4–2–10 Friday Vol. 75 No. 63 Apr. 2, 2010

Pages 16641–17024

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Contents Federal Register Vol. 75, No. 63

Friday, April 2, 2010

Agency for Healthcare Research and Quality Commodity Credit Corporation NOTICES NOTICES Meetings: Agricultural Water Enhancement Program, 16719–16728 Software Developers on the Technical Specifications for Common Formats for Patient Safety Data Collection Copyright Royalty Board and Event Reporting, 16817–16818 NOTICES Intent to Audit, 16852–16853 Agriculture Department See Commodity Credit Corporation Defense Department See Forest Service See Navy Department See Grain Inspection, Packers and Stockyards NOTICES Administration Meetings: Federal Advisory Committee; Military Leadership Alcohol and Tobacco Tax and Trade Bureau Diversity Commission, 16757–16758 RULES Privacy Act; Systems of Records, 16758–16760 Liquor Dealer Recordkeeping and Registration, and Repeal of Certain Special (Occupational) Taxes, 16666–16667 Economic Development Administration NOTICES Blind or Severely Disabled, Committee for Purchase From EDA Participation in the Energy Efficient Building Systems People Who Are Regional Innovation Cluster Initiative, 16739–16745 See Committee for Purchase From People Who Are Blind or Severely Disabled Education Department RULES Census Bureau Race to the Top Fund, 16668–16670 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 16762–16763 Generic Clearance for Questionnaire Pretesting Research, Ready-to-Learn Television Program, 16763 16737 Election Assistance Commission Centers for Medicare & Medicaid Services NOTICES NOTICES Meetings; Sunshine Act, 16763–16764 Agency Information Collection Activities; Proposals, State Plan Pursuant to the Help America Vote Act, 16764– Submissions, and Approvals, 16813 16782 Civil Rights Commission NOTICES Employee Benefits Security Administration Meetings: NOTICES Nebraska Advisory Committee, 16732 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Coast Guard COBRA Notification Requirements – American Recovery PROPOSED RULES and Reinvestment Act of 2009 as Amended, 16841– Safety Zones: 16842 Wilson Bay, Jacksonville, NC, 16703–16706 Model Employer CHIP; Proposed Extension, 16840–16841 Special Local Regulations: Grant of Individual Exemptions: Swim Across the Sound, Long Island Sound, Port Ivy Asset Management Corp., et al., 16843–16848 Jefferson, NY to Captain’s Cove Seaport, Bridgeport, Proposed Exemptions: CT, 16700–16703 CUNA Mutual Pension Plan for Non-Represented Employees, et al., 16848–16852 Commerce Department See Census Bureau Employment and Training Administration See Economic Development Administration RULES See Foreign–Trade Zones Board Trade Adjustment Assistance: See Industry and Security Bureau Merit Staffing of State Administration and Allocation of See International Trade Administration Training Funds to States, 16988–17002 See National Institute of Standards and Technology NOTICES See National Oceanic and Atmospheric Administration Amended Certifications Regarding Eligibility to Apply for See Patent and Trademark Office Worker Adjustment Assistance: Core Manufacturing Multi-Plastics, Inc., etc. and Sipco Committee for Purchase From People Who Are Blind or Molding Technologies, etc., 16843 Severely Disabled NOTICES Energy Department Procurement List; Additions and Deletions, 16755–16757 See Federal Energy Regulatory Commission

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PROPOSED RULES Airbus Model A330–223, –321, –322, and –323 Energy Conservation Program: Airplanes, 16696–16698 Test Procedures for Battery Chargers and External Power Boeing Co. Model 777–200LR and –300ER Series Supplies, 16958–16986 Airplanes, 16683–16685 NOTICES Airworthiness Standards: Agency Information Collection Activities; Proposals, Electrical and Electronic System Lightning Protection, Submissions, and Approvals, 16783 16676–16683 NOTICES Environmental Protection Agency Change in Use of Aeronautical Property at Houlton RULES International Airport, Houlton, ME, 16899 Approval and Promulgation of Implementation Plans: Environmental Assessments; Availability, etc.: Texas; Revisions to Chapter 116 which relate to the Air Tour Management Plan Program at Mount Rainier Voiding of Permits and Extension of Permits, 16671– National Park; Request for Public Scoping Comments, 16675 16899–16900 Clean Air Act Permitting Programs: Intent To Rule on Request To Release Airport Property: Reconsideration of Interpretation of Regulations that Cincinnati / Northern Kentucky International Airport, Determine Pollutants, 17004–17023 Hebron, KY, 16900–16901 Withdrawal of Significant New Use Rule: Meetings: 1–Propene, 2,3,3,3–tetrafluoro–, 16670–16671 Commercial Space Transportation Advisory Committee, PROPOSED RULES 16901 Approval and Promulgation of Implementation Plans: EUROCAE WG–72; RTCA Special Committee 216; Texas; Revisions to Voiding of Permits and Extension of Aeronautical Systems Security (Joint Meeting), Permits, 16706 16901–16902 Proposed Significant New Use Rule: New Task Assignment: 1–Propene, 2,3,3,3–tetrafluoro–, 16706–16711 Aviation Rulemaking Advisory Committee; Transport NOTICES Airplane and Engine Issue Area, 16902–16903 Agency Information Collection Activities; Proposals, Waiver of Aeronautical Land-Use Assurance: Submissions, and Approvals: Dayton–Wright Brothers Airport; Dayton, OH, 16903– Sulfur Content of Motor Vehicle Gasoline under the Tier 16909 2 Rule, 16785–16786 Environmental Impact Statements; Availability, etc. Federal Emergency Management Agency Weekly Receipts, 16786–16787 NOTICES Environmental Impact Statements; Availability, etc.: Emergency and Related Determinations: Availability of EPA Comments, 16787–16788 Minnesota, 16819 Proposed Determination to Prohibit, Restrict, or Deny the Specification, etc., of an Area as a Disposal Site: Federal Energy Regulatory Commission Spruce No. 1 Surface Mine, Logan County, WV, 16788– RULES 16808 Transmission Relay Loadability Reliability Standard, 16914–16956 Export–Import Bank NOTICES NOTICES Combined Notice of Filings, 16783–16785 Meetings: Sub Saharan Africa Advisory Committee (SAAC), 16808 Federal Maritime Commission NOTICES Federal Aviation Administration Filing of Complaint and Assignment, 16808–16809 RULES Federal Railroad Administration Airworthiness Directives: NOTICES Airbus Model A300 B2–1C, B2K–3C, B2–203, B4–2C, B4– Agency Information Collection Activities; Proposals, 103, and B4–203 Airplanes, 16657–16660 Submissions, and Approvals, 16896–16899 Boeing Co. Model 737–600, –700, –700C, –800, –900, and –900ER Series Airplanes, 16648–16651 Federal Reserve System Boeing Co. Model 747–200C and –200F Series Airplanes, NOTICES 16651–16655 Formations of, Acquisitions by, and Mergers of Bank Bombardier, Inc. Model BD–100–1A10 (Challenger 300) Holding Companies, 16808 Airplanes, 16646–16648 Kelly Aerospace Energy Systems, LLC Rebuilt Federal Trade Commission Turbochargers, 16662–16664 NOTICES Rolls–Royce plc RB211–Trent 700 Series Turbofan Agency Information Collection Activities; Proposals, Engines, 16655–16657 Submissions, and Approvals, 8991-8993 [2010-3957] SOCATA Model TBM 700 Airplanes, 16660–16662 [Editorial Note: This document was inadvertently placed Turbomeca ARRIEL 1B, 1D, 1D1, 2B, and 2B1 Turboshaft under the International Trade Commission in the Engines, 16664–16666 Federal Register table of contents of February 26, 2010.] PROPOSED RULES Airworthiness Directives: Food and Drug Administration Airbus Model A300–600 and A310 Airplanes, 16685– NOTICES 16689 Meetings: Airbus Model A318, A319, A320, and A321 Series National Antimicrobial Resistance Monitoring System, Airplanes, 16689–16696 16817

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Foreign Assets Control Office Modifications to U.S. Commitments under the World Trade NOTICES Organization Government Procurement Agreement, etc., Designation of One Individual Pursuant to Executive Order 16824–16825 (13224), 16909–16910 Public Housing Capital Fund Recovery Formula and Competitive Grant Programs: Foreign–Trade Zones Board Modifications to U.S. Commitments to Implement NOTICES Agreement with Canada Regarding Section 1605 of Expansion of Foreign–Trade Zone 75: the Recovery Act, 16825 Phoenix, AZ, 16748 Industry and Security Bureau Forest Service NOTICES NOTICES Action Affecting Export Privileges: Agency Information Collection Activities; Proposals, Aqua-Loop Cooling Towers, Co., 16732–16735 Submissions, and Approvals: Bob Rahimzadeh, 16735–16737 Forest Landscape Value and Special Place Mapping for National Forest Planning, 16719 Interior Department Environmental Impact Statements; Availability, etc.: Beaver Creek Landscape Management Project, Ashland See Geological Survey Ranger District et al.; Montana, 16728–16731 See Land Management Bureau Kootenai National Forest, Lincoln County, MT, 16731– See Minerals Management Service NOTICES 16732 Agency Information Collection Activities; Proposals, Geological Survey Submissions, and Approvals, 16826–16827 NOTICES Public Review of draft United States Thoroughfare, Internal Revenue Service Landmark, and Postal Address Data Standard, 16837 NOTICES Nominations: Government Ethics Office Information Reporting Program Advisory Committee, NOTICES 16910–16911 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16809 International Trade Administration NOTICES Grain Inspection, Packers and Stockyards Administration Antidumping or Countervailing Duty Order, Finding, or RULES Suspended Investigation: Swine Contract Library, 16641–16645 Advance Notification of Sunset Reviews, 16738 Rescission of Antidumping Duty Administrative Review: Health and Human Services Department Certain Helical Spring Lock Washers From the People’s See Agency for Healthcare Research and Quality Republic of China, 16753–16754 See Centers for Medicare & Medicaid Services Honey from the People’s Republic of China, 16752–16753 See Food and Drug Administration See National Institutes of Health International Trade Commission See Substance Abuse and Mental Health Services NOTICES Administration Investigations: NOTICES Certain Integrated Circuits, Chipsets, and Products Agency Information Collection Activities; Proposals, Containing Same Including Televisions, Media Submissions, and Approvals, 16809–16810 Players, and Cameras, 16837–16838 Determination and Declarations: Certain Stringed Musical Instruments and Components, Emergency Use of Certain In vitro Diagnostic, Antiviral, 16838–16839 and Personal Respiratory Products Accompanied by Revised Schedules for Subject Reviews: Emergency Use Information, 16810–16812 Sorbitol From France, 16839–16840 Homeland Security Department See Coast Guard Justice Department See Federal Emergency Management Agency NOTICES Lodging of Consent Decrees, 16840 Housing and Urban Development Department NOTICES Labor Department Agency Information Collection Activities; Proposals, See Employee Benefits Security Administration Submissions, and Approvals: See Employment and Training Administration Civil Rights Front End and Limited Monitoring Review, NOTICES 16819–16820 Delegations of Authority, 16840 Delegated Processing for certain 202 Supportive Housing for Elderly Projects, 16820–16821 Land Management Bureau Housing Finance Agency Risk-Sharing Program, 16821– NOTICES 16822 Environmental Impact Statements; Availability, etc.: Insured Healthcare Facilities 232 Loan Application, Granite Mountain Wind, LLC Wind Energy Generation 16821 Project, 16827–16828 Federal Property Suitable as Facilities to Assist the Proposed West Butte Wind Power Right-of-Way; Crook Homeless, 16822–16824 and Deschutes Counties, Oregon, 16828

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Library of Congress Taking and Importing Marine Mammals: See Copyright Royalty Board Taking of Marine Mammals Incidental to Conducting Precision Strike Weapons Testing, etc., 16754–16755 Minerals Management Service NOTICES Navy Department Environmental Impact Statements; Availability, etc.: NOTICES Geological and Geophysical Exploration on the Mid- and Privacy Act; Systems of Records, 16760–16762 South Atlantic Outer Continental Shelf; Scoping Meetings, 16830–16833 Nuclear Regulatory Commission Outer Continental Shelf Oil and Gas Leasing Program RULES (2012–2017), 16828–16829 Increases in Primary Nuclear Liability Insurance Premium, Preliminary Revised 5-Year Outer Continental Shelf Oil and 16645–16646 Gas Leasing Program (2007–2012), 16833–16836 NOTICES Agency Information Collection Activities; Proposals, National Highway Traffic Safety Administration Submissions, and Approvals, 16868–16869 NOTICES Establishment of Atomic Safety and Licensing Board: Agency Information Collection Activities; Proposals, Areva Enrichment Services, LLC, 16869 Submissions, and Approvals, 16895–16896 Exemptions: Carolina Power and Light Co.; Brunswick Steam Electric National Institute of Standards and Technology Plant (Units 1 and 2), 16871–16872 NOTICES Entergy Nuclear Operations, LLC, Palisades Nuclear Final Voluntary Product Standard: Plant, 16869–16871 DOC PS 20–10; American Softwood Lumber Standard, Indian Point Nuclear Generating Unit (Nos. 1, 2, and 3), 16748–16749 16872–16874 Meetings: National Institutes of Health ACRS Subcommittee on Radiation Protection and Nuclear NOTICES Materials, 16874 Meetings: Center for Scientific Review, 16815 Office of the Director of National Intelligence National Cancer Institute, 16816 See National Intelligence, Office of the National Director National Center for Research Resources, 16816 Patent and Trademark Office National Eye Institute, 16818–16819 National Institute of Allergy and Infectious Diseases, NOTICES Request for Comments: 16816 Proposed Change to Missing Parts Practice, 16750–16752 National Institute on Drug Abuse, 16815–16816 Postal Service National Intelligence, Office of the National Director NOTICES PROPOSED RULES Market Test of Samples Co-Op Box Experimental Product, Privacy Act of 1974; Implementation, 16698–16700 16874 NOTICES Privacy Act; Systems of Records, 16853–16868 Railroad Retirement Board NOTICES National Oceanic and Atmospheric Administration Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 16874–16877 Endangered and Threatened Wildlife: 90-Day Finding on Petition to List Bumphead Parrotfish Securities and Exchange Commission as Threatened or Endangered, etc., 16713–16716 NOTICES Fisheries of the Northeastern United States: Meetings; Sunshine Act, 16877 Proposed 2010 Specifications for the Spiny Dogfish Self-Regulatory Organizations; Proposed Rule Changes: Fishery, 16716–16718 Chicago Board Options Exchange, Inc., 16888–16891 NOTICES Municipal Securities Rulemaking Board, 16878–16886 Availability of Fishery Plan and Request for Comment: NASDAQ OMX BX, Inc., 16891–16894 Endangered and Threatened Species; Take of NASDAQ OMX PHLX, Inc., 16887–16888 Anadromous Fish, 16738–16739 NASDAQ Stock Market LLC, 16877–16878 Endangered and Threatened Species: National Securities Clearing Corp., 16886–16887 90-Day Finding on a Petition to Delist Coho Salmon South of San Francisco Bay, 16745–16747 State Department Environmental Assessments; Availability, etc.: NOTICES Proposed Rule to Revise Marine Mammal Special Meetings: Exception Permit Requirements, 16747 Advisory Committee on International Economic Policy, Evaluation of State Coastal Management Programs and 16894 National Estuarine Research Reserves, 16747–16748 Meetings: Substance Abuse and Mental Health Services Federal Geospatial Summit; Upcoming Improvements to Administration the National Spatial Reference System (NSRS), etc., 16749 NOTICES Marine Protected Areas Federal Advisory Committee, Agency Information Collection Activities; Proposals, 16749–16750 Submissions, and Approvals, 16812–16813

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Current List of Laboratories Which Meet Minimum Dental Patient Satisfaction Survey, 16912 Standards To Engage in Urine Drug Testing for Federal Agencies, 16813–16815

Surface Transportation Board Separate Parts In This Issue PROPOSED RULES Waybill Data Released in Three-Benchmark Rail Rate Proceedings, 16712 Part II NOTICES Energy Department, Federal Energy Regulatory 2009 Railroad Cost of Capital, 16894–16895 Commission, 16914–16956 Transportation Department See Federal Aviation Administration Part III See Federal Railroad Administration Energy Department, 16958–16986 See National Highway Traffic Safety Administration See Surface Transportation Board Part IV NOTICES Establishment of the Future of Aviation Advisory Labor Department, Employment and Training Committee, 16894 Administration, 16988–17002

Treasury Department Part V See Alcohol and Tobacco Tax and Trade Bureau Environmental Protection Agency, 17004–17023 See Foreign Assets Control Office See Internal Revenue Service U.S.–China Economic and Security Review Commission Reader Aids NOTICES Open Public Hearing, 16911 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, Veterans Affairs Department and notice of recently enacted public laws. NOTICES To subscribe to the Federal Register Table of Contents Agency Information Collection Activities; Proposals, LISTSERV electronic mailing list, go to http:// Submissions, and Approvals: listserv.access.gpo.gov and select Online mailing list Certificate of Delivery of Advance Payment and archives, FEDREGTOC-L, Join or leave the list (or change Enrollment, 16911–16912 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.

9 CFR 206...... 16641 10 CFR 140...... 16645 Proposed Rules: 430...... 16958 14 CFR 39 (8 documents) ...... 16646, 16648, 16651, 16655, 16657, 16660, 16662, 16664 Proposed Rules: 23...... 16676 25...... 16676 27...... 16676 29...... 16676 39 (4 documents) ...... 16683, 16685, 16689, 16696 18 CFR 40...... 16914 20 CFR 618...... 16988 27 CFR 17...... 16666 19...... 16666 20...... 16666 22...... 16666 24...... 16666 25...... 16666 26...... 16666 27...... 16666 28...... 16666 31...... 16666 40...... 16666 44...... 16666 46...... 16666 70...... 16666 32 CFR Proposed Rules: 1701...... 16698 33 CFR Proposed Rules: 100...... 16700 165...... 16703 34 CFR Ch. II ...... 16668 40 CFR 9...... 16670 50...... 17004 51...... 17004 52...... 16671 70...... 17004 71...... 17004 721...... 16670 Proposed Rules: 52...... 16706 721...... 16706 49 CFR Proposed Rules: 1244...... 16712 50 CFR Proposed Rules: 223...... 16713 224...... 16713 648...... 16716

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Rules and Regulations Federal Register Vol. 75, No. 63

Friday, April 2, 2010

This section of the FEDERAL REGISTER Background is publishing the final rule as it was contains regulatory documents having general proposed. applicability and legal effect, most of which GIPSA is responsible for the enforcement of the Packers and This final rule re-establishes authority are keyed to and codified in the Code of for the SCL regulations (9 CFR Part 206) Federal Regulations, which is published under Stockyards Act of 1921, as amended and 50 titles pursuant to 44 U.S.C. 1510. supplemented, (7 U.S.C. 181 et seq.) by amending the regulations’ authority (P&S Act). Under authority delegated to citation to include Subtitle B of Title II The Code of Federal Regulations is sold by GIPSA by the Secretary of Agriculture of the P&S Act (7 U.S.C. 198–198b). In the Superintendent of Documents. Prices of (Secretary) in section 407(a) of the P&S addition to amending the SCL new books are listed in the first FEDERAL regulations to make them consistent REGISTER issue of each week. Act (7 U.S.C. 228), we are authorized to create regulations necessary to carry out with the Reauthorization Act, we are the provisions of the P&S Act. also amending the SCL regulations to incorporate suggestions received from DEPARTMENT OF AGRICULTURE The 1999 Act (Pub. L. 106–78) the public and regulated entities. amended Title II of the P&S Act to Specifically, we are doing the following: Grain Inspection, Packers and include Subtitle B—Swine Packer ‘‘ ’’ Stockyards Administration Marketing Contracts. The 1999 Act (1) Revising the definition of packer mandated the creation and maintenance to be consistent with the 9 CFR Part 206 of a library of marketing contracts Reauthorization Act; offered by certain packers to producers (2) Revising the definitions of several contract types; RIN 0580–AB06 for the purchase of swine. To implement this legislation, GIPSA established the (3) Adding definitions of terms used Swine Contract Library SCL and promulgated SCL regulations in several contract types to describe the (9 CFR Part 206) requiring that packers, market price that is being paid for AGENCY: Grain Inspection, Packers and as defined in Subtitle B of Title II of the swine; Stockyards Administration, USDA. P&S Act, file example marketing (4) Adding a new requirement that an contracts with GIPSA along with example contract submission, a ACTION: Final rule. monthly estimates of the number of notification of contract expiration, and a swine to be delivered under contract. notification of a contract withdrawal SUMMARY: On August 11, 2003, the Grain GIPSA compiles this information and include a standard cover sheet; and Inspection, Packers and Stockyards makes summary reports available to the (5) Adding a waiver for packers that Administration (GIPSA) implemented public. do not utilize marketing contracts. new Subtitle B of Title II of the Packers and Stockyards Act, which was added On October 22, 2004, the 1999 Act The purpose of these amendments is by the Livestock Mandatory Reporting expired and was not reauthorized until to make the information collected more Act of 1999 (1999 Act) by establishing December 3, 2004 (Pub. L. 108–444). uniform and more useful, while the Swine Contract Library (SCL). The Authority for the 1999 Act was reducing the burden on the reporting statutory authority for the library lapsed extended, however, to September 30, entities. 2005. The 1999 Act lapsed again in 2005 on September 30, 2005. On October 5, Options Considered 2006, the Livestock Mandatory and was reauthorized and amended on Reporting Reauthorization Act October 5, 2006, when the We considered asking packers to (Reauthorization Act) reauthorized the Reauthorization Act (Pub. L. 109–296) continue to voluntarily comply with 1999 Act until September 30, 2010, and was signed into law. The 1999 Act is regulations that are not enforceable and also amended the swine reporting scheduled to once again expire on are no longer consistent with the requirements of the 1999 Act. This final September 30, 2010. authorizing legislation. Since that is not rule re-establishes the regulatory When the 1999 Act expired in a viable option, we have no alternative authority for the SCL’s continued October 2004, GIPSA asked swine but to revise the SCL regulations to operation and incorporates certain packers to continue to comply with the carry out provisions of the P&S Act. changes contained within the SCL regulations voluntarily. With the In addition, we considered not Reauthorization Act that impact the information submitted voluntarily by waiving the requirement that packers SCL, as well as makes other changes to packers, GIPSA continued to make that do not purchase swine under enhance the SCL’s overall effectiveness summary reports available to the public. contract report information to GIPSA for the SCL. We also considered a waiver of and efficiency in response to input from Notice of Proposed Rulemaking and longer than 1 year, but did not wish to regulated entities and the public. Final Action provide such a blanket waiver since DATES: Effective Date: May 3, 2010. GIPSA published a Notice of business conditions change over time. FOR FURTHER INFORMATION CONTACT: S. Proposed Rulemaking in the Federal Packers with a waiver that commence Brett Offutt, Director, Policy and Register on October 26, 2009 (74 FR purchasing swine under marketing Litigation Division, P&SP, GIPSA, 1400 54928), inviting interested parties to contracts will now be required to begin Independence Ave., SW., Washington, comment on the re-authorization of the filing contracts on the first business day DC 20250, (202) 720–7363, SCL regulations. GIPSA received no of the following month as described in [email protected]. comments on the proposed rule during § 206.2, and commence submitting the comment period that ended on monthly reports as required by § 206.3 SUPPLEMENTARY INFORMATION: December 28, 2009. Accordingly, GIPSA of the regulations.

