the • Category B: Rebate will be paid to delivered Customer Complex Orders in following Average Daily Volume members executing electronically- Penny Pilot Options and Non-Penny Thresholds: (i) 0 to 49,999 contracts in delivered Customer Complex Orders in Pilot Options in Section II. • a month; (ii) 50,000 to 99,999 contracts Penny Pilot Options. Category C: Rebate will be paid to in a month; and (iii) over 100,000 • Category C: Rebate will be paid to members executing electronically- contracts in a month. The Exchange is members executing electronically- delivered Customer Complex Orders in proposing to amend Tier 3 and adopt a delivered Customer Simple Orders in Select Symbols in Section I. Tier 4 so as to have the following tiers: Non-Penny Pilot Options that add In order to analyze the impact on (i) 0 to 49,999 contracts in a month; (ii) liquidity. rebates, it is relevant to note how the 50,000 to 99,999 contracts in a month; • Category D: Rebate will be paid to various Categories were amended in (iii) 100,000 to 274,999 contracts in a members executing electronically- addition to the actual rebates. The month; and (iii) over 275,000 contracts delivered Customer Complex Orders in proposed Customer Rebate Program 12 in a month. The Exchange believes Select Symbols that add liquidity. table is as follows:

Rebate per contract categories Average daily volume threshold Category A Category B Category C

0 to 49,999 contracts in a month ...... $0.00 $0.00 $0.00 50,000 to 99,999 contracts in a month ...... 0.07 0.10 0.00 100,000 to 299,999 contracts in a month ...... 0.10 0.14 0.05 over 300,000 contracts in a month ...... 0.12 0.15 0.06

With respect to Category A, which 274,999 contracts and a rebate of $0.12 Complex Orders in Penny Pilot Options today allows members who transact per contract for volume over 275,000 in Section II to earn Category B rebates, electronically-delivered Customer contracts.13 With respect to Simple the Exchange proposes to amend this Simple Orders in Penny Pilot Options, Orders in Non-Penny Pilot Options that Category to now also include Complex Simple Orders in Non-Penny Pilot add liquidity that are today included in Orders in Non-Penny Pilot Options in Options that remove liquidity and Category C, these will be included in Section II (not just Complex Orders in Complex Orders in Non-Penny Pilot Category A. These orders will now be Penny Pilot Options). The fees in Options to earn Category A rebates, the subject to a decreased rebate of $0.07 Category B will increase for volume over Exchange is amending this Category to per contract for volume between 50,000 100,000 contracts. Today, a rebate of now include all Simple Orders in Non- to 99,999 contracts in a month. Today $0.10 per contract is paid for volume Penny Pilot Options in Section II (not those orders receive a rebate of $0.10 over 100,000 contracts. The new pricing just orders that remove liquidity). In per contract.14 Finally, Category A will in Category B will pay a rebate of $0.14 addition, Complex Orders in Non-Penny now include PIXL Orders in Section II, per contract for volume between Pilot Options will no longer be part of except for contracts of PIXL orders that 100,000 and 274,999 contracts and a Category A. The fees in Category A will execute against an Initiating Order.15 rebate of $0.15 per contract for volume increase for volume over 100,000 These types of orders today are not over 275,000 contracts.16 With respect contracts. Today, a rebate of $0.09 per subject to rebates in the Customer to Complex Orders in Non-Penny Pilot contract is paid for volume over 100,000 Rebate Program. Options that are today included in contracts. The new pricing in Category With respect to Category B, which Category A, these will be included in A will pay a rebate of $0.10 per contract today allows members executing Category B. These orders will now be for volume between 100,000 and electronically-delivered Customer subject to an increased rebate of $0.10

11 The Exchange would also amend the Index to volume between 0 to 49,999 contracts. Also, the 1080(n)(i)(E)) it represents as agent (‘‘Initiating reflect the relocation of the Customer Rebate $0.10 per contract rebate will remain the same for Order’’) provided it submits the PIXL order for Program. over 100,000 but the tier will now be amended to electronic execution into the PIXL Auction 12 The Customer Rebate Program only includes volume between 100,000 to 274,999 contracts. The (‘‘Auction’’) pursuant to Rule 1080. See Exchange electronically-delivered orders. $0.12 per contract rebate for volume over 275,000 Rule 1080(n). 13 Category A will continue to pay no rebate for contracts will also apply to these orders. 16 Category B will continue to pay no rebate for volume between 0 and 49,999 contracts and a rebate 15 A member may electronically submit for of $0.07 per contract for volume between 50,000 execution an order it represents as agent on behalf volume between 0 and 49,999 contracts and a rebate and 99,999 contracts in a month. of a public customer, broker-dealer, or any other of $0.10 per contract for volume between 50,000 14 Simple Orders in Non-Penny Pilot Options that entity (‘‘PIXL Order’’) against principal interest or and 99,999 contracts in a month. add liquidity will continue to receive no rebate for against any other order (except as provided in Rule

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per contract for volume between 50,000 part of Category C. Category D will be Customers, Professionals,22 to 99,999 contracts in a month. Today eliminated. Specialists,23 Market Makers,24 Firms those orders receive a rebate of $0.07 Finally, the Exchange proposes to and Broker-Dealers. All options traded per contract. Additionally, today for amend its Average Daily Volume on the Exchange are eligible for PIXL. volume over 100,000 contracts, Threshold calculation. Currently, the Today, the Exchange assesses a fee of Complex Orders in Non-Penny Pilot Average Daily Volume Threshold is $0.07 per contract when an Initiating Options receive a rebate of $0.09 per calculated by totaling Customer volume Order executes against a PIXL Order in 20 contract. This rebate will be increased in Multiply Listed Options that are the symbols listed in Section I, Select in the new category, between 100,000 electronically-delivered and executed, Symbols, and the symbols defined in and 274,999 contracts, to $0.14 per except electronic QCC Orders as defined Section II. The Exchange has different in Exchange Rule 1080(o), and contract.17 PIXL pricing depending on whether the including electronically-delivered and PIXL order execution was in a Select With respect to Category C, which executed Customer Complex Orders in Symbol (Section I) or Section II symbol. today allows members executing Select Symbols (‘‘Threshold Volume’’). electronically-delivered Customer Rebates are paid on Threshold Volume With respect to the Select Symbols, Simple Orders in Non-Penny Pilot in a given month, excluding today, when a PIXL order is contra to Options that add liquidity in Section II electronically delivered Customer the Initiating Order the appropriate to earn Category C rebates, the Exchange volume associated with PIXL. The Multiply Listed Options Transaction proposes to amend this Category to now Exchange is proposing to amend the Charge in Section II in Section II of the Pricing Schedule is assessed up to a include Complex Orders in Select calculation of the Average Daily Volume maximum fee of $0.32 per contract. The Symbols in Section I. The fees Threshold to total Customer volume in Options Transaction Charges are as applicable to Complex Orders in Select Multiply Listed Options (including follows: a Customer is not assessed an Symbols that remove liquidity today Select Symbols) that are electronically- Options Transaction Charge, a receive rebates in Category D. These delivered and executed, except: (i) electronically-delivered and executed Professional is assessed a $0.25 per orders will continue to receive the same contract Options Transaction Charge in pricing, except that volume over Customer Simple Orders in Select Symbols that remove liquidity; and (ii) both Penny Pilot and non-Penny Pilot 100,000 contracts which today pays a Options, a Specialist and Market Maker $0.05 per contract rebate will apply to electronic QCC Orders, as defined in Exchange Rule 1080(o) (‘‘Threshold are assessed a $0.22 per contract contracts between 100,000 to 274,999 Volume’’). The Exchange would pay the Options Transaction Charge in a Penny and pay the same rebate. Additionally, rebates on the Threshold Volume.21 Pilot and a $0.23 per contract Options a rebate of $0.06 per contract will be The Exchange believes that the Transaction Charge in a non-Penny Pilot paid for volume over 275,000 proposed amendments to the Customer Option, and a Broker-Dealer and Firm 18 contracts. With respect to Complex Rebate Program will attract additional are assessed $0.32 per contact because Orders in Non-Penny Pilot Options that Customer order flow to the Exchange to the Options Transactions Charges are are today included in Category A, these the benefit of all market participants. greater than the maximum fee.25 will be included in Category B. These Section III Amendments When a PIXL Order executes in an orders will now be subject to an auction against a resting contra-side increased rebate of $0.10 per contract The Exchange is proposing to amend order or quote that was present upon the for volume between 50,000 to 99,999 its PIXL Pricing in Section IV of the initial receipt of the PIXL Order, the Fee contracts in a month. Today those Pricing Schedule at Part A. Currently, for Removing Liquidity in Section I is orders receive a rebate of $0.07 per the Exchange assesses PIXL fees on assessed on the PIXL Order. The Fees contract. Additionally, today for volume for Removing Liquidity are as follows: over 100,000 contracts, Complex Orders 20 This includes all options classes defined in Sections I and II. This excludes PHLX Customers are assessed $0.43 per in Non-Penny Pilot Options receive a Semiconductor SectorSM (SOXSM), PHLX Housing contract, and all other market rebate of $0.09 per contract. This rebate SectorTM (HGXSM) and PHLX Oil Service SectorSM participants are assessed $0.45 per will be increased in the new category, (OSXSM) which are assessed Singly Listed Options contract, therefore all market between 100,000 and 274,999 contracts, fees in Section III of the Pricing Schedule despite the fact that these are Multiply-Listed index participants today are assessed the 19 26 to $0.14 per contract. Complex Orders options. See Securities Exchange Act Release No. maximum fee of $0.32 per contract. in Select Symbols for adding liquidity 66668 (April 3, 2012), 77 FR 20090 (March 28, The resting contra-side order or quote in today are not subject to rebates in the 2012) (SR–Phlx–2012–35). 21 Currently, the Customer Simple Orders in Customer Rebate Program. With respect 22 The term ‘‘professional’’ means any person or Select Symbols are not part of the Average Daily entity that (i) is not a broker or dealer in securities, to proposed Category D, as noted above, Volume Calculation as the Customer Rebate and (ii) places more than 390 orders in listed those Complex Orders in Select Program today is limited to the symbols subject to options per day on average during a calendar month Section II pricing and only Complex Orders that Symbols that add liquidity will become for its own beneficial account(s). See Rule add liquidity in Section I. The Exchange proposes 1000(b)(14). to exclude electronically-delivered and executed 23 17 Complex Orders in Non-Penny Pilot Options Customer Simple Orders in Select Symbols that A Specialist is an Exchange member who is will continue to receive no rebate for volume remove liquidity from the Average Daily Volume registered as an options specialist pursuant to Rule between 0 to 49,999 contracts. The $0.15 per Threshold, along with electronic QCC Orders. 1020(a). contract rebate for volume over 275,000 contracts Today, these excluded orders are not included in 24 A ‘‘market maker’’ includes Specialists (see will also apply to these orders. the Threshold Volume. The Exchange would pay a Rule 1020) and ROTs (Rule 1014(b)(i) and (ii), 18 Category C will continue to pay no rebate for rebate on all Customer volume included in the which includes SQTs (see Rule 1014(b)(ii)(A)) and volume between 0 and 49,999 contracts and 50,000 Threshold Volume. Today Customer volume RSQTs (see Rule 1014(b)(ii)(B)). and 99,999 contracts in a month as is the case today associated with PIXL is excluded from the 25 The Broker-Dealer Options Transaction Charge for Complex Orders in Select Symbols that remove Threshold Volume, this would be amended and in a Penny Pilot is $0.45 per contract and $0.60 per liquidity. PIXL orders would be subject to a rebate. Today contact in a non-Penny Pilot. The Firm Options 19 Complex Orders in Non-Penny Pilot Options Customer Simples Orders in Select Symbols that Transaction Charge in a Penny Pilot is $0.40 per will continue to receive no rebate for volume remove liquidity and QCC Orders are not entitled contract and $0.45 per contact in a non-Penny Pilot. between 0 to 49,999 contracts. The $0.15 per to rebates under the Customer Rebate program See Section II in the Pricing Schedule. contract rebate for volume over 275,000 contracts today and those orders will continue to be 26 See Section I, Part A Simple Order Pricing in will also apply to these orders. excluded. the Pricing Schedule.

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that scenario is paid the Rebate for for Select Symbols (Section I) as Customer PIXL Order that today is Adding Liquidity in Section I.27 follows: assessed the appropriate Options Today, if a PIXL Order executes in an • When the PIXL Order is contra to Transaction Charge in Section II, which auction against a Responder or contra- the Initiating Order a Customer PIXL is capped at $0.32 per contract, would side quotes and/or orders sent in during Order will be assessed $0.00 and all instead pay $0.30 per contract. The the auction, the PIXL Order is paid the non-Customer market participant PIXL Customer PIXL Order would not be Rebate for Adding Liquidity in Section Orders will be assessed $0.30 per assessed a fee. When a PIXL Order is I.28 The Responders and contra-side contract when contra to the Initiating contra to a resting order or quote that orders and quotes which were entered Order. was on the PHLX book prior to the during the PIXL Auction, are assessed • When a PIXL Order is contra to a auction, the PIXL Order today is the Fee for Removing Liquidity in PIXL Auction Responder, the PIXL assessed the Fee for Removing Liquidity Section I, which is greater than the Order will either be paid the Rebate for in Section I, which is capped at $0.32 maximum fee of $0.32 per contract, Adding Liquidity or assessed the Fee for per contract, would instead pay $0.30 therefore the PIXL Order is assessed Adding Liquidity in Section I and the per contract. The resting contra-side $0.32 per contract.29 Responder will be assessed $0.30 per order or quote on the book prior to the With respect to Section II symbols, contract. • auction will continue to be paid the the PIXL Order and the contra-side When the PIXL Order is contra to a Rebate/Fee for Adding Liquidity in order or quote are assessed the resting order or quote that was on the Section I as they are today.31 When a appropriate Multiply Listed Option PHLX book prior to the auction, the PIXL Order executes in an auction Transaction Charge in Section II of the PIXL Order will be assessed $0.30 per against a Responder that responds with Pricing Schedule up to a maximum fee contract and the resting order or quote either a contra-side quote or order sent of $0.32 per contract. Today, a Customer will either be paid the Rebate for in during the auction, the Responder is is not assessed an Options Transaction Adding Liquidity or assessed the Fee for assessed the Fee for Removing Liquidity Charge, a Professional is assessed a Adding Liquidity in Section I. If the in Section I and will be capped at $0.30 $0.25 per contract Options Transaction resting order or quote that was on the per contract instead of the $0.32 cap Charge in both Penny Pilot and non- PHLX was entered during the Auction, that is assessed today. The PIXL Order Penny Pilot Options, a Specialist and the PIXL Order will receive the Rebate will continue to receive the Rebate for Market Maker are assessed a $0.22 per for Adding Liquidity or assessed the Fee Adding Liquidity or assessed the Fee for contract Options Transaction Charge in for Adding Liquidity in Section I and Adding Liquidity in Section I. a Penny Pilot and a $0.23 per contract the resting order or quote will be With respect to Section II symbols, Options Transaction Charge in a non- assessed $0.30. the PIXL Order and the contra-side With respect to the PIXL Order, the Penny Pilot Option, a Broker-Dealer and order or quote which today are assessed Exchange is amending is amending the Firm are assessed $0.32 per contact the appropriate Multiply Listed Option PIXL fees for Section II symbols as because the Options Transactions Fee in Section II of the Pricing follows: Charges are greater than the maximum • Schedule, up to a maximum fee of $0.32 fee.30 With respect to Section III pricing When the PIXL Order is contra to the Initiating Order a Customer PIXL per contract, would be assessed $0.30 related to Singly Listed Options, the fees per contract, except for Customers, who for PIXL pricing are the Section III fees Order will be assessed $0.00 and non- Customer PIXL Orders will be assessed are not assessed a fee, when a PIXL and this will remain the same. Order is contra an Initiating Order. The Exchange is proposing to amend $0.30 per contract. • When a PIXL Order is contra to a When a PIXL Order is contra to a PIXL the PIXL pricing. The Exchange Auction Responder a Customer PIXL proposes to continue to assess a $0.07 PIXL Auction Responder, a Customer PIXL Order will be assessed $0.00, other Order would be assessed $0.00 (which per contract Initiating Order fee, unless is the case today), and other market the market participant has greater than market participants will be assessed $0.30 per contract, and a Responder will participants would be assessed $0.30 275,000 contracts per day in a month of per contract as well as the Responder, Threshold Volume in the Customer be assessed $0.30 per contract, unless the Responder is a Customer, in which unless the Responder is a Customer, in Rebate Program, in which case a which case there is no fee. When a PIXL reduced fee of $0.05 per contract fee case the fee will be $0.00 per contract. • When a PIXL Order is contra to a Order is contra to a resting order or would be assessed for the Initiating resting order or quote a Customer PIXL quote the Customer would be assessed Order. With respect to the PIXL Order, Order will be assessed $0.00, other no fee, all other market participants the Exchange is amending the PIXL fees market participants will be assessed would be assessed $0.30 per contract $0.30 per contract and the resting order and the resting order or quote would 27 The Rebate for Adding Liquidity is $0.26 per continue to be assessed the Options contract for a Customer, $0.23 per contract for a or quote will be assessed the Specialist, Market Maker or Professional. A Firm appropriate Options Transaction Charge Transaction Charges in Section II. The and Broker-Dealer do not receive a Rebate for in Section II. impact of these amendments with Adding Liquidity. See Section I, Part A of the In analyzing the impact of these regard to non-Customer market Pricing Schedule. participants is that a Professional which 28 amendments, the Exchange’s Id. today is assessed a $0.25 per contract 29 The Fees for Removing Liquidity are as follows: amendments to the Initiating Order Customers are assessed $0.43 per contract, and all provides market participants the Options Transaction Charge in both other market participants are assessed $0.45 per opportunity to lower the fee by Penny Pilot and non-Penny Pilot contract, therefore all market participants today are transacting a greater number of Options would pay an increased fee of assessed the maximum fee of $0.32 per contract. $0.30 per contract, a Specialist and See Section I, Part A. Customer Volume. With respect to the 30 The Broker-Dealer Options Transaction Charge Select Symbols (Section I), the Exchange Market Maker that today are assessed a for a Penny Pilot Options is $0.45 per contract and today assesses a PIXL Order the Options $0.60 per contact in a non-Penny Pilot Option. The Transaction Charges in Section II with 31 The Fee for Adding Liquidity in Section I is Firm Options Transaction Charge in a Penny Pilot $0.05 per contact for Firms and Broker-Dealers. All Option is $0.40 per contract and $0.45 per contact a maximum fee of $0.32 per contract. other market participants are not assessed a Fee for in a non-Penny Pilot Option. See Section II in the When a non-Customer PIXL order is Adding Liquidity. See Section I, Part A of the Pricing Schedule. contra to the Initiating Order a non- Pricing Schedule.

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$0.22 per contract Options Transaction fee (from $0.12 to $0.16 per contract) other order types will receive the same Charge in a Penny Pilot and a $0.23 per once the Monthly Market Maker Cap is or higher rebates as described in the contract Options Transaction Charge in exceeded and a Specialist or Market purpose section.36 With respect to the a non-Penny Pilot Option would pay an Maker is contra an electronic Customer Average Daily Volume calculation, the increased fee of $0.30 per contract, a order is reasonable because the Exchange believes that the amendments Broker-Dealer and Firm which today are Exchange is affording Specialists and are reasonable, equitable and not assessed $0.32 per contact would pay Market Makers the opportunity to reach unfairly discriminatory because Select decreased fees of $0.30 per contract. In the Monthly Market Maker Cap earlier, Symbols will now be included with the addition, the Exchange is proposing to by including PIXL orders. Also, the fee exception of Simple Orders that remove note that the Monthly Market Maker is assessed only when the Monthly liquidity (Simple Orders that add Cap will apply except with respect to Market Maker Cap is exceeded and liquidity will be included in Threshold the Initiating Order fee which is not Specialists and Market Makers are on Volume) 37 included in the cap. PIXL Orders are the contra-side of an electronically- and rebates will now be paid proposed as part of the Monthly Market delivered and executed Customer on PIXL volume. The Exchange believes Maker Cap as noted in this filing. The order.35 The Exchange believes that this the amendments are reasonable because Exchange also proposes to specify in the amendment will also permit the the Exchange is offering market Pricing Schedule that all other fees Exchange to pay certain Customer participants an opportunity to earn discussed in Section II, including Rebates based on tiers and average daily rebates on order not subject to the Payment for Order Flow and surcharges volume thresholds which are described Customer Rebate Program today and will also apply as appropriate.32 The below and now also permits rebates for market participants also have an Exchange believes that the PIXL fees PIXL Orders. opportunity to earn higher rebates. The which will be the same for all market The Exchange’s proposal to increase Exchange believes that the amendments participants, except Customers, in each the fee (from $0.12 to $0.16 per contract) are equitable and not unfairly Section I and II should encourage the which is assessed once a Specialist or discriminatory because they will be initiation of price improvement Market Maker has reached the Monthly uniformly applied to all market auctions. Market Maker Cap is equitable and not participants. 2. Statutory Basis unfairly discriminatory because all Specialist and Market Makers would be Section III Amendments—PIXL The Exchange believes that its uniformly assessed the fee as long as The Exchange believes that the proposal to amend its Pricing Schedule they have reached the cap and are amendments to the PIXL pricing are is consistent with Section 6(b) of the contra to an electronically-delivered 33 reasonable, because the Exchange is Act in general, and furthers the Customer order. objectives of Section 6(b)(4) of the Act 34 proposing to simplify the PIXL pricing in particular, in that it is an equitable Customer Rebate Program to assess no fees to Customers uniformly allocation of reasonable fees and other The Exchange’s proposal to amend and to assess all non-Customer market charges among Exchange members and the current three tier Customer Rebate participants the same fees except with other persons using its facilities. Program to a four tier program is respect to Section II when a PIXL Order is contra to a resting order or quote. In Section II Amendments reasonable, equitable and not unfairly discriminatory because it will further this case the resting contra-side orders Monthly Market Maker Cap incentivize a greater number of market or quotes will continue to pay the The Exchange’s clarification to the participants to take advantage of the appropriate Options Transaction Monthly Market Maker Cap is Customer Rebate Program because of the Charges in Section II. Also, while there reasonable, equitable and not unfairly added categories of orders eligible for will be fee increases for Professionals, discriminatory because it would clarify the Customer Rebate Program and also Specialists and Market Makers in in the Pricing Schedule that the fees because the Exchange is offering market Section II, the Exchange is now related to an order or quote that is participants the opportunity to obtain proposing to include PIXL Orders as contra to a PIXL Order or specifically higher rebates with the addition of the orders that are eligible for rebates in the responding to a PIXL auction is new tier. Customer Rebate Program. The The Exchange also believes that the included in the Monthly Market Maker Exchange also believes that its fees are amendments to the Customer Rebate Cap calculation. In addition, all reasonable because they are within the Specialists and Market Makers are Program are reasonable because the Customer liquidity that this program range of fees that are assessed by the afforded the opportunity to cap their International Securities Exchange, LLC fees. attracts to the market benefits all market (‘‘ISE’’) for price improving orders The Exchange’s proposal to amend a participants. The program now includes fee which is assessed once a Specialist new categories of orders that were not or Market Maker has reached the previously included in the Average 36 These orders will now be subject to a decreased Monthly Market Maker Cap is Daily Volume Threshold such as PIXL rebate of $0.07 per contract for volume between reasonable because the Exchange is now Orders in Section II and Complex 50,000 to 99,999 contracts in a month. Today those including fees related to an order or Orders in Select Symbols (Select I) that orders receive a rebate of $0.10 per contract. Simple quote that is contra to a PIXL Order or add liquidity. Orders in Non-Penny Pilot Options that add specifically responding to a PIXL The Exchange also believes that the liquidity will continue to receive no rebate for amendments to the Customer Rebate volume between 0 to 49,999 contracts. Also, the auction in the Monthly Market Maker $0.10 per contract rebate will remain the same for Cap. The proposal to remove the Program are equitable because other overs 100,000 but the tier will now be amended to exclusion for PIXL Orders and increase than the Simple Orders in Non-Penny volume between 100,000 to 274,999 contracts. The Pilot Options that add liquidity, which $0.12 per contract rebate for volume over 275,000 32 Payment for Order Flow fees apply today as today are included in Category C, all contracts will also apply to these orders. well. 37 Complex Orders in Select Symbols are 33 15 U.S.C. 78f(b). 35 The contra-side Customer is not assessed a fee included in the Threshold Volume today and will 34 15 U.S.C. 78f(b)(4). in this scenario. continue to be included with this amendment.

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(‘‘Fees for Responses to Crossing charged and rebates paid by other Securities and Exchange Commission, Orders.’’) 38 venues and therefore must continue to 100 F Street NE., Washington, DC The Exchange also believes that it is be reasonable and equitably allocated to 20549–1090. reasonable to continue to assess a $0.07 those members that opt to direct orders per contract Initiating Order fee, unless to the Exchange rather than competing All submissions should refer to File the market participant has greater than venues. Number SR–Phlx–2012–121. This file 275,000 contracts per day in a month of number should be included on the Threshold Volume in the Customer B. Self-Regulatory Organization’s subject line if email is used. To help the Rebate Program, in which case a Statement on Burden on Competition Commission process and review your decreased $0.05 per contract fee would The Exchange does not believe that comments more efficiently, please use be assessed for the Initiating Order, the proposed rule change will impose only one method. The Commission will because this incentivizes market any burden on competition not post all comments on the Commission’s participants to send additional necessary or appropriate in furtherance Internet Web site (http://www.sec.gov/ Customer PIXL Order flow to the of the purposes of the Act. The rules/sro.shtml). Copies of the Exchange which reduces the market Exchange believes that the new submission, all subsequent participant’s fees once a certain volume Customer Rebate Program will attract amendments, all written statements (275,000 contracts per day in a month) additional Customer order flow to the with respect to the proposed rule is obtained and the Customer liquidity benefit of all market participants. change that are filed with the benefits all market participants. Commission, and all written The Exchange believes that the C. Self-Regulatory Organization’s communications relating to the amendments to PIXL pricing in Select Statement on Comments on the proposed rule change between the Symbols (Section I) are equitable and Proposed Rule Change Received From not unfairly discriminatory because the Members, Participants, or Others Commission and any person, other than fees will be lower for all market No written comments were either those that may be withheld from the participants that today pay $0.32 per solicited or received. public in accordance with the contract and Customer PIXL Orders will provisions of 5 U.S.C. 552, will be III. Date of Effectiveness of the remain free. Responder fees will also be available for Web site viewing and Proposed Rule Change and Timing for reduced from $0.32 to $0.30 per printing in the Commission’s Public Commission Action contract. The Exchange believes that the Reference Room, 100 F Street NE., amendments to the PIXL pricing in The foregoing rule change has become Washington, DC 20549, on official Section II symbols are equitable and not effective pursuant to Section business days between the hours of unfairly discriminatory because 19(b)(3)(A)(ii) of the Act.39 At any time 10:00 a.m. and 3:00 p.m. Copies of the Customer PIXL Orders will remain free within 60 days of the filing of the filing also will be available for in all instances and all non-Customer proposed rule change, the Commission inspection and copying at the principal market participant PIXL Orders will be summarily may temporarily suspend office of the Exchange. All comments assessed a fee of $0.30 per contract fee such rule change if it appears to the received will be posted without change; uniformly. The Exchange also believes Commission that such action is the Commission does not edit personal that it is equitable and not unfairly necessary or appropriate in the public identifying information from discriminatory to continue to assess a interest, for the protection of investors, submissions. You should submit only $0.07 per contract Initiating Order fee, or otherwise in furtherance of the information that you wish to make unless the market participant has greater purposes of the Act. If the Commission available publicly. All submissions than 275,000 contracts per day in a takes such action, the Commission shall should refer to File Number SR–Phlx– institute proceedings to determine month of Threshold Volume in the 2012–121 and should be submitted on whether the proposed rule should be Customer Rebate Program, in which or before November 8, 2012. case a $0.05 per contract Initiating approved or disapproved. For the Commission, by the Division of Order fee would be assessed, because IV. Solicitation of Comments these fees would be assessed uniformly Trading and Markets, pursuant to delegated on all market participants and would Interested persons are invited to authority.40 further incentivize market participants submit written data, views, and Kevin M. O’Neill, to transact PIXL Orders. In addition, the arguments concerning the foregoing, Deputy Secretary. including whether the proposed rule differential between the Initiating Order [FR Doc. 2012–25651 Filed 10–17–12; 8:45 am] change is consistent with the Act. and the Responders to a PIXL Order is BILLING CODE 8011–01–P $0.23 or $0.25 per contract as proposed, Comments may be submitted by any of which is less than or equal to the the following methods: current differential. Electronic Comments The Exchange operates in a highly • competitive market, comprised of ten Use the Commission’s Internet exchanges, in which market participants comment form (http://www.sec.gov/ can easily and readily direct order flow rules/sro.shtml); or • to competing venues if they deem fee Send an email to rule- levels at a particular venue to be [email protected]. Please include File excessive or rebates to be inadequate. Number SR–Phlx–2012–121 on the Accordingly, the fees that are assessed subject line. and the rebates paid by the Exchange Paper Comments must remain competitive with fees • Send paper comments in triplicate 38 ISE assesses a range of Fees for Responses to to Elizabeth M. Murphy, Secretary, Crossing Orders from $0.18 to $0.40 per contract depending on the symbol. 39 15 U.S.C. 78s(b)(3)(A)(ii). 40 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s $0.0023 per share executed to $0.0024 COMMISSION Statement of the Purpose of, and per share executed. Statutory Basis for, the Proposed Rule • The fee for SAVE and SOLV orders that execute at NYSE will increase from [Release No. 34–68045; File No. SR– Change NASDAQ–2012–115] $0.0023 per share executed to $0.0025 1. Purpose per share executed. Self-Regulatory Organizations; The NASDAQ is amending its fee 2. Statutory Basis NASDAQ Stock Market LLC; Notice of schedule governing order routing to NASDAQ believes that the proposed Filing and Immediate Effectiveness of modify fees for routing orders to the New York Stock Exchange (‘‘NYSE’’) rule change is consistent with the Proposed Rule Change To Amend provisions of Section 6 of the Act,4 in NASDAQ’s Schedule of Execution and NASDAQ OMX PSX (‘‘PSX’’) to reflect announced price changes by general, and with Sections 6(b)(4) and Fees for Order Routing Under Rule 5 those venues.3 All of the changes 6(b)(5) of the Act, in particular, in that 7018 pertain to securities priced at $1 or more it provides for the equitable allocation of reasonable dues, fees and other October 12, 2012. per share. With respect to orders that route to charges among members and issuers and Pursuant to Section 19(b)(1) of the PSX using the TFTY, SOLV, or SAVE other persons using any facility or Securities Exchange Act of 1934 routing strategies, the fee will be fixed system which NASDAQ operates or 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, at $0.0028 per share executed. The controls, and is not designed to permit notice is hereby given that on October change reflects the fact that PSX has unfair discrimination between 1, 2012, The NASDAQ Stock Market replaced provisions under which the fee customers, issuers, brokers, or dealers. LLC (‘‘NASDAQ’’ or the ‘‘Exchange’’) charged to access liquidity vary [sic] The changes to routing fees are filed with the Securities and Exchange considerably based on the listing venue reasonable because the proposed fees for Commission (‘‘Commission’’) a of the security being traded, with a routing orders to NYSE and PSX reflect proposed rule change as described in simpler fee schedule under which changes in the fees that will be charged Items I, II, and III below, which Items NASDAQ would be charged either by NYSE or PSX to NASDAQ with have been prepared by the Exchange. $0.0028 or $0.0030 per share executed respect to such orders. The changes are The Commission is publishing this with respect to the orders it routes to consistent with an equitable allocation notice to solicit comments on the PSX. Accordingly, NASDAQ is opting to of fees because they will bring the economic attributes of routing orders to proposed rule change from interested replace the current pass-through fee for NYSE and PSX in line with the cost of persons. orders routed to PSX using the TFTY, SOLV, or SAVE routing strategies with executing orders there. Finally, the I. Self-Regulatory Organization’s a flat rate of $0.0028 that will either changes are not unfairly discriminatory Statement of the Terms of the Substance recoup the applicable routing charge or because they solely apply to members of the Proposed Rule Change provide routing at a slight discount. that opt to route orders to NYSE or PSX. Finally, NASDAQ notes that it Second, with respect to orders routed NASDAQ proposes to amend operates in a highly competitive market to NYSE, NASDAQ is making the NASDAQ’s fee schedule governing in which market participants can following changes: order routing under Rule 7018. readily favor competing venues if they • The fee for DOTI, STGY, SCAN, NASDAQ will implement the proposed deem fee levels at a particular venue to SKNY or SKIP orders that execute at change on October 1, 2012. The text of be excessive. In such an environment, NYSE will increase from $0.0023 per NASDAQ must continually adjust its the proposed rule change is available at share executed to $0.0025 per share http://nasdaq.cchwallstreet.com, at fees to remain competitive with other executed. exchanges and with alternative trading NASDAQ’s principal office, and at the • The fee for directed intermarket Commission’s Public Reference Room. systems that have been exempted from sweep orders that execute at NYSE will compliance with the statutory standards II. Self-Regulatory Organization’s increase from $0.0025 per share applicable to exchanges. NASDAQ Statement of the Purpose of, and executed to $0.0027 per share executed. • believes that the proposed rule change Statutory Basis for, the Proposed Rule The fee for other directed orders reflects this competitive environment Change that execute at NYSE will increase from because it is designed to ensure that the $0.0024 per share executed to $0.0026 charges for use of the NASDAQ routing In its filing with the Commission, the per share executed for members with an facility to route to NYSE or PSX reflect self-regulatory organization included average daily volume through the changes in the cost of such routing. statements concerning the purpose of, Nasdaq Market Center in all securities and basis for, the proposed rule change during the month of more than 35 B. Self-Regulatory Organization’s and discussed any comments it received million shares of liquidity provided Statement on Burden on Competition on the proposed rule change. The text through one or more MPIDs; and will NASDAQ does not believe that the of those statements may be examined at increase from $0.0025 per share proposed rule change will result in any the places specified in Item IV below. executed to $0.0027 per share executed burden on competition that is not for other members. necessary or appropriate in furtherance The Exchange has prepared summaries, • set forth in sections A, B, and C below, The fee for MOPP orders that of the purposes of the Act, as amended. of the most significant parts of such execute at NYSE will increase from Because the market for order routing is $0.0025 per share executed to $0.0027 statements. extremely competitive, members may per share executed. readily opt to disfavor NASDAQ’s • The fee for TFTY orders that routing services if they believe that execute at NYSE will increase from alternatives offer them better value. For

1 15 U.S.C. 78s(b)(1). 3 See SR–NYSE–2012–50 (September 26, 2012); 4 15 U.S.C. 78f. 2 17 CFR 240.19b–4. SR–Phlx–2012–119 (October 1, 2012). 5 15 U.S.C. 78f(b)(4) and (5).

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this reason and the reasons discussed in post all comments on the Commission’s Exchange while also providing the connection with the statutory basis for Internet Web site (http://www.sec.gov/ potential for price improvement to such the proposed rule change, NASDAQ rules/sro.shtml). Copies of the order flow. The proposed rule change does not believe that the proposed submission, all subsequent was published for comment in the changes will impair the ability of amendments, all written statements Federal Register on August 31, 2012.3 members or competing order execution with respect to the proposed rule The Commission received one comment venues to maintain their competitive change that are filed with the on the proposal.4 Commission, and all written standing in the financial markets. 5 communications relating to the Section 19(b)(2) of the Act provides C. Self-Regulatory Organization’s proposed rule change between the that within 45 days of the publication of Statement on Comments on the Commission and any person, other than notice of filing of a proposed rule Proposed Rule Change Received From those that may be withheld from the change, or within such longer period up Members, Participants, or Others public in accordance with the to 90 days as the Commission may Written comments were neither provisions of 5 U.S.C. 552, will be designate if it finds such longer period solicited nor received. available for Web site viewing and to be appropriate and publishes its printing in the Commission’s Public reasons for so finding or as to which the III. Date of Effectiveness of the Reference Room on official business Proposed Rule Change and Timing for self-regulatory organization consents, days between the hours of 10:00 a.m. Commission Action the Commission shall either approve the and 3:00 p.m. Copies of such filing also proposed rule change, disapprove the The foregoing rule change has become will be available for inspection and proposed rule change, or institute effective pursuant to Section copying at the principal offices of the proceedings to determine whether the 6 19(b)(3)(A)(ii) of the Act. At any time Exchange. All comments received will proposed rule change should be within 60 days of the filing of the be posted without change; the disapproved. The 45th day for this filing proposed rule change, the Commission Commission does not edit personal is October 15, 2012. summarily may temporarily suspend identifying information from such rule change if it appears to the submissions. You should submit only The Commission is extending the 45- Commission that such action is information that you wish to make day time period for Commission action necessary or appropriate in the public available publicly. All submissions on the proposed rule change. The interest, for the protection of investors, should refer to File Number SR– Commission finds that it is appropriate or otherwise in furtherance of the NASDAQ–2012–115, and should be to designate a longer period to take purposes of the Act. If the Commission submitted on or before November 8, action on the proposed rule change so takes such action, the Commission shall 2012. that it has sufficient time to consider the institute proceedings to determine For the Commission, by the Division of Exchange’s proposal, which would whether the proposed rule should be Trading and Markets, pursuant to delegated allow the Exchange to utilize non- approved or disapproved. authority.7 displayed orders that offer price IV. Solicitation of Comments Kevin M. O’Neill, improvement to retail order flow Deputy Secretary. potentially in sub-penny increments, Interested persons are invited to [FR Doc. 2012–25601 Filed 10–17–12; 8:45 am] and the comment letter that has been submit written data, views, and BILLING CODE 8011–01–P submitted in connection with it. arguments concerning the foregoing, including whether the proposed rule Accordingly, pursuant to Section 19(b)(2) of the Act,6 the Commission change is consistent with the Act. SECURITIES AND EXCHANGE Comments may be submitted by any of COMMISSION designates November 29, 2012 as the the following methods: date by which the Commission should [Release No. 34–68049; File No. SR–BYX– either approve or disapprove, or Electronic Comments 2012–019] institute proceedings to determine • Use the Commission’s Internet Self-Regulatory Organizations; BATS whether to disapprove, the proposed comment form (http://www.sec.gov/ rule change. rules/sro.shtml); or Y-Exchange, Inc.; Notice of • Send an email to rule-comments@ Designation of a Longer Period for For the Commission, by the Division of sec.g gov. Please include File Number Commission Action on Proposed Rule Trading and Markets, pursuant to delegated SR–NASDAQ–2012–115 on the subject Change To Adopt a Retail Price authority.7 line. Improvement Program Kevin M. O’Neill, Paper Comments October 12, 2012. Deputy Secretary. On August 14, 2012, BATS Y- [FR Doc. 2012–25652 Filed 10–17–12; 8:45 am] • Send paper comments in triplicate Exchange, Inc. (the ‘‘Exchange’’ or BILLING CODE 8011–01–P to Elizabeth M. Murphy, Secretary, ‘‘BYX’’) filed with the Securities and Securities and Exchange Commission, Exchange Commission (‘‘Commission’’) 100 F Street NE., Washington, DC pursuant to Section 19(b)(1) of the 20549–1090. 3 See Securities Exchange Act Release No. 67734 Securities Exchange Act of 1934 (the (August 27, 2012), 77 FR 53242 (SR–BYX–2012– All submissions should refer to File ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a Number SR–NASDAQ–2012–115. This 019). proposed rule change to establish a 4 See Letter from Theodore R. Lazo, Managing file number should be included on the Retail Price Improvement (‘‘RPI’’) Director and Associate General Counsel, Securities subject line if email is used. To help the Program (‘‘proposed rule change’’) to Industry and Financial Markets Association, to Commission process and review your attract additional retail order flow to the Elizabeth M. Murphy, Secretary, Commission, dated comments more efficiently, please use September 26, 2012 (‘‘SIFMA Letter’’). only one method. The Commission will 7 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). 6 15 U.S.C. 78s(b)(2). 6 15 U.S.C. 78s(b)(3)(a)(ii). 2 17 CFR 240.19b–4. 7 17 CFR 200.30–3(a)(12).

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DEPARTMENT OF TRANSPORTATION each year. If you want acknowledgment has stable control of his diabetes using that we received your comments, please insulin, and is able to drive a CMV Federal Motor Carrier Safety include a self-addressed, stamped safely. Administration envelope or postcard or print the Mr. Astle meets the vision [Docket No. FMCSA–2012–0283] acknowledgement page that appears requirements of 49 CFR 391.41(b)(10). after submitting comments on-line. His optometrist examined him in 2012 Qualification of Drivers; Exemption Privacy Act: Anyone may search the and certified that he does not have Applications; Diabetes Mellitus electronic form of all comments diabetic retinopathy. He holds a Class A received into any of our dockets by the Commercial Driver’s License from Ohio. AGENCY: Federal Motor Carrier Safety name of the individual submitting the Gregory L. Faison Administration (FMCSA). comment (or of the person signing the ACTION: Notice of applications for comment, if submitted on behalf of an Mr. Faison, 39, has had ITDM since exemption from the diabetes mellitus association, business, labor union, etc.). 2012. His endocrinologist examined him requirement; request for comments. You may review DOT’s Privacy Act in 2012 and certified that he has had no Statement for the FDMS published in severe hypoglycemic reactions resulting SUMMARY: FMCSA announces receipt of the Federal Register on January 17, in loss of consciousness, requiring the applications from 16 individuals for 2008 (73 FR 3316), or you may visit assistance of another person, or exemption from the prohibition against http://edocket.access.gpo.gov/2008/pdf/ resulting in impaired cognitive function persons with insulin-treated diabetes E8-785.pdf. that occurred without warning in the mellitus (ITDM) operating commercial FOR FURTHER INFORMATION CONTACT: past 12 months and no recurrent (2 or motor vehicles (CMVs) in interstate Elaine M. Papp, Chief, Medical more) severe hypoglycemic episodes in commerce. If granted, the exemptions Programs Division, (202) 366–4001, the last 5 years. His endocrinologist would enable these individuals with [email protected], FMCSA, certifies that Mr. Faison understands ITDM to operate CMVs in interstate Department of Transportation, 1200 diabetes management and monitoring, commerce. New Jersey Avenue SE., Room W64– has stable control of his diabetes using insulin, and is able to drive a CMV DATES: Comments must be received on 224, Washington, DC 20590–0001. or before November 19, 2012. Office hours are from 8:30 a.m. to 5 safely. Mr. Faison meets the vision requirements of 49 CFR 391.41(b)(10). ADDRESSES: You may submit comments p.m., Monday through Friday, except Federal holidays. His optometrist examined him in 2012 bearing the Federal Docket Management and certified that he does not have SUPPLEMENTARY INFORMATION: System (FDMS) Docket No. FMCSA– diabetic retinopathy. He holds a Class C 2012–0283 using any of the following Background operator’s license from Maryland. methods: • Federal eRulemaking Portal: Go to Under 49 U.S.C. 31136(e) and 31315, Theodore A. Garsombke FMCSA may grant an exemption from http://www.regulations.gov. Follow the Mr. Garsombke, 70, has had ITDM the Federal Motor Carrier Safety on-line instructions for submitting since 2012. His endocrinologist Regulations for a 2-year period if it finds comments. examined him in 2012 and certified that ‘‘such exemption would likely achieve a • Mail: Docket Management Facility; he has had no severe hypoglycemic level of safety that is equivalent to or U.S. Department of Transportation, 1200 reactions resulting in loss of greater than the level that would be New Jersey Avenue SE., West Building consciousness, requiring the assistance achieved absent such exemption.’’ The Ground Floor, Room W12–140, of another person, or resulting in statute also allows the Agency to renew Washington, DC 20590–0001. impaired cognitive function that exemptions at the end of the 2-year • Hand Delivery: West Building occurred without warning in the past 12 period. The 16 individuals listed in this Ground Floor, Room W12–140, 1200 months and no recurrent (2 or more) notice have recently requested such an New Jersey Avenue SE., Washington, severe hypoglycemic episodes in the exemption from the diabetes prohibition DC, between 9 a.m. and 5 p.m., Monday last 5 years. His endocrinologist certifies in 49 CFR 391.41(b)(3), which applies to through Friday, except Federal that Mr. Garsombke understands drivers of CMVs in interstate commerce. Holidays. diabetes management and monitoring, Accordingly, the Agency will evaluate • Fax: 1–202–493–2251. has stable control of his diabetes using the qualifications of each applicant to Instructions: Each submission must insulin, and is able to drive a CMV determine whether granting the include the Agency name and the safely. Mr. Garsombke meets the vision exemption will achieve the required docket numbers for this notice. Note requirements of 49 CFR 391.41(b)(10). level of safety mandated by the statutes. that all comments received will be His ophthalmologist examined him in posted without change to http://www. Qualifications of Applicants 2012 and certified that he does not have regulations.gov, including any personal diabetic retinopathy. He holds a Class A James D. Astle information provided. Please see the CDL from Wisconsin. Privacy Act heading below for further Mr. Astle, age 52, has had ITDM since information. 2012. His endocrinologist examined him Thomas A. Goodman Docket: For access to the docket to in 2012 and certified that he has had no Mr. Goodman, 39, has had ITDM read background documents or severe hypoglycemic reactions resulting since 2011. His endocrinologist comments, go to http://www. in loss of consciousness, requiring the examined him in 2012 and certified that regulations.gov at any time or Room assistance of another person, or he has had no severe hypoglycemic W12–140 on the ground level of the resulting in impaired cognitive function reactions resulting in loss of West Building, 1200 New Jersey Avenue that occurred without warning in the consciousness, requiring the assistance SE., Washington, DC, between 9 a.m. past 12 months and no recurrent (2 or of another person, or resulting in and 5 p.m., Monday through Friday, more) severe hypoglycemic episodes in impaired cognitive function that except Federal holidays. The Federal the last 5 years. His endocrinologist occurred without warning in the past 12 Docket Management System (FDMS) is certifies that Mr. Astle understands months and no recurrent (2 or more) available 24 hours each day, 365 days diabetes management and monitoring, severe hypoglycemic episodes in the

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last 5 years. His endocrinologist certifies severe hypoglycemic episodes in the of another person, or resulting in that Mr. Goodman understands diabetes last 5 years. His endocrinologist certifies impaired cognitive function that management and monitoring, has stable that Mr. McCartney understands occurred without warning in the past 12 control of his diabetes using insulin, diabetes management and monitoring, months and no recurrent (2 or more) and is able to drive a CMV safely. Mr. has stable control of his diabetes using severe hypoglycemic episodes in the Goodman meets the vision requirements insulin, and is able to drive a CMV last 5 years. His endocrinologist certifies of 49 CFR 391.41(b)(10). His optometrist safely. that Mr. Osterback understands diabetes examined him in 2012 and certified that Mr. McCartney meets the vision management and monitoring, has stable he does not have diabetic retinopathy. requirements of 49 CFR 391.41(b)(10). control of his diabetes using insulin, He holds a Class A CDL from His optometrist examined him in 2012 and is able to drive a CMV safely. Mr. Pennsylvania. and certified that he does not have Osterback meets the vision requirements diabetic retinopathy. He holds a Class C of 49 CFR 391.41(b)(10). His optometrist Kenneth M. Hansen operator’s License from Pennsylvania. examined him in 2012 and certified that Mr. Hansen, 57, has had ITDM since he does not have diabetic retinopathy. Jerry W. McFarland 2012. His endocrinologist examined him He holds a Class B CDL from in 2012 and certified that he has had no Mr. McFarland, 69, has had ITDM Washington. severe hypoglycemic reactions resulting since 2009. His endocrinologist in loss of consciousness, requiring the examined him in 2012 and certified that Francis J. Pollock assistance of another person, or he has had no severe hypoglycemic Mr. Pollock, 58, has had ITDM since resulting in impaired cognitive function reactions resulting in loss of 2007. His endocrinologist examined him that occurred without warning in the consciousness, requiring the assistance in 2012 and certified that he has had no past 12 months and no recurrent (2 or of another person, or resulting in severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in impaired cognitive function that in loss of consciousness, requiring the the last 5 years. His endocrinologist occurred without warning in the past 12 assistance of another person, or certifies that Mr. Hansen understands months and no recurrent (2 or more) resulting in impaired cognitive function diabetes management and monitoring, severe hypoglycemic episodes in the that occurred without warning in the has stable control of his diabetes using last 5 years. His endocrinologist certifies past 12 months and no recurrent (2 or insulin, and is able to drive a CMV that Mr. McFarland understands more) severe hypoglycemic episodes in safely. Mr. Hansen meets the vision diabetes management and monitoring, the last 5 years. His endocrinologist requirements of 49 CFR 391.41(b)(10). has stable control of his diabetes using certifies that Mr. Pollock understands His optometrist examined him in 2012 insulin, and is able to drive a CMV diabetes management and monitoring, and certified that he does not have safely. has stable control of his diabetes using diabetic retinopathy. He holds a Class A Mr. McFarland meets the vision insulin, and is able to drive a CMV CDL from Iowa. requirements of 49 CFR 391.41(b)(10). safely. Mr. Pollock meets the vision His ophthalmologist examined him in requirements of 49 CFR 391.41(b)(10). Ronald D. Johnston 2012 and certified that he does not have His optometrist examined him in 2012 Mr. Johnston, 38, has had ITDM since diabetic retinopathy. He holds a Class A and certified that he does not have 2011. His endocrinologist examined him CDL from Oregon. diabetic retinopathy. He holds a Class A in 2012 and certified that he has had no CDL from Massachusetts. severe hypoglycemic reactions resulting Fred Nelson, Jr. in loss of consciousness, requiring the Mr. Nelson, 67, has had ITDM since Dwaine H. Sandlin assistance of another person, or 2012. His endocrinologist examined him Mr. Sandlin, 58, has had ITDM since resulting in impaired cognitive function in 2012 and certified that he has had no 2009. His endocrinologist examined him that occurred without warning in the severe hypoglycemic reactions resulting in 2012 and certified that he has had no past 12 months and no recurrent (2 or in loss of consciousness, requiring the severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in assistance of another person, or in loss of consciousness, requiring the the last 5 years. His endocrinologist resulting in impaired cognitive function assistance of another person, or certifies that Mr. Johnston understands that occurred without warning in the resulting in impaired cognitive function diabetes management and monitoring, past 12 months and no recurrent (2 or that occurred without warning in the has stable control of his diabetes using more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or insulin, and is able to drive a CMV the last 5 years. His endocrinologist more) severe hypoglycemic episodes in safely. Mr. Johnston meets the vision certifies that Mr. Nelson understands the last 5 years. His endocrinologist requirements of 49 CFR 391.41(b)(10). diabetes management and monitoring, certifies that Mr. Sandlin understands His ophthalmologist examined him in has stable control of his diabetes using diabetes management and monitoring, 2012 and certified that he does not have insulin, and is able to drive a CMV has stable control of his diabetes using diabetic retinopathy. He holds a Class A safely. Mr. Nelson meets the vision insulin, and is able to drive a CMV CDL from Virginia. requirements of 49 CFR 391.41(b)(10). safely. Mr. Sandlin meets the vision His ophthalmologist examined him in requirements of 49 CFR 391.41(b)(10). Carl E. McCartney 2012 and certified that he does not have His optometrist examined him in 2012 Mr. McCartney, 73, has had ITDM diabetic retinopathy. He holds a Class C and certified that he does not have since 1999. His endocrinologist operator’s license from Pennsylvania. diabetic retinopathy. He holds a Class A examined him in 2012 and certified that CDL from Michigan. he has had no severe hypoglycemic Ricky L. Osterback reactions resulting in loss of Mr. Osterback, 55, has had ITDM Dan R. Stark consciousness, requiring the assistance since 2008. His endocrinologist Mr. Stark, 62, has had ITDM since of another person, or resulting in examined him in 2012 and certified that 2011. His endocrinologist examined him impaired cognitive function that he has had no severe hypoglycemic in 2012 and certified that he has had no occurred without warning in the past 12 reactions resulting in loss of severe hypoglycemic reactions resulting months and no recurrent (2 or more) consciousness, requiring the assistance in loss of consciousness, requiring the

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assistance of another person, or consciousness, requiring the assistance medical requirements that are deemed resulting in impaired cognitive function of another person, or resulting in medically necessary. that occurred without warning in the impaired cognitive function that The FMCSA concluded that all of the past 12 months and no recurrent (2 or occurred without warning in the past 12 operating, monitoring and medical more) severe hypoglycemic episodes in months and no recurrent (2 or more) requirements set out in the September 3, the last 5 years. His endocrinologist severe hypoglycemic episodes in the 2003 notice, except as modified, were in certifies that Mr. Stark understands last 5 years. His endocrinologist certifies compliance with section 4129(d). diabetes management and monitoring, that Mr. Zickefoose understands Therefore, all of the requirements set has stable control of his diabetes using diabetes management and monitoring, out in the September 3, 2003 notice, insulin, and is able to drive a CMV has stable control of his diabetes using except as modified by the notice in the safely. Mr. Stark meets the vision insulin, and is able to drive a CMV Federal Register on November 8, 2005 requirements of 49 CFR 391.41(b)(10). safely. Mr. Zickefoose meets the vision (70 FR 67777), remain in effect. His optometrist examined him in 2012 requirements of 49 CFR 391.41(b)(10). Issued on: October 9, 2012. and certified that he does not have His optometrist examined him in 2012 Larry W. Minor, diabetic retinopathy. He holds a Class D and certified that he does not have Associate Administrator for Policy. operator’s license from Minnesota. diabetic retinopathy. He holds a Class A CDL from West Virginia. [FR Doc. 2012–25681 Filed 10–17–12; 8:45 am] Chad E. Vanscoy BILLING CODE P Mr. Vanscoy, 41, has had ITDM since Request for Comments 2000. His endocrinologist examined him In accordance with 49 U.S.C. 31136(e) in 2012 and certified that he has had no and 31315, FMCSA requests public DEPARTMENT OF TRANSPORTATION severe hypoglycemic reactions resulting comment from all interested persons on Federal Railroad Administration in loss of consciousness, requiring the the exemption petitions described in assistance of another person, or this notice. We will consider all Notice of Availability of a Final General resulting in impaired cognitive function comments received before the close of Conformity Determination for the that occurred without warning in the business on the closing date indicated California High-Speed Train System past 12 months and no recurrent (2 or in the date section of the notice. Merced to Fresno Section more) severe hypoglycemic episodes in FMCSA notes that section 4129 of the the last 5 years. His endocrinologist Safe, Accountable, Flexible and AGENCY: Federal Railroad certifies that Mr. Vanscoy understands Efficient Transportation Equity Act: A Administration (FRA), United States diabetes management and monitoring, Legacy for Users requires the Secretary Department of Transportation (DOT). has stable control of his diabetes using to revise its diabetes exemption program ACTION: Notice. insulin, and is able to drive a CMV established on September 3, 2003 (68 FR 52441) 1. The revision must provide for SUMMARY: FRA is issuing this notice to safely. Mr. Vanscoy meets the vision advise the public that it issued a Final requirements of 49 CFR 391.41(b)(10). individual assessment of drivers with diabetes mellitus, and be consistent General Conformity Determination for His optometrist examined him in 2012 the Merced to Fresno Section of the and certified that he does not have with the criteria described in section 4018 of the Transportation Equity Act California High-Speed Train (HST) diabetic retinopathy. He holds a Class A System on September 18, 2012. FRA is CDL from Ohio. for the 21st Century (49 U.S.C. 31305). Section 4129 requires: (1) Elimination the lead Federal agency for compliance Gregory C. Watson of the requirement for 3 years of with federal environmental review Mr. Watson, 52, has had ITDM since experience operating CMVs while being requirements including the National 2008. His endocrinologist examined him treated with insulin; and (2) Environmental Policy Act (NEPA) and is in 2012 and certified that he has had no establishment of a specified minimum also the Federal agency with severe hypoglycemic reactions resulting period of insulin use to demonstrate responsibility for complying with the in loss of consciousness, requiring the stable control of diabetes before being Clean Air Act General Conformity assistance of another person, or allowed to operate a CMV. requirements. The California High resulting in impaired cognitive function In response to section 4129, FMCSA Speed Rail Authority (Authority), as the that occurred without warning in the made immediate revisions to the Project-proponent, is the lead state past 12 months and no recurrent (2 or diabetes exemption program established agency for the environmental review more) severe hypoglycemic episodes in by the September 3, 2003 notice. process for the Project. This the last 5 years. His endocrinologist FMCSA discontinued use of the 3-year environmental review includes certifies that Mr. Watson understands driving experience and fulfilled the completing an Environmental Impact diabetes management and monitoring, requirements of section 4129 while Statement (EIS) required under NEPA has stable control of his diabetes using continuing to ensure that operation of and an Environmental Impact Report insulin, and is able to drive a CMV CMVs by drivers with ITDM will (EIR) in compliance with the California safely. Mr. Watson meets the vision achieve the requisite level of safety Environmental Quality Act (CEQA) and requirements of 49 CFR 391.41(b)(10). required of all exemptions granted CEQA Guidelines. His optometrist examined him in 2012 under 49 USC. 31136 (e). FOR FURTHER INFORMATION CONTACT: Mr. and certified that he does not have Section 4129(d) also directed FMCSA David Valenstein, Chief, Environment diabetic retinopathy. He holds a Class A to ensure that drivers of CMVs with and Systems Planning Division, Office CDL from North Carolina. ITDM are not held to a higher standard of Railroad Policy and Development, than other drivers, with the exception of Federal Railroad Administration, U.S., Bailey G. Zickefoose, Jr. limited operating, monitoring and Department of Transportation, 1200 Mr. Zickefoose, 59 has had ITDM New Jersey Avenue SE., MS–20, since 2012. His endocrinologist 1 Section 4129(a) refers to the 2003 notice as a Washington, DC 20590 (telephone: 202– ‘‘final rule.’’ However, the 2003 notice did not issue 493–6368). examined him in 2012 and certified that a ‘‘final rule’’ but did establish the procedures and he has had no severe hypoglycemic standards for issuing exemptions for drivers with SUPPLEMENTARY INFORMATION: FRA reactions resulting in loss of ITDM. prepared a Draft General Conformity

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Determination pursuant to 40 CFR part California_HST_%20Merced_to_ service of the vessel FINALLY ENOUGH 93, subpart B, which establishes the Fresno.shtml. is: process for complying with the general Issued in Washington, DC, on October 15, Intended Commercial Use of Vessel: conformity requirements of the Clean 2012. Charter operations for sightseeing, Air Act. Consistent with those Karen J. Hedlund, wildlife viewing, entertainment and regulations, FRA published a notice in Deputy Administrator. sport fishing. Geographic Region: ‘‘California, the Federal Register on April 20, 2012 [FR Doc. 2012–25763 Filed 10–17–12; 8:45 am] Oregon and Washington.’’ The complete advising the public of the availability of BILLING CODE 4910–06–P the Draft Conformity Determination for application is given in DOT docket a 30-day review and comment period. MARAD–2012–0096 at http:// Copies of the Draft Conformity DEPARTMENT OF TRANSPORTATION www.regulations.gov. Interested parties Determination were made available with may comment on the effect this action the Final EIR/EIS at various locations in Maritime Administration may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag the Project area and were also posted to [Docket No. MARAD 2012 0096] the Authority and FRA’s Web sites. The vessels. If MARAD determines, in comment period on the Draft Requested Administrative Waiver of accordance with 46 U.S.C. 12121 and Conformity Determination closed on the Coastwise Trade Laws: Vessel MARAD’s regulations at 46 CFR part May 29, 2012. FRA received one FINALLY ENOUGH; Invitation for 388, that the issuance of the waiver will comment from the U.S. Environmental Public Comments have an unduly adverse effect on a U.S.- Protection Agency (USEPA), a response vessel builder or a business that uses AGENCY: Maritime Administration, U.S.-flag vessels in that business, a to which was included in the Final Department of Transportation. General Conformity Determination waiver will not be granted. Comments ACTION: Notice. published on September 18, 2012. should refer to the docket number of this notice and the vessel name in order SUMMARY: As authorized by 46 U.S.C. The Final General Conformity for MARAD to properly consider the 12121, the Secretary of Transportation, Determination was developed after comments. Comments should also state as represented by the Maritime extensive consultation with the San the commenter’s interest in the waiver Administration (MARAD), is authorized Joaquin Valley Air Pollution Control application, and address the waiver to grant waivers of the U.S.-build District (SJVAPCD), the Authority, and criteria given in § 388.4 of MARAD’s requirement of the coastwise laws under the U.S. Environmental Protection regulations at 46 CFR part 388. Agency. The analysis found that the certain circumstances. A request for Project’s potential emissions during the such a waiver has been received by Privacy Act Project construction period would MARAD. The vessel, and a brief Anyone is able to search the description of the proposed service, is exceed the General Conformity de electronic form of all comments listed below. minimis threshold for two precursor received into any of our dockets by the criteria pollutants, nitrogen oxides DATES: Submit comments on or before name of the individual submitting the (NOx) and volatile organic compounds November 19, 2012. comment (or signing the comment, if (VOC), a precursor for ozone. However, ADDRESSES: Comments should refer to submitted on behalf of an association, operation of the Project (i.e., operation docket number MARAD–2012 0096. business, labor union, etc.). You may of the high-speed train, once the Written comments may be submitted by review DOT’s complete Privacy Act infrastructure was constructed) would hand or by mail to the Docket Clerk, Statement in the Federal Register result in an overall reduction of regional U.S. Department of Transportation, published on April 11, 2000 (Volume emissions of all applicable air pollutants Docket Operations, M–30, West 65, Number 70; Pages 19477–78). and would not cause a localized Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., By Order of the Maritime Administrator. exceedence of an air quality standard. Dated: October 9, 2012. Since the Project will result in the Washington, DC 20590. You may also Julie P. Agarwal, exceedence of the de minimus send comments electronically via the Secretary, Maritime Administration. thresholds for the precursor criteria Internet at http://www.regulations.gov. pollutants listed above during the All comments will become part of this [FR Doc. 2012–25626 Filed 10–17–12; 8:45 am] construction phase, Project conformity docket and will be available for BILLING CODE 4910–81–P inspection and copying at the above with the applicable emission standards address between 10 a.m. and 5 p.m., will be accomplished through a E.T., Monday through Friday, except DEPARTMENT OF TRANSPORTATION combination of efforts to use cleaner- federal holidays. An electronic version than-average construction equipment of this document and all documents Maritime Administration and a Voluntary Emissions Reduction entered into this docket is available on Agreement (VERA) between the [Docket No. MARAD 2012 0097] the World Wide Web at http:// Authority and the SJVAPCD. The VERA www.regulations.gov. Requested Administrative Waiver of will offset the NOx and VOC emissions, the Coastwise Trade Laws: Vessel consistent with applicable regulatory FOR FURTHER INFORMATION CONTACT: FIRE BELLE; Invitation for Public requirements, by funding (by the Linda Williams, U.S. Department of Comments Project) local emissions reductions Transportation, Maritime projects such as replacement and/or Administration, 1200 New Jersey AGENCY: Maritime Administration, retrofit of existing diesel agricultural Avenue SE., Room W23–453, Department of Transportation. Washington, DC 20590. Telephone 202– pumps, farm tractors, heavy trucks, etc. ACTION: Notice. The Final General Conformity 366–0903, Email Determination is available for public [email protected]. SUMMARY: As authorized by 46 U.S.C. review on FRA’s Web site at http:// SUPPLEMENTARY INFORMATION: As 12121, the Secretary of Transportation, www.fra.dot.gov/rpd/freight/fp_ described by the applicant the intended as represented by the Maritime