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Effects on Regulated Entities therefore meet the applicable size E-Government Act Compliance Under this final rule, the reporting standard for small entities in the Small GIPSA is committed to complying burden for most packers will remain Business Administration (SBA) with the E-Government Act, to promote about the same or be slightly less than regulations (13 CFR 121.201). For the the use of the Internet and other the reporting burden for the expired North American Industry Classification information technologies to provide SCL regulations. Swine packers will System (NAICS) code 311611 ‘‘Animal increased opportunities for citizen have to comply with regulations that (except poultry) Slaughtering,’’ the SBA access to Government information and they have complied with in the past. We size standard is 500 employees. services, and for other purposes. anticipate that 35 swine packers that However, the firms to which this final List of Subjects in 9 CFR Part 206 operate or have swine slaughtered at 55 rule applies are the largest of the firms plants will be required to comply with in this industry that meet the size Swine, Reporting and recordkeeping the SCL regulations. This represents standard for small businesses. We requirements. estimate that eight of those 18 small only 8.5 percent of all federally ■ For the reasons set forth in the entities will be eligible for an annual inspected swine plants; the others do preamble, we are amending 9 CFR waiver, thus reducing the required not meet the size and capacity Chapter II as follows: reporting burden on those entities from definition of ‘‘packer’’ for the purpose of ■ 1. Revise Part 206 to read as follows: this final rule. Nearly half of the 35 12 monthly reports to one annual swine packers now comply with the waiver request. For the remaining 10 PART 206—SWINE CONTRACT SCL requirements voluntarily. Three of small entities that are not eligible for a LIBRARY the entities that will be subject to this waiver, the requirement to submit marketing contracts to GIPSA is Sec. proposed rule are new respondents, and 206.1 Definitions. their anticipated burden is under 4 estimated at .25 hours (15 minutes) per contract. The monthly report is 206.2 Swine contract library. hours to initiate the reporting process. 206.3 Monthly report. For the 32 remaining swine packers, the estimated to average 2 hours per report when prepared and submitted by mail Authority: 7 U.S.C. 198–198b; 7 U.S.C. expected burden is .25 hours per 222. packing plant to submit an example of or facsimile, and 1 hour per report when each new or amended contract to prepared and submitted electronically, § 206.1 Definitions. which does not represent a significant GIPSA. The definitions in this section apply economic burden or impact. The change in the definition of the to the regulations in this part. The term ‘‘packer’’ will require reporting by The change in the definition of the definitions in this section do not apply one additional firm. That firm otherwise term ‘‘packer’’ will require reporting by to other regulations issued under the does not meet the previous size and one additional firm that does not Packers and Stockyards Act (P&S Act) or capacity definition of ‘‘packer.’’ otherwise meet the previous size and to the P&S Act as a whole. This final rule will benefit swine capacity definition of ‘‘packer.’’ Accrual account. (Synonymous with producers by increasing their This final rule requires that swine the term ‘‘ledger,’’ as defined in this knowledge about contract terms and the packers submit certain information to section.) An account held by a packer number of swine under contract, GIPSA. It does not impose any on behalf of a producer that accrues a improve market transparency, and gives restrictions on the form, timing, or running positive or negative balance as swine producers the ability to make location of contracts in which regulated a result of a pricing determination more informed marketing decisions. entities may engage. It places no included in a contract that establishes a GIPSA believes that market additional burden or limit on current or minimum and/or maximum level of transparency facilitates market future business relationships into which base price paid. Credits and/or debits efficiency by reducing price information affected firms may enter. for amounts beyond these minimum search costs for market participants. Executive Order 12988 and/or maximum levels are entered into Availability of market information also the account. Further, the contract contributes to considerations of equity This rule has been reviewed under specifies how the balance in the account and fairness in the marketplace. Executive Order 12988, Civil Justice affects producer and packer rights and Reform. These actions are not intended obligations under the contract. Executive Order 12866 and Regulatory to have retroactive effect. This final rule Flexibility Act Base price. The price paid for swine will not pre-empt state or local laws, before the application of any premiums The Office of Management and Budget regulations, or policies, unless they or discounts, expressed in dollars per (OMB) has designated this final rule as present an irreconcilable conflict with unit. not significant for the purposes of this rule. In addition, the 1999 Act, as Boar. A sexually-intact male swine. Executive Order 12866. amended, does not restrict or modify the Ceiling price. The maximum market We have determined that this final authority of the Secretary to administer price that will be paid for swine. rule will not have a significant or enforce the P&S Act, as amended. Adjustments may be made to the base economic impact on a substantial There are no administrative procedures price if the market price rises above this number of small entities as defined in that must be exhausted prior to any price. the Regulatory Flexibility Act (5 U.S.C. judicial challenge to the provisions of Contract. Any agreement, whether 601 et seq.). This final rule will apply this rule. written or verbal, between a packer and to approximately 35 packers operating Paperwork Reduction Act a producer for the purchase of swine for at 55 plants. This represents only 8.5 slaughter, except a negotiated purchase percent of all federally inspected swine In accordance with the Paperwork (as defined in this section). plants; the others are too small to meet Reduction Act of 1995 (44 U.S.C. 3501 Contract type. The classification of the size and capacity definition of the et seq.), this information collection contracts or risk management term ‘‘packer’’ for the purpose of this package (#0580–0021) was approved by agreements for the purchase of swine proposed rule. Of those 35 packers, 18 OMB on March 7, 2010, and expires on committed to a packer, by the have fewer than 500 employees and will March 31, 2013. determination of the base price and the

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presence or absence of an accrual based on one or more futures or options swine, pork, or pork product, other than account or ledger (as defined in this contracts. any formula purchase with a floor, section). The contract type categories Other purchase arrangement. A window or ceiling price, or a futures or are: purchase of swine by a packer that is option contract for swine, pork, or a (1) Swine or pork market formula not a negotiated purchase, swine or pork pork product. purchases with a ledger, market formula purchase, or other Window price. The range of market (2) Swine or pork market formula market formula purchase, and does not prices that will be paid for swine. purchases without a ledger, involve packer-owned swine. This Adjustments may be made to the base (3) Other market formula purchases contract type includes long term price if the market prices fall outside with a ledger, contract agreements, fixed price this range. The window price contains (4) Other market formula purchases contracts, cost of production formulas, both the floor and ceiling prices. without a ledger, and formula purchases with a floor, (5) Other purchase arrangements with window or ceiling price. § 206.2 Swine contract library. a ledger, and Packer. Any person engaged in the (a) Do I need to provide swine (6) Other purchase arrangements business of buying swine in commerce contract information? Each packer, as without a ledger. for purposes of slaughter, of defined in § 206.1, must provide Floor price. The minimum market manufacturing or preparing meats or information for each swine processing price that will be paid for swine. meat food products from swine for sale plant that it operates or at which it has Adjustments may be made to the base or shipment in commerce, or of swine slaughtered that has the price if the market price falls below this marketing meats or meat food products slaughtering capacity, alone or in price. from swine in an unmanufactured form, combination with other plants, specified Formula price. A price determined by acting as a wholesale broker, dealer, or in the definition of packer in § 206.1. a mathematical formula under which distributor in commerce. The (b) What existing or available the price established for a specified regulations in this part apply only to a contracts do I need to provide and when market serves as the basis for the packer that meets the conditions in are they due? Each packer must send, to formula. either paragraph (1) or (2) of this the Grain Inspection, Packers and Ledger. (Synonymous with ‘‘accrual definition: Stockyards Administration (GIPSA), an account,’’ as defined in this section.) An (1) A packer purchasing at least example of each contract it currently account held by a packer on behalf of 100,000 swine per year and slaughtering has with a producer or producers or that a producer that accrues a running swine at one or more federally inspected is currently available at each plant that positive or negative balance as a result processing plants that meet either of the it operates or at which it has swine of a pricing determination included in following conditions: slaughtered that meets the definition of a contract that establishes a minimum (i) A swine processing plant that packer in § 206.1. This initial and/or maximum level of base price slaughtered an average of at least submission of example contracts is due paid. Credits and/or debits for amounts 100,000 head of swine per year during to GIPSA on the first business day of the beyond these minimum and/or the immediately preceding 5 calendar month following the determination that maximum levels are entered into the years, with the average based on those the plant has the slaughtering capacity, account. Further, the contract specifies periods in which the plant slaughtered alone or in combination with other how the balance in the account affects swine; or plants, specified in the definition of producer and packer rights and (ii) A swine processing plant that did packer in § 206.1. obligations under the contract. not slaughter swine during the (c) What available contracts do I need Negotiated purchase. A purchase, immediately preceding 5 calendar years to provide and when are they due? After commonly known as a ‘‘cash’’ or ‘‘spot that has the capacity to slaughter at least the initial submission, each packer must market’’ purchase, of swine by a packer 100,000 swine per year, based on plant send GIPSA an example of each new from a producer under which: capacity information. contract it makes available to a producer (1) The buyer-seller interaction that (2) Any packer purchasing an average or producers within 1 business day of results in the transaction and the of at least 200,000 sows, boars, or any the contract being made available at agreement on actual base price occur on combination thereof, per year and each plant that it operates or at which the same day; and slaughtering at least 200,000 sows, it has swine slaughtered that meets the (2) The swine are scheduled for boars, or any combination thereof at one definition of packer in § 206.1. delivery to the packer not later than 14 or more federally inspected processing (d) What criteria do I use to select days after the date on which the swine plants during the immediately example contracts? For purposes of are committed to the packer. preceding 5 calendar years, with the distinguishing among contracts to Noncarcass merit premium or average based on those periods in which determine which contracts may be discount. An increase or decrease in the the plant slaughtered swine. represented by a single example, price for the purchase of swine made Producer. Any person engaged, either contracts will be considered to be the available by an individual packer or directly or through an intermediary, in same if they are identical with respect packing plant, based on any factor other the business of selling swine to a packer to all of the following four example- than the characteristics of the carcass, if for slaughter (including the sale of contract criteria: the actual amount of the premium or swine from a packer to another packer). (1) Base price or determination of base discount is known before the purchase Sow. An adult female swine that has price; and delivery of the swine. produced one or more litters. (2) Application of a ledger or accrual Other market formula purchase. A Swine. A porcine animal raised to be account (including the terms and purchase of swine by a packer in which a feeder pig, raised for seedstock, or conditions of the ledger or accrual the pricing determination is a formula raised for slaughter. account provision); price based on any market other than Swine or pork market formula (3) Carcass merit premium and the markets for swine, pork, or a pork purchase. A purchase of swine by a discount schedules (including the product. This includes a formula packer in which the pricing mechanism determination of the lean percent or purchase where the price formula is is a formula price based on a market for other merits of the carcass that are used

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to determine the amount of the contract replaces the previously defined in § 206.1, that the packer is premiums and discounts and how those submitted example contract. Each currently making available. premiums and discounts are applied); packer must notify GIPSA when an (3) Estimates of committed swine. and example contract no longer represents Each packer must provide an estimate of (4) Use and amount of noncarcass any existing or available contract the total number of swine committed merit premiums and discounts. (expired or withdrawn). Each packer under existing contracts for delivery to (e) Where and how do I send my must submit these example contracts each plant for slaughter within each of contracts? Each packer may submit the and notifications within 1 business day the following 12 calendar months example contracts, notifications of the change, expiration, or beginning with the 1st of the month required by this section, and Form P&SP withdrawal. immediately following the due date of 342, Contract Submission Cover Sheet, the report. The estimate of total swine by either of the following two methods: § 206.3 Monthly report. committed will be reported by contract (1) Electronic report. Example (a) Do I need to provide monthly type as defined in § 206.1. contracts and notifications required by reports? Each packer, as defined in (4) Expansion clauses. Any conditions this section may be submitted by § 206.1, must provide information for or circumstances specified by clauses in electronic means. Electronic submission each swine processing plant that it any existing contracts that could result may be by any form of electronic operates or at which it has swine in an increase in the estimates specified transmission that has been determined slaughtered that has the slaughtering in paragraph (c)(3) of this section. Each to be acceptable to the Administrator. capacity, alone or in combination with packer will identify the expansion To obtain current options for acceptable other plants, specified in the definition clauses in the monthly report by listing methods to submit example contracts of packer. a code for the following conditions: electronically, contact GIPSA through (b) When is the monthly report due? (i) Clauses that allow for a range of the the Internet on the GIPSA Web site Each packer must send a separate number of swine to be delivered. (http://www.gipsa.usda.gov) or at USDA monthly report for each plant that has (ii) Clauses that require a greater GIPSA, Suite 317, 210 Walnut Street, the slaughtering capacity, alone or in number of swine to be delivered as the Des Moines, Iowa 50309. combination with other plants specified contract continues. (2) Printed report. Each packer that in the definition of packer in § 206.1. (iii) Other clauses that provide for chooses to submit printed example Each packer must deliver the report to expansion in the numbers of swine to be contracts and notifications must deliver the GIPSA Regional Office in Des delivered. the printed contracts and notifications Moines, Iowa, by the close of business (5) Maximum estimates of swine. The to USDA GIPSA, Suite 317, 210 Walnut on the 15th of each month, beginning at packer’s estimate of the maximum total Street, Des Moines, Iowa 50309. number of swine that potentially could (f) What information from the swine least 45 days after the initial submission of example contracts. If the 15th day of be delivered to each plant within each contract library will be made available of the following 12 calendar months, if to the public? GIPSA will summarize a month falls on a Saturday, Sunday, or federal holiday, the monthly report is any or all of the types of expansion the information it has received on clauses identified in accordance with contract terms, including, but not due no later than the close of the next business day following the 15th. the requirement in paragraph (c)(4) of limited to, base price determination and this section are executed. The estimate (c) What information do I need to the schedules of premiums or discounts. of maximum potential deliveries must provide in the monthly report? The GIPSA will make the information be reported for all existing contracts by monthly report that each packer files available by region and contract type, as contract type as defined in § 206.1. defined in § 206.1, for public release 1 must be reported on Form P&SP–341, (d) What if a contract does not specify month after the initial submission of which will be available on the Internet the number of swine committed? To contracts. Geographic regions will be on the GIPSA Web site (http:// meet the requirements of paragraphs defined in such a manner to provide as www.gipsa.usda.gov) and at USDA (c)(3) and (c)(5) of this section, the much information as possible while GIPSA, Suite 317, 210 Walnut Street, packer must estimate expected and maintaining confidentiality in Des Moines, Iowa 50309. In the monthly potential deliveries based on the best accordance with section 251 of the report, each packer must provide the information available to the packer. Agricultural Marketing Act (7 U.S.C. following information: Such information might include, for 1636). (1) Number of swine to be delivered example, the producer’s current and (g) How can I review information from under existing contracts. Existing projected swine inventories and the swine contract library? The contracts are contracts the packer planned production. information will be available on the currently is using for the purchase of (e) When do I change previously Internet on the GIPSA Web site swine for slaughter at each plant. Each reported estimates? Regardless of any (http://www.gipsa.usda.gov) and at packer must provide monthly estimates estimates for a given future month that USDA GIPSA, Suite 317, 210 Walnut of the number of swine committed to be may have been previously reported, Street, Des Moines, Iowa 50309. The delivered under all of its existing current estimates of deliveries reported information will be updated as GIPSA contracts (even if those contracts are not as required by paragraphs (c)(3) and receives information from packers. currently available for renewal or to (c)(5) of this section must be based on (h) What do I need to do when a additional producers) in each contract the most accurate information available previously submitted example contract type as defined in § 206.1. at the time each report is prepared. is no longer a valid example due to (2) Available contracts. Available (f) Where and how do I send my contract changes, expiration, or contracts are the contracts the packer is monthly report? Each packer must withdrawal? Each packer must submit a currently making available to producers, submit monthly reports required by this new example contract when contract or is making available for renewal to section by either of the following two changes result in changes to any of the currently contracted producers, for the methods: four example-contract criteria specified purchase of swine for slaughter at each (1) Electronic report. Information in paragraph (d) of this section and plant. On the monthly report, a packer reported under this section may be notify GIPSA if the new example will indicate each contract type, as reported by electronic means, to the

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maximum extent practicable. Electronic (v) The sum of packers’ reported DC 20555–0001, telephone 301–415– submission may be by any form of estimates of the maximum total number 2791, e-mail electronic transmission that has been of swine that potentially could be [email protected]. determined to be acceptable to the delivered during each of the next 6 and Administrator. To obtain current 12 months if all expansion clauses in SUPPLEMENTARY INFORMATION: The NRC options for acceptable methods to current contracts are executed. The regulations at 10 CFR part 140, submit information electronically, report will indicate the sum of ‘‘Financial Protection Requirements and contact GIPSA through the Internet on estimated maximum potential deliveries Indemnity Agreements,’’ provide the GIPSA Web site (http:// by geographic reporting region and by requirements and procedures for www.gipsa.usda.gov) or at USDA contract type. implementing the financial protection GIPSA, Suite 317, 210 Walnut Street, (h) Where and how do I file a waiver requirements for certain licensees and Des Moines, Iowa 50309. request? The waiver request must be other persons under section 170 of the (2) Printed report. Each packer may submitted in writing and include a Atomic Energy Act (AEA) of 1954, as deliver its printed monthly report to statement that the packer does not amended. Section 140.11(a)(4) specifies USDA GIPSA, Suite 317, 210 Walnut procure swine using marketing the amount of financial protection Street, Des Moines, Iowa 50309. agreements. The packer must send the required of a licensee for a nuclear (g) What information from monthly waiver request to the GIPSA Regional reactor that is licensed to operate, is reports will be made available to the Office in Des Moines, Iowa. If the designed for the production of electrical public and when and how will the waiver request is approved, GIPSA will energy, and has a rated capacity of information be made available to the inform the packer in writing that it has 100,000 kW or more. This amount is public? been granted a waiver for 12 months currently $300 million and will increase (1) Availability. GIPSA will provide a following the date of receipt of the to $375 million, based on an adjustment monthly report of estimated deliveries waiver request unless the status of the by American Nuclear Insurers (ANI), by contract types as reported by packers packer changes during that year. The which currently writes all nuclear in accordance with this section, for packer will be notified to submit the liability policies. On a periodic basis, public release on the first business day information required in this part if it ANI assesses current insurance levels to of each month. The monthly reports will begins using marketing agreements insure that adequate financial protection be available on the Internet on the during the waiver period or if GIPSA is available, and adjusts insurance levels GIPSA Web site (http:// determines that the packer utilizes as required. This adjustment is required www.gipsa.usda.gov) and at USDA marketing agreements. by the Price-Anderson Amendments Act GIPSA, Suite 317, 210 Walnut Street, J. Dudley Butler, of 1988. Des Moines, Iowa 50309. Administrator, Grain Inspection, Packers and To implement this adjustment, the (2) Regions. Information in the report Stockyards Administration. Commission is revising 10 CFR will be aggregated and reported by [FR Doc. 2010–7382 Filed 4–1–10; 8:45 am] 140.11(a)(4), effective 30 days after geographic regions. Geographic regions BILLING CODE 3410–KD–P publication in the Federal Register, to will be defined in such a manner to require large nuclear power plant provide as much information as possible licensees to maintain $375 million in while maintaining confidentiality in primary financial protection. Because accordance with section 251 of the NUCLEAR REGULATORY this adjustment by the Commission is Agricultural Marketing Act (7 U.S.C. COMMISSION essentially ministerial in nature, the 1636) and may be modified from time to 10 CFR Part 140 time. Commission finds that there is good (3) Reported information. The [NRC–2009–0516] cause for omitting notice and public comment (in the form of a proposed monthly report will provide the RIN 3150–AI74 following information: rule) on this action as unnecessary, under the Administrative Procedure Act (i) The existing contract types for each Increase in the Primary Nuclear of 1946 (5 U.S.C. 553b). geographic region. Liability Insurance Premium (ii) The contract types currently being Voluntary Consensus Standards made available to additional producers AGENCY: Nuclear Regulatory or available for renewal to currently Commission. The National Technology Transfer contracted producers in each geographic ACTION: Final rule. and Advancement Act of 1995, Public region. Law 104–113, requires agencies to use (iii) The sum of packers’ reported SUMMARY: The Nuclear Regulatory technical standards developed or estimates of the total number of swine Commission (NRC) is amending its adopted by voluntary consensus committed by contract for delivery regulations that govern financial standards bodies unless the use of such during the next 6 and 12 months protection requirements and indemnity standards is inconsistent with beginning with the month the report is agreements to increase the primary applicable law or is otherwise published. The report will indicate the nuclear liability insurance layer from impractical. The NRC is amending its number of swine committed by $300 million to $375 million for liability regulations to increase the primary geographic reporting region and by insurance coverage in the event of premium for liability insurance contract type. nuclear incidents at licensed, operating, coverage in the event of nuclear (iv) The types of conditions or commercial nuclear power plants with a incidents at licensed, operating, circumstances as reported by packers rated capacity of 100,000 kW or more. commercial nuclear power plants with a that could result in expansion in the DATES: Effective Date: May 3, 2010. rated capacity of 100,000 kW or more. numbers of swine to be delivered under FOR FURTHER INFORMATION CONTACT: This action does not constitute the the terms of expansion clauses in the Anneliese Simmons, Office of Nuclear establishment of a standard that contracts at any time during the Reactor Regulation, U.S. Nuclear contains generally applicable following 12 calendar months. Regulatory Commission, Washington, requirements.