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Administration (MARAD), is authorized comments. Comments should also state 655 Fifteenth Street NW., Washington, to grant waivers of the U.S.-build the commenter’s interest in the waiver DC 20005. requirement of the coastwise laws under application, and address the waiver FOR FURTHER INFORMATION CONTACT: certain circumstances. A request for criteria given in § 388.4 of MARAD’s Scott M. Zimmerman, (202) 245–0386. such a waiver has been received by regulations at 46 CFR part 388. Assistance for the hearing impaired is MARAD. The vessel, and a brief Privacy Act available through the Federal description of the proposed service, is Information Relay Service (FIRS) at listed below. Anyone is able to search the (800) 877–8339. electronic form of all comments DATES: Submit comments on or before SUPPLEMENTARY INFORMATION: received into any of our dockets by the November 19, 2012. Additional information is contained in name of the individual submitting the ADDRESSES: Comments should refer to the Board’s decision served October 18, comment (or signing the comment, if docket number MARAD–2012–0097. 2012, which is available on our Web site submitted on behalf of an association, Written comments may be submitted by at www.stb.dot.gov. business, labor union, etc.). You may hand or by mail to the Docket Clerk, review DOT’s complete Privacy Act Decided: October 9, 2012. U.S. Department of Transportation, Statement in the Federal Register By the Board, Chairman Elliott, Vice Docket Operations, M–30, West published on April 11, 2000 (Volume Chairman Mulvey, and Commissioner Building Ground Floor, Room W12–140, 65, Number 70; Pages 19477–78). Begeman. 1200 New Jersey Avenue SE., Jeffrey Herzig, By Order of the Maritime Administrator. Washington, DC 20590. You may also Clearance Clerk. send comments electronically via the Dated: October 11, 2012. [FR Doc. 2012–25650 Filed 10–17–12; 8:45 am] Internet at http://www.regulations.gov. Julie P. Agarwal, BILLING CODE 4915–01–P All comments will become part of this Secretary, Maritime Administration. docket and will be available for [FR Doc. 2012–25625 Filed 10–17–12; 8:45 am] inspection and copying at the above BILLING CODE 4910–81–P DEPARTMENT OF TRANSPORTATION address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except Surface Transportation Board federal holidays. An electronic version DEPARTMENT OF TRANSPORTATION of this document and all documents [Docket No. EP 552 (Sub-No. 16)] entered into this docket is available on Surface Transportation Board the World Wide Web at http:// Railroad Revenue Adequacy—2011 www.regulations.gov. [Docket No. FD 35644] Determination FOR FURTHER INFORMATION CONTACT: AGENCY: Surface Transportation Board. BNSF Railway Company—Acquisition Linda Williams, U.S. Department of and Operation Exemption—Nebraska ACTION: Notice of decision. Transportation, Maritime Northeastern Railway Company Administration, 1200 New Jersey SUMMARY: On October 16, 2012, the Avenue SE., Room W23–453, AGENCY: Surface Transportation Board. Board served a decision announcing the 2011 revenue adequacy determinations Washington, DC 20590. Telephone 202– ACTION: Notice of exemption. 366–0903, Email for the Nation’s Class I railroads. Two [email protected]. SUMMARY: The Board is granting an carriers, Norfolk Southern Combined Railroad Subsidiaries and Union Pacific SUPPLEMENTARY INFORMATION: As exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 Railroad Company, were found to be described by the applicant the intended revenue adequate. service of the vessel FIRE BELLE is: 6 U.S.C. 11323–25 for BNSF Railway pack sightseeing charters. Company (BNSF), a Class I rail carrier, DATES: Effective Date: This decision is Intended Commercial Use of Vessel: to acquire and operate a 120.4-mile rail effective on October 16, 2012. Geographic Region: Washington; Alaska line owned by Nebraska Northeastern FOR FURTHER INFORMATION CONTACT: Paul (excluding waters in Southeastern Railway Company (NENE), a Class III Aguiar, (202) 245–0323. Assistance for Alaska and waters north of a line rail carrier, between milepost 4.0, near the hearing impaired is available between Gore Point to Cape Suckling Ferry Station, Neb., and milepost 124.4, through Federal Information Relay [including the North Gulf Coast and at O’Neill, Neb. Upon consummation of Service (FIRS) at (800) 877–8339. Prince William Sound]). the authorized transaction, BNSF would SUPPLEMENTARY INFORMATION: The Board The complete application is given in replace NENE as the only rail carrier is required to make an annual DOT docket MARAD–2012–0097 at providing freight service on the line. determination of railroad revenue http://www.regulations.gov. Interested The acquisition and operation adequacy. A railroad is considered parties may comment on the effect this exemption is subject to standard labor revenue adequate under 49 U.S.C. action may have on U.S. vessel builders protective conditions. 10704(a) if it achieves a rate of return on or businesses in the U.S. that use U.S.- DATES: This exemption will be effective net investment equal to at least the flag vessels. If MARAD determines, in on November 17, 2012. Petitions to stay current cost of capital for the railroad accordance with 46 U.S.C. 12121 and must be filed by November 2, 2012. industry for 2011, determined to be MARAD’s regulations at 46 CFR part Petitions to reopen must be filed by 11.57% in Railroad Cost of Capital— 388, that the issuance of the waiver will November 13, 2012. 2011, Docket No. EP 558 (Sub-No. 15) have an unduly adverse effect on a U.S.- ADDRESSES: Send an original and 10 (STB served Sept. 13, 2012). This vessel builder or a business that uses copies of all pleadings referring to revenue adequacy standard was applied U.S.-flag vessels in that business, a Docket No. FD 35644 to: Surface to each Class I railroad. Two carriers, waiver will not be granted. Comments Transportation Board, 395 E Street SW., Norfolk Southern Combined Railroad should refer to the docket number of Washington, DC 20423–0001. In Subsidiaries and Union Pacific Railroad this notice and the vessel name in order addition, send one copy of pleadings to: Company, were found to be revenue for MARAD to properly consider the Karl Morell, Ball Janik LLP, Suite 225, adequate for 2011.

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The decision in this proceeding is Legal Division Performance Review Abstract: Forms 13614–C and 13614– posted on the Board’s Web site at Board, Internal Revenue Service Panel: C (SP) contain a standardized list of www.stb.dot.gov. Copies of the decision 1. Chairperson, Erik Corwin, Deputy required intake questions to guide may be purchased by contacting the Chief Counsel (Technical) volunteers in asking taxpayers basic Office of Public Assistance, 2. Frances F. Regan, Area Counsel questions about themselves. The intake Governmental Affairs, and Compliance (Small Business/Self Employed) sheet is an effective tool ensuring that at (202) 245–0238. Assistance for the 3. Janine Cook, Deputy Division critical taxpayer information is obtained hearing impaired is available through Counsel/Deputy Associate Chief and applied during the interview FIRS at (800) 877–8339. Counsel (TEGE) process. This action will not significantly 4. Ronald Dabrowski, Deputy Associate Current Actions: There are no changes affect either the quality of the human Chief Counsel (International) being made to these forms at this time. environment or the conservation of 5. Michael P. Corrado, Area Counsel Type of Review: Extension of a energy resources. (Large Business and International) currently approved collection. This publication is required by 5 Decided: October 15, 2012. Affected Public: Individuals or U.S.C. 4314(c)(4). By the Board, Chairman Elliott, Vice households, Business or other for-profit Chairman Mulvey, and Commissioner Dated: October 9, 2012. organizations, and not-for-profit Begeman. William J. Wilkins, institutions, and Federal Government. Derrick A. Gardner, Chief Counsel, Internal Revenue Service. Estimated Number of Responses: Clearance Clerk. [FR Doc. 2012–25613 Filed 10–17–12; 8:45 am] 3,375,000. [FR Doc. 2012–25665 Filed 10–17–12; 8:45 am] BILLING CODE 4830–01–P Estimated Time per Response: 10 min. BILLING CODE 4915–01–P Estimated Total Annual Burden Hours: 562,583. DEPARTMENT OF THE TREASURY The following paragraph applies to all DEPARTMENT OF THE TREASURY Internal Revenue Service of the collections of information covered by this notice: Appointment of Members of the Legal Proposed Collection; Comment An agency may not conduct or Division to the Performance Review Request for Form 13614 sponsor, and a person is not required to Board, Internal Revenue Service AGENCY: Internal Revenue Service (IRS), respond to, a collection of information unless the collection of information Under the authority granted to me as Treasury. displays a valid OMB control number. Chief Counsel of the Internal Revenue ACTION: Notice and request for Books or records relating to a collection Service by the General Counsel of the comments. of information must be retained as long Department of the Treasury by General as their contents may become material Counsel Directive 15, pursuant to the SUMMARY: The Department of the in the administration of any internal Civil Service Reform Act, I have Treasury, as part of its continuing effort revenue law. Generally, tax returns and appointed the following persons to the to reduce paperwork and respondent tax return information are confidential, Legal Division Performance Review burden, invites the general public and as required by 26 U.S.C. 6103. Board, Internal Revenue Service Panel: other Federal agencies to take this opportunity to comment on proposed Request for Comments: Comments 1. Christian Weidman, Deputy General and/or continuing information submitted in response to this notice will Counsel collections, as required by the be summarized and/or included in the 2. Ruth Perez, IRS, Deputy Paperwork Reduction Act of 1995, request for OMB approval. All Commissioner (Small Business/Self Public Law 104–13 (44 U.S.C. comments will become a matter of Employed) 3506(c)(2)(A)). Currently, the IRS is public record. Comments are invited on: 3. Paul DeNard, IRS, Deputy soliciting comments concerning Form (a) Whether the collection of Commissioner (Domestic), LBI 13614, Interview and Intake Sheet. information is necessary for the proper This publication is required by 5 DATES: Written comments should be performance of the functions of the U.S.C. 4314(c)(4). received on or before December 17, 2012 agency, including whether the Dated: October 9, 2012. to be assured of consideration. information shall have practical utility; William J. Wilkins, ADDRESSES: Direct all written comments (b) the accuracy of the agency’s estimate Chief Counsel, Internal Revenue Service. to Yvette Lawrence, Internal Revenue of the burden of the collection of [FR Doc. 2012–25617 Filed 10–17–12; 8:45 am] Service, Room 6129, 1111 Constitution information; (c) ways to enhance the quality, utility, and clarity of the BILLING CODE 4830–01–P Avenue NW., Washington, DC 20224. information to be collected; (d) ways to FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of Requests for additional information or information on respondents, including DEPARTMENT OF THE TREASURY copies of the form and instructions through the use of automated collection should be directed to Allan Hopkins, at techniques or other forms of information Appointment of Members of the Legal (202) 622–6665, or at Internal Revenue technology; and (e) estimates of capital Division to the Performance Review Service, Room 6129, 1111 Constitution or start-up costs and costs of operation, Board, Internal Revenue Service Avenue NW., Washington, DC 20224, or maintenance, and purchase of services through the internet, at Under the authority granted to me as to provide information. Chief Counsel of the Internal Revenue [email protected]. Approved: October 12, 2012. Service by the General Counsel of the SUPPLEMENTARY INFORMATION: Department of the Treasury by General Title: Interview and Intake Sheet. Allan Hopkins, Counsel Directive 15, pursuant to the OMB Number: 1545–1964. Tax Analyst. Civil Service Reform Act, I have Form Number: Form 13614–C and [FR Doc. 2012–25588 Filed 10–17–12; 8:45 am] appointed the following persons to the 13614–C (SP). BILLING CODE 4830–01–P

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DEPARTMENT OF THE TREASURY Estimated Total Annual Burden Paperwork Reduction Act of 1995, Hours: 3,479. Public Law 104–13 (44 U.S.C. Internal Revenue Service The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is of the collections of information covered soliciting comments concerning Form Proposed Collection; Comment by this notice: 990–W, Estimated Tax on Unrelated Request for Form 637 Questionnaires An agency may not conduct or Business Taxable Income for Tax- AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to Exempt Organizations. Treasury. respond to, a collection of information DATES: Written comments should be unless the collection of information ACTION: Notice and request for received on or before December 17, 2012 displays a valid OMB control number. comments. to be assured of consideration. Books or records relating to a collection ADDRESSES: Direct all written comments SUMMARY: The Department of the of information must be retained as long to Yvette Lawrence, Internal Revenue Treasury, as part of its continuing effort as their contents may become material Service, Room 6129, 1111 Constitution to reduce paperwork and respondent in the administration of any internal Avenue NW., Washington, DC 20224. burden, invites the general public and revenue law. Generally, tax returns and FOR FURTHER INFORMATION CONTACT: other Federal agencies to take this tax return information are confidential, as required by 26 U.S.C. 6103. Requests for additional information or opportunity to comment on proposed copies of the form and instructions and/or continuing information Request for Comments should be directed to Allan Hopkins, at collections, as required by the Internal Revenue Service, Room 6129, Paperwork Reduction Act of 1995, Comments submitted in response to this notice will be summarized and/or 1111 Constitution Avenue NW., Public Law 104–13 (44 U.S.C. Washington, DC 20224, or at (202) 622– 3506(c)(2)(A)). Currently, the IRS is included in the request for OMB approval. All comments will become a 6665, or through the internet at soliciting comments concerning [email protected]. Questionnaires A, B, C, D, E, F, H, I, J, matter of public record. Comments are K, M, Q, R, S, T, UP, UV, V, W, X, and invited on: (a) Whether the collection of SUPPLEMENTARY INFORMATION: Y, Form 637 Questionnaires. information is necessary for the proper Title: Estimated Tax on Unrelated performance of the functions of the DATES: Written comments should be Business Taxable Income for Tax- received on or before December 17, 2012 agency, including whether the Exempt Organizations. to be assured of consideration. information shall have practical utility; OMB Number: 1545–0976. (b) the accuracy of the agency’s estimate Form Number: 990–W. ADDRESSES: Direct all written comments of the burden of the collection of Abstract: Form 990–W is used by tax- to Yvette Lawrence, Internal Revenue information; (c) ways to enhance the exempt trusts and tax-exempt Service, Room 6129, 1111 Constitution quality, utility, and clarity of the corporations to figure estimated tax Avenue NW., Washington, DC 20224. information to be collected; (d) ways to liability on unrelated business income FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of and on investment income for private Requests for additional information or information on respondents, including foundations and the amount of each copies of Form 637 Questionnaires through the use of automated collection installment payment. Form 990–W is a should be directed to Allan Hopkins, techniques or other forms of information worksheet only. It is not required to be (202)–622–6665, at Internal Revenue technology; and (e) estimates of capital filed. Service, Room 6129, 1111 Constitution or start-up costs and costs of operation, Current Actions: There are no changes Avenue NW., Washington, DC 20224, or maintenance, and purchase of services being made to this form at this time. through the Internet at to provide information. Type of Review: Extension of a [email protected]. currently approved collection. Approved: October 12, 2012. Affected Public: Not-for-profit SUPPLEMENTARY INFORMATION: Allan Hopkins, Title: Form 637 Questionnaires. institutions and business or other for- OMB Number: 1545–1835. Tax Analyst. profit organizations. Form Number: Questionnaires A, B, [FR Doc. 2012–25615 Filed 10–17–12; 8:45 am] Estimated Number of Respondents: C, D, E, F, H, I, J, K, M, Q, R, S, T, UP, BILLING CODE 4830–01–P 19,151. UV, V, W, X, and Y. Estimated Number of Response: 11 Abstract: Form 637 Questionnaires hours, 30 minutes. will be used to collect information about DEPARTMENT OF THE TREASURY Estimated Total Annual Burden persons who are registered with the Hours: 220,310. Internal Revenue Service Internal Revenue Service (IRS) in The following paragraph applies to all of the collections of information covered accordance with Internal Revenue Code Proposed Collection; Comment by this notice: (IRC) § 4104 or 4222. The information Request for Form 990–W will be used to make an informed An agency may not conduct or decision on whether the applicant/ AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to registrant qualifies for registration. Treasury. respond to, a collection of information Current Actions: There are no changes ACTION: Notice and request for unless the collection of information being made to the schedules at this comments. displays a valid OMB control number. time. Books or records relating to a collection Type of Review: Extension of a SUMMARY: The Department of the of information must be retained as long currently approved collection. Treasury, as part of its continuing effort as their contents may become material Affected Public: Business or other for- to reduce paperwork and respondent in the administration of any internal profit organizations. burden, invites the general public and revenue law. Generally, tax returns and Estimated Number of Respondents: other Federal agencies to take this tax return information are confidential, 2,840. opportunity to comment on proposed as required by 26 U.S.C. 6103. Estimated Average Time per and/or continuing information Request for Comments: Comments Respondent: 1 hours, 14 minutes. collections, as required by the submitted in response to this notice will

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be summarized and/or included in the soliciting comments concerning Form Estimated Number of Respondents: request for OMB approval. All 8288, U.S. Withholding Tax Return for 27,500. comments will become a matter of Dispositions by Foreign Persons of U.S. Estimated Time per Respondent: 8 hr., public record. Comments are invited on: Real Property Interests, and Form 8288– 52 min. (a) Whether the collection of A, Statement of Withholding on Estimated Total Annual Burden information is necessary for the proper Dispositions by Foreign Persons of U.S. Hours: 243,675. performance of the functions of the Real Property Interests. The following paragraph applies to all agency, including whether the DATES: Written comments should be of the collections of information covered information shall have practical utility; received on or before December 17, 2012 by this notice: (b) the accuracy of the agency’s estimate to be assured of consideration. An agency may not conduct or of the burden of the collection of ADDRESSES: Direct all written comments sponsor, and a person is not required to information; (c) ways to enhance the to Yvette Lawrence, Internal Revenue respond to, a collection of information quality, utility, and clarity of the unless the collection of information information to be collected; (d) ways to Service, Room 6129, 1111 Constitution displays a valid OMB control number. minimize the burden of the collection of Avenue NW., Washington, DC 20224. Books or records relating to a collection information on respondents, including FOR FURTHER INFORMATION CONTACT: of information must be retained as long through the use of automated collection Requests for additional information or as their contents may become material techniques or other forms of information copies of the form and instructions in the administration of any internal technology; and (e) estimates of capital should be directed to Allan Hopkins, at revenue law. Generally, tax returns and or start-up costs and costs of operation, (202) 622–6665, or at Internal Revenue tax return information are confidential, maintenance, and purchase of services Service, Room 6129, 1111 Constitution as required by 26 U.S.C. 6103. to provide information. Avenue NW., Washington, DC 20224, or through the Internet, at Request for Comments: Comments Approved: September 27, 2012. [email protected]. submitted in response to this notice will Yvette Lawrence, be summarized and/or included in the IRS Reports Clearance Office. SUPPLEMENTARY INFORMATION: request for OMB approval. All [FR Doc. 2012–25614 Filed 10–17–12; 8:45 am] Title: U.S. Withholding Tax Return for comments will become a matter of Dispositions by Foreign Persons of U.S. BILLING CODE 4830–01–P public record. Comments are invited on: Real Property Interests (Form 8288) and (a) Whether the collection of Statement of Withholding on information is necessary for the proper DEPARTMENT OF THE TREASURY Dispositions by Foreign Persons of U.S. performance of the functions of the Real Property Interests (Form 8288–A). agency, including whether the Internal Revenue Service OMB Number: 1545–0902. information shall have practical utility; Form Number: 8288 and 8288–A. (b) the accuracy of the agency’s estimate Proposed Collection; Comment Abstract: Internal Revenue Code Request for Forms 8288 and 8288–A of the burden of the collection of section 1445 requires transferees to information; (c) ways to enhance the AGENCY: Internal Revenue Service (IRS), withhold tax on the amount realized quality, utility, and clarity of the Treasury. from sales or other dispositions by information to be collected; (d) ways to ACTION: Notice and request for foreign persons of U.S. real property minimize the burden of the collection of comments. interests. Form 8288 is used to report information on respondents, including and transmit the amount withheld to the through the use of automated collection SUMMARY: The Department of the IRS. Form 8288–A is used by the IRS to techniques or other forms of information Treasury, as part of its continuing effort validate the withholding, and a copy is technology; and (e) estimates of capital to reduce paperwork and respondent returned to the transferor for his or her or start-up costs and costs of operation, burden, invites the general public and use in filing a tax return. maintenance, and purchase of services other Federal agencies to take this Current Actions: There are no changes to provide information. opportunity to comment on proposed being made to these forms at this time. and/or continuing information Type of Review: Extension of a Approved: September 27, 2012. collections, as required by the currently approved collection. Yvette Lawrence, Paperwork Reduction Act of 1995, Affected Public: Business or other for- IRS Reports Clearance Officer. Public Law 104–13 (44 U.S.C. profit organizations and individuals or [FR Doc. 2012–25616 Filed 10–17–12; 8:45 am] 3506(c)(2)(A)). Currently, the IRS is households. BILLING CODE 4830–01–P

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Part II

Department of Commerce

Patent and Trademark Office 37 CFR Part 1, 2, 7, 10, et al. Changes to Representation of Others Before the United States Patent and Trademark Office; Proposed Rule

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DEPARTMENT OF COMMERCE prefers to receive comments by before the Office will benefit from electronic mail message over the modernization of the regulations United States Patent and Trademark Internet because sharing comments with governing professional conduct before Office the public is more easily accomplished. the Office and harmonization of these Electronic comments are preferred to be regulations with corresponding rules 37 CFR Parts 1, 2, 7, 10, 11 and 41 submitted in plain text, but also may be adopted by bars in the States and the ® [Docket No. PTO–C–2012–0034] submitted in ADOBE portable District of Columbia. document format or MICROSOFT The bars of 50 U.S. jurisdictions RIN 0651–AC81 WORD® format. Comments not including the District of Columbia have submitted electronically should be adopted the ABA Model Rules of Changes to Representation of Others submitted on paper in a format that Professional Conduct or a modification Before the United States Patent and facilitates convenient digital scanning thereof. This notice of proposed Trademark Office into ADOBE® portable document rulemaking sets out proposed USPTO AGENCY: United States Patent and format. Rules of Professional Conduct. The Trademark Office, Commerce. Comments will be made available for changes from the existing USPTO Code of Professional Responsibility are ACTION: Notice of proposed rulemaking. public inspection at the Office of Enrollment and Discipline, located on intended to bring standards of ethical SUMMARY: The United States Patent and the 8th Floor of the Madison West practice before the Office into closer Trademark Office (Office or USPTO) Building, 600 Dulany Street, conformity with the Rules of proposes to align the USPTO’s Alexandria, Virginia. Comments also Professional Conduct adopted by nearly professional responsibility rules with will be available for viewing via the all States and the District of Columbia, those of most other U.S. jurisdictions by Office’s Internet Web site (http:// while addressing circumstances replacing the current Patent and www.uspto.gov). Because comments will particular to practice before the Office. Trademark Office Code of Professional be made available for public inspection, By adopting professional conduct rules Responsibility, adopted in 1985, based information that the submitter does not consistent with the ABA Model Rules on the 1980 version of the Model Code desire to make public, such as an and the professional responsibility rules of Professional Responsibility of the address or phone number, should not be of 50 U.S. jurisdictions, the USPTO both American Bar Association (‘‘ABA’’), included in the comments. would provide attorneys with consistent professional conduct standards, and with new USPTO Rules of Professional FOR FURTHER INFORMATION CONTACT: would provide practitioners with large Conduct, which are based on the Model William R. Covey, Deputy General bodies of both case law and opinions Rules of Professional Conduct of the Counsel for Enrollment and Discipline written by disciplinary authorities that ABA, which were published in 1983, and Director of the Office of Enrollment have adopted the ABA Model Rules of substantially revised in 2003 and and Discipline, by telephone at 571– Professional Conduct. At this time, updated through 2011. Changes 272–4097. approved by the ABA House of nearly 42,000 individuals are registered SUPPLEMENTARY INFORMATION: Delegates in August 2012 have not been practitioners, of whom at least 75% are incorporated in these proposed rules. Executive Summary attorneys. The registered patent attorneys have offices located in all fifty The Office also proposes to revise the Pursuant to 35 U.S.C. 2(b)(2)(D), the existing procedural rules governing States, the District of Columbia, and Office governs ‘‘the recognition and more than forty foreign countries. In disciplinary investigations and conduct of agents, attorneys, or other proceedings. addition to registered patent attorneys, persons representing applicants or other any attorney who is a member in good DATES: To be ensured of consideration, parties before the Office.’’ The Office standing of the bar of the highest court written comments must be received on also has the authority to suspend or of a State, territory or possession of the or before December 17, 2012. exclude from practice before the Office United States is eligible to practice ADDRESSES: Comments should be sent any practitioner who ‘‘is shown to be before the Office in trademark and other by electronic mail message over the incompetent or disreputable, or guilty of non-patent matters, without becoming a Internet addressed to: gross misconduct, or who does not registered practitioner. 5 U.S.C. 500(b); [email protected]. comply with the regulations established 37 CFR 11.14. The attorneys who appear Comments may also be submitted by under section 2(b)(2)(D) of this title.’’ 35 before the Office are subject to these mail addressed to: Mail Stop OED- U.S.C. 32. Pursuant to the authority rules as well. 37 CFR 11.19. Ethics Rules, United States Patent and provided in sections 2(b)(2)(D) and 32 of A body of precedent specific to Trademark Office, P.O. Box 1450, Title 35, practitioners representing practice before the USPTO will develop Alexandria, Virginia 22313–1450, parties in patent, trademark and other as disciplinary matters brought under marked to the attention of William R. non-patent matters presently are the USPTO Rules of Professional Covey, Deputy General Counsel for required to conform to the Patent and Conduct progress through the USPTO Enrollment and Discipline and Director Trademark Office Code of Professional and the Federal Courts. In the absence of the Office of Enrollment and Responsibility set forth in 37 CFR 10.20 of binding USPTO-specific precedent, Discipline. through 10.112. These rules have been practitioners may refer to various Comments may also be sent by in place since 1985 and are based on the sources for guidance. For example, it is electronic mail message over the ABA Model Code of Professional expected that precedent based on the Internet via the Federal eRulemaking Responsibility. See 50 FR 5158 current Patent and Trademark Office Portal. See the Federal eRulemaking (February 6, 1985). Since that time, the Code of Professional Responsibility will Portal Web site (http:// vast majority of State bars in the United assist interpretation of professional www.regulations.gov) for additional States have adopted substantive conduct standards under the proposed instructions on providing comments via disciplinary rules based on the newer USPTO Rules of Professional Conduct. the Federal eRulemaking Portal. ABA Model Rules of Professional A practitioner also may refer to the Although comments may be Conduct. As noted below, the Office Comments and Annotations to the ABA submitted by postal mail, the Office believes individuals representing others Model Rules of Professional Conduct for

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guidance as to how to interpret the conduct rules of appropriate State 55082, proposing to adjust the equivalent USPTO Rules of Professional licensing authorities, as well as of any practitioner maintenance fee to $120, Conduct. Additionally, relevant courts before which the attorney and noting elsewhere in the rulemaking guidance may be provided by opinions practices. Failure to comply with those materials that the Office has suspended issued by State bars and disciplinary rules may lead to disciplinary action collection of those fees, making total decisions based on similar professional against the practitioner by the collections $0. The Office now proposes conduct rules in the States. Such appropriate State bar or court and, in to remove this practitioner maintenance guidance is not binding precedent turn, possible reciprocal action against fee which is set forth in 11.8(d). relative to USPTO Rules of Professional the practitioner by the USPTO. See 37 Section 2.2(c) would be revised to Conduct, but it may provide a useful CFR 11.24 and 11.804(h). delete the reference to part 10 of this tool in interpreting the rules while a In August 2012, the ABA House of chapter, which would be removed and larger body of USPTO-specific Delegates approved revisions to the reserved. precedent is established. ABA Model Rules of Professional Section 7.25(a) would be revised to This rulemaking benefits and reduces Conduct recommended by the ABA delete the reference to part 10 of this costs for most practitioners by clarifying Commission on Ethics 20/20. chapter, which would be removed and and streamlining their professional See http://www.americanbar.org/ reserved. responsibility obligations. With this content/dam/aba/administrative/ Section 11.1 would set out definitions rulemaking, the USPTO would be ethics_2020/20120808_house_action_ of terms used in the USPTO Rules of adopting professional conduct rules compilation_redline_105a- Professional Conduct. The definitions of consistent with the ABA Model Rules f.authcheckdam.pdf. These revisions mandatory disciplinary rule and matter and the professional responsibility rules have not been incorporated into these have been deleted; the definitions of already followed by 50 U.S. proposed rules since the states have not fraud or fraudulent and practitioner jurisdictions, i.e., the District of adopted those changes at this time. have been revised; and the terms Columbia and 49 States, excluding However, comments are solicited as to confirmed in writing, firm or law firm, California. Further, any change is not a whether those changes should be informed consent, law-related services, significant deviation from rules of incorporated into the USPTO Rules of partner, person, reasonable belief or professional conduct for practitioners Professional Conduct. reasonably believes, reasonably should that are already required by the Office. The Office does not propose any know, screened, tribunal, and writing or Table 1 shows the principal sources of change to the preamble to section 11.1. written would be newly defined. The the rules proposed for the USPTO Rules This preamble provides in part: ‘‘This definition of practitioner would be of Professional Conduct. In general, part governs solely the practice of updated to refer to section 11.14 rather numbering of the USPTO Rules of patent, trademark, and other law before than section 10.14, and to refer to Professional Conduct largely track the United States Patent and Trademark sections 11.14(a), (b) and (c) rather than numbering of the ABA Model Rules of Office. Nothing in this part shall be sections 11.14(b), (c) and (e). The new Professional Conduct. For example, construed to preempt the authority of definitions generally comport to USPTO Rule of Professional Conduct each State to regulate the practice of definitions set forth in the ABA Model 11.101 parallels ABA Model Rule of law, except to the extent necessary for Rules of Professional Conduct. Professional Conduct 1.1; USPTO Rule the United States Patent and Trademark However, the definition of fraud or of Professional Conduct 11.102 parallels Office to accomplish its Federal fraudulent used in the ABA Model ABA Model Rule of Professional objectives.’’ Attorneys who practice Rules has not been adopted. Instead, the Conduct 1.2; USPTO Rule of before the Office are subject to Office believes a uniform definition Professional Conduct 11.201 parallels professional conduct rules established based on common law should apply to ABA Model Rule of Professional by the Office as well as the appropriate all individuals subject to the USPTO Conduct 2.1; et cetera. The discussion State bars. Rules of Professional Conduct. below highlights instances where the The Office adopted rules governing Accordingly, the definition of common USPTO Rules of Professional Conduct the conduct of disciplinary law fraud is based on the definition diverge from the ABA Model Rules of investigations in 2008. See 73 FR 47650 discussed by the United States Court of Professional Conduct. (August 14, 2008). Experience under Appeals for the Federal Circuit. See The proposed USPTO Rules of these rules has demonstrated areas in Unitherm Food Systems, Inc. v. Swift- Professional Conduct reserve or decline which the rules could be clarified. Ekrich, Inc., 375 F.3d 1341, 1358 (Fed. to implement certain provisions set Accordingly, the Office also proposes Cir. 2004); In re Spalding Sports forth in the ABA Model Rules of revisions to existing rules set forth at 37 Worldwide, Inc., 203 F.3d 800, 807 (Fed. Professional Conduct. For example, the CFR 11.19, 11.20, 11.22, 11.32, 11.34, Cir. 2000). Further, in the definition of ABA Model Rules set forth specific 11.35 and 11.54. Finally, the Office tribunal, the reference to ‘‘the Office’’ provisions concerning domestic proposes incorporating the survey rule, includes those persons or entities acting relations or criminal practice that do not currently set forth at 37 CFR 10.11, as in an adjudicative capacity. appear in the proposed USPTO Rules of section 11.11(a)(2). Section 11.2(c) would be revised to Professional Responsibility. See, e.g., delete redundant language. sections 11.102, 11.105(d), 11.108(g), Discussion of Specific Rules Section 11.2(d) would be revised to 11.108(j), 11.301, 11.303(a)(3), 11.306, Section 1.4(d)(4) would be corrected clarify that a party dissatisfied with a 11.308 and 11.704(c). Conduct that by deleting the reference to section final decision of the OED Director would violate an unadopted provision 11.804(b)(9), which does not exist. regarding enrollment or recognition might nevertheless also violate an Sections 1.21(a)(7) and (a)(8) would must exhaust administrative remedies adopted provision (e.g., the conduct be deleted since the annual practitioner before seeking relief under the might also violate the broader maintenance fee is proposed to be Administrative Procedure Act, 5 U.S.C. obligations under section 11.804 of the removed by this rule package. The 551 et seq. proposed USPTO Rules of Professional Office has published a Notice of Section 11.2(e) would be revised to Conduct). In addition, a licensed Proposed Rulemaking, Setting and clarify that a party dissatisfied with an attorney is subject to the professional Adjusting Patent Fees, 77 FR 55028, action or notice of the OED Director

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during or at the conclusion of a practice before the Office, and it is 11.34(a) would be revised to eliminate disciplinary investigation must exhaust consistent with the second sentence of an erroneous reference to section administrative remedies before seeking ABA Model Rule of Professional 11.25(b)(4). The requirements set forth relief under the Administrative Conduct 8.5(a). in section 11.34 apply to complaints Procedure Act, 5 U.S.C. 551 et seq. Section 11.20(a)(4) would be revised filed in disciplinary proceedings filed Section 11.8(d) would be reserved. to clarify that disciplinary sanctions that under sections 11.24, 11.25 and 11.32. The USPTO is deleting reference to an may be imposed upon revocation of The revision to section 11.34(a)(1) annual practitioner maintenance fee. probation are not necessarily limited to clarifies that an individual other than a Section 11.11 would be revised to the remainder of the probation period. ‘‘practitioner’’ may be a respondent. The change the language ‘‘registered attorney Section 11.20(b) would be revised to revision to section 11.34(b) updates the or agent’’ to ‘‘registered practitioner’’ more clearly set forth conditions that reference to the ‘‘Mandatory and add the term ‘‘registered’’ as may be imposed with discipline. Disciplinary Rules’’ to read ‘‘USPTO appropriate. Section 11.21 would be revised to Rules of Professional Conduct.’’ Section 11.11(a) and (b) would be update the reference to the ‘‘Mandatory Section 11.35(a)(2)(ii) and (a)(4)(ii) revised to substantially incorporate the Disciplinary Rules’’ to read ‘‘USPTO would be revised by changing the term provisions currently set forth in 37 CFR Rules of Professional Conduct.’’ ‘‘a nonregistered practitioner’’ to ‘‘not 10.11. Specifically, the current Section 11.22 would be revised to registered.’’ The section would now provisions of section 11.11(a) would change the title to ‘‘Disciplinary specify the service address for an appear as section 11.11(a)(1) and the Investigations’’ for clarification. individual subject to the Office’s current provisions of section 10.11 Section 11.22(f)(2) would be revised disciplinary jurisdiction who does not would appear as section 11.11(a)(2). to update the reference to the meet the definition of ‘‘practitioner’’ set Additionally, section 11.11(b) would be ‘‘Mandatory Disciplinary Rules’’ to read forth in section 11.1. revised to provide that a practitioner ‘‘USPTO Rules of Professional Section 11.54(a)(2) and (b) would be failing to comply with section Conduct.’’ revised to clarify that an initial decision 11.11(a)(2) would be placed on Section 11.22(i) would be revised to of the hearing officer may impose administrative suspension, rather than correct a technical error in the heading. conditions deemed appropriate under removed from the register as set forth in Specifically, the reference to a warning the circumstances, and should explain section 10.11. Additionally, section letter in the heading could mistakenly the reason for probation and any 11.11(b)(1) would be revised to delete be viewed as indicating that issuance of conditions imposed with discipline. reference to section 11.8(d). Also, a warning means at least one of the Section 11.58(b)(2) would be revised section 11.11(b)(4) would be deleted conditions set forth in that section to update the reference to section 10.40 and reserved since an annual apply. Indeed, a warning may be issued to refer to section 11.116. practitioner maintenance fee would be in situations where, for example, there Section 11.58(f)(1)(ii) would be deleted by this rules package. is sufficient evidence to conclude that revised to update the reference to the Section 11.11(c) would be revised to there is probable cause to believe that ‘‘Mandatory Disciplinary Rules’’ to read change the reference to the ‘‘Mandatory grounds exist for discipline. However, ‘‘USPTO Rules of Professional Conduct’’ Disciplinary Rules’’ to the ‘‘USPTO in a situation where a potential and to delete reference to section Rules of Professional Conduct.’’ Section violation of the disciplinary rules is 10.20(b). 11.11(c) would also be revised to delete minor in nature or was not willful, it Section 11.61 would be deleted and reference to an annual practitioner often is in the interest of the Office, reserved. A savings clause would be maintenance fee. practitioners, and the public to resolve added at the end of Part 11. Section 11.11(d) would be revised by the matter with a warning rather than a USPTO Rules of Professional Conduct updating the previous reference to formal disciplinary action. section 10.40 to refer to section 11.116, Section 11.24(e) would be revised to Section 11.101 would address the which, with this rulemaking, would make a technical correction. requirement that practitioners provide include provisions related to Specifically, the previous reference to competent representation to a client. withdrawal from representation. Section 37 CFR 10.23 would be updated to refer Consistent with the provisions of 37 11.11(d) would also be revised to delete to new section 11.804. CFR 11.7, this rule acknowledges that reference to an annual practitioner Section 11.25(a) would be revised to competent representation in patent maintenance fee. Sections 11.11(d)(2) update the reference to the ‘‘Mandatory matters requires scientific and technical and (d)(4) are deleted and reserved since Disciplinary Rules’’ to read ‘‘USPTO knowledge, skill, thoroughness and they are directed to an annual Rules of Professional Conduct.’’ preparation as well as legal knowledge, practitioner maintenance fee. Section 11.32 would be revised to skill, thoroughness and preparation, and Section 11.11(e) would be revised to clarify that the Director of the Office of otherwise corresponds to the ABA update the reference to the ‘‘Mandatory Enrollment and Discipline has the Model Rule of Professional Conduct 1.1. Disciplinary Rules’’ to read ‘‘USPTO authority to exercise discretion in Section 11.102 would provide for the Rules of Professional Conduct.’’ referring matters to the Committee on scope of representation of a client by a Section 11.11(f) would be revised to Discipline and in recommending practitioner and the allocation of remove reference to sections 1.21(a)(7)(i) settlement or issuing a warning in authority between the client and the and (a)(8)(i) which provide for annual matters wherein the Committee on practitioner. This section corresponds to practitioner maintenance fees. Discipline has made a probable cause the ABA Model Rule of Professional Section 11.19(a) would be revised to determination. The section also would Conduct 1.2. However, the USPTO is expressly provide jurisdiction over a be revised to make a technical declining to enact the substance of the person not registered or recognized to correction by deleting the reference to last sentence of ABA Model Rule of practice before the Office if the person sections 11.19(b)(3) through (5), which Professional Conduct 1.2(a) as the provides or offers to provide any legal do not exist. USPTO does not regulate criminal law services before the Office. This change Section 11.34 would be revised to practice. Nonetheless, a patent attorney is consistent with the USPTO’s statutory incorporate several technical who engages in the practice of criminal and inherent authority to regulate corrections. Specifically, section law is subject to the disciplinary rules

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of the appropriate State and Court conduct before the Office in addition to an aggregated agreement as to guilty or authorities. Failure to comply with crimes and fraud. nolo contendere pleas. those rules may lead to disciplinary Section 11.106(b)(3) would state that Section 11.108(i) differs from ABA action against the practitioner and, in a practitioner may reveal information Model Rule of Professional Conduct turn, possible reciprocal action against relating to the representation of a client 1.8(i) in that the USPTO would provide the practitioner by the USPTO. See 37 to the extent the practitioner reasonably that a practitioner may, in a patent case, CFR 11.24 and 11.804(h). Moreover, the believes necessary to prevent, mitigate take an interest in the patent as part or lack of a specific disciplinary rule or rectify substantial injury to the all of his or her fee. See 37 CFR concerning particular conduct should financial interests or property of another 10.64(a)(3). not be viewed as suggesting that the that is reasonably certain to result or has Section 11.108(j) is reserved. The conduct would not violate one of the resulted from inequitable conduct USPTO is declining to enact a rule that USPTO Rules of Professional Conduct. before the Office. would specifically address sexual Section 11.102(b) is reserved as the Section 11.106(c) would additionally relations between practitioners and USPTO is declining to enact a specific provide that regardless of the clients. Because of the fiduciary duty to rule regarding a practitioner’s confidentiality requirements of Section clients, combining a professional endorsement of a client’s view or 11.106(a), a practitioner is required to relationship with any intimate personal activities. However, the USPTO is not disclose to the Office all information relationship may raise concerns about implying that a practitioner’s necessary to comply with the duty of conflict of interest and impairment of representation of a client constitutes an disclosure rules of this subchapter in the judgment of both practitioner and endorsement of the client’s political, practice before the Office. client. To the extent warranted, such Section 11.107 would prohibit a economic, social, or moral views or conduct may be investigated under practitioner from representing a client if activities. more general provisions (e.g., 37 CFR the representation involves a concurrent Section 11.103 would address a 11.804). practitioner’s duty to act with conflict of interest. This rule Section 11.109 would address reasonable diligence and promptness in corresponds to the ABA Model Rule of conflicts of interest and duties to former representing a client. This rule Professional Conduct 1.7. See also, 37 clients. This rule corresponds to the corresponds to the ABA Model Rule of CFR 10.66. ABA Model Rule of Professional Professional Conduct 1.3. Section 11.108 would address Section 11.104 would address the conflicts of interest for current clients Conduct 1.9. practitioner’s duty to communicate with and specific rules, including rules Section 11.110 would address the the client. This rule corresponds to the regarding practitioners entering into imputation of conflicts of interest for ABA Model Rule of Professional business transactions with clients, the practitioners in the same firm. This rule Conduct 1.4. As in prior § 10.23(c)(8), use of information by a practitioner corresponds to the ABA Model Rule of under this rule a practitioner should not relating to representation of a client, Professional Conduct 1.10. fail to timely and adequately inform a gifts between the practitioner and a Section 11.111 would address former client or former client of client, literary rights based on or current Federal Government correspondence received from the Office information relating to representation of employees. This rule deals with in a proceeding before the Office or from a client, a practitioner’s provision of practitioners who leave public office the client’s or former client’s opponent financial assistance to the client, and enter other employment. It applies in an inter partes proceeding before the compensation for services by a third to judges and their law clerks as well as Office when the correspondence (i) party, aggregate settlement of claims to practitioners who act in other could have a significant effect on a where the practitioner represents two or capacities. The USPTO is declining to matter pending before the Office; (ii) is more clients in a similar matter, enact ABA Model Rule of Professional received by the practitioner on behalf of agreements between the client and Conduct 1.11 and is instead enacting its a client or former client; and (iii) is practitioner limiting liability of the own rule regarding successive correspondence of which a reasonable practitioner, and the practitioner’s government and private employment, practitioner would believe under the acquiring a proprietary interest in the namely, that a practitioner who is a circumstances the client or former client matter. This rule corresponds to the former or current Federal Government should be notified. ABA Model Rule of Professional employee shall not engage in any Section 11.105 would address the Conduct 1.8. conduct which is contrary to applicable practitioner’s responsibilities regarding Section 11.108(e) would provide that Federal ethics laws, including conflict fees. This rule corresponds to the ABA a practitioner shall not provide financial of interest statutes and regulations of the Model Rule of Professional Conduct 1.5. assistance to a client in connection with department, agency or commission Nothing in paragraph (c) should be pending or contemplated litigation or formerly or currently employing said construed to prohibit practitioners proceeding before the Office, except that practitioner. See, e.g., 18 U.S.C. 207. gaining proprietary interests in patents a practitioner may advance court or A practitioner representing a under section 11.108(i)(3). tribunal costs and expenses of either government agency, whether employed Section 11.105(d) is reserved as the litigation or a proceeding before the or specially retained by the government, USPTO is declining to enact a specific Office and a practitioner representing an is subject to the USPTO Rules of rule regarding contingent fee indigent client may pay court or Professional Conduct, including the arrangements for domestic relations and tribunal costs and expenses of litigation prohibition against representing adverse criminal matters. or a proceeding before the Office. interests stated in section 11.107 and Section 11.106 would address the Section 11.108(g) differs from ABA the protections afforded former clients practitioner’s responsibilities regarding Model Rule of Professional Conduct in section 11.109. In addition, such a maintaining confidentiality of 1.8(g) in that the USPTO is declining to practitioner is subject to this section and information. This section generally enact the portion of the rule relating to to statutes and regulations, as well as corresponds to the ABA Model Rule of representation of clients in criminal government policies, concerning Professional Conduct 1.6, but it includes matters and the corresponding conflicts of interest and other Federal exceptions in the case of inequitable regulation of multiple clients agreeing to ethics requirements.

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Section 11.112 would provide specific located, or the recordkeeping SE.2d 518, 519 (Va. 1987); In re Librizzi, rules regarding the imputation of requirements of this section. According 569 A.2d 257, 258–259 (N.J. 1990); In re conflicts of interest for practitioners to the ABA Standing Committee on Heffernan, 351 NW.2d 13, 14 (Minn. who were former judges, arbitrators, Client Protection, the ABA Model Rules 1984); In re Austin, 333 NW.2d 633, 634 mediators or third-party neutrals. This for Client Trust Account Records (Minn. 1983); and In re Kennedy, 442 rule corresponds to the ABA Model responds to a number of changes in A.2d 79, 84–85 (Del. 1982). Thus, Rule of Professional Conduct 1.12. banking and business practices that may § 11.115(f) clarifies recordkeeping Section 11.113 would provide specific have left lawyers ‘‘inadvertently requirements that currently apply to all rules regarding a practitioner’s running afoul of their jurisdiction’s practitioners through section responsibilities when representing an rules of professional conduct.’’ The new 10.112(c)(3). organization as a client. This rule rule addresses recordkeeping Section 11.116 would provide rules corresponds to the ABA Model Rule of requirements after electronic transfers regarding a practitioner’s Professional Conduct 1.13. and clarifies who can authorize such responsibilities in declining or Section 11.114 would provide specific transfers. The proposed rule also terminating representation of a client. rules regarding a practitioner’s accounts for the Check Clearing for the This rule corresponds to the ABA Model responsibilities when representing a 21st Century Act, which allows banks to Rule of Professional Conduct 1.16. client with diminished capacity. This substitute electronic images of checks Section 11.117 would provide rules rule corresponds to the ABA Model for canceled checks. The rule also regarding a practitioner’s Rule of Professional Conduct 1.14. addresses the increasing prevalence of responsibilities when buying or selling Section 11.115 would provide specific electronic banking and wire transfers or a law practice or an area of law practice, rules regarding a practitioner’s electronic transfers of funds, for which including good will. This rule responsibilities regarding safekeeping of banks do not routinely provide specific corresponds to the ABA Model Rule of client property and maintenance of confirmation. The proposed rule Professional Conduct 1.17. financial records. This rule corresponds acknowledges those issues, addressing Section 11.117(b) differs from ABA to the ABA Model Rule of Professional recordkeeping requirements after Model Rule of Professional Conduct Conduct 1.15. electronic transfers and clarifying who 1.17(b) in that the USPTO is proposing Section 11.115(a) would require that can authorize such transfers, record that to the extent the practice or the area funds be kept in a separate client or of practice to be sold involves patent third person account maintained in the maintenance and safeguards required for electronic record storage systems. proceedings before the Office, that state where the practitioner’s office is practice or area of practice may be sold situated, or elsewhere with the consent The rule also details minimum safeguards practitioners must only to one or more registered of the client or third person. The practitioners or law firms that includes USPTO bar includes practitioners who implement when they allow non- practitioner employees to access client at least one registered practitioner. are located outside the United States. Section 11.118 would provide rules trust accounts; addresses partner The USPTO rules would propose that regarding a practitioner’s responsibilities for storage of and access where the practitioner’s office is responsibilities to prospective clients. to client trust account records when situated in a foreign country, funds shall This rule corresponds to the ABA Model partnerships are dissolved or when a be kept in a separate account Rule of Professional Conduct 1.18. maintained in that foreign country or practice is sold; and allows practitioners Sections 11.119–11.200 are reserved. elsewhere with the consent of the client to maintain client trust account records Section 11.201 would provide a rule or third person. See also, 37 CFR in electronic, photographic, computer or addressing the practitioner’s role in 10.112. other media or paper format, either at providing advice to a client and Sections 11.115(b)–(e) correspond to the practitioner’s office or at an off-site corresponds to the ABA Model Rule of the ABA Model Rules of Professional storage facility, but it requires that Professional Conduct 2.1. However, the Conduct 1.15(b)–(e). records stored off-site be readily USPTO is declining to enact the Section 11.115(f) would require that accessible to the practitioner and that substance of the last sentence of ABA the type of records specified by section the practitioner be able to produce and Model Rule of Professional Conduct 2.1, 11.115(a) would include those records print them upon request. which provides that in representing a consistent with (i) the ABA Model Rules Section 11.115(f) would require a client, a practitioner may refer to not for Client Trust Account Records; (ii) for practitioner to keep the same records as only legal considerations, but also other lawyer practitioners, the types of the practitioner must currently maintain factors. However, by not enacting the records that are maintained meet the to comply with 37 CFR 10.112(c)(3). last sentence of Rule 2.1, the USPTO is recordkeeping requirements of a state in Section 10.112(c)(3) requires a not implying that a practitioner may not which the lawyer is licensed and in practitioner to ‘‘maintain complete refer to other considerations such as good standing, the recordkeeping records of all funds, securities and other moral, economic, social and political requirements of the state where the properties of a client coming into the factors that may be relevant to the lawyer’s principal place of business is possession of the practitioner.’’ Section client’s situation. located, or the recordkeeping 10.112(c)(3) is substantially the same as Section 11.202 is reserved. ABA requirements of this section; and/or (iii) DR 9–102(b)(3) of the Model Code of Model Rule of Professional Conduct 2.2 for patent agents and persons granted Professional Responsibility of the was deleted in 2002 as the ABA no limited recognition who are employed American Bar Association, which was longer treats intermediation and the in the United States by a law firm, the adopted by numerous states. It has been conflict-of-interest issues it raises types of records that are maintained long recognized that compliance with separately from any other multi- meet the recordkeeping requirements of the Code’s rule requires maintenance of, representation conflicts. Issues relating the state where at least one lawyer of the inter alia, a cash receipts journal, a cash to practitioners acting as intermediaries law firm is licensed and in good disbursements journal, and a subsidiary are dealt with under § 11.107. standing, the recordkeeping ledger, as well as periodic trial balances, Section 11.203 would articulate the requirements of the state where the law and insufficient fund check reporting. ethical standards for circumstances firm’s principal place of business is See Wright v. Virginia State Bar, 357 where a practitioner provides an

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evaluation of a matter affecting a client taken by the practitioner in good faith. those rules may lead to disciplinary for the use by a third party. This rule Section 11.303(a)(3) does not include a action against the practitioner and, in corresponds to the ABA Model Rule of reference to testimony of a defendant in turn, possible reciprocal action against Professional Conduct 2.3. It should be a criminal matter, as set forth in ABA the practitioner by the USPTO. See 37 noted that with respect to evaluation Model Rule 3.3(a)(3). CFR 11.24 and 11.804(h). Moreover, the information under § 11.203 a Section 11.303(e) would specify that lack of a specific disciplinary rule practitioner is required to disclose in a proceeding before the Office, a concerning particular conduct should information in compliance with the practitioner must disclose information not be viewed as suggesting that the duty of disclosures provisions of this necessary to comply with the duty of conduct would not violate one or more subchapter subject to disclosure to the disclosure provisions of this subchapter of the USPTO Rules of Professional USPTO pursuant to § 11.106(c). in practice before the Office. The Conduct (e.g., § 11.804). Section 11.204 would provide a rule practitioner’s responsibility to present Section 11.307 would generally addressing the practitioner’s role in the client’s case with persuasive force is proscribe a practitioner from acting as serving as a third-party neutral, whether qualified by the practitioner’s duty of an advocate in a proceeding before the as an arbitrator, a mediator or in such candor to the tribunal. See Lipman v. Office in which the practitioner is likely other capacity, and corresponds to the Dickinson, 174 F.3d 1363, 50 USPQ2d to be a necessary witness. Combining ABA Model Rule of Professional 1490 (Fed. Cir. 1999). the roles of advocate and witness can Conduct 2.4. Section 11.304 would contemplate prejudice the opposing party and can Sections 11.205–11.300 are reserved. that evidence be marshaled fairly in a involve a conflict of interest between Section 11.301 would require that a case before a tribunal, including in ex the practitioner and client. This rule practitioner present well-grounded parte and inter partes proceedings corresponds to the ABA Model Rule of positions. The advocate has a duty to before the Office. This rule corresponds Professional Conduct 3.7. use legal procedure for the fullest to the ABA Model Rule of Professional Section 11.308 is reserved. ABA benefit of the client’s cause. The Conduct 3.4, but it clarifies that the Model Rule of Professional Conduct 3.8 advocate also has a duty not to abuse duties of the practitioner are not limited addresses the ‘‘Special Responsibilities the legal procedure. This rule to trial matters but also to any of a Prosecutor’’ in the context of corresponds to the ABA Model Rule of proceeding before a tribunal. criminal proceedings. Because practice Professional Conduct 3.1; however, the Section 11.305 would contemplate before the Office does not involve USPTO is declining to enact the ABA that practitioners act with impartiality criminal proceedings, the content of Model Rule requirement that a lawyer and decorum in ex parte and inter ABA Model Rule of Professional for the defendant in a criminal partes proceedings. This rule Conduct 3.8 is not being proposed. proceeding may defend the proceeding corresponds to the ABA Model Rule of Nevertheless, an attorney who is both a by requiring that every element of the Professional Conduct 3.5, but it clarifies practitioner before the Office and a case be established. The USPTO that it is improper to seek to improperly criminal prosecutor may be subject to proposes deleting the specific reference influence a hearing officer, both the Office and other professional because it is a professional conduct rule administrative law judge, administrative conduct rules. Discipline by a duly limited to the practice of criminal law. patent judge, administrative trademark constituted authority of a State, the Section 11.302 would require that judge, employee or officer of the Office. United States, or the country in which practitioners diligently pursue litigation Section 11.305(c) is reserved as the a practitioner resides may lead to and Office proceedings. This rule USPTO is declining to enact a specific reciprocal disciplinary action by the corresponds to the ABA Model Rule of rule regarding a practitioner’s Office. See 37 CFR 11.24. Moreover, the Professional Conduct 3.2, adding that a communication with a juror or lack of a specific disciplinary rule practitioner shall make reasonable prospective juror. Nonetheless, a concerning particular conduct should efforts to expedite proceedings before practitioner who engages in the practice not be viewed as suggesting that the the Office as well as in litigated matters. of improper communication with a juror conduct would not violate one or more Section 11.303 would continue the or prospective juror is subject to of the USPTO Rules of Professional duty of candor to a tribunal while criminal laws and the disciplinary rules Conduct (e.g., § 11.804). specifying its application under of the appropriate State and Court Section 11.309 would regulate a different situations, and corresponds to authorities. Failure to comply with practitioner’s conduct when he or she is the ABA Model Rule of Professional those laws and rules may lead to representing a client in a non- Conduct 3.3. Section 11.303(a)(2) sets disciplinary action against the adjudicative proceeding before an forth the duty to disclose to the tribunal practitioner and, in turn, possible administrative agency, such as the legal authority in the controlling reciprocal action against the practitioner Office. This rule corresponds to the jurisdiction known to the practitioner to by the USPTO. See 37 CFR 11.24 and ABA Model Rule of Professional be directly adverse to the position of the 11.804(h). Moreover, the lack of a Conduct 3.9. client and not disclosed by opposing specific disciplinary rule concerning Sections 11.310–11.400 are reserved. counsel in an inter partes proceeding. It particular conduct should not be viewed Section 11.401 would require a also sets forth this duty for an ex parte as suggesting that the conduct would practitioner to be truthful when dealing proceeding before the Office where the not violate one or more of the USPTO with others on a client’s behalf. This legal authority is not otherwise Rules of Professional Conduct (e.g., rule corresponds to the ABA Model disclosed. All decisions made by the § 11.804). Rule of Professional Conduct 4.1. Office in patent and trademark matters Section 11.306 is reserved as the Section 11.402 would provide a affect the public interest. See Lear v. USPTO is declining to enact a specific standard for communicating with a Adkins, 395 U.S. 653 (1969). Many of rule regarding trial publicity. represented party. Section 11.402(a) the decisions made by the Office are Nonetheless, a practitioner who engages corresponds to the ABA Model Rule of made ex parte. Accordingly, in improper conduct relating to trial Professional Conduct 4.2. Section practitioners must cite to the Office publicity is subject to the disciplinary 11.402(a) differs from ABA Model Rule known authority that is contrary, i.e., rules of the appropriate State and Court of Professional Conduct 4.2 in that the directly adverse, to the position being authorities. Failure to comply with proposed rule adds that in addition to