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Environmental Impact: Categorical List of Subjects in 10 CFR Part 140 than 1,300,000 electrical kilowatts, each Exclusion Criminal penalty, Extraordinary such combination of reactors shall be nuclear occurrence, Insurance, considered to be a single nuclear reactor The NRC has determined that this for the sole purpose of assessing the final rule is the type of action described Intergovernmental relations, Nuclear materials, Nuclear power plants and applicable financial protection required in categorical exclusion 10 CFR under this section. 51.22(c)(1). Therefore, neither an reactors, Reporting and recordkeeping * * * * * environmental impact statement nor an requirements. environmental assessment has been ■ For the reasons set out in the Dated at Rockville, Maryland, this 4th day prepared for this final rule. preamble and under the authority of the of March 2010. For the Nuclear Regulatory Commission. Paperwork Reduction Act Statement Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, R.W. Borchardt, This final rule does not contain a new as amended; and 5 U.S.C. 552 and 553; Executive Director for Operations. or an amended information collection the NRC is adopting the following [FR Doc. 2010–7394 Filed 4–1–10; 8:45 am] requirement subject to the Paperwork amendment to 10 CFR part 140. BILLING CODE 7590–01–P Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were PART 140—FINANCIAL PROTECTION approved by the Office of Management REQUIREMENTS AND INDEMNITY DEPARTMENT OF TRANSPORTATION and Budget, approval number 3150– AGREEMENTS Federal Aviation Administration 0039. ■ 1. The authority citation for Part 140 continues to read as follows: Public Protection Notification 14 CFR Part 39 Authority: (42 U.S.C. 2201, 2210); secs. If a means used to impose an 161, 170, 68 Stat. 948, 71 Stat. 576, as [Docket No. FAA–2009–1214; Directorate information collection does not display amended; (42 U.S.C. 2201, 2210); secs. 201, Identifier 2009–NM–091–AD; Amendment a currently valid OMB control number, as amended, 202, 88 Stat. 1242, as amended, 39–16251; AD 2010–07–06] the NRC may not conduct or sponsor, 1244 (42 U.S.C. 5841, 5842); Sec. 1704, 112 RIN 2120–AA64 and a person is not required to respond Stat. 2750 (44 U.S.C. 3504 note); Pub. L 109– to, the information collection. 58. Airworthiness Directives; Bombardier, Inc. Model BD–100–1A10 (Challenger Regulatory Analysis ■ 2. In § 140.11, paragraph (a)(4) is revised to read as follows: 300) Airplanes Because this increase is required by AGENCY: Federal Aviation statute, no other alternatives were § 140.11 Amounts of financial protection for certain reactors. Administration (FAA), Department of considered. See also the discussion in Transportation (DOT). the Regulatory Flexibility Certification (a) * * * ACTION: for this rule. (4) In an amount equal to the sum of Final rule. $375,000,000 and the amount available SUMMARY: We are adopting a new Regulatory Flexibility Certification as secondary financial protection (in the airworthiness directive (AD) for the form of private liability insurance Under the Regulatory Flexibility Act products listed above. This AD results available under an industry of 1980, (5 U.S.C. 605(b)), the from mandatory continuing retrospective rating plan providing for Commission certifies that this final rule airworthiness information (MCAI) deferred premium charges equal to the will not have a significant economic originated by an aviation authority of pro rata share of the aggregate public impact on a substantial number of small another country to identify and correct liability claims and costs, excluding entities. This final rule affects only the an unsafe condition on an aviation costs payment of which is not licensing and operation of nuclear product. The MCAI describes the unsafe authorized by Section 170o.(1)(D), in power plants. The companies that own condition as: excess of that covered by primary these plants do not fall within the scope financial protection) for each nuclear There has been an incident during a of the definition of ‘‘small entities’’ set reactor which is licensed to operate and production flight test where the proximity- forth in the Regulatory Flexibility Act or which is designed for the production of sensor electronic unit (PSEU) failed. This the size standards established by the resulted in unannunciated loss of: electrical energy and has a rated NRC (10 CFR 2.810). • Wheel brakes below 10 knots; capacity of 100,000 electrical kilowatts • Thrust reverser; Backfit Analysis or more: Provided, however, that under • Nose wheel steering; and such a plan for deferred premium • Auto-deployment of the multi-function The NRC has determined that the charges for each nuclear reactor which spoilers. backfit rule does not apply to this final is licensed to operate, no more than A similar condition, if not corrected, may rule. A backfit analysis is not required $111,900,000 with respect to any result in reduced controllability of the for this final rule because this nuclear incident (plus any surcharge aircraft upon landing and possible overrun of amendment is mandated by the Price- assessed under Subsection 170o.(1)(E) of the runway. Anderson Amendments Act of 1988 the Act) and no more than $17,500,000 * * * * * (Pub. L. 100–408). per incident within one calendar year We are issuing this AD to require actions to correct the unsafe condition Congressional Review Act shall be charged. Except that, where a person is authorized to operate a on these products. Under the Congressional Review Act combination of 2 or more nuclear DATES: This AD becomes effective May of 1996, the NRC has determined that reactors located at a single site, each of 7, 2010. this action is not a major rule and has which has a rated capacity of 100,000 or The Director of the Federal Register verified this determination with the more electrical kilowatts but not more approved the incorporation by reference Office of Information and Regulatory than 300,000 electrical kilowatts with a of a certain publication listed in this AD Affairs of OMB. combined rated capacity of not more as of May 7, 2010.

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ADDRESSES: You may examine the AD Conclusion because it addresses an unsafe condition docket on the Internet at http:// We reviewed the available data and that is likely to exist or develop on www.regulations.gov or in person at the determined that air safety and the products identified in this rulemaking U.S. Department of Transportation, public interest require adopting the AD action. Docket Operations, M–30, West with the change described previously. Regulatory Findings Building Ground Floor, Room W12–140, We determined that this change will not We determined that this AD will not 1200 New Jersey Avenue, SE., increase the economic burden on any have federalism implications under Washington, DC. operator or increase the scope of the AD. FOR FURTHER INFORMATION CONTACT: Executive Order 13132. This AD will Bruce Valentine, Aerospace Engineer, Differences Between This AD and the not have a substantial direct effect on Avionics and Flight Test Branch, ANE– MCAI or Service Information the States, on the relationship between 172, FAA, New York Aircraft We have reviewed the MCAI and the national government and the States, or on the distribution of power and Certification Office, 1600 Stewart related service information and, in responsibilities among the various Avenue, Suite 410, Westbury, New York general, agree with their substance. But we might have found it necessary to use levels of government. 11590; telephone (516) 228–7328; fax For the reasons discussed above, I (516) 794–5531. different words from those in the MCAI to ensure the AD is clear for U.S. certify this AD: SUPPLEMENTARY INFORMATION: 1. Is not a ‘‘significant regulatory operators and is enforceable. In making Discussion action’’ under Executive Order 12866; these changes, we do not intend to differ 2. Is not a ‘‘significant rule’’ under the We issued a notice of proposed substantively from the information DOT Regulatory Policies and Procedures rulemaking (NPRM) to amend 14 CFR provided in the MCAI and related (44 FR 11034, February 26, 1979); and part 39 to include an AD that would service information. 3. Will not have a significant apply to the specified products. That We might also have required different economic impact, positive or negative, NPRM was published in the Federal actions in this AD from those in the on a substantial number of small entities Register on December 29, 2009 (74 FR MCAI in order to follow our FAA under the criteria of the Regulatory 68741). That NPRM proposed to correct policies. Any such differences are Flexibility Act. an unsafe condition for the specified highlighted in a NOTE within the AD. We prepared a regulatory evaluation products. The MCAI states: Explanation of Change to Costs of of the estimated costs to comply with There has been an incident during a Compliance this AD and placed it in the AD docket. production flight test where the proximity- Since issuance of the NPRM, we have Examining the AD Docket sensor electronic unit (PSEU) failed. This increased the labor rate used in the resulted in unannunciated loss of: You may examine the AD docket on • Wheel brakes below 10 knots; Costs of Compliance from $80 per work- the Internet at http:// • Thrust reverser; hour to $85 per work-hour. The Costs of www.regulations.gov; or in person at the • Nose wheel steering; and Compliance information, below, reflects Docket Operations office between 9 a.m. • Auto-deployment of the multi-function this increase in the specified hourly and 5 p.m., Monday through Friday, spoilers. labor rate. except Federal holidays. The AD docket A similar condition, if not corrected, may Costs of Compliance contains the NPRM, the regulatory result in reduced controllability of the evaluation, any comments received, and aircraft upon landing and possible overrun of We estimate that this AD will affect the runway. other information. The street address for 162 products of U.S. registry. We also the Docket Operations office (telephone The original issue of this [Canadian] estimate that it will take about 1 work- (800) 647–5527) is in the ADDRESSES directive mandated the introduction of non- hour per product to comply with the normal procedures to the airplane flight section. Comments will be available in manual (AFM) as an interim corrective action basic requirements of this AD. The the AD docket shortly after receipt. to address PSEU failures. average labor rate is $85 per work-hour. Revision 1 of this directive amends the Based on these figures, we estimate the List of Subjects in 14 CFR Part 39 aircraft applicability and introduces a note cost of this AD to the U.S. operators to Air transportation, Aircraft, Aviation providing terminating action, for use at be $13,770, or $85 per product. safety, Incorporation by reference, operator discretion, if the aircraft has Safety. incorporated a PSEU with software version Authority for This Rulemaking 12 in accordance with Bombardier Service Title 49 of the United States Code Adoption of the Amendment Bulletin (SB) 100–32–12. specifies the FAA’s authority to issue ■ Accordingly, under the authority You may obtain further information by rules on aviation safety. Subtitle I, delegated to me by the Administrator, examining the MCAI in the AD docket. section 106, describes the authority of the FAA amends 14 CFR part 39 as the FAA Administrator. ‘‘Subtitle VII: follows: Comments Aviation Programs,’’ describes in more We gave the public the opportunity to detail the scope of the Agency’s PART 39—AIRWORTHINESS participate in developing this AD. We authority. DIRECTIVES received no comments on the NPRM or We are issuing this rulemaking under ■ on the determination of the cost to the the authority described in ‘‘Subtitle VII, 1. The authority citation for part 39 public. Part A, Subpart III, Section 44701: continues to read as follows: General requirements.’’ Under that Authority: 49 U.S.C. 106(g), 40113, 44701. Explanation of Change Made to This section, Congress charges the FAA with AD promoting safe flight of civil aircraft in § 39.13 [Amended] We have revised this AD to identify air commerce by prescribing regulations ■ 2. The FAA amends § 39.13 by adding the legal name of the manufacturer as for practices, methods, and procedures the following new AD: published in the most recent type the Administrator finds necessary for 2010–07–06 Bombardier, Inc.: Amendment certificate data sheet for the affected safety in air commerce. This regulation 39–16251. Docket No. FAA–2009–1214; airplane models. is within the scope of that authority Directorate Identifier 2009–NM–091–AD.

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Effective Date dated March 27, 2008, in lieu of using Directorate, 1601 Lind Avenue, SW., Renton, (a) This airworthiness directive (AD) Bombardier Temporary Revision TR–39, Washington. For information on the becomes effective May 7, 2010. dated March 2, 2005, specified in paragraph availability of this material at the FAA, call (f) of this AD. 425–227–1221. Affected ADs (4) You may also review copies of the FAA AD Differences (b) None. service information that is incorporated by Note 3: This AD differs from the MCAI reference at the National Archives and Applicability and/or service information as follows: No Records Administration (NARA). For (c) This AD applies to Bombardier, Inc. differences. information on the availability of this Model BD–100–1A10 (Challenger 300) material at NARA, call 202–741–6030, or go _ airplanes, certificated in any category, serial Other FAA AD Provisions to: http://www.archives.gov/federal register/ _ _ _ numbers 20002 through 20153 inclusive. code of federal regulations/ (g) The following provisions also apply to ibr_locations.html. Subject this AD: (1) Alternative Methods of Compliance Issued in Renton, Washington, on March (d) Air Transport Association (ATA) of (AMOCs): The Manager, New York Aircraft 19, 2010. America Code 32: Landing gear. Certification Office (ACO), ANE–170, FAA, Ali Bahrami, Reason has the authority to approve AMOCs for this Manager, Transport Airplane Directorate, AD, if requested using the procedures found (e) The mandatory continuing Aircraft Certification Service. in 14 CFR 39.19. Send information to ATTN: airworthiness information (MCAI) states: [FR Doc. 2010–6785 Filed 4–1–10; 8:45 am] Program Manager, Continuing Operational There has been an incident during a Safety, FAA, New York ACO, 1600 Stewart BILLING CODE 4910–13–P production flight test where the proximity- Avenue, Suite 410, Westbury, New York sensor electronic unit (PSEU) failed. This 11590; telephone 516–228–7300; fax 516– resulted in unannunciated loss of: 794–5531. Before using any approved AMOC DEPARTMENT OF TRANSPORTATION • Wheel brakes below 10 knots; on any airplane to which the AMOC applies, • Thrust reverser; notify your principal maintenance inspector Federal Aviation Administration • Nose wheel steering; and (PMI) or principal avionics inspector (PAI), • Auto-deployment of the multi-function as appropriate, or lacking a principal spoilers. 14 CFR Part 39 inspector, your local Flight Standards District A similar condition, if not corrected, may Office. The AMOC approval letter must [Docket No. FAA–2010–0230; Directorate result in reduced controllability of the specifically reference this AD. Identifier 2010–NM–071–AD; Amendment aircraft upon landing and possible overrun of (2) Airworthy Product: For any requirement 39–16250; AD 2010–06–51] the runway. in this AD to obtain corrective actions from The original issue of this directive RIN 2120–AA64 a manufacturer or other source, use these mandated the introduction of non-normal actions if they are FAA-approved. Corrective procedures to the airplane flight manual Airworthiness Directives; The Boeing actions are considered FAA-approved if they (AFM) as an interim corrective action to Company Model 737–600, –700, –700C, are approved by the State of Design Authority address PSEU failures. (or their delegated agent). You are required –800, –900, and –900ER Series Revision 1 of this directive amends the to assure the product is airworthy before it Airplanes aircraft applicability and introduces a note is returned to service. providing terminating action, for use at AGENCY: Federal Aviation (3) Reporting Requirements: For any operator discretion, if the aircraft has reporting requirement in this AD, under the Administration (FAA), Department of incorporated a PSEU with software version provisions of the Paperwork Reduction Act Transportation (DOT). 12 in accordance with Bombardier Service (44 U.S.C. 3501 et seq.), the Office of ACTION: Final rule; request for Bulletin (SB) 100–32–12. Management and Budget (OMB) has comments. Actions and Compliance approved the information collection (f) Unless already done, within 14 days requirements and has assigned OMB Control SUMMARY: This document publishes in after the effective date of this AD: Revise the Number 2120–0056. the Federal Register an amendment Limitations Section of the Bombardier Related Information adopting airworthiness directive (AD) Challenger 300 AFM, CSP 100–1, to include 2010–06–51 that was sent previously to the information in Bombardier Temporary (h) Refer to MCAI Transport Canada Civil all known U.S. owners and operators of Aviation Airworthiness Directive CF–2005– Revision TR–39, dated March 2, 2005, as The Boeing Company Model 737–600, specified in the temporary revision. This 12R1, dated December 23, 2008; and Bombardier Temporary Revision TR–39, –700, –700C, –800, –900, and –900ER temporary revision introduces a procedure series airplanes by individual notices. for ‘‘PROX SYS FAULT (A)’’ and modifies the dated March 2, 2005; for related information. This AD requires doing a detailed ‘‘WOW FAIL (C)’’ and ‘‘GEAR SYS FAIL (C)’’ Material Incorporated by Reference procedures. inspection of the inboard and outboard (i) You must use Bombardier Temporary aft attach lugs of the left and right Note 1: This may be done by inserting a Revision TR–39, dated March 2, 2005, to the copy of Bombardier Temporary Revision TR– elevator control tab mechanisms for Bombardier Challenger 300 Airplane Flight gaps between the swage ring and the aft 39, dated March 2, 2005, in the AFM. When Manual, CSP 100–1, to do the actions this temporary revision has been included in required by this AD, unless the AD specifies attach lug, and between the spacer and general revisions of the AFM, the general otherwise. the aft attach lug; trying to move or revisions may be inserted in the AFM, (1) The Director of the Federal Register rotate the spacer using hand pressure; provided the relevant information in the approved the incorporation by reference of and replacing any discrepant elevator general revision is identical to that in this service information under 5 U.S.C. tab control mechanism, including Bombardier Temporary Revision TR–39, 552(a) and 1 CFR part 51. dated March 2, 2005. performing the detailed inspection on (2) For service information identified in the replacement part before and after Note 2: If the aircraft has incorporated a this AD, contact Bombardier, Inc., 400 Coˆte- installation. This AD is prompted by a PSEU, part number (P/N) 30227–0401, Vertu Road West, Dorval, Que´bec H4S 1Y9, report of failure of the aft attach lugs on 30227–0402, or 30227–0403, with software Canada; telephone 514–855–5000; fax 514– version 12, installed in accordance with 855–7401; e-mail the left elevator tab control mechanism, Bombardier Service Bulletin 100–32–12, [email protected]; Internet which resulted in severe elevator dated June 4, 2007, it is permissible to follow http://www.bombardier.com. vibration. We are issuing this AD to the revised AFM procedures included in (3) You may review copies of the service detect and correct a loose bearing in the Bombardier Temporary Revision TR–46, information at the FAA, Transport Airplane aft lug of the elevator tab control