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a practitioner being authorized to Section 11.501 would set forth the the exception. To prevent abuse, it communicate with a represented party responsibilities of a partner or applies only if the nonprofit when the practitioner is authorized by supervisory practitioner. This rule organization has been recognized by the law or a court order, a practitioner may corresponds to the ABA Model Rule of Internal Revenue Service as an communicate with a represented party Professional Conduct 5.1. organization described in Section when the practitioner is authorized by Section 11.502 would set forth the 501(c)(3) of the Internal Revenue Code. rule to do so. ethical and professional conduct Section 11.505 would proscribe Section 11.402(b) is based on District responsibilities of a subordinate practitioners from engaging in or aiding of Columbia Rule of Professional practitioner. This rule corresponds to the unauthorized practice of law. This Conduct 4.2(b) and would recognize the ABA Model Rule of Professional rule corresponds to the ABA Model that special considerations come into Conduct 5.2. Rule of Professional Conduct 5.5(a). The play when the Federal Government, Section 11.503 would set forth a USPTO is declining to adopt the ABA including the Office, is involved in a practitioner’s responsibilities regarding Model Rules regarding lawsuit. It would permit non-practitioner assistants. Practitioners multijurisdictional practice of law. communications with those in generally employ assistants in their Limiting the practice of patent law Government having the authority to practice, including secretaries, technical before the Office to those recognized to redress such grievances (but not with advisors, student associates, practice protects the public against other Government personnel) without draftspersons, investigators, law student rendition of legal services by the prior consent of the practitioner interns, and paraprofessionals. This rule unqualified persons or organizations. A representing the Government in such specifies the practitioner’s patent application is recognized as cases. However, a practitioner making responsibilities in supervising non- being a legal document and registration such a communication without the prior practitioner assistants and corresponds to practice before the USPTO sanctions consent of the practitioner representing to the ABA Model Rule of Professional ‘‘the performance of those services the Government must make the kinds of Conduct 5.3. which are reasonably necessary and Section 11.504 would protect the disclosures that are required by incident to the preparation and professional independence of a § 11.402(b) in the case of prosecution of patent applications.’’ practitioner by providing traditional communications with non-party Sperry v. Florida, 373 U.S. 379, 386, 137 limitations on sharing fees with non- USPQ 578, 581 (1963). Thus, a employees. practitioners. This rule corresponds to registered practitioner may practice in Section 11.402(b) does not permit a the ABA Model Rule of Professional patent matters before the Office practitioner to bypass counsel Conduct 5.4. (See also, 37 CFR 10.48, regardless of where they reside within representing the government on every 10.49, 10.68) the United States. issue that may arise in the course of Section 11.504(a)(4) would differ from It is noted that the USPTO registers disputes with the government. It is the ABA Model Rule in favor of District individuals, not law firms or intended to provide practitioners access of Columbia Rule of Professional corporations, to practice in patent to decision makers in government with Conduct 5.4(a)(5). Section 11.504(a)(4) matters before the Office. Thus, a respect to genuine grievances, such as to permits a practitioner to share legal fees corporation is not authorized to practice present the view that the government’s with a nonprofit organization that law and render legal services. Instead, basic policy position with respect to a employed, retained, or recommended upon request and for a fee, the dispute is faulty, or that government employment of the practitioner in the corporation could cause a patent personnel are conducting themselves matter. A practitioner may decide to application to be prepared by a improperly with respect to aspects of contribute all or part of legal fees registered practitioner. See Lefkowitz v. the dispute. It is not intended to provide recovered from the opposing party to Napatco, 415 NE.2d 916, 212 USPQ 617 direct access on routine disputes such the nonprofit organization. Such a (NY 1980). There are numerous cases as ordinary discovery disputes, contribution may or may not involve and ethics opinions wherein attorneys extensions of time or other scheduling fee-splitting, but when it does, the have been found to have aided lay matters, or similar routine aspects of the prospect that the organization will organizations in the unauthorized resolution of disputes. obtain all or part of the practitioner’s practice of law by agreeing to accept Section 11.403 would provide a fees does not inherently compromise the referrals from a non-lawyer engaged in standard for communicating with an practitioner’s professional unauthorized practice of law. For unrepresented person, particularly one independence, whether the practitioner example, an attorney was found to have not experienced in dealing with legal is employed by the organization or was aided the unauthorized practice of law matters. This rule corresponds to the only retained or recommended by it. A by permitting a non-attorney operating ABA Model Rule of Professional practitioner who has agreed to share as a business to gather data from estate Conduct 4.3. legal fees with such an organization planning clients for preparation of legal Section 11.404 would require a remains obligated to exercise documents and forward the data to the practitioner to respect the rights of third professional judgment solely in the attorney who thereafter prepared the parties. Responsibility to a client client’s best interests. Moreover, fee- documents (including a will, living requires a practitioner to subordinate splitting in these circumstances may trust, living will, and powers of the interests of others to those of the promote the financial viability of such attorney). The attorney, without having client, but that responsibility does not nonprofit organizations and facilitate personally met or corresponded with imply that a practitioner may disregard their public interest mission. Unlike the the client, forwarded the documents to the rights of third persons. The rule also corresponding provision of the ABA the non-attorney for the client to provides guidance to practitioners Model Rules, this provision is not execute. See Wayne County Bar Ass’n. regarding the receipt of inadvertently limited to sharing of fees awarded by a v. Naumoff, 660 NE.2d 1177 (Ohio sent documents. This rule corresponds court because that restriction would 1996). See Comm. on Professional to the ABA Model Rule of Professional significantly interfere with settlement of Ethics & Conduct v. Baker, 492 NW.2d Conduct 4.4. cases outside of court, without 695,597 (Iowa 1992); see also People v. Sections 11.405–11.500 are reserved. significantly advancing the purpose of Laden, 893 P.2d 771 (Colo. 1995);

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People v. Macy, 789 P.2d 188 (Colo. Conduct 5.7. The definition of ‘‘law- services that the individual, while not a 1990); People v. Boyles, 591 P.2d 1315 related service’’ is set forth in § 11.1. ‘‘registered practitioner,’’ is authorized (Colo. 1979); In re Discipio, 645 NE.2d Sections 11.508–11.600 are reserved. to practice before the USPTO in patent 906 (Ill. 1994); In re Komar, 532 NE.2d Section 11.601–11.700 are reserved. matters subject to the limitations in the 801 (Ill.1988); Formal Opinion 705, The USPTO is declining to adopt the individual’s grant of limited recognition Committee on Professional Ethics of the ABA Model Rules regarding public under § 11.9. Illinois State Bar Association (1982); service. The USPTO recognizes that Section 11.705 would regulate firm Formal Opinion 1977–148, Standing every practitioner, regardless of names and letterheads. This section Committee on Professional professional prominence or professional corresponds to the ABA Model Rule of Responsibility and Conduct; Formal workload, has a responsibility to Professional Conduct 7.5. Opinion 87, Ethics Committee of the provide legal services to those unable to Section 11.705(b) is reserved as the Colorado State Bar (1991). pay and that every practitioner should USPTO is declining to enact a specific Section 11.505(b) would specifically support all proper efforts to meet this rule regarding law firms with offices in proscribe practice before the Office in need for legal services. However, more than one jurisdiction since the patent, trademark, or other non-patent attorney practitioners’ individual state USPTO encompasses one Federal law if a practitioner is suspended, ethical rules should provide guidance jurisdiction. However, the USPTO is not excluded, or excluded on consent before and regulations regarding their implying that a law firm with offices in the Office. The rule would also respective duties to provide voluntary more than one jurisdiction may violate proscribe practice before the Office in pro bono service, accept court a State authority regulating this patent, trademark, or other non-patent appointed representation, and serve as conduct. Nonetheless, a practitioner law if a practitioner has been transferred members of legal service and legal who engages in the improper use of firm to disability inactive status before the reform organizations. The USPTO is names and letterhead is subject to the Office, has been administratively declining to add an increased regulatory disciplinary rules of the appropriate suspended before the Office, or is requirement on attorney practitioners. State and Court authorities. Failure to administratively inactive before the Section 11.701 would govern all comply with those rules may lead to Office. communications about a practitioner’s disciplinary action against the practitioner and, in turn, possible Section 11.505(c) would clarify that a services, including advertising, and reciprocal action against the practitioner practitioner is prohibited from assisting corresponds to the ABA Model Rule of by the USPTO. See 37 CFR 11.24 and a person who is not a member of the bar Professional Conduct 7.1. 11.804(h). Moreover, the lack of a of a jurisdiction in the performance of Section 11.702 would provide for specific disciplinary rule concerning an activity that constitutes the advertising by practitioners. This particular conduct should not be viewed unauthorized practice of law, and from section corresponds to the ABA Model as suggesting that the conduct would assisting a person who is not registered Rule of Professional Conduct 7.2. However, the USPTO is declining to not violate one or more of the USPTO to practice before the Office in patent Rules of Professional Conduct (e.g., matters in the unauthorized practice of enact the substance of ABA Model Rule of Professional Conduct 7.2(b)(2) as the § 11.804). law before the Office. Section 11.705(d) is reserved. The Sections 11.505(d), like current USPTO does not currently regulate and does not anticipate regulating lawyer USPTO declines to adopt ABA Model § 10.47(b), would clarify that a Rule of Professional Conduct 7.5(d) practitioner is prohibited from aiding a referral services. Section 11.703 would address the providing that practitioners may state or suspended or excluded practitioner in direct contact by a practitioner with a imply that they practice in a partnership the practice of law before the Office. prospective client known to need legal or other organization only when that is Sections 11.505(e) would provide that services. This section corresponds to the the fact. However, the USPTO is not a practitioner is prohibited from aiding ABA Model Rule of Professional implying that practitioners may state or a suspended or excluded practitioner in Conduct 7.3. imply that they practice in a partnership the practice of law in any other Section 11.704 would permit a or other organization if that is not the jurisdiction. practitioner to indicate areas of practice fact. Nonetheless, a practitioner who Section 11.505(f), consistent with in communications about the engages in the improper use of firm § 11.14(b), would recognize that practitioner’s services. Section 11.704(a) names and letterhead is subject to the individuals who are not attorneys but corresponds to the ABA Model Rule of disciplinary rules of the appropriate who were recognized to practice before Professional Conduct 7.4(a). State and Court authorities. Failure to the Office in trademark matters prior to Section 11.704(b), as with current comply with those rules may lead to January 1, 1957, will continue to be § 10.34, would continue the long- disciplinary action against the recognized as agents to continue established policy of the USPTO for the practitioner and, in turn, possible practice before the Office in trademark designation of practitioners practicing reciprocal action against the practitioner matters and such practice by those before the Office. by the USPTO. See 37 CFR 11.24 and individuals is not the unauthorized Section 11.704(c) is reserved as the 11.804(h). Moreover, the lack of a practice of trademark law before the USPTO is declining to regulate the specific disciplinary rule concerning Office. communication of specialization in particular conduct should not be viewed Section 11.506 would prohibit Admiralty practice. as suggesting that the conduct would agreements restricting rights to practice. Section 11.704(d) corresponds to the not violate one or more of the USPTO This rule corresponds to the ABA Model ABA Model Rule of Professional Rules of Professional Conduct (e.g., Rule of Professional Conduct 5.6. Conduct 7.4(d). § 11.804). Section 11.507 would provide for a Section 11.704(e) would provide Section 11.706 is reserved as the practitioner being subject to the USPTO guidance to, and permit, an individual USPTO is declining to enact a specific Rules of Professional Conduct if the granted limited recognition under § 11.9 rule regarding political contributions to practitioner provides law-related to use the designation ‘‘Limited obtain legal engagements or services. This rule corresponds to the Recognition’’ to indicate in appointments by judges. However, the ABA Model Rule of Professional communications about the individual’s USPTO is not implying that a

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practitioner or law firm may accept a falsity concerning the qualifications or Code of Professional Responsibility sets government legal engagement or an integrity of a judge, adjudicatory officer forth specific examples of misconduct appointment by a judge if the or public legal officer, or of a candidate that constitute a violation of the rules. practitioner or law firm makes a for election or appointment to judicial Because it is not possible to provide an political contribution or solicits or legal office. This section corresponds exhaustive list of actions that constitute political contributions for the purpose to the ABA Model Rule of Professional misconduct, Section 11.804 does not of obtaining or being considered for that Conduct 8.2. Government employees carry forward these specific examples type of legal engagement or and officers such as administrative into the USPTO Rules of Professional appointment. Nonetheless, a patent judges, administrative trademark Conduct. The decision not to set forth practitioner who engages in this type of judges, patent examiners, trademark specific examples of misconduct in the practice is subject to the disciplinary examining attorneys, and petitions rule, however, should not be construed rules of the appropriate State and Court examiners, perform judicial and quasi- as an indication that the examples set authorities. Failure to comply with judicial functions. See, e.g., United forth in § 10.23(c) represent acceptable those rules may lead to disciplinary States v. Morgan, 313 U.S. 409 (1941); conduct under the USPTO Rules of action against the practitioner and, in Western Electric Co. v. Piezo Professional Conduct. turn, possible reciprocal action against Technology, Inc., 860 F.2d 428 (Fed. Cir. Section 11.804(g) would specifically the practitioner by the USPTO. See 37 1988) (‘‘Patent examiners are quasi- address knowing assistance to an officer CFR 11.24 and 11.804(h). Moreover, the judicial officials.’’); see also, or employee of the Office in conduct lack of a specific disciplinary rule Butterworth v. United States ex rel. Hoe, that is a violation of applicable rules of concerning particular conduct should 112 U.S. 50, 67 (1884) (‘‘That it was conduct or other law. not be viewed as suggesting that the intended that the Commissioner of Section 11.804(h) would clearly set conduct would not violate one or more Patents, in issuing or withholding forth that it is misconduct for a of the USPTO Rules of Professional patents * * * should exercise quasi- practitioner to be publicly disciplined Conduct. judicial functions, is apparent from the on ethical grounds by any duly Sections 11.707–11.800 are reserved. nature of the examinations and decision constituted authority of (1) a State, (2) Section 11.801 would impose the he is required to make.’’); Chamberlin v. the United States, or (3) the country in same duty to persons seeking admission Isen, 779 F.2d 522, 524 (9th Cir. 1985) which the practitioner resides. See 37 to a bar as well as to practitioners (‘‘[I]t has long been recognized that PTO CFR 11.24. seeking registration or limited employees perform a ‘quasi-judicial’ Section 11.804(i) would clearly set recognition. This section corresponds to function in examining patent forth that it continues to be misconduct the ABA Model Rule of Professional applications.’’) Such employees and for a practitioner to engage in conduct Conduct 8.1. This section would clarify officers are considered adjudicatory that adversely reflects on the that the section pertains to applicants officers. practitioner’s fitness to practice before for registration or an applicant for Section 11.803 would require the Office. recognition to practice before the Office reporting a violation of the Rules of Section 11.805 is reserved. The and would conform to current USPTO Professional Conduct. This section USPTO is declining to adopt the ABA practice in §§ 11.6, 11.7, 11.9, 11.14 and corresponds to the ABA Model Rule of Model Rule regarding disciplinary 11.58. Professional Conduct 8.3. authority and choice of law. The If a person makes a material false Self-regulation of the legal profession disciplinary jurisdiction of the Office is statement in connection with an requires that members of the profession set forth in section 11.19. The USPTO application for registration or seek a disciplinary investigation when Director has statutory, 35 U.S.C. recognition, it may be the basis for they know of a violation of the Rules of 2(b)(2)(D) and 32, and inherent subsequent disciplinary action if the Professional Conduct. Consistent with authority to adopt rules regulating the person is admitted, and in any event it the current rule, § 10.24(a), a report practice of attorneys and other persons may be relevant in a subsequent about misconduct may not be required before the USPTO in patent, trademark, application. The duty imposed by where it would involve violation of and non-patent law. The USPTO, like § 11.801 applies to a practitioner’s own § 11.106(a). However, a practitioner other Government agencies, has admission or discipline as well as that should encourage a client to consent to inherent authority to regulate who may of others. Thus, it is a separate disclosure where prosecution would not practice before it as practitioners, professional offense for a practitioner to substantially prejudice the client’s including the authority to discipline knowingly make a misrepresentation or interests. Section 11.803(c) does not practitioners. See Goldsmith v. U.S. omission in connection with a require disclosure of information Board of Tax Appeals, 270 U.S. 117 disciplinary investigation of the otherwise protected by § 11.106, or (1926); Herman v. Dulles, 205 F.2d 715 practitioner’s own conduct. Section information gained while participating (D.C. Cir. 1953); and Koden v. U.S. 11.801 also requires affirmative in an approved lawyers assistance Department of Justice, 564 F.2d 228 (7th clarification of any misunderstanding program. It should be noted that the Cir. 1977). Courts have affirmed that on the part of the admissions or USPTO does not sanction any lawyer’s Congress, through the Administrative disciplinary authority of which the assistance programs and the reference Procedure Act, 5 U.S.C. 500, did not person involved becomes aware. thereto in § 11.803 is a reference to limit the inherent power of agencies to Moreover, Section 11.801(d) requires lawyer’s assistance programs approved discipline professionals who appear or practitioners to cooperate with the by a relevant state authority. practice before them. See Polydoroff v. Office of Enrollment and Discipline in Section 11.804 would address the ICC, 773 F.2d 372 (D.C. Cir. 1985); an investigation of any matter before it practice of providing for discipline Touche Ross & Co. v. SEC, 609 F.2d 570 and would continue the practice set involving a variety of acts constituting (2d Cir. 1979). forth under former § 10.131(b). misconduct. Sections 11.804(a)–(f) Sections 11.806–11.900 are reserved. Section 11.802 would require that a correspond to the ABA Model Rules of Section 11.901 would contain the practitioner not make a statement that Professional Conduct 8.4(a)–(f), following savings clauses: (a) A the practitioner knows to be false or respectively. It is noted that § 10.23(c) of disciplinary proceeding based on with reckless disregard as to its truth or the current Patent and Trademark Office conduct engaged in prior to the effective

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date of these regulations may be TABLE 1—PRINCIPAL SOURCE OF SEC- clarity, and with some reorganization. instituted subsequent to such effective TIONS 11.101 THROUGH 11.804— The proposed rules also have greater date, if such conduct would continue to Continued specificity and clarity as to allowed justify disciplinary sanctions under the conduct. The proposed rules, like the provisions of this part; (b) No Section Principal source existing rules, codify many obligations practitioner shall be subject to a that already apply to the practice of law disciplinary proceeding under this part § 11.701 ...... MRPC 7.1 under professional and fiduciary duties based on conduct engaged in before the § 11.702 ...... MRPC 7.2 owed to clients. Because the provisions effective date hereof if such conduct § 11.703 ...... MRPC 7.3 most likely to have an economic effect § 11.704(a) ...... MRPC 7.4(a) are already in place, these provisions do would not have been subject to § 11.704(b) ...... 37 CFR 10.34 disciplinary action before such effective § 11.704(d) ...... MRPC 7.4(d) not contribute to the economic impact date. § 11.704(e) ...... USPTO of this rulemaking. Section 41.5 would be revised to § 11.705 ...... MRPC 7.5 Furthermore, for most practitioners, make a technical correction. § 11.801(a)–(c) ... MRPC 8.1(a)–(b) this rulemaking will reduce the Specifically, the previous reference to § 11.801(d) ...... USPTO economic impact of complying with the section 10.40 has been updated to refer § 11.802 ...... MRPC 8.2 Office’s professional responsibility to section 11.116. § 11.803 ...... MRPC 8.3 requirements. Approximately 75 percent § 11.804(a)–(f) .... MRPC 8.4(a)–(f) of registered practitioners are attorneys. § 11.804(g) ...... 37 CFR 10.23(c)(19), The state bars of 50 U.S. jurisdictions TABLE 1—PRINCIPAL SOURCE OF 10.23(c)(20), 11.10(d) SECTIONS 11.101 THROUGH 11.804 § 11.804(h) ...... 37 CFR 10.23(c)(5), 11.24 have adopted rules based on the same § 11.901 ...... USPTO ABA Model Rules on which these Section Principal source proposed rules are based. Therefore, for Abbreviations: most current and prospective § 11.101 ...... MRPC 1.1 DCRPR means the District of Columbia Court of Appeals Rules of Professional Con- practitioners, the proposed rules would § 11.102 ...... MRPC 1.2 duct (2007). provide practitioners greater uniformity § 11.103 ...... MRPC 1.3 MRPC means the Model Rules of Profes- and familiarity with their professional § 11.104 ...... MRPC 1.4 sional Conduct of the American Bar Associa- conduct obligations before the Office § 11.105 ...... MRPC 1.5 tion (2011). § 11.106(a)–(b) ... MRPC 1.6(a)–(b) MRCTAR means the Model Rules for Client and would harmonize the requirements § 11.106(c) ...... USPTO Trust Account Records of the American Bar to practice law before the Office and § 11.107 ...... MRPC 1.7 Association (2010). other jurisdictions. Moreover, for some provisions of this rulemaking, such as § 11.108 ...... MRPC 1.8 Rulemaking Considerations § 11.109 ...... MRPC 1.9 the record-keeping requirements in § 11.110 ...... MRPC 1.10 Regulatory Flexibility Act: The § 11.115(f)(4) and (f)(5), the rules § 11.111 ...... USPTO Deputy General Counsel, United States explicitly state that an attorney or agent § 11.112 ...... MRPC 1.12 Patent and Trademark Office, has (employed in the U.S. by a law firm) § 11.113 ...... MRPC 1.13 certified to the Chief Counsel for that complies with the state in which he § 11.114 ...... MRPC 1.14 Advocacy, Small Business § 11.115(a)–(e) ... MRPC 1.15(a)–(e) or she practices will be deemed in § 11.115(f)(1) ...... MRCTAR Rule 1 Administration, that the changes in this compliance with the Office’s § 11.115(f)(2) ...... MRCTAR Rule 2 notice of proposed rulemaking will not requirements, as well. Accordingly, this § 11.115(f)(3) ...... MRCTAR Rule 3 have a significant economic impact on rulemaking streamlines many § 11.115(f)(4)–(5) USPTO a substantial number of small entities practitioners’ obligations and thus § 11.116 ...... MRPC 1.16 (Regulatory Flexibility Act, 5 U.S.C. reduces the administrative burden of § 11.117 ...... MRPC 1.17, USPTO 605(b)). compliance. § 11.118 ...... MRPC 1.18 The primary effect of this rulemaking Accordingly, this rulemaking does not § 11.201 ...... MRPC 2.1 is not economic, but rather is to govern have a significant economic effect on a § 11.203 ...... MRPC 2.3 the conduct of practitioners in their § 11.204 ...... MRPC 2.4 substantial number of small entities. § 11.301 ...... MRPC 3.1 interactions with their clients and with Executive Order 12866: This notice of § 11.302 ...... MRPC 3.2 the Office. proposed rulemaking has been § 11.303 ...... MRPC 3.3, USPTO The provisions of this rulemaking that determined to be not significant for § 11.304 ...... MRPC 3.4 may have a slight economic effect, such purposes of Executive Order 12866 § 11.305 ...... MRPC 3.5 as record-keeping requirements, (September 30, 1993). § 11.307 ...... MRPC 3.7 requirements to segregate client funds, Executive Order 13563 (Improving § 11.309 ...... MRPC 3.9 and rules governing representation of Regulation and Regulatory Review): The § 11.401 ...... MRPC 4.1 multiple entities, are consistent with the Office has complied with Executive § 11.402(a) ...... MRPC 4.2(a) USPTO’s current rules, with which Order 13563. Specifically, the Office § 11.402(b) ...... DCRPR 4.2(b) § 11.403 ...... MRPC 4.3 practitioners currently must comply. has, to the extent feasible and § 11.404 ...... MRPC 4.4 The existing USPTO Code applies to the applicable: (1) Made a reasoned § 11.501 ...... MRPC 5.1 approximately 41,000 registered patent determination that the benefits justify § 11.502 ...... MRPC 5.2 practitioners currently appearing before the costs of the rule; (2) tailored the rule § 11.503 ...... MRPC 5.3 the Office, as well as licensed attorneys to impose the least burden on society § 11.504 ...... MRPC 5.4; DCRPR practicing in trademark and other non- consistent with obtaining the regulatory 5.4(a)(5) patent matters before the Office. objectives; (3) selected a regulatory § 11.505(a) ...... MRPC 5.5(a) These proposed conduct rules approach that maximizes net benefits; § 11.505(b) ...... USPTO continue the fundamental requirements (4) specified performance objectives; (5) § 11.505(c) ...... USPTO § 11.505(d) ...... USPTO of the Office’s existing conduct rules. identified and assessed available § 11.505(e) ...... USPTO The existing rules have many broad alternatives; (6) involved the public in § 11.505(f) ...... USPTO canons and obligations that the an open exchange of information and § 11.506 ...... MRPC 5.6 proposed rules fundamentally continue, perspectives among experts in relevant § 11.507 ...... MRPC 5.7 though with greater specificity and disciplines, affected stakeholders in the

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private sector and the public as a whole, Government Accountability Office. The rulemaking is to registered practitioners and provided on-line access to the changes in this notice are not expected and attorneys practicing before the rulemaking docket; (7) attempted to to result in an annual effect on the Office in trademark and other non- promote coordination, simplification economy of 100 million dollars or more, patent matters. and harmonization across government a major increase in costs or prices, or OMB Number: 0651–0017. agencies and identified goals designed significant adverse effects on Title: Practitioner Records to promote innovation; (8) considered competition, employment, investment, Maintenance and Disclosure Before the approaches that reduce burdens and productivity, innovation, or the ability Patent and Trademark Office. maintain flexibility and freedom of of United States-based enterprises to Form Numbers: None. choice for the public; and (9) ensured compete with foreign-based enterprises Affected Public: Individuals or the objectivity of scientific and in domestic and export markets. households, businesses or other for- technological information and Therefore, this notice is not expected to profit, not-for-profit institutions, Federal processes. result in a ‘‘major rule’’ as defined in 5 Government, and state, local, or tribal Executive Order 13132: This notice of U.S.C. 804(2). governments. proposed rulemaking does not contain Unfunded Mandates Reform Act of Estimated Number of Likely policies with federalism implications 1995: The changes in this notice do not Respondents: 10,726. sufficient to warrant preparation of a involve a Federal intergovernmental Estimated Total Annual Burden Federalism Assessment under Executive mandate that will result in the Hours: 11,126 hours. Order 13132 (August 4, 1999). expenditure by State, local, and tribal Needs and Uses: The information in Executive Order 13175 (Tribal governments, in the aggregate, of 100 this collection is necessary for the Consultation): This rulemaking will not: million dollars (as adjusted) or more in United States Patent and Trademark (1) Have substantial direct effects on one any one year, or a Federal private sector Office to implement Federal statutes or more Indian tribes; (2) impose mandate that will result in the and regulations. See 35 U.S.C. 2(b)(2)(D) substantial direct compliance costs on expenditure by the private sector of 100 and 35 U.S.C. 32. These rules will Indian tribal governments; or (3) million dollars (as adjusted) or more in require that registered practitioners and preempt tribal law. Therefore, a tribal any one year, and will not significantly attorneys who appear before the Office summary impact statement is not or uniquely affect small governments. maintain complete records of clients, required under Executive Order 13175 Therefore, no actions are necessary including all funds, securities and other (Nov. 6, 2000). under the provisions of the Unfunded properties of clients coming into his/her Executive Order 13211 (Energy Mandates Reform Act of 1995. See 2 possession, and render appropriate Effects): This rulemaking is not a U.S.C. 1501 et seq. accounts to the client regarding such significant energy action under National Environmental Policy Act: records, as well as report violations of Executive Order 13211 because this This rulemaking will not have any effect the rules to the Office. Practitioners are rulemaking is not likely to have a on the quality of environment and is mandated by the rules to maintain significant adverse effect on the supply, thus categorically excluded from review proper documentation so that they can distribution, or use of energy. Therefore, under the National Environmental fully cooperate with an investigation in a Statement of Energy Effects is not Policy Act of 1969. See 42 U.S.C. 4321 the event of a report of an alleged required under Executive Order 13211 et seq. violation and that violations are (May 18, 2001). National Technology Transfer and prosecuted as appropriate. The Office Executive Order 12988 (Civil Justice Advancement Act: The requirements of has determined that the record keeping Reform): This rulemaking meets section 12(d) of the National and maintenance of such records are applicable standards to minimize Technology Transfer and Advancement excluded from any associated PRA litigation, eliminate ambiguity, and Act of 1995 (15 U.S.C. 272 note) are not burden as these activities are usual and reduce burden as set forth in sections applicable because this rulemaking does customary for practitioners representing 3(a) and 3(b)(2) of Executive Order not contain provisions which involve clients. 5 CFR 1320.3(b)(2). 12988 (Feb. 5, 1996). the use of technical standards. Additionally, in the case of most Executive Order 13045 (Protection of Paperwork Reduction Act: This notice attorney practitioners, any requirements Children): This rulemaking does not of proposed rulemaking involves for collection of information are not concern an environmental risk to health information collection requirements presumed to impose a Federal burden as or safety that may disproportionately which are subject to review by the these requirements are also required by affect children under Executive Order Office of Management and Budget a unit of State or local government, 13045 (Apr. 21, 1997). (OMB) under the Paperwork Reduction namely State bar(s), and would be Executive Order 12630 (Taking of Act of 1995 (PRA) (44 U.S.C. 3501 et required even in the absence of any Private Property): This rulemaking will seq.). Collection of information Federal requirement. not effect a taking of private property or activities involved in this notice of 5 CFR 1320.3(b)(3). These rules also otherwise have taking implications proposed rulemaking have been require, in certain instances, that under Executive Order 12630 (Mar. 15, reviewed and previously approved by written consents or certifications be 1988). OMB under OMB control number 0651– provided. Such consents or Congressional Review Act: Under the 0017. certifications have been determined not Congressional Review Act provisions of The title, description, and respondent to constitute information under 5 CFR the Small Business Regulatory description of the currently approved 1320.3(h)(1). Enforcement Fairness Act of 1996 (5 information collection 0651–0017 are First, the Office estimates that it will U.S.C. 801 et seq.), prior to issuing any shown below with an estimate of the take an individual or organization final rule, the United States Patent and annual reporting burdens. Included in approximately three hours, on average, Trademark Office will submit a report this estimate is the time for gathering to gather, prepare and submit an initial containing the final rule and other and maintaining the data needed, and grievance alleging and supporting a required information to the U.S. Senate, completing and reviewing the collection violation of professional conduct. The the U.S. House of Representatives and of information. The principal impact of Office estimates that approximately 200 the Comptroller General of the the changes in this notice of proposed grievances will be received annually

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from such respondents. The 37 CFR Parts 2 and 7 Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. requirements of 5 CFR Part 1320 do not Administrative practice and apply to collections of information by procedure, Trademarks. 5. Section 2.2 is amended to revise the Office during the conduct of an paragraph (c) to read as follows: investigation involving a potential 37 CFR Part 10 § 2.2 Definitions. violation of Office professional conduct Administrative practice and rules. 5 CFR 1320.4(a)(2). Second, the procedure, Inventions and patents, * * * * * Office estimates that non-attorney Lawyers, Reporting and recordkeeping (c) Director as used in this chapter, practitioners may, on average, incur a requirements. except for part 11, means the Under total of thirty minutes of annual burden Secretary of Commerce for Intellectual to notify senders of documents relating 37 CFR Part 11 Property and Director of the United to the representation of a client that Administrative practice and States Patent and Trademark Office. were inadvertently sent. Proposed 37 procedure, Inventions and patents, * * * * * CFR 11.404(b). Third, the Office Lawyers, Reporting and recordkeeping estimates that non-attorney requirements. PART 7—RULES OF PRACTICE IN practitioners, may, on average, incur a FILINGS PURSUANT TO THE total of thirty minutes of annual burden For the reasons set forth in the preamble, under the authority of 35 PROTOCOL RELATING TO THE to comply with the proposed § 11.703(c) MADRID AGREEMENT CONCERNING disclosure requirements relating to U.S.C. 2(b)(2)(A) and (D), 35 U.S.C. 32, the United States Patent and Trademark THE INTERNATIONAL REGISTRATION soliciting professional employment. Of OF MARKS the approximately 41,000 registered Office proposes to amend 37 CFR Parts practitioners, 10,526 are non-attorneys 1, 2, 7, 10, 11, and 41 as follows: 6. The authority citation for 37 CFR Part 7 continues to read as follows: and therefore considered likely PART 1—RULES OF PRACTICE IN respondents under the PRA for purposes PATENT CASES Authority: 15 U.S.C. 1123, 35 U.S.C. 2, of this information collection. unless otherwise noted. Comments are invited on: (1) Whether 1. The authority citation for 37 CFR 7. Section 7.25 is amended to revise the collection of information is Part 1 continues to read as follows: paragraph (a) to read as follows: necessary for proper performance of the Authority: 35 U.S.C. 2(b)(2), unless functions of the agency; (2) the accuracy otherwise noted. § 7.25 Sections of part 2 applicable to of the agency’s estimate of the burden; extension of protection. (3) ways to enhance the quality, utility, 2. Section 1.4 is amended to revise paragraph (d)(4)(i) to read as follows: (a) Except for §§ 2.22–2.23, 2.130– and clarity of the information to be 2.131, 2.160–2.166, 2.168, 2.173, 2.175, collected; and (4) ways to minimize the § 1.4 Nature of correspondence and 2.181–2.186 and 2.197, all sections in burden of the collection of information signature requirements. part 2 and all sections in part 11 of this to respondents. * * * * * chapter shall apply to an extension of Interested persons are requested to (d) * * * protection of an international send comments regarding these (4) Certifications. (i) Section 11.18 registration to the United States, information collections, including certifications: The presentation to the including sections related to suggestions for reducing this burden, to Office (whether by signing, filing, proceedings before the Trademark Trial William R. Covey, Deputy General submitting, or later advocating) of any and Appeal Board, unless otherwise Counsel for Enrollment and Discipline paper by a party, whether a practitioner stated. and Director of the Office of Enrollment or non-practitioner, constitutes a and Discipline, United States Patent and * * * * * certification under § 11.18(b) of this Trademark Office, P.O. Box 1450, subchapter. Violations of § 11.18(b)(2) of PART 10 [Removed and reserved] Alexandria, Virginia 22313–1450, or to this subchapter by a party, whether a the Office of Information and Regulatory practitioner or non-practitioner, may 8. Part 10 is removed and reserved. Affairs of OMB, New Executive Office result in the imposition of sanctions Building, 725 17th Street, NW., Room PART 11—REPRESENTATION OF under § 11.18(c) of this subchapter. Any 10235, Washington, DC 20503, OTHERS BEFORE THE UNITED practitioner violating § 11.18(b) of this Attention: Desk Officer for the United STATES PATENT AND TRADEMARK subchapter may also be subject to States Patent and Trademark Office. OFFICE Notwithstanding any other provision disciplinary action. See § 11.18(d) of of law, no person is required to respond this subchapter. 9. The authority citation for 37 CFR to nor shall a person be subject to a * * * * * Part 11 continues to read as follows: penalty for failure to comply with a 3. Section 1.21 is amended to remove Authority: 5 U.S.C. 500, 15 U.S.C. 1123, collection of information subject to the and reserve paragraphs (a)(7) and (a)(8) 35 U.S.C. 2(b)(2), 32, 41. to read as follows: requirements of the Paperwork 10. Amend § 11.1 to remove the Reduction Act unless that collection of § 1.21 Miscellaneous fees and charges. definitions of ‘‘mandatory disciplinary information displays a currently valid rule’’ and ‘‘matter;’’ revise the OMB control number. * * * * * (a) * * * definitions of ‘‘fraud or fraudulent’’ and List of Subjects (7)–(8) [Reserved] ‘‘practitioner;’’ and add in alphabetical order the definitions of ‘‘confirmed in 37 CFR Part 1 * * * * * writing,’’ ‘‘firm or law firm,’’ ‘‘informed Administrative practice and PART 2—RULES OF PRACTICE IN consent,’’ ‘‘law related services,’’ procedure, Courts, Freedom of TRADEMARK CASES ‘‘partner,’’ ‘‘person,’’ ‘‘reasonable belief information, Inventions and patents, or reasonably believes,’’ ‘‘reasonably Reporting and recordkeeping 4. The authority citation for 37 CFR should know,’’ ‘‘screened,’’ ‘‘tribunal’’ requirements, Small businesses. Part 2 continues to read as follows: and ‘‘writing or written’’ as follows:

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§ 11.1 Definitions. partnership, and any other organization (c) Petition to OED Director regarding * * * * * or legal entity. enrollment or recognition. Any petition Confirmed in writing, when used in Practitioner means: from any action or requirement of the reference to the informed consent of a (1) An attorney or agent registered to staff of OED reporting to the OED person, means informed consent that is practice before the Office in patent Director shall be taken to the OED given in writing by the person or a matters, Director accompanied by payment of the writing that a practitioner promptly (2) An individual authorized under 5 fee set forth in § 1.21(a)(5)(i) of this transmits to the person confirming an U.S.C. 500(b) or otherwise as provided chapter. Any such petition not filed oral informed consent. If it is not by § 11.14(a), (b), and (c) of this within sixty days from the mailing date feasible to obtain or transmit the writing subchapter, to practice before the Office of the action or notice from which relief at the time the person gives informed in trademark matters or other non- is requested will be dismissed as consent, then the practitioner must patent matters, or untimely. The filing of a petition will obtain or transmit it within a reasonable (3) An individual authorized to neither stay the period for taking other time thereafter. practice before the Office in a patent action which may be running, nor stay case or matters under § 11.9(a) or (b). * * * * * other proceedings. The petitioner may Firm or law firm means a practitioner * * * * * file a single request for reconsideration or practitioners in a law partnership, Reasonable belief or reasonably of a decision within thirty days of the professional corporation, sole believes when used in reference to a date of the decision. Filing a request for proprietorship or other association practitioner means that the practitioner reconsideration stays the period for authorized to practice law; or believes the matter in question and that seeking review of the OED Director’s practitioners employed in a legal the circumstances are such that the decision until a final decision on the services organization or the legal belief is reasonable. request for reconsideration is issued. department of a corporation or other Reasonably should know when used (d) Review of OED Director’s decision organization. in reference to a practitioner means that regarding enrollment or recognition. A a practitioner of reasonable prudence party dissatisfied with a final decision * * * * * and competence would ascertain the Fraud or fraudulent means conduct of the OED Director regarding matter in question. that involves a misrepresentation of enrollment or recognition shall seek material fact made with intent to * * * * * review of the decision upon petition to deceive or a state of mind so reckless Screened means the isolation of a the USPTO Director accompanied by respecting consequences as to be the practitioner from any participation in a payment of the fee set forth in equivalent of intent, where there is matter through the timely imposition of § 1.21(a)(5)(ii) of this chapter. By filing justifiable reliance on the procedures within a firm that are such petition to the USPTO Director, the misrepresentation by the party reasonably adequate under the party waives any right to seek deceived, inducing the party to act circumstances to protect information reconsideration from the OED Director. thereon, and where there is injury to the that the isolated practitioner is obligated Any petition not filed within thirty days party deceived resulting from reliance to protect under these USPTO Rules of after the final decision of the OED Professional Conduct or other law. on the misrepresentation. Fraud also Director may be dismissed as untimely. may be established by a purposeful * * * * * Briefs or memoranda, if any, in support omission or failure to state a material Tribunal means the Office, a court, an of the petition shall accompany the fact, which omission or failure to state arbitrator in a binding arbitration petition. The petition will be decided on makes other statements misleading, and proceeding or a legislative body, the basis of the record made before the OED Director. The USPTO Director in where the other elements of justifiable administrative agency or other body deciding the petition will consider no reliance and injury are established. acting in an adjudicative capacity. A legislative body, administrative agency new evidence. Copies of documents * * * * * or other body acts in an adjudicative already of record before the OED Informed consent means the capacity when a neutral official, after Director shall not be submitted with the agreement by a person to a proposed the presentation of evidence or legal petition. An oral hearing will not be course of conduct after the practitioner argument by a party or parties, will granted except when considered has communicated adequate render a binding legal judgment directly necessary by the USPTO Director. Any information and explanation about the affecting a party’s interests in a request for reconsideration of the material risks of and reasonably particular matter. decision of the USPTO Director may be available alternatives to the proposed dismissed as untimely if not filed course of conduct. * * * * * Writing or written means a tangible or within thirty days after the date of said * * * * * electronic record of a communication or decision. Only a decision of the USPTO Law-related services means services representation, including handwriting, Director regarding denial of a petition that might reasonably be performed in typewriting, printing, photostating, constitutes a final decision for the conjunction with and in substance are photography, audio or video recording purpose of judicial review. related to the provision of legal services, and email. A ‘‘signed’’ writing includes (e) Petition to USPTO Director in and that are not prohibited as an electronic sound, symbol or process disciplinary matters. A party unauthorized practice of law when attached to or logically associated with dissatisfied with any action or notice of provided by a non-lawyer. a writing and executed or adopted by a any employee of the Office of * * * * * person with the intent to sign the Enrollment and Discipline during or at Partner means a member of a writing. the conclusion of a disciplinary partnership, a shareholder in a law firm 11. Revise § 11.2(c), (d) and (e) to read investigation shall seek review of the organized as a professional corporation, as follows: action or notice upon petition to the or a member of an association OED Director. A petition from any authorized to practice law. § 11.2 Director of the Office of Enrollment action or notice of the staff reporting to Person means an individual, a and Discipline. the OED Director shall be taken to the corporation, an association, a trust, a * * * * * OED Director. A party dissatisfied with

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the OED Director’s final decision shall standing with the bar of the highest Office in patent matters. The OED seek review of the final decision upon court of one or more States shall provide Director shall file a copy of the Rule to petition to the USPTO Director to the OED Director with the State bar Show Cause with the USPTO Director. invoke the supervisory authority of the identification number associated with (3) Within 30 days of the OED USPTO Director in appropriate each membership. The OED Director Director’s sending the Rule to Show circumstances in disciplinary matters. shall publish from the roster a list Cause identified in paragraph (b)(2) of Any petition under this paragraph must containing the name, postal business this section, the registered practitioner contain a statement of the facts involved addresses, business telephone number, or person granted limited recognition and the point or points to be reviewed registration number, and registration may file a response to the Rule to Show and the action requested. Briefs or status as an attorney or agent of each Cause with the USPTO Director. The memoranda, if any, in support of the registered practitioner recognized to response must set forth the factual and petition must accompany the petition. practice before the Office in patent legal bases why the person should not Where facts are to be proven, the proof cases. be administratively suspended. The in the form of affidavits or declarations (2) A letter may be addressed to any registered practitioner or person granted (and exhibits, if any) must accompany registered practitioner, at the address of limited recognition shall serve the OED the petition. The OED Director may be which separate notice was last received Director with a copy of the response at directed by the USPTO Director to file by the OED Director, for the purpose of the time it is filed with the USPTO a reply to the petition to the USPTO ascertaining whether such practitioner Director. Within ten days of receiving a Director, supplying a copy to the desires to remain on the register. Any copy of the response, the OED Director petitioner. An oral hearing on petition registered practitioner failing to reply may file a reply with the USPTO taken to the USPTO Director will not be and give any information requested by Director that includes documents granted except when considered the OED Director within a time limit demonstrating that the notice identified necessary by the USPTO Director. The specified will be subject to in paragraph (b)(1) of this section was filing of a petition under this paragraph administrative suspension under published and sent to the practitioner in will not stay an investigation, paragraph (b) of this section. accordance with paragraph (b)(1) of this disciplinary proceeding, or other (b) Administrative suspension. (1) section. A copy of the reply by the OED proceedings. Any petition under this Whenever it appears that a registered Director shall be served on the practitioner or a person granted limited part not filed within thirty days of the registered practitioner or person granted recognition under § 11.9(b) has failed to mailing date of the action or notice from limited recognition. When acting on the comply with § 11.8(d) or paragraph which relief is requested may be Rule to Show Cause, if the USPTO (a)(2) of this section, the OED Director dismissed as untimely. Any request for Director determines that there are no shall publish and send a notice to the reconsideration of the decision of the genuine issues of material fact regarding registered practitioner or person granted OED Director or the USPTO Director the Office’s compliance with the notice limited recognition advising of the may be dismissed as untimely if not requirements under this section or the noncompliance, the consequence of filed within thirty days after the date of failure of the person to pay the requisite being administratively suspended under said decision. Only a decision of the fees, the USPTO Director shall enter an paragraph (b)(5) of this section if USPTO Director regarding denial of a noncompliance is not timely remedied, order administratively suspending the petition constitutes a final decision for and the requirements for reinstatement registered practitioner or person granted the purpose of judicial review. limited recognition. Otherwise, the 12. Remove and reserve § 11.8(d) to under paragraph (f) of this section. The notice shall be published and sent to the USPTO Director shall enter an read as follows: registered practitioner or person granted appropriate order dismissing the Rule to Show Cause. Nothing herein shall § 11.8 Oath and registration fee. limited recognition by mail to the last permit an administratively suspended * * * * * postal address furnished under paragraph (a) of this section or by email registered practitioner or person granted (d) [Reserved] limited recognition to seek a stay of the 13. Revise § 11.11(a), (b), and (c), addressed to the last email addresses administrative suspension during the remove and reserve paragraphs (d)(2) furnished under paragraph (a) of this pendency of any review of the USPTO and (d)(4), and revise paragraphs (d)(5), section. The notice shall demand Director’s final decision. (d)(6), and (e) to read as follows: compliance and payment of a delinquency fee set forth in (4) [Reserved] § 11.11 Administrative suspension, § 1.21(a)(9)(i) of this subchapter within (5) An administratively suspended inactivation, resignation, and readmission. sixty days after the date of such notice. registered practitioner or person granted (a) Contact information. (1) A (2) In the event a registered limited recognition is subject to registered practitioner must notify the practitioner or person granted limited investigation and discipline for his or OED Director of his or her postal recognition fails to comply with the her conduct prior to, during, or after the address for his or her office, up to three notice of paragraph (b)(1) of this section period he or she was administratively email addresses where he or she within the time allowed, the OED suspended. receives email, and business telephone Director shall publish and send in the (6) An administratively suspended number, as well as every change to any manner provided for in paragraph (b)(1) registered practitioner or person granted of said addresses or telephone numbers of this section to the registered limited recognition is prohibited from within thirty days of the date of the practitioner or person granted limited practicing before the Office in patent change. A registered practitioner shall, recognition a Rule to Show Cause why cases while administratively suspended. in addition to any notice of change of his or her registration or recognition A registered practitioner or person address and telephone number filed in should not be administratively granted limited recognition who knows individual patent applications, suspended, and he or she no longer be he or she has been administratively separately file written notice of the permitted to practice before the Office suspended under this section will be change of address or telephone number in patent matters or in any way hold subject to discipline for failing to to the OED Director. A registered himself or herself out as being registered comply with the provisions of this practitioner who is an attorney in good or authorized to practice before the paragraph (b).

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(c) Administrative inactivation. (1) (6) Any registered practitioner whose to practice before the Office in patent Any registered practitioner who shall name has been endorsed as voluntarily cases; all practitioners inactivated; all become employed by the Office shall inactive pursuant to paragraph (d)(1) of practitioners authorized under § 11.6(d) comply with § 11.116 for withdrawal this section and is not under to take testimony; and all practitioners from the applications, patents, and investigation and not subject to a transferred to disability inactive status, trademark matters wherein he or she disciplinary proceeding may be restored reprimanded, suspended, or excluded represents an applicant or other person, to active status on the register as may be from the practice of law by a duly and notify the OED Director in writing appropriate provided that the constituted authority, including by the of said employment on the first day of practitioner files a written request for USPTO Director, are subject to the said employment. The name of any restoration, a completed application for disciplinary jurisdiction of the Office. registered practitioner employed by the registration on a form supplied by the Practitioners who have resigned shall Office shall be endorsed on the roster as OED Director furnishing all requested also be subject to such jurisdiction with administratively inactive. Upon information and material, including respect to conduct undertaken prior to separation from the Office, the information and material pertaining to the resignation and conduct in regard to administratively inactive practitioner the practitioner’s moral character and any practice before the Office following may request reactivation by completing reputation under § 11.7(a)(2)(i) during the resignation. A person not registered and filing an application, Data Sheet, the period of inactivation, a declaration or recognized to practice before the signing a written undertaking required or affidavit attesting to the fact that the Office is also subject to the disciplinary by § 11.10, and paying the fee set forth practitioner has read the most recent authority of the Office if the person in § 1.21(a)(1)(i) of this subchapter. An revisions of the patent laws and the provides or offers to provide any legal administratively inactive practitioner rules of practice before the Office, and services before the Office. remains subject to the provisions of the pays the fees set forth in (b) * * * USPTO Rules of Professional Conduct §§ 1.21(a)(7)(iii) and (iv) of this (1) * * * and to proceedings and sanctions under subchapter. (iv) Violation of any USPTO Rule of §§ 11.19 through 11.58 for conduct that (e) Resignation. A registered Professional Conduct; or violates a provision of the USPTO Rules practitioner or a practitioner recognized * * * * * of Professional Conduct prior to or under § 11.14(c), who is not under 15. Revise § 11.20(a)(4) and (b) to read during employment at the Office. If, investigation under § 11.22 for a as follows: within 30 days after separation from the possible violation of the USPTO Rules Office, the registered practitioner does of Professional Conduct, subject to § 11.20 Disciplinary sanctions; Transfer to not request active status or another discipline under §§ 11.24 or 11.25, or a disability inactive status. status, the registered practitioner will be practitioner against whom probable (a) * * * endorsed on the roster as voluntarily cause has been found by a panel of the (4) Probation. Probation may be inactive and be subject to the provisions Committee on Discipline under imposed in lieu of or in addition to any of paragraph (d) of this section. § 11.23(b), may resign by notifying the other disciplinary sanction. Any (2) Any registered practitioner who is OED Director in writing that he or she conditions of probation shall be stated a judge of a court of record, full-time desires to resign. Upon acceptance in in writing in the order imposing court commissioner, U.S. bankruptcy writing by the OED Director of such probation. The order shall also state judge, U.S. magistrate judge, or a retired notice, that registered practitioner or whether, and to what extent, the judge who is eligible for temporary practitioner under § 11.14 shall no practitioner shall be required to notify judicial assignment and is not engaged longer be eligible to practice before the clients of the probation. Violation of any in the practice of law may request, in Office in patent matters but shall condition of probation shall be cause for writing, that his or her name be continue to file a change of address for imposition of the disciplinary sanction. endorsed on the roster as five years thereafter in order that he or Imposition of the disciplinary sanction administratively inactive. Upon she may be located in the event predicated upon violation of probation acceptance of the request, the OED information regarding the practitioner’s shall occur only after an order to show Director shall endorse the name of the conduct comes to the attention of the cause why the disciplinary sanction practitioner as administratively inactive. OED Director or any grievance is made should not be imposed is resolved Following separation from the bench, about his or her conduct while he or she adversely to the practitioner. the practitioner may request restoration engaged in practice before the Office. (b) Conditions imposed with to active status by completing and filing The name of any registered practitioner discipline. When imposing discipline, an application, Data Sheet, and signing whose resignation is accepted shall be the USPTO Director may condition a written undertaking required by removed from the register, endorsed as reinstatement upon the practitioner § 11.10. resigned, and notice thereof published making restitution, successfully (d) * * * in the Official Gazette. Upon acceptance completing a professional responsibility (2) [Reserved] of the resignation by the OED Director, course or examination, or any other * * * * * the registered practitioner must comply condition deemed appropriate under the (4) [Reserved] with the provisions of § 11.116. circumstances. (5) A registered practitioner in * * * * * * * * * * voluntary inactive status is prohibited 14. Revise § 11.19(a) and (b)(1)(iv) to 16. Revise § 11.21 to read as follows: from practicing before the Office in read as follows: patent cases while in voluntary inactive § 11.21 Warnings. status. A registered practitioner in § 11.19 Disciplinary jurisdiction; A warning is neither public nor a voluntary inactive status will be subject Jurisdiction to transfer to disability inactive disciplinary sanction. The OED Director to discipline for failing to comply with status. may conclude an investigation with the the provisions of this paragraph. Upon (a) All practitioners engaged in issuance of a warning. The warning acceptance of the request for voluntary practice before the Office; all shall contain a brief statement of facts inactive status, the practitioner must practitioners administratively and USPTO Rules of Professional comply with the provisions of § 11.116. suspended; all practitioners registered Conduct relevant to the facts.

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17. In § 11.22 revise the section crime is a serious crime, the OED (ii) A respondent who is not heading, paragraph (f)(2), and the Director shall file with the USPTO registered at the last address for the introductory text of paragraph (i) to read Director proof of the conviction and respondent known to the OED Director. as follows: request the USPTO Director to issue a * * * * * notice and order set forth in paragraph § 11.22 Disciplinary investigations. (4) * * * (b)(2) of this section. The OED Director (ii) A respondent who is not * * * * * shall in addition, without Committee on registered at the last address for the (f) * * * Discipline authorization, file with the respondent known to the OED Director. (2) The OED Director may request USPTO Director a complaint against the information and evidence regarding * * * * * practitioner complying with § 11.34 23. In § 11.54 revise paragraph (a)(2) possible grounds for discipline of a predicated upon the conviction of a practitioner from a non-grieving client and the introductory text of paragraph serious crime. If the crime is not a (b) to read as follows: either after obtaining the consent of the serious crime, the OED Director shall practitioner or upon a finding by a process the matter in the same manner § 11.54 Initial decision of hearing officer. Contact Member of the Committee on as any other information or evidence of (a) * * * Discipline, appointed in accordance a possible violation of any USPTO Rule with § 11.23(d), that good cause exists to (2) An order of default judgment, of of Professional Conduct coming to the suspension or exclusion from practice, believe that the possible ground for attention of the OED Director. discipline alleged has occurred with of reprimand, of probation or an order respect to non-grieving clients. Neither * * * * * dismissing the complaint. The order a request for, nor disclosure of, such 20. Revise § 11.32 to read as follows: also may impose any conditions deemed information shall constitute a violation appropriate under the circumstances. § 11.32 Instituting a disciplinary The hearing officer shall transmit a copy of any USPTO Rules of Professional proceeding. Conduct. of the decision to the OED Director and If after conducting an investigation to the respondent. After issuing the * * * * * under § 11.22(a), the OED Director is of decision, the hearing officer shall (i) Closing investigation. The OED the opinion that grounds exist for transmit the entire record to the OED Director shall terminate an investigation discipline under § 11.19(b), the OED Director. In the absence of an appeal to and decline to refer a matter to the Director, after complying where the USPTO Director, the decision of the Committee on Discipline if the OED necessary with the provisions of 5 hearing officer, including a default Director determines that: U.S.C. 558(c), may convene a meeting of judgment, will, without further * * * * * a panel of the Committee on Discipline. proceedings, become the decision of the 18. Revise § 11.24(e) to read as If convened, the panel of the Committee USPTO Director thirty days from the follows: on Discipline shall then determine as date of the decision of the hearing § 11.24 Reciprocal discipline. specified in § 11.23(b) whether there is officer. * * * * * probable cause to bring disciplinary (b) The initial decision of the hearing (e) Adjudication in another charges. If the panel of the Committee officer shall explain the reason for any jurisdiction or Federal agency or on Discipline determines that probable default judgment, reprimand, program. In all other respects, a final cause exists to bring charges, the OED suspension, exclusion, or probation, and adjudication in another jurisdiction or Director may institute a disciplinary shall explain any conditions imposed Federal agency or program that a proceeding by filing a complaint under with discipline. In determining any practitioner, whether or not admitted in § 11.34. sanction, the following four factors must that jurisdiction, has been guilty of 21. In § 11.34 revise the introductory be considered if they are applicable: misconduct shall establish a prima facie text of paragraph (a), and paragraphs * * * * * case by clear and convincing evidence (a)(1) and (b) to read as follows: 24. In § 11.58 revise the introductory text of paragraph (b)(2) and paragraph that the practitioner has engaged in § 11.34 Complaint. misconduct under § 11.804. (f)(1)(ii) to read as follows: (a) A complaint instituting a * * * * * disciplinary proceeding shall: § 11.58 Duties of disciplined or resigned 19. Revise § 11.25(a) to read as practitioner, or practitioner on disability follows: (1) Name the person who is the inactive status. subject of the complaint who may then § 11.25 Interim suspension and discipline be referred to as the ‘‘respondent’’; * * * * * based upon conviction of committing a (b) * * * serious crime. * * * * * (2) Within forty-five days after entry (a) Notification of OED Director. Upon (b) A complaint will be deemed of the order of suspension, exclusion, or being convicted of a crime in a court of sufficient if it fairly informs the of acceptance of resignation, the the United States, any State, or a foreign respondent of any grounds for practitioner shall file with the OED country, a practitioner subject to the discipline, and where applicable, the Director an affidavit of compliance disciplinary jurisdiction of the Office USPTO Rules of Professional Conduct certifying that the practitioner has fully shall notify the OED Director in writing that form the basis for the disciplinary complied with the provisions of the of the same within thirty days from the proceeding so that the respondent is order, this section, and with § 11.116 for date of such conviction. Upon being able to adequately prepare a defense. withdrawal from representation. advised or learning that a practitioner * * * * * Appended to the affidavit of compliance subject to the disciplinary jurisdiction 22. Revise § 11.35(a)(2)(ii) and shall be: of the Office has been convicted of a (a)(4)(ii) to read as follows: * * * * * crime, the OED Director shall make a (f) * * * § 11.35 Service of complaint. preliminary determination whether the (1) * * * crime constitutes a serious crime (a) * * * (ii) Shows by clear and convincing warranting interim suspension. If the (2) * * * evidence that the excluded, suspended

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or resigned practitioner, or practitioner 11.405–11.500 [Reserved] conduct that the practitioner knows is transferred to disability inactive status Law Firms and Associations criminal or fraudulent, but a has complied with the provisions of this practitioner may discuss the legal 11.501 Responsibilities of partners, section and all USPTO Rules of managers, and supervisory practitioners. consequences of any proposed course of Professional Conduct; and 11.502 Responsibilities of a subordinate conduct with a client and may counsel * * * * * practitioner. or assist a client to make a good-faith 11.503 Responsibilities regarding non- effort to determine the validity, scope, § 11.61 [Removed and reserved] practitioner assistants. meaning or application of the law. 25. Section 11.61 is removed and 11.504 Professional independence of a reserved. practitioner. § 11.103 Diligence. 11.505 Unauthorized practice of law. A practitioner shall act with 26. Part 11 is amended to add Subpart 11.506 Restrictions on right to practice. D to read as follows: reasonable diligence and promptness in 11.507 Responsibilities regarding law- representing a client. Subpart D—USPTO Rules of Professional related services. Conduct 11.508–11.700 [Reserved] § 11.104 Communication. 11.100 [Reserved] Information About Legal Services (a) A practitioner shall: (1) Promptly inform the client of any Client-Practitioner Relationship 11.701 Communications concerning a practitioner’s services. decision or circumstance with respect to 11.101 Competence. 11.702 Advertising. which the client’s informed consent is 11.102 Scope of representation and 11.703 Direct contact with prospective required by the USPTO Rules of allocation of authority between client clients. Professional Conduct; and practitioner. 11.704 Communication of fields of practice 11.103 Diligence. (2) Reasonably consult with the client and specialization. about the means by which the client’s 11.104 Communication. 11.705 Firm names and letterheads. 11.105 Fees. 11.706–11.800 [Reserved] objectives are to be accomplished; 11.106 Confidentiality of information. (3) Keep the client reasonably 11.107 Conflict of interest: Current clients. Maintaining the Integrity of the Profession informed about the status of the matter; 11.108 Conflict of interest: Current clients: 11.801 Registration, recognition and (4) Promptly comply with reasonable Specific rules. disciplinary matters. requests for information from the client; 11.109 Duties to former clients. 11.802 Judicial and legal officials. and 11.110 Imputation of conflicts of interest: 11.803 Reporting professional misconduct. (5) Consult with the client about any General rule. 11.804 Misconduct. relevant limitation on the practitioner’s 11.111 Former or current Federal 11.805–11.900 [Reserved] 11.901 Savings clause. conduct when the practitioner knows Government employees. that the client expects assistance not 11.112 Former judge, arbitrator, mediator or other third-party neutral. Subpart D—USPTO Rules of permitted by the USPTO Rules of 11.113 Organization as client. Professional Conduct Professional Conduct or other law. 11.114 Client with diminished capacity. (b) A practitioner shall explain a 11.115 Safekeeping property. § 11.100 [Reserved] matter to the extent reasonably 11.116 Declining or terminating Client-Practitioner Relationship necessary to permit the client to make representation. informed decisions regarding the 11.117 Sale of law practice. § 11.101 Competence. representation. 11.118 Duties to prospective client. A practitioner shall provide 11.119–11.200 [Reserved] competent representation to a client. § 11.105 Fees. Counselor Competent representation requires the (a) A practitioner shall not make an agreement for, charge, or collect an 11.201 Advisor. legal, scientific, and technical 11.202 [Reserved] knowledge, skill, thoroughness and unreasonable fee or an unreasonable 11.203 Evaluation for use by third persons. preparation reasonably necessary for the amount for expenses. The factors to be 11.204 Practitioner serving as third-party representation. considered in determining the neutral. reasonableness of a fee include the 11.205–11.300 [Reserved] § 11.102 Scope of representation and following: allocation of authority between client and (1) The time and labor required, the Advocate practitioner. novelty and difficulty of the questions 11.301 Meritorious claims and contentions. (a) Subject to paragraphs (c) and (d) of involved, and the skill requisite to 11.302 Expediting proceedings. this section, a practitioner shall abide by perform the legal service properly; 11.303 Candor toward the tribunal. a client’s decisions concerning the (2) The likelihood, if apparent to the 11.304 Fairness to opposing party and objectives of representation and, as counsel. client, that the acceptance of the 11.305 Impartiality and decorum of the required by § 11.104, shall consult with particular employment will preclude tribunal. the client as to the means by which they other employment by the practitioner; 11.306 [Reserved] are to be pursued. A practitioner may (3) The fee customarily charged in the 11.307 Practitioner as witness. take such action on behalf of the client locality for similar legal services; 11.308 [Reserved] as is impliedly authorized to carry out (4) The amount involved and the 11.309 Advocate in nonadjudicative the representation. A practitioner shall results obtained; proceedings. abide by a client’s decision whether to (5) The time limitations imposed by 11.310–11.400 [Reserved] settle a matter. the client or by the circumstances; Transactions With Persons Other Than (b) [Reserved]. (6) The nature and length of the Clients (c) A practitioner may limit the scope professional relationship with the 11.401 Truthfulness in statements to others. of the representation if the limitation is client; 11.402 Communication with person reasonable under the circumstances and (7) The experience, reputation, and represented by a practitioner. the client gives informed consent. ability of the practitioner or 11.403 Dealing with unrepresented person. (d) A practitioner shall not counsel a practitioners performing the services; 11.404 Respect for rights of third persons. client to engage, or assist a client, in and