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mechanism, which could result in SUPPLEMENTARY INFORMATION: On March reporting the inspection results to unwanted elevator and tab vibration. 12, 2010, we issued emergency AD Boeing. The consequent structural failure of the 2010–06–51, which applies to all The We found that immediate corrective elevator or horizontal stabilizer could Boeing Company Model 737–600, –700, action was required; therefore, notice result in loss of aircraft control and –700C, –800, –900, and –900ER series and opportunity for prior public structural integrity. airplanes. comment thereon were impracticable and contrary to the public interest, and DATES: This AD becomes effective April Background 7, 2010 to all persons except those good cause existed to make the AD persons to whom it was made The FAA received a report of failure effective immediately by individual immediately effective by emergency AD of the aft attach lugs on the left elevator notices issued on March 12, 2010, to all 2010–06–51, issued March 12, 2010, tab control mechanism, which resulted known U.S. owners and operators of which contained the requirements of in severe elevator vibration. The The Boeing Company Model 737–600, this amendment. flightcrew diverted from the intended –700, –700C, –800, –900, and –900ER The Director of the Federal Register route and made an uneventful landing. series airplanes. These conditions still approved the incorporation by reference Subsequent investigation revealed exist, and the AD is hereby published in of a certain publication listed in the AD extensive damage to the elevator tab the Federal Register as an amendment as of April 7, 2010. control system. Severe vibration in this to section 39.13 of the Federal Aviation We must receive comments on this attach point is suspected of allowing Regulations (14 CFR 39.13) to make it AD by May 17, 2010. rapid wear of the joint, and resulted in effective to all persons. ADDRESSES: You may send comments by failure of the attach lugs. This Differences Between This AD and the any of the following methods: condition, if not corrected, could result Service Bulletin • in a loss of aircraft control and Federal eRulemaking Portal: Go to The effectivity of Boeing Alert Service structural integrity. http://www.regulations.gov. Follow the Bulletin 737–27A1296, dated March 12, instructions for submitting comments. • Relevant Service Information 2010, includes all Model 737–600, –700, Fax: 202–493–2251. –700C, –800, –900, and –900ER series • We have reviewed Boeing Alert Mail: U.S. Department of airplanes. The inspection requirements Service Bulletin 737–27A1296, dated Transportation, Docket Operations, of this AD, however, affect only those March 12, 2010. The service bulletin M–30, West Building Ground Floor, airplanes subject to a short compliance describes procedures for a detailed Room W12–140, 1200 New Jersey time (within 12 or 30 days). Because the inspection to detect discrepancies of the Avenue, SE., Washington, DC 20590. suspect components may be installed as • inboard and outboard aft attach lugs of Hand Delivery: U.S. Department of replacements on all airplanes subject to the elevator tab control mechanism. Transportation, Docket Operations, this AD, paragraph (l) of this AD Discrepancies include movement or M–30, West Building Ground Floor, requires that the part be inspected rotation of the spacer, and gaps between Room W12–140, 1200 New Jersey before and after installation. We may the swage ring and the aft attach lug or Avenue, SE., Washington, DC 20590, consider superseding this AD to apply between the spacer and the aft attach between 9 a.m. and 5 p.m., Monday the inspection requirements to the lug. The service bulletin describes through Friday, except Federal holidays. remaining airplanes, which would be For service information identified in procedures for replacing any discrepant subject to a longer compliance time that this AD, contact Boeing Commercial elevator tab control mechanism, would allow enough time to provide Airplanes, Attention: Data & Services including performing the detailed notice and opportunity for prior public Management, P.O. Box 3707, MC 2H–65, inspection on the replacement part comment on the merits of the inspection Seattle, Washington 98124–2207; before and after installation. For certain for these airplanes. telephone 206–544–5000, extension airplanes, the compliance time for the 1; fax 206–766–5680; e-mail inspection is 12 or 30 days, depending Interim Action [email protected]; Internet on airplane line number, total This AD is considered to be interim https://www.myboeingfleet.com. accumulated flight cycles, and approval action. The inspection reports that are for operation under extended twin Examining the AD Docket required by this AD will enable the operations (ETOPS). manufacturer to obtain better insight You may examine the AD docket on into the nature, cause, and extent of the the Internet at http:// FAA’s Determination and Requirements of This AD issue, and eventually to develop final www.regulations.gov; or in person at the action to address the unsafe condition. Docket Management Facility between 9 Since the unsafe condition described Once final action has been identified, a.m. and 5 p.m., Monday through is likely to exist or develop on other we might consider further rulemaking. Friday, except Federal holidays. The AD airplanes of the same type design, we docket contains this AD, the regulatory issued emergency AD 2010–06–51 to Comments Invited evaluation, any comments received, and detect and correct a loose bearing in the This AD is a final rule that involves other information. The street address for aft lug of the elevator tab control requirements affecting flight safety, and the Docket Office (telephone 800–647– mechanism, which could result in we did not provide you with notice and 5527) is in the ADDRESSES section. unwanted elevator and tab vibration. an opportunity to provide your Comments will be available in the AD The consequent structural failure of the comments before it becomes effective. docket shortly after receipt. elevator or horizontal stabilizer could However, we invite you to send any FOR FURTHER INFORMATION CONTACT: result in loss of aircraft control and written data, views, or arguments about Kelly McGuckin, Aerospace Engineer, structural integrity. The AD requires this AD. Send your comments to an Systems and Equipment Branch, ANM– accomplishing the actions specified in address listed under the ADDRESSES 130S, FAA, Seattle ACO, 1601 Lind the service information previously section. Include ‘‘Docket No. FAA– Avenue, SW., Renton, Washington described, except as described in 2010–0230; Directorate Identifier 2010– 98057–3356; telephone (425) 917–6490; ‘‘Differences Between this AD and the NM–071–AD’’ at the beginning of your fax (425) 917–6590. Service Bulletin.’’ This AD also requires comments. We specifically invite

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comments on the overall regulatory, List of Subjects in 14 CFR Part 39 Service Bulletin 737–27A1296, dated March 12, 2010, except as required by paragraph (i) economic, environmental, and energy Air transportation, Aircraft, Aviation aspects of this AD. We will consider all of this AD, do a detailed inspection of the safety, Incorporation by reference, inboard and outboard aft attach lugs of the comments received by the closing date Safety. and may amend this AD because of left and right elevator control tab Adoption of the Amendment mechanisms for gaps between the swage ring those comments. and the aft attach lug, and between the spacer We will post all comments we ■ Accordingly, under the authority and the aft attach lug; and try to move or receive, without change, to http:// delegated to me by the Administrator, rotate the spacer using hand pressure, in www.regulations.gov, including any the FAA amends 14 CFR part 39 as accordance with the Accomplishment personal information you provide. We follows: Instructions of Boeing Alert Service Bulletin will also post a report summarizing each 737–27A1296, dated March 12, 2010. substantive verbal contact we receive PART 39—AIRWORTHINESS (h) If, during accomplishment of the about this AD. DIRECTIVES actions required by paragraph (g) of this AD, any gap is found between the swage ring and Authority for This Rulemaking ■ 1. The authority citation for part 39 the aft attach lug, or between the spacer and continues to read as follows: the aft attach lug; or if the spacer moves or Title 49 of the United States Code rotates: Before further flight, do the actions specifies the FAA’s authority to issue Authority: 49 U.S.C. 106(g), 40113, 44701. required by paragraphs (h)(1) and (h)(2) of rules on aviation safety. Subtitle I, § 39.13 [Amended] this AD, in accordance with the Section 106, describes the authority of Accomplishment Instructions of Boeing Alert the FAA Administrator. Subtitle VII, ■ 2. The FAA amends § 39.13 by adding Service Bulletin 737–27A1296, dated March Aviation Programs, describes in more the following new airworthiness 12, 2010. detail the scope of the Agency’s directive (AD): (1) Inspect the replacement elevator tab authority. control mechanism for discrepancies, as 2010–06–51 The Boeing Company: specified in paragraph (g) of this AD; and, if We are issuing this rulemaking under Amendment 39–16250. Docket No. no discrepancy is found, install the the authority described in Subtitle VII, FAA–2010–0230; Directorate Identifier replacement elevator tab control mechanism. Part A, Subpart III, Section 44701, 2010–NM–071–AD. (2) Re-inspect the installed elevator tab ‘‘General requirements.’’ Under that Effective Date control mechanism, as required by paragraph section, Congress charges the FAA with (a) This AD becomes effective April 7, (g) of this AD. promoting safe flight of civil aircraft in 2010, to all persons except those persons to Exception to Service Bulletin Specifications air commerce by prescribing regulations whom it was made immediately effective by (i) Where Boeing Alert Service Bulletin emergency AD 2010–06–51, issued on March for practices, methods, and procedures 737–27A1296, dated March 12, 2010, 12, 2010, which contained the requirements the Administrator finds necessary for specifies a compliance time after the date of of this amendment. safety in air commerce. This regulation the original issue of the service bulletin, this is within the scope of that authority Affected ADs AD requires compliance within the specified because it addresses an unsafe condition (b) None. compliance time after the effective date of that is likely to exist or develop on this AD. Applicability products identified in this rulemaking Inspection Done According to Multi action. (c) This AD applies to all The Boeing Operator Message (MOM) Company Model 737–600, –700, –700C, Regulatory Findings –800, –900, and –900ER series airplanes; (j) An inspection done before the effective certificated in any category. date of this AD according to Boeing Multi We have determined that this AD will Operator Message Number MOM–MOM–10– not have federalism implications under Subject 0159–01B, dated March 10, 2010, is Executive Order 13132. This AD will (d) Air Transport Association (ATA) of considered acceptable for compliance with not have a substantial direct effect on America Code 27: Flight controls. the corresponding inspection specified in the States, on the relationship between paragraph (g) of this AD. Unsafe Condition the national government and the States, Reporting (e) This AD results from a report of failure or on the distribution of power and (k) At the applicable time specified in responsibilities among the various of the aft attach lugs on the left elevator tab control mechanism, which resulted in severe paragraph (k)(1) or (k)(2) of this AD: Submit levels of government. elevator vibration. The Federal Aviation a report of the findings (both positive and The FAA has determined that this Administration is issuing this AD to detect negative) of the inspections required by regulation is an emergency regulation and correct a loose bearing in the aft lug of paragraph (g) of this AD to Boeing that must be issued immediately to the elevator tab control mechanism, which Commercial Airplanes Group, Attention: correct an unsafe condition in aircraft, could result in unwanted elevator and tab Manager, Airline Support, e-mail: and that it is not a ‘‘significant vibration. The consequent structural failure [email protected]. The report must ’’ of the elevator or horizontal stabilizer could include the inspection results including a regulatory action under Executive description of any discrepancies found, the Order 12866. It has been determined result in loss of aircraft control and structural integrity. airplane line number, and the number of further that this action involves an flight cycles and flight hours accumulated on emergency regulation under DOT Compliance the airplane. Under the provisions of the Regulatory Policies and Procedures (44 (f) You are responsible for having the Paperwork Reduction Act (44 U.S.C. 3501 et FR 11034, February 26, 1979). If this actions required by this AD performed within seq.), the Office of Management and Budget emergency regulation is later deemed the compliance times specified, unless the (OMB) has approved the information significant under DOT Regulatory actions have already been done. collection requirements contained in this AD Policies and Procedures, we will and has assigned OMB Control Number Inspection and Corrective Action 2120–0056. prepare a final regulatory evaluation (g) For Groups 1, 2, and 3; and Group 4, (1) If the inspection was done on or after and place it in the AD Docket. See the Configuration 2; as identified in Boeing Alert the effective date of this AD: Submit the ADDRESSES section for a location to Service Bulletin 737–27A1296, dated March report within 10 days after the inspection. examine the regulatory evaluation, if 12, 2010: At the applicable time specified in (2) If the inspection was done before the filed. paragraph 1.E. Compliance of Boeing Alert effective date of this AD: Submit the report

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within 10 days after the effective date of this availability of this material at the FAA, call of the upper deck floor beams in AD. 425–227–1221. Sections 41 and 42, and new analysis (4) You may also review copies of the Parts Installation that shows the permanent fastener holes service information that is incorporated by of the upper chord of certain upper deck (l) For all airplanes: As of the effective date reference at the National Archives and of this AD, no person may install an elevator Records Administration (NARA). For floor beams in Section 41 are also tab control mechanism, part number information on the availability of this susceptible to fatigue cracking. We are 251A2430–( ), on any airplane, unless the material at NARA, call 202–741–6030, or go issuing this AD to detect and correct mechanism has been inspected before and to http://www.archives.gov/federal_register/ cracking in the upper chord of the upper after installation, in accordance with the code_of_federal_regulations/ deck floor beams. Such cracking could requirements of paragraph (g) of this AD, and ibr_locations.html. extend and sever the floor beams, which no discrepancies have been found. Issued in Renton, Washington, on March could result in rapid decompression and Special Flight Permit 18, 2010. loss of controllability of the airplane. (m) Special flight permits, as described in Ali Bahrami, DATES: This AD becomes effective May Section 21.197 and Section 21.199 of the Manager, Transport Airplane Directorate, 7, 2010. Federal Aviation Regulations (14 CFR 21.197 Aircraft Certification Service. The Director of the Federal Register and 21.199), are not allowed. [FR Doc. 2010–6786 Filed 4–1–10; 8:45 am] approved the incorporation by reference of certain publications listed in the AD Alternative Methods of Compliance BILLING CODE 4910–13–P (AMOCs) as of May 7, 2010. ADDRESSES: For service information (n)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the DEPARTMENT OF TRANSPORTATION identified in this AD, contact Boeing authority to approve AMOCs for this AD, if Commercial Airplanes, Attention: Data requested using the procedures found in 14 Federal Aviation Administration & Services Management, P.O. Box 3707, CFR 39.19. Send information to ATTN: Kelly MC 2H–65, Seattle, Washington 98124– McGuckin, Aerospace Engineer, Systems and 14 CFR Part 39 2207; telephone 206–544–5000, Equipment Branch, ANM–130S, FAA, Seattle [Docket No. FAA–2009–0684; Directorate extension 1; fax 206–766–5680; e-mail ACO, 1601 Lind Avenue, SW., Renton, Identifier 2008–NM–149–AD; Amendment [email protected]; Internet Washington 98057–3356; telephone 425– 39–16247; AD 2010–07–03] https://www.myboeingfleet.com. 917–6490; fax 425–917–6590. Information may be e-mailed to 9-ANM-Seattle-ACO- RIN 2120–AA64 Examining the AD Docket [email protected]. You may examine the AD docket on (2) To request a different method of Airworthiness Directives; The Boeing compliance or a different compliance time the Internet at http:// Company Model 747–200C and –200F www.regulations.gov; or in person at the for this AD, follow the procedures in 14 CFR Series Airplanes 39.19. Before using any approved AMOC on Docket Management Facility between 9 any airplane to which the AMOC applies, AGENCY: Federal Aviation a.m. and 5 p.m., Monday through notify your principal maintenance inspector Administration (FAA), Department of Friday, except Federal holidays. The AD (PMI) or principal avionics inspector (PAI), Transportation (DOT). docket contains this AD, the regulatory as appropriate, or lacking a principal evaluation, any comments received, and ACTION: Final rule. inspector, your local Flight Standards District other information. The address for the Office. The AMOC approval letter must Docket Office (telephone 800–647–5527) specifically refer to this AD. SUMMARY: The FAA is superseding an (3) An AMOC that provides an acceptable existing airworthiness directive (AD), is the Docket Management Facility, U.S. level of safety may be used for any repair which applies to certain Model 747– Department of Transportation, Docket required by this AD if it is approved by the 200C and –200F series airplanes. That Operations, M–30, West Building Boeing Commercial Airplanes Organization AD currently requires repetitive Ground Floor, Room W12–140, 1200 Designation Authorization (ODA) that has inspections to find fatigue cracking in New Jersey Avenue, SE., Washington, been authorized by the Manager, Seattle the floor panel attachment fastener DC 20590. ACO, to make those findings. For a repair holes of the upper chord of certain FOR FURTHER INFORMATION CONTACT: Ivan method to be approved, the repair must meet the certification basis of the airplane, and the upper deck floor beams in Section 41 Li, Aerospace Engineer, Airframe approval must specifically refer to this AD. (i.e., body station 520 and forward), and Branch, ANM–120S, FAA, Seattle repair if necessary. The existing AD also Aircraft Certification Office, 1601 Lind Material Incorporated by Reference provides optional modifications, which Avenue, SW., Renton, Washington (o) You must use Boeing Alert Service extend the threshold for initiating 98057–3356; telephone (425) 917–6437; Bulletin 737–27A1296, dated March 12, certain repetitive inspections. This new fax (425) 917–6590. 2010, to do the actions required by this AD, AD requires additional repetitive SUPPLEMENTARY INFORMATION: unless the AD specifies otherwise. inspections to find fatigue cracking in (1) The Director of the Federal Register Discussion approved the incorporation by reference of the floor panel attachment fastener this service information under 5 U.S.C. holes of the upper chord of certain other The FAA issued a notice of proposed 552(a) and 1 CFR part 51. upper deck floor beams in Section 41 rulemaking (NPRM) to amend 14 CFR (2) For service information identified in and Section 42 (i.e., aft of body station part 39 to include an AD that this AD, contact Boeing Commercial 520); repetitive inspections to find supersedes AD 2006–08–02, amendment Airplanes, Attention: Data & Services fatigue cracking in the permanent 39–14556 (70 FR 18618, April 12, 2006). Management, P.O. Box 3707, MC 2H–65, fastener holes of the upper chord of The existing AD applies to certain Seattle, Washington 98124–2207; telephone certain upper deck floor beams in Model 747–200C and –200F series 206–544–5000, extension 1; fax 206–766– Section 41; and related investigative and airplanes. That NPRM was published in 5680; e-mail [email protected]; Internet https://www.myboeingfleet.com. corrective actions. This new AD also the Federal Register on August 12, 2009 (3) You may review copies of the service provides a new optional modification, (74 FR 40529). That NPRM proposed to information at the FAA, Transport Airplane which terminates certain repetitive continue to require repetitive Directorate, 1601 Lind Avenue, SW., Renton, inspections. This AD results from new inspections to find fatigue cracking in Washington. For information on the reports of cracking in the upper chord the floor panel attachment fastener

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holes of the upper chord of certain 2008, of Boeing Alert Service Bulletin required by this AD to the Boeing upper deck floor beams in Section 41 747–53A2439. Commercial Airplanes ODA rather than (i.e., body station 520 and forward), and We do not agree to revise Table 2 of an Authorized Representative under the repair if necessary. That NPRM also this AD. Step (5) of Table 2 references former Delegation Option Authorization proposed to continue to provide paragraph (i)(2) of this AD, and requires (DOA) program. However, we have also optional modifications, which extend only the fastener hole modification per revised paragraph (h)(1) of this AD to the threshold for the initiation of certain Figure 5 and the open-hole high- reference paragraph (o) of this AD and repetitive inspections. That NPRM also frequency eddy current (HFEC) to continue to provide allowance for proposed to add repetitive inspections inspection per Part 1 of the Work those operators that have used a repair to find fatigue cracking in the floor Instructions of Boeing Alert Service approved by a Boeing Company panel attachment fastener holes of the Bulletin 747–53A2439, Revision 2, Designated Engineering Representative upper chord of certain other upper deck dated July 17, 2008. The fastener hole (DER) or by an Authorized floor beams in Section 41 and Section slot repair per Part 4 of the Work Representative for the Boeing 42 (i.e., aft of body station 520); Instructions of Boeing Alert Service Commercial Airplanes DOA. repetitive inspections to find fatigue Bulletin 747–53A2439, Revision 2, dated July 17, 2008, is not required by Explanation of Changes Made to This cracking in the permanent fastener holes AD of the upper chord of certain upper deck paragraph (i)(2) of this AD. We note that floor beams in Section 41; and related the fastener hole slot repair per Part 4 We have revised this AD to identify investigative and corrective actions. of the Work Instructions of Boeing Alert the legal name of the manufacturer as Additionally, that NPRM proposed to Service Bulletin 747–53A2439, Revision published in the most recent type provide a new optional modification, 2, dated July 17, 2008, which is certificate data sheet for the affected which would terminate certain referenced in Part 2 of the Work airplane models. Instructions of Boeing Alert Service repetitive inspections. Conclusion Bulletin 747–53A2439, Revision 2, Comments dated July 17, 2008, is required by We have carefully reviewed the available data, including the comments We provided the public the paragraph (i)(1) of this AD. We have that have been received, and determined opportunity to participate in the made no change to the final rule in this that air safety and the public interest development of this AD. We have regard. require adopting the AD with the considered the comments that have Request To Update Name of Boeing’s changes described previously. We have been received on the NPRM from the Delegation Option Authorization determined that these changes will single commenter. Organization neither increase the economic burden Request To Revise Procedure Location Boeing requests that we revise on any operator nor increase the scope Specified in Step (5) of Table 2 of the paragraphs (h)(1) and (o)(4) of the of the AD. NPRM NPRM to change ‘‘Boeing Commercial Airplanes Delegation Option Explanation of Change to Costs of Boeing requests that we revise Table Authorization Organization’’ to ‘‘Boeing Compliance 2 of the NPRM to update the location in Commercial Airplanes Organization Since issuance of the original NPRM, the referenced service bulletin for the Designation Authorization we have increased the labor rate used in modification provided in Step (5) of Organization.’’ Boeing points out that the Costs of Compliance from $80 per Table 2 of the NPRM. Boeing points out they changed the name of this work-hour to $85 per work-hour. The that the modification referred to in organization at the end of August 2009. Costs of Compliance information, paragraph (h)(2) of AD 2006–08–02, We partially agree. Boeing below, reflects this increase in the provided in Step (5) in Table 2 of the Commercial Airplanes has received an specified hourly labor rate. NPRM, was defined in Figure 5 of the Organization Designation Authorization original issue of Boeing Alert Service (ODA), which replaces their previous Costs of Compliance Bulletin 747–53A2439, dated July 5, designation as a Delegation Option There are about 68 airplanes of the 2001. Boeing further points out that the Authorization holder. We have revised affected design in the worldwide fleet. instructions for this modification were paragraph (o)(4) of this AD to delegate The following table provides the moved to Part 3 and Part 4 of the Work the authority to approve an alternative estimated costs for U.S. operators to Instructions of Revision 2, dated July 17, method of compliance for any repair comply with this AD.

ESTIMATED COSTS

Average Number of Action Work hours labor rate Cost per airplane U.S.-registered Fleet cost per hour airplanes

Inspections (required by AD 29 $85 $2,465 per inspection cycle .... 25 $61,625 per inspection cycle. 2006–08–02). Inspection of Area 5 and per- 78 85 $6,630 per inspection cycle .... 25 $165,750 per inspection cycle. manent fastener hole in Areas 1, 2, 3, and 4 (new re- quired action).

Authority for This Rulemaking rules on aviation safety. Subtitle I, Aviation Programs, describes in more Section 106, describes the authority of detail the scope of the Agency’s Title 49 of the United States Code the FAA Administrator. Subtitle VII, authority. specifies the FAA’s authority to issue

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We are issuing this rulemaking under 2010–07–03 The Boeing Company: Instructions of Boeing Alert Service Bulletin the authority described in Subtitle VII, Amendment 39–16247. Docket No. 747–53A2439, dated July 5, 2001. Do the Part A, Subpart III, Section 44701, FAA–2009–0684; Directorate Identifier inspections per the Boeing Alert Service ‘‘General requirements.’’ Under that 2008–NM–149–AD. Bulletin 747–53A2439, dated July 5, 2001, section, Congress charges the FAA with Effective Date except as provided by paragraph (k) of this AD. Any combination of the applicable promoting safe flight of civil aircraft in (a) This AD becomes effective May 7, 2010. inspection methods specified in Parts 1 and air commerce by prescribing regulations Affected ADs 2 may be used, provided that the for practices, methods, and procedures corresponding repetitive inspection interval (b) This AD supersedes AD 2006–08–02, the Administrator finds necessary for is used. Amendment 39–14556. safety in air commerce. This regulation (1) If any crack is found, before further is within the scope of that authority Applicability flight, repair per Part 3 (Upper Chord Repair) because it addresses an unsafe condition (c) This AD applies to The Boeing of the Work Instructions of Boeing Alert that is likely to exist or develop on Company Model 747–200C and –200F series Service Bulletin 747–53A2439, dated July 5, products identified in this rulemaking airplanes, certificated in any category, as 2001; except where Boeing Alert Service action. identified in Boeing Alert Service Bulletin Bulletin 747–53A2439, dated July 5, 2001, 747–53A2439, Revision 2, dated July 17, specifies to contact Boeing for appropriate Regulatory Findings 2008. action, before further flight, repair using a method approved in accordance with the We have determined that this AD will Subject procedures specified in paragraph (o) of this not have federalism implications under (d) Air Transport Association (ATA) of AD or repair according to data meeting the Executive Order 13132. This AD will America Code 53: Fuselage. certification basis of the airplane approved not have a substantial direct effect on by a Boeing Company Designated Unsafe Condition the States, on the relationship between Engineering Representative (DER) or by an the national government and the States, (e) This AD results from new reports of Authorized Representative for the Boeing or on the distribution of power and cracking in the upper chord of the upper Commercial Airplanes Delegation Option deck floor beams in Sections 41 and 42, and responsibilities among the various Authorization Organization. For a repair new analysis that shows the permanent method to be approved by the Manager, levels of government. fastener holes of the upper chord of certain For the reasons discussed above, I Seattle Aircraft Certification Office (ACO), upper deck floor beams in Section 41 are also FAA, as required by this paragraph, the certify that this AD: susceptible to fatigue cracking. We are Manager’s approval letter must specifically (1) Is not a ‘‘significant regulatory issuing this AD to detect and correct cracking reference this AD. Do the applicable action’’ under Executive Order 12866; in the upper chord of the upper deck floor inspection of the repaired area per Part 1 of (2) Is not a ‘‘significant rule’’ under beams. Such cracking could extend and sever the Work Instructions of Boeing Alert Service DOT Regulatory Policies and Procedures the floor beams, which could result in rapid Bulletin 747–53A2439, dated July 5, 2001, at (44 FR 11034, February 26, 1979); and decompression and loss of controllability of the applicable time per Part 3 of the Work the airplane. (3) Will not have a significant Instructions of Boeing Alert Service Bulletin economic impact, positive or negative, Compliance 747–53A2439, dated July 5, 2001, and repeat on a substantial number of small entities (f) You are responsible for having the the applicable inspection at the applicable under the criteria of the Regulatory actions required by this AD performed within interval per Figure 1 of Boeing Alert Service Flexibility Act. the compliance times specified, unless the Bulletin 747–53A2439, dated July 5, 2001. We prepared a regulatory evaluation actions have already been done. (2) If no crack is found, repeat the applicable inspection per paragraph (h) of of the estimated costs to comply with Requirements of AD 2006–08–02 this AD at the applicable time specified in this AD and placed it in the AD docket. paragraphs (h)(2)(i) through (h)(2)(iii) of this See the ADDRESSES section for a location Initial Compliance Time at a New Reduced Threshold AD. As an option to the repetitive to examine the regulatory evaluation. inspections, accomplishment of paragraph (g) At the earliest of the times specified in (i)(1) or (i)(2) of this AD, before further flight, List of Subjects in 14 CFR Part 39 paragraphs (g)(1) through (g)(3) of this AD, do extends the threshold for the initiation of the Air transportation, Aircraft, Aviation the inspection required by paragraph (h) of repetitive inspections required by this this AD. safety, Incorporation by reference, paragraph. (1) Before the accumulation of 22,000 total (i) If the immediately preceding inspection Safety. flight cycles, or within 1,000 flight cycles was conducted using an open-hole HFEC after March 15, 2004 (the effective date of AD Adoption of the Amendment inspection method: Conduct the next 2004–03–11, which was superseded by AD inspection of that area within 3,000 flight ■ 2006–08–02), whichever occurs later. Accordingly, under the authority cycles of the last inspection. delegated to me by the Administrator, (2) For airplanes with 17,000 or more total flight cycles as of May 17, 2006 (the effective (ii) If the immediately preceding inspection the FAA amends 14 CFR part 39 as was conducted using a surface HFEC follows: date of AD 2006–08–02): Before the accumulation of 18,000 total flight cycles, or inspection method at stations 340 through 420 inclusive and station 500: Conduct the PART 39—AIRWORTHINESS within 90 days after May 17, 2006, whichever occurs later. next inspection of that area within 750 flight DIRECTIVES (3) For airplanes with fewer than 17,000 cycles of the last inspection. (iii) If the immediately preceding ■ total flight cycles as of May 17, 2006: Before 1. The authority citation for part 39 inspection was conducted using a surface continues to read as follows: the accumulation of 15,000 total flight cycles, or within 1,000 flight cycles after May 17, HFEC inspection method at stations 440 and Authority: 49 U.S.C. 106(g), 40113, 44701. 2006, whichever occurs later. 520: Conduct the next inspection of that area at the earlier of the times specified in § 39.13 [Amended] Inspections at Reduced Intervals for Certain paragraphs (h)(2)(iii)(A) and (h)(2)(iii)(B) of Floor Beams and Repair ■ 2. The Federal Aviation this AD, and thereafter at intervals not to exceed 250 flight cycles. Administration (FAA) amends § 39.13 (h) Do the applicable inspection to find fatigue cracking in the upper chord of the (A) Within 750 flight cycles since the last by removing amendment 39–14556 (70 upper deck floor beams as specified in Part surface HFEC inspection required by FR 18618, April 12, 2006) and by adding 1 (Open-Hole High Frequency Eddy Current paragraph (h) of this AD. the following new airworthiness (HFEC) Inspection Method) or Part 2 (Surface (B) Within 250 flight cycles after May 17, directive (AD): HFEC Inspection Method) of the Work 2006.

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Optional Repair/Modification Alert Service Bulletin 747–53A2439, dated for actions required by paragraph (g), (h), or (i) For areas on which the inspection July 5, 2001, do the applicable inspection of (i) of this AD: As of May 17, 2006 (the required by paragraph (h) of this AD is done the repaired area per Part 1 of the Work effective date of AD 2006–08–02), all flight per Part 1 of the Work Instructions of Boeing Instructions of Boeing Alert Service Bulletin cycles, including the number of flight cycles 747–53A2439, dated July 5, 2001. Repeat the Alert Service Bulletin 747–53A2439, dated in which cabin differential pressure is at 2.0 inspection thereafter within the applicable July 5, 2001; and on which no cracking is interval of 3,000 flight cycles per Figure 1 of pounds per square inch (psi) or less, must be found: Accomplishment of the actions Boeing Alert Service Bulletin 747–53A2439, counted when determining the number of specified in either paragraph (i)(1) or (i)(2) of dated July 5, 2001. flight cycles that have occurred on the this AD extends the threshold for the (2) Do the modification of the attachment airplane. initiation of the repetitive inspections hole of the floor panel per Figure 5 of Boeing required by paragraph (h)(2) of this AD. For Alert Service Bulletin 747–53A2439, dated New Requirements of This AD areas on which the inspection required by July 5, 2001, except as provided by paragraph Applicable Revisions of Service Bulletins paragraph (h) of this AD is done per Part 2 (k) of this AD. Within 10,000 flight cycles of Boeing Alert Service Bulletin 747– after accomplishment of the modification, do (k) Use the information in Tables 1 and 2 53A2439, dated July 5, 2001; and on which the inspection of the modified area per Part of this AD, at the applicable time specified no cracking is found: Accomplishment of the 1 of the Work Instructions of Boeing Alert in paragraphs (k)(1) and (k)(2) of this AD, to actions specified in paragraph (i)(1) of this Service Bulletin 747–53A2439, dated July 5, determine the part of the applicable service AD extends the threshold for the initiation of 2001. Repeat the inspection thereafter within bulletin to use to accomplish the actions the repetitive inspections required by the applicable interval of 3,000 flight cycles required by this AD. paragraph (h)(2) of this AD. per Figure 1 of Boeing Alert Service Bulletin (1) On or after May 17, 2006, but before the (1) Do the applicable repair per Part 3 of 747–53A2439, dated July 5, 2001. the Work Instructions of Boeing Alert Service effective date of this AD, use only the service Bulletin 747–53A2439, dated July 5, 2001, Determining the Number of Flight Cycles for information listed in Table 1 or Table 2 of except as provided by paragraph (k) of this Compliance Time this AD. AD. At the applicable time specified in Table (j) For the purposes of calculating the 1 of Part 3 of the Work Instructions of Boeing compliance threshold and repetitive intervals

TABLE 1—SERVICE INFORMATION GIVEN IN BOEING ALERT SERVICE BULLETIN 747–53A2439, REVISION 1, DATED MARCH 10, 2005

Do— In accordance with—

(1) The actions required by paragraph (h) of Parts 1 and 2 of the Work Instructions of Boeing Alert Service Bulletin 747–53A2439, Revision this AD. 1, dated March 10, 2005; as applicable. (2) The applicable inspection of the repaired Parts 1 and 6 of the Work Instructions of Boeing Alert Service Bulletin 747–53A2439, Revision area required by paragraph (h)(1) of this AD. 1, dated March 10, 2005; as applicable; at the applicable time specified in Table 1 of Part 3 of the Work Instructions of that service bulletin. (3) The actions required by paragraph (i)(1) of Parts 1, 3, and 6 of the Work Instructions of Boeing Alert Service Bulletin 747–53A2439, Revi- this AD. sion 1, dated March 10, 2005; as applicable. (4) The actions required by paragraph (i)(2) of Figure 5 and Part 1 of the Work Instructions of Boeing Alert Service Bulletin 747–53A2439, this AD. Revision 1, dated March 10, 2005; as applicable.

(2) On or after the effective date of this AD, use only the service information listed in Table 2 of this AD.

TABLE 2—SERVICE INFORMATION GIVEN IN BOEING ALERT SERVICE BULLETIN 747–53A2439, REVISION 2, DATED JULY 17, 2008

Do— In accordance with—

(1) The actions required by paragraph (h) and Part 1 (open-hole or surface HFEC inspection, as applicable) of the Work Instructions of Boe- (l) of this AD. ing Alert Service Bulletin 747–53A2439, Revision 2, dated July 17, 2008. (2) The applicable inspection of the repaired Part 1 (open-hole HFEC inspection only) and Part 5 of the Work Instructions of Boeing Alert area required by paragraph (h)(1) of this AD. Service Bulletin 747–53A2439, Revision 2, dated July 17, 2008; at the applicable time speci- fied in Table 1 of Part 2 of the Work Instructions of that service bulletin. (3) The applicable repair required by paragraph Part 2 (upper chord repair at floor panel attach holes) of the Work Instructions of Boeing Alert (h)(1) of this AD. Service Bulletin 747–53A2439, Revision 2, dated July 17, 2008. (4) The actions required by paragraph (i)(1) of Part 1 (open-hole HFEC inspection only), Part 2, and Part 5 of the Work Instructions of Boeing this AD. Alert Service Bulletin 747–53A2439, Revision 2, dated July 17, 2008. (5) The actions required by paragraph (i)(2) of Figure 5 and Part 1 (open-hole HFEC inspection only) of the Work Instructions of Boeing Alert this AD. Service Bulletin 747–53A2439, Revision 2, dated July 17, 2008.

New Inspections and Related Investigative surface HFEC inspections for fatigue cracking 747–53A2439, Revision 2, dated July 17, and Corrective Actions in the upper chord of the upper deck floor 2008. Do all applicable related investigative (l) For all airplanes, except as provided by beams in Area 5, and the inspection for and corrective actions before further flight. paragraphs (k)(1) and (k)(2) of this AD: At the fatigue cracking in the permanent fastener Repeat the applicable inspection thereafter at applicable time specified in Paragraph 1.E., holes of the upper chord of certain upper the applicable interval specified in Paragraph ‘‘Compliance,’’ of Boeing Alert Service deck floor beams in Areas 1, 2, 3, and 4, in 1.E., ‘‘Compliance,’’ of Boeing Alert Service Bulletin 747–53A2439, Revision 2, dated July accordance with the Accomplishment Bulletin 747–53A2439, Revision 2, dated July 17, 2008, do the applicable open-hole or Instructions of Boeing Alert Service Bulletin 17, 2008.

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(1) Where Boeing Alert Service Bulletin to make those findings. For a repair method turbofan engines. That AD currently 747–53A2439, Revision 2, dated July 17, to be approved, the repair must meet the requires initial and repetitive borescope 2008, specifies a compliance time relative to certification basis of the airplane, and the inspections of the high-pressure-and- the date of issuance of that service bulletin, approval must specifically refer to this AD. this AD requires compliance within the intermediate pressure (HP–IP) turbine specified compliance time after the effective Material Incorporated by Reference internal and external oil vent tubes for date of this AD. (p) You must use Boeing Alert Service coking and carbon buildup, and (2) Where Boeing Alert Service Bulletin Bulletin 747–53A2439, Revision 2, dated July cleaning or replacing the vent tubes if 747–53A2439, Revision 2, dated July 17, 17, 2008, to do the actions required by this necessary. This AD requires the same 2008, specifies contacting Boeing for repair AD, unless the AD specifies otherwise. If you actions, but adds additional inspections data: Before further flight, repair using a accomplish the new optional actions of the vent flow restrictor. This AD method approved in accordance with the specified by this AD, you must use Boeing results from further analysis that the procedures specified in paragraph (o) of this Alert Service Bulletin 747–53A2696, dated AD. October 16, 2008, to perform those actions, cleaning of the vent tubes required by unless the AD specifies otherwise. AD 2007–02–05 could lead to loosened Optional New Modification for Areas 1, 2, 3, (1) The Director of the Federal Register carbon fragments, causing a blockage and 4 approved the incorporation by reference of downstream in the vent flow restrictor. (m) For areas 1, 2, 3, and 4 as defined in this service information under 5 U.S.C. We are issuing this AD to prevent Boeing Alert Service Bulletin 747–53A2439, 552(a) and 1 CFR part 51. internal oil fires due to coking and Revision 2, dated July 17, 2008: Doing the (2) For service information identified in carbon buildup that could cause modification and post-modification actions this AD, contact Boeing Commercial uncontained engine failure and damage specified in Boeing Alert Service Bulletin Airplanes, Attention: Data & Services 747–53A2696, dated October 16, 2008, Management, P.O. Box 3707, MC 2H–65, to the airplane. terminates the repetitive inspection Seattle, Washington 98124–2207; telephone DATES: This AD becomes effective May requirements of paragraphs (g) and (h) of this 206–544–5000, extension 1, fax 206–766– 7, 2010. The Director of the Federal AD. Doing the modification and post- 5680; e-mail [email protected]; Register approved the incorporation by modification actions specified in Boeing Internet https://www.myboeingfleet.com. reference of certain publications listed Alert Service Bulletin 747–53A2696, dated (3) You may review copies of the service in the regulations as of May 7, 2010. October 16, 2008, terminates the repetitive information at the FAA, Transport Airplane inspection requirements of paragraph (l) of Directorate, 1601 Lind Avenue, SW., Renton, ADDRESSES: You can get the service this AD, except at the upper deck floor beam Washington. For information on the information identified in this AD from at body station (BS) 460 and 480 and the availability of this material at the FAA, call Rolls-Royce plc, P.O. Box 31, Derby, upper deck floor beams aft of BS 520. 425–227–1221. England; telephone: 011–44–1332– (4) You may also review copies of the No Reporting Requirement 249428; fax: 011–44–1332–249223. service information that is incorporated by The Docket Operations office is (n) Although Boeing Alert Service Bulletin reference at the National Archives and located at Docket Management Facility, 747–53A2439, Revision 1, dated March 10, Records Administration (NARA). For 2005; and Boeing Alert Service Bulletin 747– U.S. Department of Transportation, 1200 information on the availability of this New Jersey Avenue, SE., West Building 53A2439, Revision 2, dated July 17, 2008; material at NARA, call 202–741–6030, or go specify to submit certain information to the to: http://www.archives.gov/federal_register/ Ground Floor, Room W12–140, manufacturer, this AD does not include that code_of_federal_regulations/ Washington, DC 20590–0001. requirement. ibr_locations.html. FOR FURTHER INFORMATION CONTACT: Alternative Methods of Compliance Issued in Renton, Washington, on March James Lawrence, Aerospace Engineer, (AMOCs) 17, 2010. Engine Certification Office, FAA, Engine (o)(1) The Manager, Seattle ACO, FAA, has Ali Bahrami, and Propeller Directorate, 12 New the authority to approve AMOCs for this AD, Manager, Transport Airplane Directorate, England Executive Park, Burlington, MA if requested using the procedures found in 14 Aircraft Certification Service. 01803; e-mail: [email protected]; CFR 39.19. Send information to ATTN: Ivan telephone (781) 238–7176; fax (781) [FR Doc. 2010–6546 Filed 4–1–10; 8:45 am] Li, Aerospace Engineer, Airframe Branch, 238–7199. BILLING CODE 4910–13–P ANM–120S, FAA, Seattle Aircraft SUPPLEMENTARY INFORMATION: The FAA Certification Office, 1601 Lind Avenue, SW., proposed to amend 14 CFR part 39 by Renton, Washington 98057–3356; telephone (425) 917–6437; fax (425) 917–6590. Or, DEPARTMENT OF TRANSPORTATION superseding AD 2007–02–05, e-mail information to 9-ANM-Seattle-ACO- Amendment 39–14892 (72 FR 2603, [email protected]. Federal Aviation Administration January 22, 2007), with a proposed AD. (2) To request a different method of The proposed AD applies to Rolls-Royce compliance or a different compliance time 14 CFR Part 39 plc RB211–Trent 700 series turbofan for this AD, follow the procedures in 14 CFR engines. We published the proposed AD 39.19. Before using any approved AMOC on [Docket No. FAA–2005–19559; Directorate Identifier 2004–NE–03–AD; Amendment 39– in the Federal Register on October 26, any airplane to which the AMOC applies, 2009 (74 FR 54940). That action notify your principal maintenance inspector 16254; AD 2010–07–09] proposed to require initial and (PMI) or principal avionics inspector (PAI), RIN 2120–AA64 as appropriate, or lacking a principal repetitive borescope inspections of the HP–IP turbine internal and external oil inspector, your local Flight Standards District Airworthiness Directives; Rolls-Royce Office. The AMOC approval letter must vent tubes for coking and carbon plc RB211–Trent 700 Series Turbofan specifically reference this AD. buildup, cleaning or replacing the vent Engines (3) AMOCs approved previously in tubes if necessary, and inspections of accordance with AD 2006–08–02, are AGENCY: Federal Aviation the vent flow restrictor. approved as AMOCs for the corresponding Administration (FAA), Department of provisions of this AD. Examining the AD Docket Transportation (DOT). (4) An AMOC that provides an acceptable You may examine the AD docket on level of safety may be used for any repair ACTION: Final rule. required by this AD if it is approved by the the Internet at http:// Boeing Commercial Airplanes Organization SUMMARY: The FAA is superseding an www.regulations.gov; or in person at the Designation Authorization (ODA) that has existing airworthiness directive (AD) for Docket Operations office between 9 a.m. been authorized by the Manager, Seattle ACO Rolls-Royce plc RB211–Trent 700 series and 5 p.m., Monday through Friday,