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(8) Whether the fee is fixed or the practitioner reasonably believes (3) The representation does not contingent. necessary: involve the assertion of a claim by one (b) The scope of the representation (1) To prevent reasonably certain client against another client represented and the basis or rate of the fee and death or substantial bodily harm; by the practitioner in the same litigation expenses for which the client will be (2) To prevent the client from or other proceeding before a tribunal; responsible shall be communicated to committing a crime, fraud, or and the client, preferably in writing, before inequitable conduct before the Office (4) Each affected client gives informed or within a reasonable time after that is reasonably certain to result in consent, confirmed in writing. commencing the representation, except substantial injury to the financial when the practitioner will charge a interests or property of another and in § 11.108 Conflict of interest: Current clients: Specific rules. regularly represented client on the same furtherance of which the client has used basis or rate. Any changes in the basis or is using the practitioner’s services; (a) A practitioner shall not enter into or rate of the fee or expenses shall also (3) To prevent, mitigate or rectify a business transaction with a client or be communicated to the client. substantial injury to the financial knowingly acquire an ownership, (c) A fee may be contingent on the interests or property of another that is possessory, security or other pecuniary outcome of the matter for which the reasonably certain to result or has interest adverse to a client unless: service is rendered, except in a matter resulted from the client’s commission of (1) The transaction and terms on in which a contingent fee is prohibited a crime, fraud, or inequitable conduct which the practitioner acquires the by law. A contingent fee agreement shall before the Office in furtherance of interest are fair and reasonable to the be in a writing signed by the client and which the client has used the client and are fully disclosed and shall state the method by which the fee practitioner’s services; transmitted in writing in a manner that is to be determined, including the (4) To secure legal advice about the can be reasonably understood by the percentage or percentages that shall practitioner’s compliance with the client; accrue to the practitioner in the event of USPTO Rules of Professional Conduct; (2) The client is advised in writing of settlement, trial or appeal; litigation and (5) To establish a claim or defense on the desirability of seeking and is given other expenses to be deducted from the behalf of the practitioner in a a reasonable opportunity to seek the recovery; and whether such expenses controversy between the practitioner advice of independent legal counsel in are to be deducted before or after the and the client, to establish a defense to the transaction; and contingent fee is calculated. The a criminal charge or civil claim against (3) The client gives informed consent, agreement must clearly notify the client the practitioner based upon conduct in in a writing signed by the client, to the of any expenses for which the client which the client was involved, or to essential terms of the transaction and will be liable whether or not the client respond to allegations in any proceeding the practitioner’s role in the transaction, is the prevailing party. Upon conclusion concerning the practitioner’s including whether the practitioner is of a contingent fee matter, the representation of the client; or representing the client in the practitioner shall provide the client (6) To comply with other law or a transaction. with a written statement stating the court order. (b) A practitioner shall not use outcome of the matter and, if there is a (c) A practitioner shall disclose to the information relating to representation of recovery, showing the remittance to the Office information necessary to comply a client to the disadvantage of the client client and the method of its with applicable duty of disclosure unless the client gives informed determination. provisions. consent, except as permitted or required (d) [Reserved]. § 11.107 Conflict of interest: Current by the USPTO Rules of Professional (e) A division of a fee between clients. Conduct. practitioners who are not in the same (a) Except as provided in paragraph (c) A practitioner shall not solicit any firm may be made only if: (b) of this section, a practitioner shall substantial gift from a client, including (1) The division is in proportion to not represent a client if the a testamentary gift, or prepare on behalf the services performed by each representation involves a concurrent of a client an instrument giving the practitioner or each practitioner conflict of interest. A concurrent practitioner or a person related to the assumes joint responsibility for the conflict of interest exists if: practitioner any substantial gift unless representation; (1) The representation of one client the practitioner or other recipient of the (2) The client agrees to the will be directly adverse to another gift is related to the client. For purposes arrangement, including the share each client; or of this paragraph, related persons practitioner will receive, and the (2) There is a significant risk that the include a spouse, child, grandchild, agreement is confirmed in writing; and representation of one or more clients parent, grandparent or other relative or (3) The total fee is reasonable. will be materially limited by the individual with whom the practitioner practitioner’s responsibilities to another or the client maintains a close, familial § 11.106 Confidentiality of information. client, a former client or a third person relationship. (a) A practitioner shall not reveal or by a personal interest of the (d) Prior to the conclusion of information relating to the practitioner. representation of a client, a practitioner representation of a client unless the (b) Notwithstanding the existence of a shall not make or negotiate an client gives informed consent, the concurrent conflict of interest under agreement giving the practitioner disclosure is impliedly authorized in paragraph (a) of this section, a literary or media rights to a portrayal or order to carry out the representation, the practitioner may represent a client if: account based in substantial part on disclosure is permitted by paragraph (b) (1) The practitioner reasonably information relating to the of this section, or the disclosure is believes that the practitioner will be representation. required by paragraph (c) of this section. able to provide competent and diligent (e) A practitioner shall not provide (b) A practitioner may reveal representation to each affected client; financial assistance to a client in information relating to the (2) The representation is not connection with pending or representation of a client to the extent prohibited by law; contemplated litigation, except that:

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(1) A practitioner may advance court the same or a substantially related Professional Conduct; a statement that costs and expenses of litigation, the matter in which that person’s interests review may be available before a repayment of which may be contingent are materially adverse to the interests of tribunal; and an agreement by the firm on the outcome of the matter; and the former client unless the former to respond promptly to any written (2) A practitioner representing an client gives informed consent, inquiries or objections by the former indigent client may pay court costs and confirmed in writing. client about the screening procedures; expenses of litigation on behalf of the (b) A practitioner shall not knowingly and client. represent a person in the same or a (iii) Certifications of compliance with (f) A practitioner shall not accept substantially related matter in which a the USPTO Rules of Professional compensation for representing a client firm with which the practitioner Conduct and with the screening from one other than the client unless: formerly was associated had previously procedures are provided to the former (1) The client gives informed consent; represented a client client by the screened practitioner and (2) There is no interference with the (1) Whose interests are materially by a partner of the firm, at reasonable practitioner’s independence of adverse to that person; and intervals upon the former client’s professional judgment or with the (2) About whom the practitioner had written request and upon termination of client-practitioner relationship; and acquired information protected by the screening procedures. (3) Information relating to §§ 11.106 and 11.109(c) that is material (b) When a practitioner has representation of a client is protected as to the matter; terminated an association with a firm, required by § 11.106. unless the former client gives informed the firm is not prohibited from (g) A practitioner who represents two consent, confirmed in writing. thereafter representing a person with or more clients shall not participate in (c) A practitioner who has formerly interests materially adverse to those of making an aggregate settlement of the represented a client in a matter or a client represented by the formerly claims of or against the clients, unless whose present or former firm has associated practitioner and not currently each client gives informed consent, in formerly represented a client in a matter represented by the firm, unless: writing signed by the client. The shall not thereafter: (1) The matter is the same or practitioner’s disclosure shall include (1) Use information relating to the substantially related to that in which the the existence and nature of all the representation to the disadvantage of the formerly associated practitioner claims involved and of the participation former client except as the USPTO represented the client; and of each person in the settlement. Rules of Professional Conduct would (2) Any practitioner remaining in the (h) A practitioner shall not: permit or require with respect to a firm has information protected by (1) Make an agreement prospectively client, or when the information has §§ 11.106 and 11.109(c) that is material limiting the practitioner’s liability to a become generally known; or to the matter. client for malpractice unless the client (2) Reveal information relating to the (c) A disqualification prescribed by is independently represented in making representation except as the USPTO this section may be waived by the the agreement; or Rules of Professional Conduct would affected client under the conditions (2) Settle a claim or potential claim permit or require with respect to a stated in § 11.107. for such liability with an unrepresented client. (d) The disqualification of client or former client unless that practitioners associated in a firm with person is advised in writing of the § 11.110 Imputation of conflicts of interest: General rule. former or current Federal Government desirability of seeking and is given a lawyers is governed by § 11.111. reasonable opportunity to seek the (a) While practitioners are associated advice of independent legal counsel in in a firm, none of them shall knowingly § 11.111 Former or current Federal connection therewith. represent a client when any one of them Government employees. (i) A practitioner shall not acquire a practicing alone would be prohibited A practitioner who is a former or proprietary interest in the cause of from doing so by §§ 11.107 or 11.109, current Federal Government employee action, subject matter of litigation, or a unless shall not engage in any conduct which proceeding before the Office which the (1) The prohibition is based on a is contrary to applicable Federal ethics practitioner is conducting for a client, personal interest of the disqualified law, including conflict of interest except that the practitioner may: practitioner and does not present a statutes and regulations of the (1) Acquire a lien authorized by law significant risk of materially limiting the department, agency or commission to secure the practitioner’s fee or representation of the client by the formerly or currently employing said expenses; remaining practitioners in the firm; or practitioner. (2) Contract with a client for a (2) The prohibition is based upon reasonable contingent fee in a civil case; § 11.109(a) or (b), and arises out of the § 11.112 Former judge, arbitrator, mediator or other third-party neutral. and disqualified practitioner’s association (3) In a patent case or a proceeding with a prior firm, and (a) Except as stated in paragraph (d) before the Office, take an interest in the (i) The disqualified practitioner is of this section, a practitioner shall not patent as part or all of his or her fee. timely screened from any participation represent anyone in connection with a (j) [Reserved]. in the matter and is apportioned no part matter in which the practitioner (k) While practitioners are associated of the fee therefrom; participated personally and in a firm, a prohibition in paragraphs (a) (ii) Written notice is promptly given substantially as a judge or other through (i) of this section that applies to to any affected former client to enable adjudicative officer or law clerk to such any one of them shall apply to all of the former client to ascertain a person or as an arbitrator, mediator or them. compliance with the provisions of this other third-party neutral, unless all section, which shall include a parties to the proceeding give informed § 11.109 Duties to former clients. description of the screening procedures consent, confirmed in writing. (a) A practitioner who has formerly employed; a statement of the firm’s and (b) A practitioner shall not negotiate represented a client in a matter shall not of the screened practitioner’s for employment with any person who is thereafter represent another person in compliance with the USPTO Rules of involved as a party or as practitioner for

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a party in a matter in which the refusal to act, that is clearly a violation capacity, is at risk of substantial practitioner is participating personally of law, and physical, financial or other harm unless and substantially as a judge or other (2) The practitioner reasonably action is taken and cannot adequately adjudicative officer or as an arbitrator, believes that the violation is reasonably act in the client’s own interest, the mediator or other third-party neutral. A certain to result in substantial injury to practitioner may take reasonably practitioner serving as a law clerk to a the organization, then the practitioner necessary protective action, including judge or other adjudicative officer may may reveal information relating to the consulting with individuals or entities negotiate for employment with a party representation whether or not § 11.106 that have the ability to take action to or practitioner involved in a matter in permits such disclosure, but only if and protect the client and, in appropriate which the clerk is participating to the extent the practitioner reasonably cases, seeking the appointment of a personally and substantially, but only believes necessary to prevent substantial guardian ad litem, conservator or after the practitioner has notified the injury to the organization. guardian. judge, or other adjudicative officer. (d) Paragraph (c) of this section shall (c) Information relating to the (c) If a practitioner is disqualified by not apply with respect to information representation of a client with paragraph (a) of this section, no relating to a practitioner’s diminished capacity is protected under practitioner in a firm with which that representation of an organization to § 11.106. When taking protective action practitioner is associated may investigate an alleged violation of law, pursuant to paragraph (b) of this section, knowingly undertake or continue or to defend the organization or an the practitioner is impliedly authorized representation in the matter unless: officer, employee or other constituent under § 11.106(a) to reveal information (1) The disqualified practitioner is associated with the organization against about the client, but only to the extent timely screened from any participation a claim arising out of an alleged reasonably necessary to protect the in the matter and is apportioned no part violation of law. client’s interests. of the fee therefrom; and (e) A practitioner who reasonably believes that he or she has been § 11.115 Safekeeping property. (2) Written notice is promptly given to (a) A practitioner shall hold property the parties and any appropriate tribunal discharged because of the practitioner’s actions taken pursuant to paragraphs (b) of clients or third persons that is in a to enable them to ascertain compliance practitioner’s possession in connection with the provisions of this section. or (c) of this section, or who withdraws under circumstances that require or with a representation separate from the (d) An arbitrator selected as a partisan permit the practitioner to take action practitioner’s own property. Funds shall of a party in a multimember arbitration under either of those paragraphs, shall be kept in a separate account panel is not prohibited from proceed as the practitioner reasonably maintained in the state where the subsequently representing that party. believes necessary to assure that the practitioner’s office is situated, or § 11.113 Organization as client. organization’s highest authority is elsewhere with the consent of the client or third person. Where the practitioner’s (a) A practitioner employed or informed of the practitioner’s discharge or withdrawal. office is situated in a foreign country, retained by an organization represents funds shall be kept in a separate account the organization acting through its duly (f) In dealing with an organization’s directors, officers, employees, members, maintained in that foreign country or authorized constituents. elsewhere with the consent of the client (b) If a practitioner for an organization shareholders, or other constituents, a practitioner shall explain the identity of or third person. Other property shall be knows that an officer, employee or other identified as such and appropriately person associated with the organization the client when the practitioner knows or reasonably should know that the safeguarded. Complete records of such is engaged in action, intends to act or account funds and other property shall refuses to act in a matter related to the organization’s interests are adverse to those of the constituents with whom the be kept by the practitioner and shall be representation that is a violation of a preserved for a period of five years after legal obligation to the organization, or a practitioner is dealing. (g) A practitioner representing an termination of the representation. violation of law that reasonably might organization may also represent any of (b) A practitioner may deposit the be imputed to the organization, and that its directors, officers, employees, practitioner’s own funds in a client trust is likely to result in substantial injury to members, shareholders or other account for the sole purpose of paying the organization, then the practitioner constituents, subject to the provisions of bank service charges on that account, shall proceed as is reasonably necessary § 11.107. If the organization’s consent to but only in an amount necessary for that in the best interest of the organization. the dual representation is required by purpose. Unless the practitioner reasonably § 11.107, the consent shall be given by (c) A practitioner shall deposit into a believes that it is not necessary in the an appropriate official of the client trust account legal fees and best interest of the organization to do so, organization other than the individual expenses that have been paid in the practitioner shall refer the matter to who is to be represented, or by the advance, to be withdrawn by the higher authority in the organization, shareholders. practitioner only as fees are earned or including, if warranted by the expenses incurred. circumstances, to the highest authority § 11.114 Client with diminished capacity. (d) Upon receiving funds or other that can act on behalf of the (a) When a client’s capacity to make property in which a client or third organization as determined by adequately considered decisions in person has an interest, a practitioner applicable law. connection with a representation is shall promptly notify the client or third (c) Except as provided in paragraph diminished, whether because of person. Except as stated in this section (d) of this section, if minority, mental impairment or for or otherwise permitted by law or by (1) Despite the practitioner’s efforts in some other reason, the practitioner agreement with the client, a practitioner accordance with paragraph (b) of this shall, as far as reasonably possible, shall promptly deliver to the client or section the highest authority that can act maintain a normal client-practitioner third person any funds or other property on behalf of the organization insists relationship with the client. that the client or third person is entitled upon or fails to address in a timely and (b) When the practitioner reasonably to receive and, upon request by the appropriate manner an action, or a believes that the client has diminished client or third person, shall promptly

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render a full accounting regarding such (2) Client trust account safeguards. practitioner’s ability to represent the property. With respect to client trust accounts client; or (e) When in the course of required by paragraphs (a) through (e) of (3) The practitioner is discharged. representation a practitioner is in this section: (b) Except as stated in paragraph (c) possession of property in which two or (i) Only a practitioner or a person of this section, a practitioner may more persons (one of whom may be the under the direct supervision of the withdraw from representing a client if: practitioner) claim interests, the practitioner shall be an authorized (1) Withdrawal can be accomplished property shall be kept separate by the signatory or authorize transfers from a without material adverse effect on the practitioner until the dispute is client trust account; interests of the client; resolved. The practitioner shall (ii) Receipts shall be deposited intact (2) The client persists in a course of promptly distribute all portions of the and records of deposit should be action involving the practitioner’s property as to which the interests are sufficiently detailed to identify each services that the practitioner reasonably not in dispute. item; and believes is criminal or fraudulent; (f) All separate accounts for clients or (iii) Withdrawals shall be made only (3) The client has used the third persons kept by a practitioner by check payable to a named payee and practitioner’s services to perpetrate a must also comply with the following not to cash, or by authorized electronic crime or fraud; provisions: transfer. (4) A client insists upon taking action that the practitioner considers (1) Required records. The records to (3) Availability of records. Records repugnant or with which the be kept include: required by paragraph (f)(1) of this practitioner has a fundamental (i) Receipt and disbursement journals section may be maintained by disagreement; containing a record of deposits to and electronic, photographic, or other media (5) The client fails substantially to withdrawals from client trust accounts, provided that they otherwise comply fulfill an obligation to the practitioner specifically identifying the date, source, with paragraphs (f)(1) and (f)(2) of this regarding the practitioner’s services and and description of each item deposited, section and that printed copies can be has been given reasonable warning that as well as the date, payee and purpose produced. These records shall be readily the practitioner will withdraw unless of each disbursement; accessible to the practitioner. (ii) Ledger records for all client trust the obligation is fulfilled; (4) Lawyers. The records kept by a (6) The representation will result in accounts showing, for each separate lawyer are deemed to be in compliance an unreasonable financial burden on the trust client or beneficiary, the source of with this section if the types of records practitioner or has been rendered all funds deposited, the names of all that are maintained meet the unreasonably difficult by the client; or persons for whom the funds are or were recordkeeping requirements of a state in (7) Other good cause for withdrawal held, the amount of such funds, the which the lawyer is licensed and in exists. descriptions and amounts of charges or good standing, the recordkeeping (c) A practitioner must comply with withdrawals, and the names of all requirements of the state where the applicable law requiring notice to or persons or entities to whom such funds lawyer’s principal place of business is permission of a tribunal when were disbursed; located, or the recordkeeping terminating a representation. When (iii) Copies of retainer and requirements of this section. ordered to do so by a tribunal, a compensation agreements with clients; (5) Patent agents and persons granted practitioner shall continue (iv) Copies of accountings to clients or limited recognition who are employed in representation notwithstanding good third persons showing the disbursement the United States by a law firm. The cause for terminating the representation. of funds to them or on their behalf; records kept by a law firm employing (d) Upon termination of (v) Copies of bills for legal fees and one or more registered patent agents or representation, a practitioner shall take expenses rendered to clients; persons granted limited recognition steps to the extent reasonably (vi) Copies of records showing under § 11.9 are deemed to be in practicable to protect a client’s interests, disbursements on behalf of clients; compliance with this section if the types such as giving reasonable notice to the (vii) The physical or electronic of records that are maintained meet the client, allowing time for employment of equivalents of all checkbook registers, recordkeeping requirements of the state other counsel, surrendering papers and bank statements, records of deposit, pre- where at least one practitioner of the property to which the client is entitled numbered canceled checks, and law firm is licensed and in good and refunding any advance payment of substitute checks provided by a standing, the recordkeeping fee or expense that has not been earned financial institution; requirements of the state where the law or incurred. The practitioner may retain (viii) Records of all electronic firm’s principal place of business is papers relating to the client to the extent transfers from client trust accounts, located, or the recordkeeping permitted by other law. including the name of the person requirements of this section. authorizing transfer, the date of transfer, § 11.117 Sale of law practice. the name of the recipient and § 11.116 Declining or terminating A practitioner or a law firm may sell confirmation from the financial representation. or purchase a law practice, or an area of institution of the trust account number (a) Except as stated in paragraph (c) of law practice, including good will, if the from which money was withdrawn and this section, a practitioner shall not following conditions are satisfied: the date and the time the transfer was represent a client, or where (a) The seller ceases to engage in the completed; representation has commenced, shall private practice of law, or in the area of (ix) Copies of monthly trial balances withdraw from the representation of a practice that has been sold, in a and quarterly reconciliations of the client if: geographic area in which the practice client trust accounts maintained by the (1) The representation will result in has been conducted; practitioner; and violation of the USPTO Rules of (b)(1) Except as provided in paragraph (x) Copies of those portions of client Professional Conduct or other law; (b)(2) of this section, the entire practice, files that are reasonably related to client (2) The practitioner’s physical or or the entire area of practice, is sold to trust account transactions. mental condition materially impairs the one or more lawyers or law firms;

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(2) To the extent the practice or the (1) Both the affected client and the does not understand the practitioner’s area of practice involves patent prospective client have given informed role in the matter, the practitioner shall proceedings before the Office, that consent, confirmed in writing; or explain the difference between the practice or area of practice may be sold (2) The practitioner who received the practitioner’s role as a third-party only to one or more registered information took reasonable measures to neutral and a practitioner’s role as one practitioners or law firms that include at avoid exposure to more disqualifying who represents a client. least one registered practitioner; information than was reasonably §§ 11.205–11.300 [Reserved] (c)(1) The seller gives written notice necessary to determine whether to to each of the seller’s clients regarding: represent the prospective client; and Advocate (i) The proposed sale; (i) The disqualified practitioner is timely screened from any participation § 11.301 Meritorious claims and (ii) The client’s right to retain other in the matter and is apportioned no part contentions. counsel or to take possession of the file; of the fee therefrom; and A practitioner shall not bring or and (ii) Written notice is promptly given defend a proceeding, or assert or (iii) The fact that the client’s consent to the prospective client. controvert an issue therein, unless there to the transfer of the client’s files will is a basis in law and fact for doing so be presumed if the client does not take §§ 11.119–11.200 [Reserved] that is not frivolous, which includes a any action or does not otherwise object Counselor good-faith argument for an extension, within ninety (90) days after receipt of modification or reversal of existing law. the notice. § 11.201 Advisor. § 11.302 Expediting proceedings. (2) If a client cannot be given notice, In representing a client, a practitioner A practitioner shall make reasonable the representation of that client may be shall exercise independent professional efforts to expedite proceedings before a transferred to the purchaser only upon judgment and render candid advice. tribunal consistent with the interests of entry of an order so authorizing by a § 11.202 [Reserved] the client. court having jurisdiction. The seller may disclose to the court in camera § 11.203 Evaluation for use by third § 11.303 Candor toward the tribunal. information relating to the persons. (a) A practitioner shall not knowingly: representation only to the extent (a) A practitioner may provide an (1) Make a false statement of fact or necessary to obtain an order authorizing evaluation of a matter affecting a client law to a tribunal or fail to correct a false the transfer of a file; and for the use of someone other than the statement of material fact or law (d) The fees charged clients shall not client if the practitioner reasonably previously made to the tribunal by the be increased by reason of the sale. believes that making the evaluation is practitioner; compatible with other aspects of the (2) Fail to disclose to the tribunal § 11.118 Duties to prospective client. practitioner’s relationship with the legal authority in the controlling (a) A person who discusses with a client. jurisdiction known to the practitioner to practitioner the possibility of forming a (b) When the practitioner knows or be directly adverse to the position of the client-practitioner relationship with reasonably should know that the client and not disclosed by opposing respect to a matter is a prospective evaluation is likely to affect the client’s counsel in an inter partes proceeding, or client. interests materially and adversely, the fail to disclose such authority in an ex (b) Even when no client-practitioner practitioner shall not provide the parte proceeding before the Office if relationship ensues, a practitioner who evaluation unless the client gives such authority is not otherwise has had discussions with the informed consent. disclosed; or prospective client shall not use or reveal (c) Except as disclosure is authorized (3) Offer evidence that the practitioner information learned in the consultation, or required in connection with a report knows to be false. If a practitioner, the except as § 11.109 would permit with of an evaluation regarding a patent, practitioner’s client, or a witness called respect to information of a former client. trademark or other non-patent law by the practitioner, has offered material matter before the Office, information evidence and the practitioner comes to (c) A practitioner subject to paragraph know of its falsity, the practitioner shall (b) of this section shall not represent a relating to the evaluation is otherwise protected by § 11.106. take reasonable remedial measures, client with interests materially adverse including, if necessary, disclosure to the to those of a prospective client in the § 11.204 Practitioner serving as third-party tribunal. A practitioner may refuse to same or a substantially related matter if neutral. offer evidence that the practitioner the practitioner received information (a) A practitioner serves as a third- reasonably believes is false. from the prospective client that could be party neutral when the practitioner (b) A practitioner who represents a significantly harmful to that person in assists two or more persons who are not client in a proceeding before a tribunal the matter, except as provided in clients of the practitioner to reach a and who knows that a person intends to paragraph (d) of this section. If a resolution of a dispute or other matter engage, is engaging or has engaged in practitioner is disqualified from that has arisen between them. Service as criminal or fraudulent conduct related representation under this paragraph, no a third-party neutral may include to the proceeding shall take reasonable practitioner in a firm with which that service as an arbitrator, a mediator or in remedial measures, including, if practitioner is associated may such other capacity as will enable the necessary, disclosure to the tribunal. knowingly undertake or continue practitioner to assist the parties to (c) The duties stated in paragraphs (a) representation in such a matter, except resolve the matter. and (b) of this section continue to the as provided in paragraph (d) of this (b) A practitioner serving as a third- conclusion of the proceeding, and apply section. party neutral shall inform even if compliance requires disclosure (d) When the practitioner has received unrepresented parties that the of information otherwise protected by disqualifying information as defined in practitioner is not representing them. § 11.106. paragraph (c) of this section, When the practitioner knows or (d) In an ex parte proceeding, a representation is permissible if: reasonably should know that a party practitioner shall inform the tribunal of

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all material facts known to the (d) Engage in conduct intended to government officials who are otherwise practitioner that will enable the tribunal disrupt any proceeding before a represented by counsel and who have to make an informed decision, whether tribunal. the authority to redress the grievances of or not the facts are adverse. the practitioner’s client, provided that, (e) In a proceeding before the Office, § 11.306 [Reserved] if the communication relates to a matter a practitioner shall disclose to the Office § 11.307 Practitioner as witness. for which the government official is information necessary to comply with (a) A practitioner shall not act as represented, then prior to the applicable duty of disclosure advocate at a proceeding before a communication the practitioner must provisions. tribunal in which the practitioner is disclose to such government official likely to be a necessary witness unless: both the practitioner’s identity and the § 11.304 Fairness to opposing party and fact that the practitioner represents a counsel. (1) The testimony relates to an party with a claim against the A practitioner shall not: uncontested issue; (2) The testimony relates to the nature government. (a) Unlawfully obstruct another and value of legal services rendered in party’s access to evidence or unlawfully § 11.403 Dealing with unrepresented the case; person. alter, destroy or conceal a document or (3) Disqualification of the practitioner other material having potential would work substantial hardship on the In dealing on behalf of a client with evidentiary value. A practitioner shall client; or a person who is not represented by a not counsel or assist another person to (4) The testimony relates to a duty of practitioner, a practitioner shall not do any such act; disclosure. state or imply that the practitioner is (b) Falsify evidence, counsel or assist (b) A practitioner may act as advocate disinterested. When the practitioner a witness to testify falsely, or offer an in a proceeding before a tribunal in knows or reasonably should know that inducement to a witness that is which another practitioner in the the unrepresented person prohibited by law; practitioner’s firm is likely to be called misunderstands the practitioner’s role (c) Knowingly disobey an obligation as a witness unless precluded from in the matter, the practitioner shall under the rules of a tribunal except for doing so by §§ 11.107 or 11.109. make reasonable efforts to correct the an open refusal based on an assertion misunderstanding. The practitioner that no valid obligation exists; § 11.308 [Reserved] shall not give legal advice to an (d) Make a frivolous discovery request § 11.309 Advocate in nonadjudicative unrepresented person, other than the or fail to make a reasonably diligent proceedings. advice to secure counsel, if the effort to comply with a legally proper A practitioner representing a client practitioner knows or reasonably should discovery request by an opposing party; before a legislative body or know that the interests of such a person (e) In a proceeding before a tribunal, administrative agency in a are or have a reasonable possibility of allude to any matter that the practitioner nonadjudicative proceeding shall being in conflict with the interests of the does not reasonably believe is relevant disclose that the appearance is in a client. or that will not be supported by representative capacity and shall admissible evidence, assert personal § 11.404 Respect for rights of third conform to the provisions of knowledge of facts in issue except when persons. §§ 11.303(a) through (c), 11.304 (a) testifying as a witness, or state a (a) In representing a client, a through (c), and 11.305. personal opinion as to the justness of a practitioner shall not use means that cause, the credibility of a witness, the §§ 11.310–11.400 [Reserved] have no substantial purpose other than culpability of a civil litigant or the guilt to embarrass, delay, or burden a third or innocence of an accused; or Transactions With Persons Other Than person, or use methods of obtaining (f) Request a person other than a Clients evidence that violate the legal rights of client to refrain from voluntarily giving § 11.401 Truthfulness in statements to such a person. relevant information to another party others. (b) A practitioner who receives a unless: In the course of representing a client, document relating to the representation (1) The person is a relative or an a practitioner shall not knowingly: of the practitioner’s client and knows or employee or other agent of a client; and (a) Make a false statement of material reasonably should know that the (2) The practitioner reasonably fact or law to a third person; or document was inadvertently sent shall believes that the person’s interests will (b) Fail to disclose a material fact to promptly notify the sender. not be adversely affected by refraining a third person when disclosure is §§ 11.405–11.500 [Reserved] from giving such information. necessary to avoid assisting a criminal or fraudulent act by a client, unless Law Firms and Associations § 11.305 Impartiality and decorum of the tribunal. disclosure is prohibited by § 11.106. § 11.501 Responsibilities of partners, A practitioner shall not: § 11.402 Communication with person managers, and supervisory practitioners. (a) Seek to influence a judge, hearing represented by a practitioner. (a) A practitioner who is a partner in officer, administrative law judge, (a) In representing a client, a a law firm, and a practitioner who administrative patent judge, practitioner shall not communicate individually or together with other administrative trademark judge, juror, about the subject of the representation practitioners possesses comparable prospective juror, employee or officer of with a person the practitioner knows to managerial authority in a law firm, shall the Office, or other official by means be represented by another practitioner make reasonable efforts to ensure that prohibited by law; in the matter, unless the practitioner has the firm has in effect measures giving (b) Communicate ex parte with such the consent of the other practitioner or reasonable assurance that all a person during the proceeding unless is authorized to do so by law, rule, or practitioners in the firm conform to the authorized to do so by law, rule or court a court order. USPTO Rules of Professional Conduct. order; or (b) This section does not prohibit (b) A practitioner having direct (c) [Reserved] communication by a practitioner with supervisory authority over another