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except Federal holidays. The AD docket 33 engines of U.S. registry. We also Adoption of the Amendment contains this AD, the regulatory estimate that it will take about one evaluation, any comments received, and work-hour per engine to comply with ■ Accordingly, under the authority other information. The street address for this AD. The average labor rate is $80 delegated to me by the Administrator, the Docket Operations office (telephone per work-hour. Required parts will cost the Federal Aviation Administration (800) 647–5527) is provided in the about $2,000 per engine. Based on these amends 14 CFR part 39 as follows: ADDRESSES section. Comments will be figures, we estimate the cost of the AD available in the AD docket shortly after on U.S. operators to be $68,640. PART 39—AIRWORTHINESS receipt. DIRECTIVES Authority for This Rulemaking Comments Title 49 of the United States Code ■ 1. The authority citation for part 39 We provided the public the specifies the FAA’s authority to issue continues to read as follows: opportunity to participate in the rules on aviation safety. Subtitle I, Authority: 49 U.S.C. 106(g), 40113, 44701. development of this AD. We have Section 106, describes the authority of considered the comments received. the FAA Administrator. Subtitle VII, § 39.13 [Amended] Aviation Programs, describes in more Request to Reference the Latest Service ■ 2. The FAA amends § 39.13 by Bulletin detail the scope of the Agency’s authority. removing Amendment 39–14892 (72 FR One commenter, Rolls-Royce plc, We are issuing this rulemaking under 2603, January 22, 2007), and by adding requests that we incorporate by the authority described in Subtitle VII, a new airworthiness directive, reference the latest alert service bulletin Part A, Subpart III, Section 44701, Amendment 39–16254, to read as (ASB) in the AD, which is ASB No. ‘‘General requirements.’’ Under that follows: RB.211–72–AE302, Revision 8, dated section, Congress charges the FAA with 2010–07–09 Rolls-Royce plc: Amendment October 21, 2009. promoting safe flight of civil aircraft in We agree. We changed the AD to 39–16254. Docket No. FAA–2005–19559; air commerce by prescribing regulations Directorate Identifier 2004–NE–03–AD. incorporate by reference Revision 8 of for practices, methods, and procedures that ASB. the Administrator finds necessary for Effective Date Request To Allow Previous Credit safety in air commerce. This regulation (a) This airworthiness directive (AD) Rolls-Royce plc requests that we is within the scope of that authority becomes effective May 7, 2010. because it addresses an unsafe condition allow previous credit to operators that Affected ADs performed the initial inspections that is likely to exist or develop on products identified in this rulemaking (b) This AD supersedes AD 2007–02–05, specified in paragraph (f) of the Amendment 39–14892. proposed AD before the AD effective action. date, using Revision 4, Revision 5, Regulatory Findings Applicability Revision 6, or Revision 7 of ASB No. We have determined that this AD will (c) This AD applies to Rolls-Royce plc RB.211–72–AE302. not have federalism implications under RB211–Trent 768–60, RB211–Trent 772–60, We agree and added a previous credit and RB211–Trent 772B–60 series turbofan paragraph to the AD. Executive Order 13132. This AD will not have a substantial direct effect on engines. These engines are installed on, but Request to Change Initial Inspection the States, on the relationship between not limited to, Airbus A330–243, –341, –342 Threshold the national government and the States, and –343 series airplanes. Rolls-Royce plc requests that we or on the distribution of power and Unsafe Condition change the initial inspection threshold responsibilities among the various (d) This AD results from further analysis from 3 months to 2 months, to agree levels of government. that the cleaning of the vent tubes required with the ASB. For the reasons discussed above, I by AD 2007–02–05 could lead to loosened We agree and changed the AD. certify that this AD: carbon fragments, causing a blockage (1) Is not a ‘‘significant regulatory Clarification of AD Compliance Section downstream in the vent flow restrictor. We action’’ under Executive Order 12866; are issuing this AD to prevent internal oil (2) Is not a ‘‘significant rule’’ under We clarified paragraphs (g) and (h) of fires due to coking and carbon buildup that the AD compliance section to better DOT Regulatory Policies and Procedures could cause uncontained engine failure and align with the Rolls-Royce plc ASB. (44 FR 11034, February 26, 1979); and damage to the airplane. (3) Will not have a significant Conclusion economic impact, positive or negative, Compliance We have carefully reviewed the on a substantial number of small entities (e) You are responsible for having the available data, including the comments under the criteria of the Regulatory actions required by this AD performed within received, and determined that air safety Flexibility Act. the compliance times specified unless the and the public interest require adopting We prepared a summary of the costs actions have already been done. the AD with the changes described to comply with this AD and placed it in previously. We have determined that the AD Docket. You may get a copy of Initial Inspections, Cleaning, and these changes will neither increase the this summary at the address listed Replacements economic burden on any operator nor under ADDRESSES. (f) Using the schedule in Table 1 of this increase the scope of the AD. AD, borescope-inspect and clean as List of Subjects in 14 CFR Part 39 necessary, the high-pressure-and- Costs of Compliance Air transportation, Aircraft, Aviation intermediate pressure (HP–IP) turbine Based on the service information, we safety, Incorporation by reference, internal oil vent tubes, external oil vent estimate that this AD will affect about Safety. tubes, and bearing chamber.

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TABLE 1—INITIAL INSPECTION SCHEDULE

If the engine or the 05 Module Then initially inspect

Has reached 10,000 hours time-since-new (TSN) or reached 2,500 cy- Within 2 months after the effective date of this AD. cles-since-new (CSN) on the effective date of this AD. Has fewer than 10,000 hours TSN and fewer than 2,500 CSN on the Within 2 months after reaching 10,000 hours TSN or 2,500 CSN, effective date of this AD. whichever occurs first. Is returned for an engine shop visit ...... Before returning to service.

(1) If after cleaning, there is still carbon in RB.211–72–AE302, Revision 8, dated October MA; or at the National Archives and Records the vent tube that prevents cleaning tool 21, 2009, to do the borescope inspections and Administration (NARA). For information on number HU80298 from passing through the cleaning of the oil vent tubes and bearing the availability of this material at NARA, call tube, then replace the internal oil vent tube chamber. 202–741–6030, or go to: http:// within 10 cycles-in-service (CIS). (k) Visually inspect the vent flow restrictor www.archives.gov/federal-register/cfr/ibr- (2) If after cleaning, there is still carbon of either after a high-power ground run or locations.html. visible thickness in either of the two external within 25 service cycles after performing the Issued in Burlington, Massachusetts, on oil vent tubes, then replace the external oil cleaning and inspection specified in March 25, 2010. vent tube before further flight. paragraph (f) through (f)(3) of this AD. Use (3) Use paragraphs 3.A. through 3.A.(7) of paragraph 3.A.(8) of the Accomplishment Robert J. Ganley, the Accomplishment Instructions and Instructions of Rolls-Royce plc ASB No. Acting Manager, Engine and Propeller Appendix A of Rolls-Royce plc Alert Service RB.211–72–AE302, Revision 8, dated October Directorate, Aircraft Certification Service. Bulletin (ASB) No. RB.211–72–AE302, 21, 2009, to do the visual inspection. [FR Doc. 2010–7283 Filed 4–1–10; 8:45 am] Revision 8, dated October 21, 2009, to do the borescope inspections and cleaning of the oil Definition BILLING CODE 4910–13–P vent tubes and bearing chamber. (l) For the purpose of this AD, an engine shop visit is induction of the engine into the Initial Visual Inspection of the Vent Flow engine shop for any cause. DEPARTMENT OF TRANSPORTATION Restrictor (g) For engines that, on the effective date Previous Credit Federal Aviation Administration of this AD, have not accumulated 25 service (m) Initial inspections specified in cycles since the last cleaning and inspection paragraph (f) of this AD and performed before 14 CFR Part 39 specified in paragraphs (f) through (f)(3) of the effective date of this AD using Rolls- this AD, visually inspect the vent flow Royce plc ASB No. RB.211–72–AE302, [Docket No. FAA–2009–1166; Directorate restrictor: Revision 4, dated April 30, 2007, or Revision Identifier 2009–NM–107–AD; Amendment (1) Either after a high-power ground run 5, dated May 22, 2007, or Revision 6, dated 39–16255; AD 2010–07–10] immediately following the cleaning and January 29, 2009, or Revision 7, dated April RIN 2120–AA64 inspection; or 30, 2009, satisfy the initial inspection (2) Within 25 service cycles of the last requirements in paragraph (f) of this AD. cleaning and inspection. Airworthiness Directives; Airbus Model (h) For engines that, on the effective date Alternative Methods of Compliance A300 B2–1C, B2K–3C, B2–203, B4–2C, of this AD, have accumulated 25 or more (n) The Manager, Engine Certification B4–103, and B4–203 Airplanes service cycles since the last cleaning and Office, has the authority to approve inspection specified in paragraphs (f) through alternative methods of compliance for this AGENCY: Federal Aviation (f)(3) of this AD, visually inspect the vent AD, if requested using the procedures found Administration (FAA), Department of flow restrictor within 25 service cycles after in 14 CFR 39.19. Transportation (DOT). the effective date of this AD. Related Information ACTION: Final rule. (i) Use paragraph 3.A.(8) of the Accomplishment Instructions of Rolls-Royce (o) European Aviation Safety Agency AD SUMMARY: We are adopting a new plc ASB No. RB.211–72–AE302, Revision 8, 2007–0201, dated August 1, 2007, and AD airworthiness directive (AD) for the 2007–0202 (corrected August 8, 2007), also dated October 21, 2009, to do the visual products listed above. This AD results inspections. address the subject of this AD. (p) Contact James Lawrence, Aerospace from mandatory continuing Repetitive Inspections, Cleaning, and Engineer, Engine Certification Office, FAA, airworthiness information (MCAI) Replacements Engine & Propeller Directorate, 12 New originated by an aviation authority of (j) Within 6,400 hours time-in-service since England Executive Park, Burlington, MA another country to identify and correct last inspection and cleaning, or within 1,600 01803; e-mail: [email protected]; an unsafe condition on an aviation cycles-since-last inspection and cleaning, or telephone (781) 238–7176; fax (781) 238– product. The MCAI describes the unsafe at the next engine shop visit, whichever 7199, for more information about this AD. condition as: occurs first, borescope-inspect the HP–IP Material Incorporated by Reference turbine internal and external oil vent tubes One operator reported loss of both pitch and bearing chamber, and clean the oil vent (q) You must use Rolls-Royce plc Alert trims following autopilot disengagement after tubes as necessary. Service Bulletin No. RB.211–72–AE302, take off. Subsequent shop findings revealed (1) If after cleaning there is still carbon in Revision 8, dated October 21, 2009, including severe damage to the power gears. Mal- the internal oil vent tube that prevents Appendix A, to perform the actions required phasing between the hydraulic motors was cleaning tool, number HU80298, from by this AD. The Director of the Federal suspected to have induced excessive loads passing through the tube, then replace the Register approved the incorporation by into the gear train, leading to collapse of one internal oil vent tube within 10 CIS. reference of this service bulletin in bearing on a shaft of the main gear, causing (2) If after cleaning there is still carbon of accordance with 5 U.S.C. 552(a) and 1 CFR severe tooth damage. The combination of visible thickness, in either of the two external part 51. Contact Rolls-Royce plc, P.O. Box 31, tooth damage and gear tilting caused the oil vent tubes, then replace the external oil Derby, England; telephone: 011–44–1332– disconnection of two of the three hydraulic vent tube before further flight. 249428; fax: 011–44–1332–249223 for a copy motors, resulting in jamming of the THSA (3) Use paragraphs 3.A. through 3.A.(7) of of this service information. You may review [trimmable horizontal stabilizer actuator] the Accomplishment Instructions and copies at the FAA, New England Region, 12 gearbox and consequent loss of THSA Appendix A of Rolls-Royce plc ASB No. New England Executive Park, Burlington, control.

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This condition, if not detected and [replacement of the THSA with a serviceable We are issuing this rulemaking under corrected, could lead to further cases of mal- unit], depending on findings. the authority described in ‘‘Subtitle VII, phasing of the hydraulic motors of the THSA, You may obtain further information by Part A, Subpart III, Section 44701: causing degradation of the power gears and General requirements.’’ Under that potentially resulting in reduced control of the examining the MCAI in the AD docket. aeroplane. section, Congress charges the FAA with Comments promoting safe flight of civil aircraft in * * * * * We gave the public the opportunity to air commerce by prescribing regulations We are issuing this AD to require participate in developing this AD. We for practices, methods, and procedures actions to correct the unsafe condition considered the comment received from the Administrator finds necessary for on these products. the Air Line Pilots Association, safety in air commerce. This regulation DATES: This AD becomes effective May International (ALPA). ALPA supports is within the scope of that authority 7, 2010. the NPRM. because it addresses an unsafe condition The Director of the Federal Register that is likely to exist or develop on Conclusion approved the incorporation by reference products identified in this rulemaking of a certain publication listed in this AD We reviewed the available data, action. as of May 7, 2010. including the comment received, and Regulatory Findings ADDRESSES: You may examine the AD determined that air safety and the docket on the Internet at http:// public interest require adopting the AD We determined that this AD will not www.regulations.gov or in person at the as proposed. have federalism implications under U.S. Department of Transportation, Differences Between This AD and the Executive Order 13132. This AD will Docket Operations, M–30, West MCAI or Service Information not have a substantial direct effect on Building Ground Floor, Room W12–140, the States, on the relationship between 1200 New Jersey Avenue, SE., We have reviewed the MCAI and the national government and the States, Washington, DC. related service information and, in or on the distribution of power and general, agree with their substance. But FOR FURTHER INFORMATION CONTACT: Dan responsibilities among the various we might have found it necessary to use levels of government. Rodina, Aerospace Engineer, different words from those in the MCAI For the reasons discussed above, I International Branch, ANM–116, to ensure the AD is clear for U.S. certify this AD: Transport Airplane Directorate, FAA, operators and is enforceable. In making 1601 Lind Avenue, SW., Renton, these changes, we do not intend to differ 1. Is not a ‘‘significant regulatory Washington 98057–3356; telephone substantively from the information action’’ under Executive Order 12866; (425) 227–2125; fax (425) 227–1149. provided in the MCAI and related 2. Is not a ‘‘significant rule’’ under the SUPPLEMENTARY INFORMATION: service information. DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and Discussion We might also have required different actions in this AD from those in the 3. Will not have a significant We issued a notice of proposed MCAI in order to follow our FAA economic impact, positive or negative, rulemaking (NPRM) to amend 14 CFR policies. Any such differences are on a substantial number of small entities part 39 to include an AD that would highlighted in a NOTE within the AD. under the criteria of the Regulatory apply to the specified products. That Flexibility Act. NPRM was published in the Federal Explanation of Change to Costs of Compliance We prepared a regulatory evaluation Register on December 11, 2009 (74 FR of the estimated costs to comply with 65699). That NPRM proposed to correct Since issuance of the NPRM, we have this AD and placed it in the AD docket. an unsafe condition for the specified increased the labor rate used in the products. The MCAI states: Costs of Compliance from $80 per work- Examining the AD Docket One operator reported loss of both pitch hour to $85 per work-hour. The Costs of You may examine the AD docket on trims following autopilot disengagement after Compliance information, below, reflects the Internet at http:// take off. Subsequent shop findings revealed this increase in the specified hourly www.regulations.gov; or in person at the severe damage to the power gears. Mal- labor rate. Docket Operations office between 9 a.m. phasing between the hydraulic motors was suspected to have induced excessive loads Costs of Compliance and 5 p.m., Monday through Friday, except Federal holidays. The AD docket into the gear train, leading to collapse of one We estimate that this AD will affect contains the NPRM, the regulatory bearing on a shaft of the main gear, causing 12 products of U.S. registry. We also evaluation, any comments received, and severe tooth damage. The combination of estimate that it will take about 5 work- tooth damage and gear tilting caused the other information. The street address for hours per product to comply with the disconnection of two of the three hydraulic the Docket Operations office (telephone basic requirements of this AD. The motors, resulting in jamming of the THSA (800) 647–5527) is in the ADDRESSES [trimmable horizontal stabilizer actuator] average labor rate is $85 per work-hour. Based on these figures, we estimate the section. Comments will be available in gearbox and consequent loss of THSA the AD docket shortly after receipt. control. cost of this AD to the U.S. operators to This condition, if not detected and be $5,100, or $425 per product. List of Subjects in 14 CFR Part 39 corrected, could lead to further cases of mal- phasing of the hydraulic motors of the THSA, Authority for This Rulemaking Air transportation, Aircraft, Aviation causing degradation of the power gears and Title 49 of the United States Code safety, Incorporation by reference, potentially resulting in reduced control of the specifies the FAA’s authority to issue Safety. aeroplane. rules on aviation safety. Subtitle I, For the reasons described above, this AD Adoption of the Amendment requires repetitive checks [on-airplane section 106, describes the authority of ■ phasing inspections and magnetic plug the FAA Administrator. ‘‘Subtitle VII: Accordingly, under the authority inspections for metal particles on the drain Aviation Programs,’’ describes in more delegated to me by the Administrator, plug using detailed inspection methods] of detail the scope of the Agency’s the FAA amends 14 CFR part 39 as the THSA and corrective actions authority. follows:

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PART 39—AIRWORTHINESS Accomplishment Instructions of Airbus (3) As of the effective date of this AD, do DIRECTIVES Mandatory Service Bulletin A300–27–0201, not install a replacement THSA on any dated March 9, 2009. airplane, unless it has been inspected in ■ 1. The authority citation for part 39 (i) If the THSA passes the phasing accordance with the requirements of continues to read as follows: inspection, but the magnetic plug inspection paragraphs (f)(1)(i) through (f)(1)(iv), as reveals metal particles that are equal to or applicable, of this AD. Authority: 49 U.S.C. 106(g), 40113, 44701. less than 1.5 mm (0.059 in.) × 0.5 mm (0.0196 (4) Within 3 weeks after removal of a in.), and the depth of the particle layer does THSA unit from an airplane, send it to the § 39.13 [Amended] not exceed 1 mm (0.0393 in.), repeat the THSA manufacturer, Goodrich Actuation ■ 2. The FAA amends § 39.13 by adding inspections thereafter at intervals not to Systems, Stafford Road Fordhouses, the following new AD: exceed 2,500 flight hours in accordance with Wolverhampton, West Midlands WV10 7EH, the Accomplishment Instructions of Airbus England. 2010–07–10 Airbus: Amendment 39–16255. Mandatory Service Bulletin A300–27–0201, (5) Submit a report of the findings (both Docket No. FAA–2009–1166; Directorate dated March 9, 2009. positive and negative) of the inspections Identifier 2009–NM–107–AD. (ii) If the THSA passes the phasing required by paragraph (f)(1) of this AD to the Effective Date inspection, but the magnetic plug inspection Manager, Airbus Customer Service reveals metal particles with dimensions Directorate, 1 Rond Point Maurice Bellonte, (a) This airworthiness directive (AD) greater than 1.5 mm (0.059 in.) × 0.5 mm 31707 Blagnac Cedex France; telephone +33 becomes effective May 7, 2010. (0.0196 in.), or a layer of particles with a 5 61 93 33 33; telex AIRBU 530526F; fax +33 Affected ADs depth greater than 1 mm (0.0393 in.) is 5 61 93 42 51; at the applicable time found, before further flight, replace the THSA specified in paragraph (f)(5)(i) or (f)(5)(ii) of (b) None. with a serviceable unit, in accordance with this AD. The report must include the Applicability the Accomplishment Instructions of Airbus inspection results (including no findings), Mandatory Service Bulletin A300–27–0201, and replacement or actions to be done. (c) This AD applies to Airbus Model A300 dated March 9, 2009. (i) For any inspection done on or after the B2–1C, B2K–3C, B2–203, B4–2C, B4–103, (iii) If the THSA fails the phasing effective date of this AD: Submit the report and B4–203 airplanes, certificated in any inspection and the magnetic plug inspection within 30 days after the inspection. category, all serial numbers. reveals metal particles that are equal to or (ii) For any inspection done before the × Subject less than 1.5 mm (0.059 in.) 0.5 mm (0.0196 effective date of this AD: Submit the report in.), and the depth of the particle layer does within 30 days after the effective date of this (d) Air Transport Association (ATA) of not exceed 1 mm (0.0393 in.), within 500 AD. America Code 27: Flight Controls. flight hours after the inspection, replace the FAA AD Differences Reason THSA with a serviceable unit, in accordance with the Accomplishment Instructions of Note 3: This AD differs from the MCAI (e) The mandatory continuing Airbus Mandatory Service Bulletin A300–27– and/or service information as follows: No airworthiness information (MCAI) states: 0201, dated March 9, 2009. differences. One operator reported loss of both pitch (iv) If the THSA fails the phasing trims following autopilot disengagement after inspection and the magnetic plug inspection Other FAA AD Provisions take off. Subsequent shop findings revealed reveals metal particles with dimensions (g) The following provisions also apply to severe damage to the power gears. Mal- greater than 1.5 mm (0.059 in.) × 0.5 mm this AD: phasing between the hydraulic motors was (0.0196 in.), or a layer of particles with a (1) Alternative Methods of Compliance suspected to have induced excessive loads depth greater than 1 mm (0.0393 in.) is (AMOCs): The Manager, International into the gear train, leading to collapse of one found, before further flight, replace the THSA Branch, ANM–116, Transport Airplane bearing on a shaft of the main gear, causing with a serviceable unit, in accordance with Directorate, FAA, has the authority to severe tooth damage. The combination of the Accomplishment Instructions of Airbus approve AMOCs for this AD, if requested tooth damage and gear tilting caused the Mandatory Service Bulletin A300–27–0201, using the procedures found in 14 CFR 39.19. disconnection of two of the three hydraulic dated March 9, 2009. Send information to ATTN: Dan Rodina, motors, resulting in jamming of the THSA Note 1: For the purposes of this AD, a Aerospace Engineer, International Branch, [Trimmable Horizontal Stabilizer Actuator] detailed inspection is: ‘‘An intensive ANM–116, Transport Airplane Directorate, gearbox and consequent loss of THSA examination of a specific item, installation, FAA, 1601 Lind Avenue, SW., Renton, control. or assembly to detect damage, failure, or Washington 98057–3356; telephone (425) This condition, if not detected and irregularity. Available lighting is normally 227–2125; fax (425) 227–1149. Before using corrected, could lead to further cases of mal- supplemented with a direct source of good any approved AMOC on any airplane to phasing of the hydraulic motors of the THSA, lighting at an intensity deemed appropriate. which the AMOC applies, notify your causing degradation of the power gears and Inspection aids such as a mirror, magnifying principal maintenance inspector (PMI) or potentially resulting in reduced control of the lenses, etc., may be necessary. Surface principal avionics inspector (PAI), as aeroplane. cleaning and elaborate procedures may be appropriate, or lacking a principal inspector, For the reasons described above, this AD required.’’ your local Flight Standards District Office. requires repetitive checks [on-airplane The AMOC approval letter must specifically phasing inspections and magnetic plug Note 2: A ‘‘serviceable’’ THSA is one that reference this AD. inspections for metal particles on the drain has a correct hydraulic motor phasing and no (2) Airworthy Product: For any requirement plug using detailed inspection methods] of particles or few particles with maximum in this AD to obtain corrective actions from the THSA and corrective actions dimensions of 1.5 mm (0.059 in.) x 0.5 mm a manufacturer or other source, use these [replacement of the THSA with a serviceable (0.0196 in.) and a layer of particles with a actions if they are FAA-approved. Corrective unit], depending on findings. maximum depth of 1 mm (0.0393 in.) found actions are considered FAA-approved if they on the magnetic plug. are approved by the State of Design Authority Actions and Compliance (2) Within 2,500 flight hours after replacing (or their delegated agent). You are required (f) Unless already done, do the following any THSA, perform a phasing inspection of to assure the product is airworthy before it actions. the THSA, and a magnetic plug inspection is returned to service. (1) Within 4,000 flight hours after the last for metal particles on the drain plug of the (3) Reporting Requirements: For any THSA overhaul or within 250 flight hours THSA, as specified in paragraph (f)(1) of this reporting requirement in this AD, under the after the effective date of this AD, whichever AD. Replacing the THSA, as required by provisions of the Paperwork Reduction Act occurs later: Perform an on-airplane phasing paragraphs (f)(1)(ii), (f)(1)(iii), and (f)(1)(iv) of (44 U.S.C. 3501 et seq.), the Office of inspection of the THSA, and a magnetic plug this AD, as applicable, does not constitute Management and Budget (OMB) has inspection for metal particles on the drain terminating action for the repetitive approved the information collection plug of the THSA, using detailed inspection inspections as required by paragraph (f)(1)(i) requirements and has assigned OMB Control methods, in accordance with the of this AD. Number 2120–0056.

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Related Information issued by an aviation authority of Comment Issue No. 1: Optional Final (h) Refer to MCAI European Aviation another country to identify and correct Solution Safety Agency Airworthiness Directive 2009– an unsafe condition on an aviation DAHER–SOCATA comments that 0111, dated May 13, 2009; and Airbus product. The MCAI describes the unsafe SOCATA Service Bulletin (SB) 70–179, Mandatory Service Bulletin A300–27–0201, condition as: dated March 9, 2009; for related information. Amendment 1, dated January 2010, was It has been discovered that the foam inside issued. That amendment contains a final Material Incorporated by Reference the towing bar box is not conformed to the solution. If the EASA AD issues before (i) You must use Airbus Mandatory Service certification specification, and especially the the comment end date of the NPRM for Bulletin A300–27–0201, including flame resistance properties. this AD action, the commenter requests Appendices 1, 2, and 3, dated March 9, 2009, In case of fire in the front baggage compartment, the non conformed foam could that we include the required terminating to do the actions required by this AD, unless action in our AD as specified in the the AD specifies otherwise. rapidly propagate the flames and/or emit toxic fumes in the cabin. amended service information. (1) The Director of the Federal Register The FAA partially agrees with this approved the incorporation by reference of We are issuing this AD to require comment. The FAA agrees that this service information under 5 U.S.C. actions to correct the unsafe condition following the issuance of the NPRM, 552(a) and 1 CFR part 51. on these products. (2) For service information identified in EASA issued a revision to the AD to DATES: This AD becomes effective May this AD, contact Airbus SAS—EAW allow the optional installation of new (Airworthiness Office), 1 Rond Point Maurice 7, 2010. foam pads part number (P/N) Bellonte, 31707 Blagnac Cedex, France; On May 7, 2010, the Director of the T700C091000610100 in the tow bar telephone +33 5 61 93 36 96; fax +33 5 61 Federal Register approved the storage box in accordance with the 93 44 51; e-mail: account.airworth- incorporation by reference of certain Accomplishment Instructions of SB No. [email protected]; Internet http:// publications listed in this AD. 70–179, Amendment 1, dated January www.airbus.com. ADDRESSES: You may examine the AD 2010. The FAA disagrees with making (3) You may review copies of the service docket on the Internet at http:// the installation of the new foam pads information at the FAA, Transport Airplane www.regulations.gov or in person at Directorate, 1601 Lind Avenue SW., Renton, P/N T700C091000610100 a required Washington. For information on the Document Management Facility, U.S. action since the EASA AD made it an availability of this material at the FAA, call Department of Transportation, Docket optional action. 425–227–1221. Operations, M–30, West Building We are changing the final rule AD (4) You may also review copies of the Ground Floor, Room W12–140, 1200 action to include this option. service information that is incorporated by New Jersey Avenue, SE., Washington, reference at the National Archives and DC 20590. Comment Issue No. 2: Costs of Compliance Records Administration (NARA). For FOR FURTHER INFORMATION CONTACT: information on the availability of this Albert Mercado, Aerospace Engineer, DAHER–SOCATA comments that the material at NARA, call 202–741–6030, or go costs in the Costs of Compliance section to: http://www.archives.gov/federal_register/ FAA, Small Airplane Directorate, 901 _ _ _ Locust, Room 301, Kansas City, are not in accordance with those given code of federal regulations/ in the service bulletin. It would take ibr_locations.html. Missouri 64106; telephone: (816) 329– 4119; fax: (816) 329–4090. about 10 work-minutes per product Issued in Renton, Washington, on March SUPPLEMENTARY INFORMATION: instead of .5 work-hour to remove the 25, 2010. wrong foam pad and to replace it with Ali Bahrami, Discussion the new one. The cost should be only Manager, Transport Airplane Directorate, We issued a notice of proposed $13 for an average labor rate and Aircraft Certification Service. rulemaking (NPRM) to amend 14 CFR consequently $2,132 for all U.S. [FR Doc. 2010–7371 Filed 4–1–10; 8:45 am] part 39 to include an AD that would operators. BILLING CODE 4910–13–P apply to the specified products. That The FAA agrees that it would only NPRM was published in the Federal take 10 work-minutes. However, in Register on January 4, 2010 (75 FR 89). regards to cost, our practice is to apply DEPARTMENT OF TRANSPORTATION That NPRM proposed to correct an .5 hour as the minimum estimated work-hour for labor. This minimum was Federal Aviation Administration unsafe condition for the specified products. The MCAI states: used in determining the cost of compliance for the AD. 14 CFR Part 39 It has been discovered that the foam inside We are not changing this final rule AD the towing bar box is not conformed to the [Docket No. FAA–2009–1256 Directorate certification specification, and especially the action based on this comment. Identifier 2009–CE–064–AD; Amendment flame resistance properties. Conclusion 39–16252; AD 2010–07–07] In case of fire in the front baggage We reviewed the available data, RIN 2120–AA64 compartment, the non conformed foam could rapidly propagate the flames and/or emit including the comment received, and Airworthiness Directives; SOCATA toxic fumes in the cabin. determined that air safety and the For the reason stated above the AD 2009– Model TBM 700 Airplanes public interest require adopting the AD 0238–E, as a temporary measure, mandated with the changes described previously. AGENCY: Federal Aviation the removal of the foam, pending a foam We determined that these changes will change. Administration (FAA), Department of This AD revision is issued to reduce the not increase the economic burden on Transportation (DOT). original AD applicability and to introduce any operator or increase the scope of the ACTION: Final rule. the optional installation of new foam pads in AD. the tow bar stowage box. SUMMARY: We are adopting a new Differences Between This AD and the airworthiness directive (AD) for the Comments MCAI or Service Information products listed above. This AD results We gave the public the opportunity to We have reviewed the MCAI and from mandatory continuing participate in developing this AD. We related service information and, in airworthiness information (MCAI) considered the comments received. general, agree with their substance. But

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we might have found it necessary to use (1) Is not a ‘‘significant regulatory Reason different words from those in the MCAI action’’ under Executive Order 12866; (e) The mandatory continuing to ensure the AD is clear for U.S. (2) Is not a ‘‘significant rule’’ under airworthiness information (MCAI) states: operators and is enforceable. In making DOT Regulatory Policies and Procedures It has been discovered that the foam inside these changes, we do not intend to differ (44 FR 11034, February 26, 1979); and the towing bar box is not conformed to the substantively from the information (3) Will not have a significant certification specification, and especially the provided in the MCAI and related economic impact, positive or negative, flame resistance properties. service information. on a substantial number of small entities In case of fire in the front baggage We might also have required different under the criteria of the Regulatory compartment, the non conformed foam could actions in this AD from those in the Flexibility Act. rapidly propagate the flames and/or emit We prepared a regulatory evaluation toxic fumes in the cabin. MCAI in order to follow FAA policies. For the reason stated above the Any such differences are highlighted in of the estimated costs to comply with Airworthiness Directive (AD), as a temporary a Note within the AD. this AD and placed it in the AD Docket. measure, mandates the removal of the foam, Costs of Compliance Examining the AD Docket pending a foam change. We estimate that this AD will affect You may examine the AD docket on Actions and Compliance 164 products of U.S. registry. We also the Internet at http:// (f) Unless already done, within the next 20 estimate that it will take about .5 work- www.regulations.gov; or in person at the hours time-in-service after May 7, 2010 (the hour per product to comply with the Docket Management Facility between 9 effective date of this AD) or within the next basic requirements of this AD. The a.m. and 5 p.m., Monday through 30 days after May 7, 2010 (the effective date average labor rate is $85 per work-hour. Friday, except Federal holidays. The AD of this AD), whichever occurs first, remove Based on these figures, we estimate docket contains the NPRM, the the foam from the towing bar stowage box the cost of this AD to the U.S. operators regulatory evaluation, any comments following either SOCATA Mandatory Service Bulletin SB 70–179, dated October 2009, or to be $6,970 or $42.50 per product. received, and other information. The SOCATA Mandatory Service Bulletin SB 70– In addition, we estimate that the street address for the Docket Office 179, Amendment 1, dated January 2010. optional follow-on action would take (telephone (800) 647–5527) is in the (g) You may as an option, install new foam about .5 work-hour and require parts ADDRESSES section. Comments will be pads part number T700C091000610100 in the costing $164, for a cost of $206.50 per available in the AD docket shortly after tow bar storage box following the product. We have no way of receipt. Accomplishment Instructions of SOCATA determining the number of products Mandatory Service Bulletin SB 70–179, that may need these actions. List of Subjects in 14 CFR Part 39 Amendment 1, dated January 2010. Air transportation, Aircraft, Aviation FAA AD Differences Authority for This Rulemaking safety, Incorporation by reference, Title 49 of the United States Code Safety. Note: This AD differs from the MCAI and/ specifies the FAA’s authority to issue or service information as follows: No rules on aviation safety. Subtitle I, Adoption of the Amendment differences. section 106, describes the authority of ■ Accordingly, under the authority Other FAA AD Provisions the FAA Administrator. ‘‘Subtitle VII: delegated to me by the Administrator, Aviation Programs,’’ describes in more (h) The following provisions also apply to the FAA amends 14 CFR part 39 as this AD: detail the scope of the Agency’s follows: (1) Alternative Methods of Compliance authority. (AMOCs): The Manager, Standards Office, We are issuing this rulemaking under PART 39—AIRWORTHINESS FAA, has the authority to approve AMOCs the authority described in ‘‘Subtitle VII, DIRECTIVES for this AD, if requested using the procedures Part A, Subpart III, Section 44701: ■ 1. The authority citation for part 39 found in 14 CFR 39.19. Send information to General requirements.’’ Under that continues to read as follows: ATTN: Albert Mercado, Aerospace Engineer, section, Congress charges the FAA with FAA, Small Airplane Directorate, 901 Locust, promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4119; fax: (816) 329– air commerce by prescribing regulations § 39.13 [Amended] for practices, methods, and procedures 4090. Before using any approved AMOC on the Administrator finds necessary for ■ 2. The FAA amends § 39.13 by adding any airplane to which the AMOC applies, safety in air commerce. This regulation the following new AD: notify your appropriate principal inspector (PI) in the FAA Flight Standards District is within the scope of that authority 2010–07–07 SOCATA: Amendment 39– Office (FSDO), or lacking a PI, your local because it addresses an unsafe condition 16252; Docket No. FAA–2009–1256; FSDO. that is likely to exist or develop on Directorate Identifier 2009–CE–064–AD. (2) Airworthy Product: For any requirement products identified in this rulemaking Effective Date in this AD to obtain corrective actions from action. a manufacturer or other source, use these (a) This airworthiness directive (AD) actions if they are FAA-approved. Corrective becomes effective May 7, 2010. Regulatory Findings actions are considered FAA-approved if they We determined that this AD will not Affected ADs are approved by the State of Design Authority have federalism implications under (b) None. (or their delegated agent). You are required Executive Order 13132. This AD will to assure the product is airworthy before it not have a substantial direct effect on Applicability is returned to service. the States, on the relationship between (c) This AD applies to Model TBM 700 (3) Reporting Requirements: For any airplanes, serial numbers (S/N) 331 through reporting requirement in this AD, under the the national government and the States, provisions of the Paperwork Reduction Act or on the distribution of power and 530, 534, and 539, certificated in any category. (44 U.S.C. 3501 et seq.), the Office of responsibilities among the various Management and Budget (OMB) has levels of government. Subject approved the information collection For the reasons discussed above, I (d) Air Transport Association of America requirements and has assigned OMB Control certify this AD: (ATA) Code 9: Towing and Taxiing. Number 2120–0056.

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Related Information Kelly Aerospace Energy Systems, LLC condition, if not corrected, could result (i) Refer to MCAI European Aviation Safety (KAES) rebuilt turbochargers. This AD in separation or seizure of the Agency (EASA) AD No.: 2009–0238R1, dated requires removal from service of certain turbocharger turbine, which could result February 11, 2010; SOCATA Mandatory part number (P/N) and serial number (S/ in full or partial engine power loss, loss Service Bulletin SB 70–179, dated October N) rebuilt turbochargers. This AD of engine oil, and smoke in the airplane 2009, and SOCATA Mandatory Service results from three reports of infant cabin. Bulletin SB 70–179, Amendment 1, dated mortality turbine wheel failure in January 2010, for related information. Relevant Service Information rebuilt turbochargers, since June of Material Incorporated by Reference 2007. We are issuing this AD to prevent We have reviewed and approved the (j) You must use either SOCATA separation or seizure of the turbocharger technical contents of Kelly Aerospace Mandatory Service Bulletin SB 70–179, dated turbine, which could result in full or Energy Systems, LLC Service Bulletin October 2009; or SOCATA Mandatory partial engine power loss, loss of engine (SB) No. 039 A, dated February 10, Service Bulletin SB 70–179, Amendment 1, oil, and smoke in the airplane cabin. 2010. That SB identifies the rebuilt dated January 2010; to do the actions DATES: This AD becomes effective April turbochargers by P/N and S/N that are required by this AD, unless the AD specifies suspect of having a rough shaft surface otherwise. 19, 2010. The Director of the Federal (1) The Director of the Federal Register Register approved the incorporation by finish exceeding allowable limits. approved the incorporation by reference of reference of certain publications listed FAA’s Determination and Requirements this service information under 5 U.S.C. in the regulations as of April 19, 2010. of This AD 552(a) and 1 CFR part 51. We must receive any comments on (2) For service information identified in this AD by June 1, 2010. The unsafe condition described this AD, contact DAHER–SOCATA, Direction previously is likely to exist or develop ADDRESSES: des Services, 65921—TARBES CEDEX 9, Use one of the following on other KAES rebuilt turbochargers of France; telephone: +33 (0)5 62.41.73.00; fax: addresses to comment on this AD: the same type design. For that reason, • Federal eRulemaking Portal: Go to 33 (0)5 62.41.76.54; Internet: http:// we are issuing this AD to prevent mysocata.com. http://www.regulations.gov and follow separation or seizure of the turbocharger (3) You may review copies of the service the instructions for sending your turbine, which could result in full or information incorporated by reference for comments electronically. partial engine power loss, loss of engine this AD at the FAA, Central Region, Office of • Mail: U.S. Docket Management oil, and smoke in the airplane cabin. the Regional Counsel, 901 Locust, Kansas Facility, Department of Transportation, City, Missouri 64106. For information on the This AD requires removal from service 1200 New Jersey Avenue, SE., West availability of this material at the Central of certain P/N and S/N rebuilt Building Ground Floor, Room W12–140, Region, call (816) 329–3768. turbochargers. You must use the service (4) You may also review copies of the Washington, DC 20590–0001. • Hand Delivery: Deliver to Mail information described previously to service information incorporated by reference determine what S/N rebuilt for this AD at the National Archives and address above between 9 a.m. and 5 Records Administration (NARA). For p.m., Monday through Friday, except turbochargers are affected by this AD. information on the availability of this Federal holidays. FAA’s Determination of the Effective material at NARA, call (202) 741–6030, or go • Fax: (202) 493–2251. _ Date to: http://www.archives.gov/federal register/ Contact Kelly Aerospace Energy _ _ _ Since an unsafe condition exists that code of federal regulations/ Systems, LLC, 2900 Selma Highway, ibr_locations.html. requires the immediate adoption of this Montgomery, Alabama 36108; telephone AD, we have found that notice and Issued in Kansas City, Missouri, on March (334) 386–5400; fax (334) 386–5450; or opportunity for public comment before 22, 2010. go to: http://www.kellyaerospace.com, issuing this AD are impracticable, and James E. Jackson, for the service information identified in that good cause exists for making this Acting Manager, Small Airplane Directorate, this AD. Aircraft Certification Service. amendment effective in less than 30 FOR FURTHER INFORMATION CONTACT: Gary days. [FR Doc. 2010–6788 Filed 4–1–10; 8:45 am] Wechsler, Aerospace Engineer, BILLING CODE 4910–13–P Propulsion, Atlanta Aircraft Comments Invited Certification Office, 1701 Columbia This AD is a final rule that involves Avenue, College Park, GA 30337; DEPARTMENT OF TRANSPORTATION requirements affecting flight safety and telephone (404) 474–5575; fax (404) was not preceded by notice and an Federal Aviation Administration 474–5606. opportunity for public comment; SUPPLEMENTARY INFORMATION: In October however, we invite you to send us any 14 CFR Part 39 2009, we were made aware by KAES written relevant data, views, or that since June 2007, three arguments regarding this AD. Send your [Docket No. FAA–2009–1259; Directorate turbochargers rebuilt by KAES have comments to an address listed under Identifier 2009–NE–41–AD; Amendment 39– failed. Two had turbine wheel head 16253; AD 2010–07–08] ADDRESSES. Include ‘‘AD Docket No. separation and the third had a turbine FAA–2009–1259; Directorate Identifier RIN 2120–AA64 shaft seizure. Investigation revealed that 2009–NE–41–AD’’ in the subject line of a steel wire brush was used to remove your comments. We specifically invite Airworthiness Directives; Kelly the accumulated coking that had built comments on the overall regulatory, Aerospace Energy Systems, LLC up on these turbine wheels being economic, environmental, and energy Rebuilt Turbochargers reclaimed for re-use in rebuilt aspects of the rule that might suggest a AGENCY: Federal Aviation turbochargers. This procedure created a need to modify it. Administration (FAA), DOT. rough surface finish on the turbine We will post all comments we ACTION: Final rule; request for wheel shaft that exceeded allowable receive, without change, to http:// comments. limits. The rough surface finish can www.regulations.gov, including any disrupt the required formation of a personal information you provide. We SUMMARY: The FAA is adopting a new hydrodynamic layer of oil between the will also post a report summarizing each airworthiness directive (AD) for certain shaft and mating bearings. This substantive verbal contact with FAA