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practitioner shall make reasonable authority over the person, and knows of (a) Practice law in a jurisdiction in efforts to ensure that the other the conduct at a time when its violation of the regulation of the legal practitioner conforms to the USPTO consequences can be avoided or profession in that jurisdiction; Rules of Professional Conduct. mitigated but fails to take reasonable (b) Practice before the Office in (c) A practitioner shall be responsible remedial action. patent, trademark, or other non-patent for another practitioner’s violation of § 11.504 Professional independence of a law in violation of this subchapter; the USPTO Rules of Professional practitioner. Conduct if: (c) Assist a person who is not a (1) The practitioner orders or, with (a) A practitioner or law firm shall not member of the bar of a jurisdiction in knowledge of the specific conduct, share legal fees with a non-practitioner, the performance of an activity that ratifies the conduct involved; or except that: constitutes the unauthorized practice of (1) An agreement by a practitioner (2) The practitioner is a partner or has law, or assist a person who is not a with the practitioner’s firm, partner, or comparable managerial authority in the registered patent practitioner in the associate may provide for the payment law firm in which the other practitioner performance of an activity that of money, over a reasonable period of practices, or has direct supervisory constitutes unauthorized patent practice time after the practitioner’s death, to the authority over the other practitioner, before the Office; practitioner’s estate or to one or more and knows of the conduct at a time specified persons; (d) Aid a suspended, disbarred or when its consequences can be avoided (2) A practitioner who purchases the excluded practitioner in the or mitigated but fails to take reasonable practice of a deceased, disabled, or unauthorized practice of patent, remedial action. disappeared practitioner may, pursuant trademark, or other non-patent law before the Office; § 11.502 Responsibilities of a subordinate to the provisions of § 11.117, pay to the practitioner. estate or other representative of that (e) Aid a suspended, disbarred or (a) A practitioner is bound by the practitioner the agreed-upon purchase excluded attorney in the unauthorized USPTO Rules of Professional Conduct price; practice of law in any other jurisdiction; (3) A practitioner or law firm may notwithstanding that the practitioner or include non-practitioner employees in a acted at the direction of another person. (f) Practice before the Office in compensation or retirement plan, even (b) A subordinate practitioner does trademark matters if the practitioner though the plan is based in whole or in not violate the USPTO Rules of was registered as a patent agent after part on a profit-sharing arrangement; Professional Conduct if that practitioner January 1, 1957, and is not an attorney. and acts in accordance with a supervisory (4) A practitioner may share legal fees, § 11.506 Restrictions on right to practice. practitioner’s reasonable resolution of whether awarded by a tribunal or an arguable question of professional received in settlement of a matter, with A practitioner shall not participate in duty. a nonprofit organization that employed, offering or making: § 11.503 Responsibilities regarding non- retained or recommended employment (a) A partnership, shareholders, practitioner assistants. of the practitioner in the matter and that operating, employment, or other similar With respect to a non-practitioner qualifies under Section 501(c)(3) of the type of agreement that restricts the right assistant employed or retained by or Internal Revenue Code. of a practitioner to practice after associated with a practitioner: (b) A practitioner shall not form a termination of the relationship, except (a) A practitioner who is a partner, partnership with a non-practitioner if an agreement concerning benefits upon and a practitioner who individually or any of the activities of the partnership retirement; or together with other practitioners consist of the practice of law. (c) A practitioner shall not permit a (b) An agreement in which a possesses comparable managerial restriction on the practitioner’s right to authority in a law firm shall make person who recommends, employs, or pays the practitioner to render legal practice is part of the settlement of a reasonable efforts to ensure that the firm client controversy. has in effect measures giving reasonable services for another to direct or regulate assurance that the person’s conduct is the practitioner’s professional judgment § 11.507 Responsibilities regarding law- compatible with the professional in rendering such legal services. related services. (d) A practitioner shall not practice obligations of the practitioner; with or in the form of a professional A practitioner shall be subject to the (b) A practitioner having direct corporation or association authorized to USPTO Rules of Professional Conduct supervisory authority over the non- practice law for a profit, if: with respect to the provision of law- practitioner assistant shall make (1) A non-practitioner owns any related services if the law-related reasonable efforts to ensure that the interest therein, except that a fiduciary services are provided: person’s conduct is compatible with the representative of the estate of a professional obligations of the (a) By the practitioner in practitioner may hold the stock or circumstances that are not distinct from practitioner; and interest of the practitioner for a (c) A practitioner shall be responsible the practitioner’s provision of legal reasonable time during administration; services to clients; or for conduct of such a person that would (2) A non-practitioner is a corporate be a violation of the USPTO Rules of director or officer thereof or occupies (b) In other circumstances by an entity Professional Conduct if engaged in by a the position of similar responsibility in controlled by the practitioner practitioner if: any form of association other than a individually or with others if the (1) The practitioner orders or, with corporation; or practitioner fails to take reasonable the knowledge of the specific conduct, (3) A non-practitioner has the right to measures to assure that a person ratifies the conduct involved; or direct or control the professional obtaining the law-related services (2) The practitioner is a partner or has judgment of a practitioner. knows that the services are not legal comparable managerial authority in the services and that the protections of the law firm in which the person is § 11.505 Unauthorized practice of law. client-practitioner relationship do not employed, or has direct supervisory A practitioner shall not: exist.

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§§ 11.508–11.700 [Reserved] prohibited by paragraph (a) of this (e) An individual granted limited Information About Legal Services section, if: recognition under § 11.9 may use the (1) The prospective client has made designation ‘‘Limited Recognition.’’ § 11.701 Communications concerning a known to the practitioner a desire not to § 11.705 Firm names and letterheads. practitioner’s services. be solicited by the practitioner; or A practitioner shall not make a false (2) The solicitation involves coercion, (a) A practitioner shall not use a firm or misleading communication about the duress or harassment. name, letterhead or other professional designation that violates § 11.701. A practitioner or the practitioner’s (c) Every written, recorded or trade name may be used by a services. A communication is false or electronic communication from a practitioner in private practice if it does misleading if it contains a material practitioner soliciting professional not imply a connection with a misrepresentation of fact or law, or employment from a prospective client government agency or with a public or omits a fact necessary to make the known to be in need of legal services in charitable legal services organization statement considered as a whole not a particular matter shall include the and is not otherwise in violation of materially misleading. words ‘‘Advertising Material’’ on the § 11.701. § 11.702 Advertising. outside envelope, if any, and at the (b) [Reserved]. (a) Subject to the requirements of beginning and ending of any recorded or (c) The name of a practitioner holding §§ 11.701 and 11.703, a practitioner may electronic communication, unless the a public office shall not be used in the advertise services through written, recipient of the communication is a name of a law firm, or in recorded or electronic communication, person specified in paragraphs (a)(1) or communications on its behalf, during including public media. (a)(2) of this section. any substantial period in which the (b) A practitioner shall not give (d) Notwithstanding the prohibitions practitioner is not actively and regularly anything of value to a person for in paragraph (a) of this section, a practicing with the firm. recommending the practitioner’s practitioner may participate with a services except that a practitioner may: prepaid or group legal service plan § 11.706–11.800 [Reserved] (1) Pay the reasonable costs of operated by an organization not owned advertisements or communications or directed by the practitioner that uses Maintaining the Integrity of the permitted by this section; in-person or telephone contact to solicit Profession (2) [Reserved]; memberships or subscriptions for the § 11.801 Registration, recognition and (3) Pay for a law practice in plan from persons who are not known disciplinary matters. accordance with § 11.117; and to need legal services in a particular (4) Refer clients to another matter covered by the plan. An applicant for registration or practitioner or a non-practitioner recognition to practice before the Office, § 11.704 Communication of fields of or a practitioner in connection with an professional pursuant to an agreement practice and specialization. not otherwise prohibited under the application for registration or USPTO Rules of Professional Conduct (a) A practitioner may communicate recognition, or a practitioner in that provides for the other person to the fact that the practitioner does or connection with a disciplinary or refer clients or customers to the does not practice in particular fields of reinstatement matter, shall not: practitioner, if: law. (a) Knowingly make a false statement (i) The reciprocal referral agreement is (b) A registered practitioner who is an of material fact, or not exclusive, and attorney may use the designation (b) Fail to disclose a fact necessary to (ii) The client is informed of the ‘‘Patents,’’ ‘‘Patent Attorney,’’ ‘‘Patent correct a misapprehension known by existence and nature of the agreement. Lawyer,’’ ‘‘Registered Patent Attorney,’’ the person to have arisen in the matter, (c) Any communication made or a substantially similar designation. A or pursuant to this section shall include registered practitioner who is not an (c) Knowingly fail to respond to a the name and office address of at least attorney may use the designation lawful demand or request for one practitioner or law firm responsible ‘‘Patents,’’ ‘‘Patent Agent,’’ ‘‘Registered information from an admissions or for its content. Patent Agent,’’ or a substantially similar disciplinary authority, except that the designation. Unless authorized by provisions of this section do not require § 11.703 Direct contact with prospective § 11.14(b), a registered patent agent shall clients. disclosure of information otherwise not hold himself or herself out as being protected by § 11.106, or (a) A practitioner shall not by in- qualified or authorized to practice person, live telephone or real-time (d) Fail to cooperate with the Office before the Office in trademark matters or of Enrollment and Discipline in an electronic contact solicit professional before a court. employment from a prospective client investigation of any matter before it. (c) [Reserved]. when a significant motive for the § 11.802 Judicial and legal officials. practitioner’s doing so is the (d) A practitioner shall not state or practitioner’s pecuniary gain, unless the imply that a practitioner is certified as (a) A practitioner shall not make a person contacted: a specialist in a particular field of law, statement that the practitioner knows to (1) Is a practitioner; or unless: be false or with reckless disregard as to (2) Has a family, close personal, or (1) The practitioner has been certified its truth or falsity concerning the prior professional relationship with the as a specialist by an organization that qualifications or integrity of a judge, practitioner. has been approved by an appropriate adjudicatory officer or public legal (b) A practitioner shall not solicit state authority or that has been officer, or of a candidate for election or professional employment from a accredited by the American Bar appointment to judicial or legal office. prospective client by written, recorded Association; and (b) A practitioner who is a candidate or electronic communication or by in- (2) The name of the certifying for judicial office shall comply with the person, telephone or real-time electronic organization is clearly identified in the applicable provisions of the Code of contact even when not otherwise communication. Judicial Conduct.

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§ 11.803 Reporting professional (c) Engage in conduct involving effective date, if such conduct would misconduct. dishonesty, fraud, deceit or continue to justify disciplinary (a) A practitioner who knows that misrepresentation; sanctions under the provisions of this another practitioner has committed a (d) Engage in conduct that is part. violation of the USPTO Rules of prejudicial to the administration of (b) No practitioner shall be subject to Professional Conduct that raises a justice; a disciplinary proceeding under this substantial question as to that (e) State or imply an ability to part based on conduct engaged in before practitioner’s honesty, trustworthiness influence improperly a government the effective date hereof if such conduct or fitness as a practitioner in other agency or official or to achieve results would not have been subject to respects, shall inform the OED Director by means that violate the USPTO Rules disciplinary action before such effective and any other appropriate professional of Professional Conduct or other law; date. authority. (f) Knowingly assist a judge, hearing (b) A practitioner who knows that a officer, administrative law judge, PART 41—PRACTICE BEFORE THE judge, hearing officer, administrative administrative patent judge, PATENT TRIAL AND APPEAL BOARD law judge, administrative patent judge, administrative trademark judge, or or administrative trademark judge has judicial officer in conduct that is a 27. The authority citation for 37 CFR committed a violation of applicable violation of applicable rules of judicial part 41 continues to read as follows: rules of judicial conduct that raises a conduct or other law; substantial question as to the (g) Knowingly assist an officer or Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, and 135. individual’s fitness for office shall employee of the Office in conduct that inform the appropriate authority. is a violation of applicable rules of 28. Revise § 41.5(c) to read as follows: (c) The provisions of this section do conduct or other law; not require disclosure of information (h) Be publicly disciplined on ethical § 41.5 Counsel. otherwise protected by § 11.106 or or professional misconduct grounds by * * * * * information gained while participating any duly constituted authority of: (c) Withdrawal. Counsel may not in an approved lawyers assistance (1) A State, withdraw from a proceeding before the program. (2) The United States, or Board unless the Board authorizes such (3) The country in which the § 11.804 Misconduct. withdrawal. See § 11.116 of this practitioner resides; or It is professional misconduct for a (i) Engage in other conduct that subchapter regarding conditions for practitioner to: adversely reflects on the practitioner’s withdrawal. (a) Violate or attempt to violate the fitness to practice before the Office. * * * * * USPTO Rules of Professional Conduct, Dated: October 10, 2012. knowingly assist or induce another to § 11.805–11.900 [Reserved] do so, or do so through the acts of David J. Kappos, another; § 11.901 Savings clause. Under Secretary of Commerce for Intellectual (b) Commit a criminal act that reflects (a) A disciplinary proceeding based Property and Director of the United States adversely on the practitioner’s honesty, on conduct engaged in prior to the Patent and Trademark Office. trustworthiness or fitness as a effective date of these regulations may [FR Doc. 2012–25355 Filed 10–17–12; 8:45 am] practitioner in other respects; be instituted subsequent to such BILLING CODE 3510–16–P

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Part III

The President

Proclamation 8889—Blind Americans Equality Day, 2012

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Federal Register Presidential Documents Vol. 77, No. 202

Thursday, October 18, 2012

Title 3— Proclamation 8889 of October 15, 2012

The President Blind Americans Equality Day, 2012

By the President of the United States of America

A Proclamation As business leaders and public advocates, teachers and scientists, musicians and athletes, and in countless other ways, blind and visually impaired Americans have profoundly enriched every part of our national life. Today, we celebrate their innumerable contributions, and we recommit to guaran- teeing equal access, equal opportunity, and equal respect for all Americans. My Administration is working to ensure people with disabilities have full access to the education, information, and job training they need. Over the past year, we have continued to implement the 21st Century Communications and Video Accessibility Act, which makes it easier for people who are deaf, blind, or visually impaired to take advantage of today’s cutting-edge technologies—including home and mobile broadband. As part of that imple- mentation, the Federal Communications Commission has established video description standards for television stations that help ensure programming is accessible for blind and visually impaired Americans. And in keeping with the promise of equal access to technology under Section 508 of the Rehabilitation Act, the Department of Justice reported last month on our progress toward making Federal resources fully accessible and offered new recommendations to further improve compliance throughout the Federal Government. We are also striving to open new pathways for blind and visually impaired Americans to pursue careers in all fields, including science, technology, engineering, and mathematics (STEM). To provide more opportunities for students to achieve in math and science classes, the Department of Education is promoting effective learning materials for blind and visually impaired students. This year, the White House honored 14 individuals, including several who are blind, as Champions of Change for their work to expand educational and employment opportunities for people with disabilities in STEM fields. Their example affirms that when the playing field is level, people with disabilities are equally capable of excelling in these economically vital professions. When the American people have the chance to succeed, we can achieve extraordinary things. Today, we renew our commitment to innovative projects and initiatives that will propel us further toward full access, inclusion, and opportunity for blind and visually impaired Americans. By joint resolution approved on October 6, 1964 (Public Law 88–628, as amended), the Congress designated October 15 of each year as ‘‘White Cane Safety Day’’ to recognize the contributions of Americans who are blind or have low vision. Today, let us recommit to strengthening our Union and ensuring we remain a Nation where all our people, including those living with disabilities, have every opportunity to achieve their 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 October 15, 2012, as Blind Americans Equality Day. I call upon public officials, business and community leaders, educators, librarians, and Americans across the

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country to observe this day with appropriate ceremonies, activities, and programs. IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of October, in the year of our Lord two thousand twelve, and of the Independ- ence of the United States of America the two hundred and thirty-seventh.

[FR Doc. 2012–25867 Filed 10–17–12; 11:15 am] Billing code 3295–F3

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Reader Aids Federal Register Vol. 77, No. 202 Thursday, October 18, 2012

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

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 10 CFR 3 CFR Executive orders and proclamations 741–6000 50...... 60039 The United States Government Manual 741–6000 Proclamations: 429...... 59712, 59719 8871...... 60277 430...... 59712, 59719 Other Services 8872...... 60279 Electronic and on-line services (voice) 741–6020 Proposed Rules: 8873...... 60603 72...... 63254 Privacy Act Compilation 741–6064 8874...... 60605 Public Laws Update Service (numbers, dates, etc.) 741–6043 8875...... 60607 12 CFR TTY for the deaf-and-hard-of-hearing 741–6086 8876...... 60609 9...... 61229 8877...... 60611 46...... 61238 ELECTRONIC RESEARCH 8878...... 60613 252...... 62378, 62396 World Wide Web 8879...... 60615 325...... 62417 8880...... 60617 Full text of the daily Federal Register, CFR and other publications 380...... 63205 8881...... 62133 is located at: www.fdsys.gov. 611...... 60582 8882...... 62135 612...... 60582 Federal Register information and research tools, including Public 8883...... 62137 619...... 60582 Inspection List, indexes, and links to GPO Access are located at: 8884...... 62413 620...... 60582 www.ofr.gov. 8885...... 63201 630...... 60582 E-mail 8886...... 63203 Proposed Rules: FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8887...... 63709 45...... 60057 an open e-mail service that provides subscribers with a digital 8888...... 64021 48...... 62177 form of the Federal Register Table of Contents. The digital form 8889...... 64218 237...... 60057 of the Federal Register Table of Contents includes HTML and Executive Orders: 324...... 60057, 63763 PDF links to the full text of each document. 13627...... 60029 624...... 60057 To join or leave, go to http://listserv.access.gpo.gov and select 13622 (amended by 1221...... 60057 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13628) ...... 62139 1238...... 60948 13628...... 62139 (or change settings); then follow the instructions. 14 CFR Administrative Orders: PENS (Public Law Electronic Notification Service) is an e-mail Memorandums: 1...... 62147 service that notifies subscribers of recently enacted laws. Memorandum of 25 ...... 64023, 64025, 64029 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html September 27, 29...... 60883 and select Join or leave the list (or change settings); then follow 2012 ...... 60035 39 ...... 59726, 59728, 59732, the instructions. Notices: 60285, 60288, 60296, 60887, FEDREGTOC-L and PENS are mailing lists only. We cannot Notice of September 60889, 60891, 61511, 63215, respond to specific inquiries. 11, 2012 63711, 63712, 63714, 63716 Reference questions. Send questions and comments about the (corrected)...... 60037 61...... 61721 Federal Register system to: [email protected] Order of September 71...... 61248 28, 2012 ...... 60281 97 ...... 59735, 59738, 62427, The Federal Register staff cannot interpret specific documents or 62429 regulations. Presidential Determinations: 121...... 63217 Reminders. Effective January 1, 2009, the Reminders, including No. 2012–17 of 400...... 61513 Rules Going Into Effect and Comments Due Next Week, no longer September 28, 440...... 63221 appear in the Reader Aids section of the Federal Register. This 2012 ...... 61507 1204...... 60619 information can be found online at http://www.regulations.gov. No. 2012–18 of 1212...... 60620 CFR Checklist. Effective January 1, 2009, the CFR Checklist no September 28, Proposed Rules: longer appears in the Federal Register. This information can be 2012 ...... 61509 39 ...... 59873, 60060, 60062, found online at http://bookstore.gpo.gov/. 60064, 60073, 60075, 60323, 5 CFR 60325, 60331, 60651, 60653, FEDERAL REGISTER PAGES AND DATE, OCTOBER 532...... 63205 60655, 60658, 61303, 61539, 1200...... 62350 61542, 61548, 61550, 61731, 59709–60028...... 1 1201...... 62350 62182, 62466, 63260, 63262, 60029–60276...... 2 1203...... 62350 63264, 63266, 63268, 63270, 60277–60602...... 3 1208...... 62350 63272, 63275, 63281, 63282, 60603–60882...... 4 1209...... 62350 63285, 64053 60883–61228...... 5 1631...... 60039, 61229 71 ...... 60660, 61304, 61306, 61229–61506...... 9 62468 61507–61720...... 10 7 CFR 61721–62132...... 11 15 CFR 62133–62416...... 12 301...... 59709 744...... 61249 62417–63200...... 15 331...... 61056 902...... 63719 63201–63710...... 16 63711–64022...... 17 9 CFR 16 CFR 64023–64220...... 18 121...... 61056 260...... 62122

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1101...... 61513 1285...... 62469 180...... 63782 98...... 59768 Proposed Rules: 271...... 60963, 61326 105...... 59768 1112...... 64055 33 CFR 272...... 59879 107...... 59768 1218...... 64055 100 ...... 59749, 60302, 63720, 108...... 59768 42 CFR 63722 109...... 59768 17 CFR 104...... 62434 73...... 61084 110...... 59768 232...... 62431 117 ...... 60896, 63725, 63727, 88...... 62167 111...... 59768 412...... 60315, 63751 Proposed Rules: 64036 114...... 59768 413...... 60315 275...... 62185 162...... 62435 117...... 59768 165 ...... 59749, 60042, 60044, 424...... 60315 125...... 59768 18 CFR 60897, 60899, 60901, 60904, 476...... 60315 126...... 59768 127...... 59768 35...... 61896 62437, 62440, 62442, 62444, Proposed Rules: 128...... 59768 357...... 59739 63729, 63732, 63734 73...... 63783 334...... 61721, 61723 130...... 59768 375...... 59745 44 CFR Proposed Rules: 131...... 59768 19 CFR 110...... 60081 64 ...... 59762, 59764, 61518, 133...... 59768 63753 134...... 59768 10...... 64031 161...... 64076 165...... 60960, 62473 65...... 59767 147...... 59768 12...... 64032 148...... 59768 24...... 64031 Proposed Rules: 34 CFR 67...... 59880, 61559 150...... 59768 162...... 64031 151...... 59768 36...... 60047 163...... 64031 45 CFR 153...... 59768 178...... 64031 36 CFR 162...... 60629 154...... 59768 Proposed Rules: 159...... 59768 7...... 60050 2510...... 60922 210...... 60952 2522...... 60922 160...... 59768 Proposed Rules: 2540...... 60922 161...... 59768 20 CFR 7...... 62476 2551...... 60922 162...... 59768 1195...... 62479 655...... 60040 2552...... 60922 164...... 59768 167...... 59768 37 CFR 21 CFR 46 CFR 169...... 59768 510...... 60301, 60622 Proposed Rules: 1...... 59768 170...... 59768 520...... 60622 1...... 61735, 64190 2...... 59768 171...... 59768 522...... 60301 2...... 64190 6...... 59768 172...... 59768 524...... 60301 7...... 64190 8...... 59768 174...... 59768 558...... 60301, 60622 10...... 64190 10...... 59768, 62434 175...... 59768 1308...... 64032 11...... 64190 11...... 59768, 62434 179...... 59768 Proposed Rules: 41...... 64190 12...... 59768, 62434 180...... 59768 1308...... 63766 201...... 60333 15...... 59768, 62434 188...... 59768 189...... 59768 38 CFR 16...... 59768 23 CFR 24...... 59768 193...... 59768 Proposed Rules: 3...... 63225 25...... 59768 194...... 59768 771...... 59875 9...... 60304 26...... 59768 195...... 59768 27...... 59768 197...... 59768 1200...... 60956 39 CFR 28...... 59768 199...... 59768 25 CFR Proposed Rules: 30...... 59768 401...... 59768 36...... 60041 111 ...... 60334, 62446, 63771 31...... 59768 502...... 61519 542...... 60625 3001...... 61307 32...... 59768 Proposed Rules: 543...... 60625 34...... 59768 7...... 59881 40 CFR 35...... 59768 8...... 60096 26 CFR 9...... 61118 39...... 59768 47 CFR 301...... 64033 52 ...... 59751, 59755, 60053, 42...... 59768 60307, 60626, 60627, 60904, 0...... 60934, 62461 Proposed Rules: 46...... 59768 60907, 60910, 60914, 60915, 4...... 63757 1 ...... 59878, 60959, 63287 50...... 59768 61276, 61279, 61478, 61513, 27...... 62461 20...... 60960 52...... 59768 61724, 62147, 62150, 62159, 64...... 60630, 63240 25...... 60960 53...... 59768 62449, 62452, 62454, 63228, 54...... 59768 90...... 61535, 62461 27 CFR 63234, 63736, 63743, 64036, 56...... 59768 Proposed Rules: 64039 57...... 59768 1...... 60666 9...... 64033 80...... 61281 58...... 59768 2...... 62480 28 CFR 85...... 62624 59...... 59768 20...... 61330 86...... 62624 61...... 59768 64...... 60343 16...... 61275 180 ...... 60311, 60917, 61515, 62...... 59768 73...... 59882 63745 29 CFR 63...... 59768 76...... 61351 271...... 60919 64...... 59768 1910...... 62433 272...... 59758 67...... 59768 48 CFR 1915...... 62433 600...... 62624 70...... 59768 504...... 59790 1926...... 62433 721...... 61118 71...... 59768 552...... 59790 4022...... 62433 Proposed Rules: 76...... 59768 Proposed Rules: 2...... 60902 77...... 59768 31 CFR 53...... 60343 52 ...... 59879, 60085, 60087, 78...... 59768 1552...... 60667 1010...... 59747 60089, 60094, 60339, 60661, 90...... 59768 62191, 62200, 62479, 63781 91...... 59768 49 CFR 32 CFR 55...... 61308 92...... 59768 33...... 59793 706...... 63224 63...... 60341 95...... 59768 40...... 60318 Proposed Rules: 80...... 61313 96...... 59768 107...... 60935 300...... 62469 98...... 63538 97...... 59768 171...... 60935

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172...... 60935 375...... 59818, 64050 398...... 59818 229...... 60319 173...... 60056, 60935 376...... 59818 399...... 59818 300...... 60631 175...... 60935 377...... 59818 450...... 59768 600...... 59842 178...... 60935 378...... 59818 451...... 59768 622 ...... 60945, 60946, 61295, 179...... 60935 379...... 59818 452...... 59768 62463 Ch. III...... 59818, 59840 380...... 59818 453...... 59768 635 ...... 59842, 60632, 61727 303...... 59818 381...... 59818 523...... 62624 648...... 61299 325...... 59818 382...... 59818 531...... 62624 660...... 61728, 63758 350...... 59818 383...... 59818 533...... 62624 665...... 60637 355...... 59818 384...... 59818 536...... 62624, 64051 679 ...... 59852, 60321, 60649, 356...... 59818 385...... 59818 537...... 62624 61300, 62464, 63719 360...... 59818 386...... 59818 593...... 59829 Proposed Rules: 365...... 59818, 64050 387...... 59818 821...... 63242, 63245 17 ...... 60180, 60208, 60238, 366...... 59818 388...... 59818 826...... 63245 367...... 59818 389...... 59818 60510, 60778, 60804, 61375, Proposed Rules: 390...... 59818 61836, 61938, 63440, 63928 368...... 59818 234...... 64077 369...... 59818 391...... 59818 223...... 61559 395...... 64093 370...... 59818 392...... 59818 224...... 61559 622...... 59875 371...... 59818, 64050 393...... 59818 622...... 62209 372...... 59818 395...... 59818 635...... 61562 373...... 59818 396...... 59818 50 CFR 648...... 59883 374...... 59818 397...... 59818 17 ...... 60750, 61664, 63604 679...... 62482

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construction at 101 South Enhance Safety Act of 2012 and for other purposes. (Oct. United States Route 1 in Fort (Oct. 5, 2012; 126 Stat. 1427) 5, 2012; 126 Stat. 1441) LIST OF PUBLIC LAWS Pierce, Florida, as the ‘‘Alto H.R. 4347/P.L. 112–187 H.R. 6433/P.L. 112–193 Lee Adams, Sr., United States To designate the United This is a continuing list of Courthouse’’. (Oct. 5, 2012; FDA User Fee Corrections Act States courthouse located at public bills from the current 126 Stat. 1415) of 2012 (Oct. 5, 2012; 126 session of Congress which 709 West 9th Street in Stat. 1443) have become Federal laws. It H.R. 2139/P.L. 112–181 Juneau, Alaska, as the may be used in conjunction Lions Clubs International ‘‘Robert Boochever United S. 300/P.L. 112–194 with ‘‘P L U S’’ (Public Laws Century of Service States Courthouse’’. (Oct. 5, Government Charge Card Update Service) on 202–741– Commemorative Coin Act 2012; 126 Stat. 1432) Abuse Prevention Act of 2012 6043. This list is also (Oct. 5, 2012; 126 Stat. 1416) H.R. 5512/P.L. 112–188 (Oct. 5, 2012; 126 Stat. 1445) available online at http:// H.R. 2240/P.L. 112–182 Divisional Realignment Act of S. 710/P.L. 112–195 www.archives.gov/federal- Lowell National Historical Park 2012 (Oct. 5, 2012; 126 Stat. register/laws. Hazardous Waste Electronic Land Exchange Act of 2012 1433) Manifest Establishment Act The text of laws is not (Oct. 5, 2012; 126 Stat. 1420) H.R. 6189/P.L. 112–189 (Oct. 5, 2012; 126 Stat. 1452) published in the Federal H.R. 2706/P.L. 112–183 Reporting Efficiency Last List October 3, 2012 Register but may be ordered Billfish Conservation Act of Improvement Act (Oct. 5, in ‘‘slip law’’ (individual 2012 (Oct. 5, 2012; 126 Stat. 2012; 126 Stat. 1435) pamphlet) form from the 1422) Superintendent of Documents, H.R. 6215/P.L. 112–190 Public Laws Electronic U.S. Government Printing H.R. 3556/P.L. 112–184 To amend the Trademark Act Notification Service Office, Washington, DC 20402 To designate the new United of 1946 to correct an error in (PENS) (phone, 202–512–1808). The States courthouse in Buffalo, the provisions relating to text will also be made New York, as the ‘‘Robert H. remedies for dilution. (Oct. 5, available on the Internet from Jackson United States 2012; 126 Stat. 1436) PENS is a free electronic mail GPO’s Federal Digital System Courthouse’’. (Oct. 5, 2012; H.R. 6375/P.L. 112– notification service of newly (FDsys) at http://www.gpo.gov/ 126 Stat. 1424) 91 VA Major Construction enacted public laws. To fdsys. Some laws may not yet H.R. 4158/P.L. 112–185 Authorization and Expiring subscribe, go to http:// be available. To confirm full ownership Authorities Extension Act of listserv.gsa.gov/archives/ H.R. 1272/P.L. 112–179 rights for certain United States 2012 (Oct. 5, 2012; 126 Stat. publaws-l.html astronauts to artifacts from the 1437) Minnesota Chippewa Tribe Note: This service is strictly astronauts’ space missions. Judgment Fund Distribution H.R. 6431/P.L. 112–192 for E-mail notification of new (Oct. 5, 2012; 126 Stat. 1425) Act of 2012 (Oct. 5, 2012; To provide flexibility with laws. The text of laws is not 126 Stat. 1411) H.R. 4223/P.L. 112–186 respect to United States available through this service. H.R. 1791/P.L. 112–180 Strengthening and Focusing support for assistance PENS cannot respond to To designate the United Enforcement to Deter provided by international specific inquiries sent to this States courthouse under Organized Stealing and financial institutions for Burma, address.

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