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personnel concerning this AD. Using the promoting safe flight of civil aircraft in Adoption of the Amendment search function of the Web site, anyone air commerce by prescribing regulations can find and read the comments in any for practices, methods, and procedures ■ Under the authority delegated to me of our dockets, including, if provided, the Administrator finds necessary for by the Administrator, the Federal the name of the individual who sent the safety in air commerce. This regulation Aviation Administration amends part 39 comment (or signed the comment on is within the scope of that authority of the Federal Aviation Regulations (14 behalf of an association, business, labor because it addresses an unsafe condition CFR part 39) as follows: union, etc.). You may review the DOT’s that is likely to exist or develop on complete Privacy Act Statement in the products identified in this rulemaking PART 39—AIRWORTHINESS Federal Register published on April 11, action. DIRECTIVES 2000 (65 FR 19477–78). Regulatory Findings ■ 1. The authority citation for part 39 Examining the AD Docket We have determined that this AD will continues to read as follows: not have federalism implications under You may examine the AD docket on Authority: 49 U.S.C. 106(g), 40113, 44701. the Internet at http:// Executive Order 13132. This AD will www.regulations.gov; or in person at the not have a substantial direct effect on § 39.13 [Amended] Docket Operations office between 9 a.m. the States, on the relationship between and 5 p.m., Monday through Friday, the national Government and the States, ■ 2. The FAA amends § 39.13 by adding except Federal holidays. The AD docket or on the distribution of power and the following new airworthiness contains this AD, the regulatory responsibilities among the various directive: evaluation, any comments received, and levels of government. For the reasons discussed above, I 2010–07–08 Kelly Aerospace Energy other information. The street address for Systems, LLC (formerly Kelly Aerospace the Docket Operations office (telephone certify that this AD: 1. Is not a ‘‘significant regulatory Power Systems): Amendment 39–16253. (800) 647–5527) is the same as the Mail action’’ under Executive Order 12866; Docket No. FAA–2009–1259; Directorate ADDRESSES address provided in the 2. Is not a ‘‘significant rule’’ under the Identifier 2009–NE–41–AD. section. Comments will be available in DOT Regulatory Policies and Procedures Effective Date the AD docket shortly after receipt. (44 FR 11034, February 26, 1979); and (a) This airworthiness directive (AD) Authority for This Rulemaking 3. Will not have a significant economic impact, positive or negative, becomes effective April 19, 2010. Title 49 of the United States Code on a substantial number of small entities Affected ADs specifies the FAA’s authority to issue under the criteria of the Regulatory (b) None. rules on aviation safety. Subtitle I, Flexibility Act. Section 106, describes the authority of We prepared a summary of the costs Applicability the FAA Administrator. Subtitle VII, to comply with this AD and placed it in (c) This AD applies to certain serial Aviation Programs, describes in more the AD Docket. You may get a copy of numbers (S/Ns) of Kelly Aerospace Energy detail the scope of the Agency’s this summary at the address listed Systems, LLC (KAES) rebuilt turbochargers authority. under ADDRESSES. listed by part number (P/N) in the following We are issuing this rulemaking under List of Subjects in 14 CFR Part 39 Table 1 of this AD. The affected S/Ns are the authority described in Subtitle VII, listed in Table III of Kelly Aerospace Energy Part A, Subpart III, Section 44701, Air transportation, Aircraft, Aviation Systems, LLC Service Bulletin (SB) No. 039 ‘‘General requirements.’’ Under that safety, Incorporation by reference, A, dated February 10, 2010. section, Congress charges the FAA with Safety.

TABLE 1—PART NUMBERS OF REBUILT TURBOCHARGERS AFFECTED

406610–9005 406610–9015 406610–9018 406610–9019 406610–9020 406610–9021 406610–9025 406610–9026 406610–9028 406610–9029 406610–9030 406610–9032 407810–9001 406990–9004 408610–9001 409170–9001 409680–9011 465680–9001 465680–9004 465680–9005 465930–9002 465930–9003 465292–9002 465292–9004 465398–9002 407540–9003 466881–9001 466642–9001 466642–9002 466642–9005 466304–9003 600572–9000* 600573–9000* 600574–9001* 600575–9001* 600575–9002* 600576–9000* 600700–9001* 600803–9001* 600803–9002* N/A N/A * P/Ns with an asterisk may have a CF prefix.

These rebuilt turbochargers are installed Compliance Installation Eligibility of Removed on, but not limited to, the engines and (e) You are responsible for having the Turbochargers aircraft listed in Table IV of Kelly Aerospace actions required by this AD performed within (g) Removed turbochargers listed in Table Energy Systems, LLC SB No. 039 A, dated 10 hours time-in-service after the effective III of Kelly Aerospace Energy Systems, LLC February 10, 2010. date of this AD, unless the actions have SB No. 039 A, dated February 10, 2010, are Unsafe Condition already been done. eligible for installation once they are overhauled by an FAA-approved repair (d) This AD results from three reports of Turbocharger Removal From Service station. That overhaul must include replacing infant mortality turbine wheel failure in (f) Remove from service the rebuilt the turbine wheels listed by P/N in Table II rebuilt turbochargers, since June of 2007. We of Kelly Aerospace Energy Systems, LLC SB turbochargers listed by P/N in paragraph (c) are issuing this AD to prevent separation or No. 039 A, dated February 10, 2010, seizure of the turbocharger turbine, which of this AD that have a S/N listed in Table III replacing the turbine wheel mating bushings, could result in full or partial engine power of Kelly Aerospace Energy Systems, LLC SB and marking the attached Return To Service loss, loss of engine oil, and smoke in the No. 039 A, dated February 10, 2010. Tag with this AD number, which is AD 2010– airplane cabin. 07–08.

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Installation Prohibition DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: (h) After the effective date of this AD, do Discussion not install any of the turbochargers listed in Federal Aviation Administration Table III of Kelly Aerospace Energy Systems, We issued a notice of proposed LLC SB No. 039 A, dated February 10, 2010, 14 CFR Part 39 rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would unless the turbocharger is overhauled as [Docket No. FAA–2009–0302; Directorate specified in paragraph (g) of this AD. Identifier 2009–NE–09–AD; Amendment 39– apply to the specified products. That 16245; AD 2009–08–08R1] NPRM was published in the Federal Alternative Methods of Compliance Register on December 23, 2009 (74 FR (i) The Manager, Atlanta Aircraft RIN 2120–AA64 68194). That NPRM proposed to correct Certification Office, has the authority to an unsafe condition for the specified Airworthiness Directives; Turbomeca approve alternative methods of compliance products. The MCAI states: ARRIEL 1B, 1D, 1D1, 2B, and 2B1 for this AD if requested using the procedures Turboshaft Engines Since issuance of initial version of AD found in 14 CFR 39.19. 2009–0112 additional information is available: Special Flight Permits AGENCY: Federal Aviation Administration (FAA), DOT. —The list of Modules M04 concerned by the (j) Under 14 CFR 39.23, we are limiting the restriction of the cycle use limit of these PT special flight permits for this AD by the ACTION: Final rule. blades has been updated again: The serial following conditions: numbers of Modules M04 which have been SUMMARY: We are revising an existing (1) Use of minimum crew. retrofitted are crossed out. However, no airworthiness directive (AD) for the new affected Modules M04 have been (2) Flight made during daytime, using products listed above. This AD results visual flight rule conditions. identified. See figure 1 of the referenced from mandatory continuing Turbome´ca MSB. (3) Maximum flight altitude of 12,000 feet airworthiness information (MCAI) —Additional testing and analysis had been mean-sea-level, based upon terrain. issued by an aviation authority of carried out by Turbome´ca which allows Related Information another country to identify and correct increasing the cyclic use limit of these PT blades to 5 000 flight cycles. (k) Contact Gary Wechsler, Aerospace an unsafe condition on an aviation Therefore this AD revises AD 2009–0112 Engineer, Propulsion, Atlanta Aircraft product. The MCAI describes the unsafe condition as: and requires establishing the cyclic use limit Certification Office, 1701 Columbia Avenue, of these PT blades to 5 000 flight cycles. College Park, GA 30337; telephone (404) During production of Arriel 1 and Arriel 2 For PT blades having reached a number of 474–5575; fax (404) 474–5606, for more Power Turbine (PT) wheels, geometric non- flight cycles superior or equal to 5 000, information about this AD. conformances on blade fir tree roots have removal of Module M04, or PT wheel been detected by Turbome´ca. Potentially assembly, or PT blades is required prior to Material Incorporated by Reference non-conforming PT blades have been traced next flight. (l) You must use Kelly Aerospace Energy as having been installed on Module M04 (PT) Systems, LLC Service Bulletin No. 039 A, listed in Mandatory Service Bulletin (MSB) Comments A292 72 0827 for Arriel 1 engines and A292 dated February 10, 2010, to determine which We gave the public the opportunity to 72 2833 for Arriel 2 engines. turbocharger(s) are affected by this AD. The The geometric non-conformities of the participate in developing this AD. We Director of the Federal Register approved the blades may potentially lead to a reduction in received no comments on the NPRM or incorporation by reference of this service the fatigue resistance of PT blades to a lower on the determination of the cost to the bulletin in accordance with 5 U.S.C. 552(a) level than their authorized in service use public. and 1 CFR part 51. Contact Kelly Aerospace limit. This reduction of fatigue resistance can Energy Systems, LLC, 2900 Selma Highway, potentially result in blade release, which Conclusion Montgomery, Alabama 36108, telephone could cause an uncommanded in-flight We reviewed the available data and (334) 386–5400, fax (334) 386–5450, or go to: shutdown. determined that air safety and the http://www.kellyaerospace.com, for a copy of We are issuing this AD to prevent public interest require adopting the AD this service information. You may review release of PT blades, which could result as proposed. copies at the FAA, New England Region, 12 in an uncommanded in-flight shutdown Differences Between This AD and the New England Executive Park, Burlington, and emergency autorotation landing. MCAI or Service Information MA; or at the National Archives and Records DATES: This AD becomes effective May Administration (NARA). For information on 7, 2010. The Director of the Federal We have reviewed the MCAI and the availability of this material at NARA, call Register approved the incorporation by related service information and, in 202–741–6030, or go to: http:// reference of certain publications listed general, agree with their substance. But www.archives.gov/federal-register/cfr/ibr- in this AD as of May 7, 2010. we required different actions in this AD locations.html. from those in the MCAI in order to ADDRESSES: The Docket Operations follow FAA policies. Any such Issued in Burlington, Massachusetts, on office is located at Docket Management March 23, 2010. differences are described in a separate Facility, U.S. Department of paragraph of the AD. These Robert J. Ganley, Transportation, 1200 New Jersey requirements take precedence over the Acting Manager, Engine and Propeller Avenue, SE., West Building Ground actions copied from the MCAI. Directorate, Aircraft Certification Service. Floor, Room W12–140, Washington, DC [FR Doc. 2010–7056 Filed 4–1–10; 8:45 am] 20590–0001. Costs of Compliance BILLING CODE 4910–13–P FOR FURTHER INFORMATION CONTACT: Based on the service information, we Kevin Dickert, Aerospace Engineer, estimate that this AD will affect about Engine Certification Office, FAA, Engine 10 products of U.S. registry. We also and Propeller Directorate, 12 New estimate that it will take about 8 work- England Executive Park, Burlington, MA hours per product to comply with this 01803; e-mail: [email protected]; AD. The average labor rate is $80 per telephone (781) 238–7117, fax (781) work-hour. Required parts will cost 238–7199. about $43,000 per product. Based on

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these figures, we estimate the cost of the List of Subjects in 14 CFR Part 39 We are issuing this AD to prevent release of AD on U.S. operators to be $436,400. PT blades, which could result in an Air transportation, Aircraft, Aviation uncommanded in-flight shutdown and Authority for This Rulemaking safety, Incorporation by reference, emergency autorotation landing. Safety. Title 49 of the United States Code Actions and Compliance specifies the FAA’s authority to issue Adoption of the Amendment (e) Unless already done, do the following rules on aviation safety. Subtitle I, ■ Accordingly, under the authority actions. section 106, describes the authority of delegated to me by the Administrator, (1) For engines with an affected Module the FAA Administrator. ‘‘Subtitle VII: the FAA amends 14 CFR part 39 as M04 (PT module), which has accumulated Aviation Programs,’’ describes in more follows: 5,000 total PT cycles or more on the effective detail the scope of the Agency’s date of this AD, remove the PT blades from authority. PART 39—AIRWORTHINESS service before further flight. We are issuing this rulemaking under DIRECTIVES (2) For engines with an affected Module the authority described in ‘‘Subtitle VII, M04, which has accumulated fewer than Part A, Subpart III, Section 44701: ■ 1. The authority citation for part 39 5,000 total PT cycles on the effective date of General requirements.’’ Under that continues to read as follows: this AD, remove the PT blades from service before accumulating 5,000 total PT cycles. section, Congress charges the FAA with Authority: 49 U.S.C. 106(g), 40113, 44701. promoting safe flight of civil aircraft in (3) After the effective date of this AD, do not install any PT blades removed as air commerce by prescribing regulations § 39.13 [Amended] specified in paragraph (e)(1) or (e)(2) of this ■ for practices, methods, and procedures 2. The FAA amends § 39.13 by AD, into any engine. the Administrator finds necessary for removing amendment 39–15881, and safety in air commerce. This regulation adding the following new AD: FAA AD Differences is within the scope of that authority 2009–08–08R1 Turbomeca S.A.: (f) Although the compliance section of because it addresses an unsafe condition Amendment 39–16245. Docket No. EASA AD No. 2009–0112R1, dated July 30, that is likely to exist or develop on FAA–2009–0302; Directorate Identifier 2009, states to replace the Module M04, or products identified in this rulemaking 2009–NE–09–AD. PT wheel assembly, or PT blades, this AD action. states to remove the PT blades from service. Effective Date (g) Although EASA AD No. 2009–0112R1, Regulatory Findings (a) This airworthiness directive (AD) dated July 30, 2009, applies to the Arriel We determined that this AD will not becomes effective May 7, 2010. 2B1A engine, this AD does not apply to that model because it has no U.S. type certificate. have federalism implications under Affected ADs Executive Order 13132. This AD will (b) This AD revises AD 2009–08–08, Other FAA AD Provisions not have a substantial direct effect on Amendment 39–15881. (h) Alternative Methods of Compliance the States, on the relationship between (AMOCs): The Manager, Engine Certification Applicability the national government and the States, Office, FAA, has the authority to approve or on the distribution of power and (c) This AD applies to: AMOCs for this AD, if requested using the responsibilities among the various (1) Turbomeca Arriel 1B, 1D, and 1D1 procedures found in 14 CFR 39.19. turboshaft engines with the power turbine levels of government. Related Information For the reasons discussed above, I (PT) modules M04 installed, as listed by serial number (S/N) in Figure 1 of Turbomeca certify this AD: (i) Refer to MCAI EASA Airworthiness Alert Mandatory Service Bulletin (MSB) No. Directive 2009–0112R1, dated July 30, 2009, 1. Is not a ‘‘significant regulatory A292 72 0827, Version C, dated July 15, for related information. action’’ under Executive Order 12866; 2009; and (j) Contact Kevin Dickert, Aerospace 2. Is not a ‘‘significant rule’’ under the (2) Turbomeca Arriel 2B and 2B1 Engineer, Engine Certification Office, FAA, DOT Regulatory Policies and Procedures turboshaft engines with the power turbine Engine and Propeller Directorate, 12 New (44 FR 11034, February 26, 1979); and modules M04 installed, as listed by S/N in England Executive Park, Burlington, MA 3. Will not have a significant Figure 1 of Turbomeca Alert MSB No. A292 01803; e-mail: [email protected]; economic impact, positive or negative, 72 2833, Version C, dated July 15, 2009. telephone (781) 238–7117, fax (781) 238– on a substantial number of small entities (3) These engines are installed on, but not 7199, for more information about this AD. limited to, Eurocopter AS 350 B, AS 350 BA, under the criteria of the Regulatory Material Incorporated by Reference Flexibility Act. AS 350 B1, AS 350 B2, AS 350 B3, and EC We prepared a regulatory evaluation 130 B4 helicopters. (k) You must use the service information of the estimated costs to comply with Reason specified in Table 1 of this AD to do the actions required by this AD, unless the AD this AD and placed it in the AD docket. (d) European Aviation Safety Agency specifies otherwise. Examining the AD Docket (EASA) AD No. 2009–0112R1, dated July 30, (1) The Director of the Federal Register 2009, states: approved the incorporation by reference of You may examine the AD docket on Since issuance of initial version of AD this service information under 5 U.S.C. the Internet at http:// 2009–0112 additional information is 552(a) and 1 CFR part 51. www.regulations.gov; or in person at the available: (2) For service information identified in Docket Operations office between 9 a.m. —The list of Modules M04 concerned by the this AD, contact Turbomeca, 40220 Tarnos, and 5 p.m., Monday through Friday, restriction of the cycle use limit of these PT France; telephone 33 05 59 74 40 00, fax 33 except Federal holidays. The AD docket blades has been updated again: The serial 05 59 74 45 15. contains this AD, the regulatory numbers of Modules M04 which have been (3) You may review copies at the FAA, evaluation, any comments received, and retrofitted are crossed out. However no New England Region, 12 New England other information. The street address for new affected Modules M04 have been Executive Park, Burlington, MA; or at the identified. See figure 1 of the referenced National Archives and Records the Docket Operations office (telephone Turbome´ca MSB. Administration (NARA). For information on (800) 647–5527) is provided in the —Additional testing and analysis had been the availability of this material at NARA, call ADDRESSES section. Comments will be carried out by Turbome´ca which allows (202) 741–6030, or go to: http:// available in the AD docket shortly after increasing the cyclic use limit of these PT www.archives.gov/federal-register/cfr/ibr- receipt. blades to 5,000 flight cycles. locations.html.

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TABLE 1—MATERIAL INCORPORATED BY REFERENCE

Service Bulletin No. Page Revision Date

Mandatory Service Bulletin A292 72 0827 ...... All ...... Version C ...... July 15, 2009. Mandatory Service Bulletin A292 72 2833 ...... All ...... Version C ...... July 15, 2009.

Issued in Burlington, Massachusetts, on Division, Alcohol and Tobacco Tax and application of these requirements to the March 16, 2010. Trade Bureau (202–453–2268 or persons subject to them. Francis A. Favara, [email protected]). With regard to tobacco products and Manager, Engine and Propeller Directorate, cigarette papers and tubes, the SUPPLEMENTARY INFORMATION: Aircraft Certification Service. temporary rule added a new subpart D [FR Doc. 2010–6628 Filed 4–1–10; 8:45 am] Background to 27 CFR part 46 (Miscellaneous Regulations Relating to Tobacco BILLING CODE 4910–13–P Section 11125 of the Safe, Products and Cigarette Papers and Accountable, Flexible, Efficient Tubes) in order to consolidate in one Transportation Equity Act: A Legacy for place the SOT provisions contained in DEPARTMENT OF THE TREASURY Users, Public Law 109–59, 119 Stat. 27 CFR parts 40 (Manufacture of 1144 (‘‘the Act’’) was signed by the Tobacco Products, Cigarette Papers and Alcohol and Tobacco Tax and Trade President on August 10, 2005. Section Tubes, and Processed Tobacco) and 44 Bureau 11125 of the Act amended Chapters 51 (Exportation of Tobacco Products and and 52 of the Internal Revenue Code of Cigarette Papers and Tubes, without 27 CFR Parts 17, 19, 20, 22, 24, 25, 26, 1986 (IRC), 26 U.S.C., to repeal the 27, 28, 31, 40, 44, 46, and 70 Payment of Tax, or with Drawback of provisions covering special Tax). This new subpart D also borrowed [Docket No. TTB–2009–0003; T.D. TTB–84; (occupational) tax (SOT) on alcohol regulations from 27 CFR part 31 Re: Notice No. 96 and T.D. TTB–79] beverage producers and dealers, tax-free (Alcohol Beverage Dealers) to reflect RIN 1513–AB63 alcohol users, denatured spirits users SOT policy positions developed through and dealers, and persons claiming rulemaking involving the alcohol Liquor Dealer Recordkeeping and drawback for the manufacture of beverage dealer’s tax, including Registration, and Repeal of Certain nonbeverage alcoholic products. provisions relating to multiple Special (Occupational) Taxes The Act did not eliminate the businesses conducted by the same recordkeeping and registration person at the same place, liability of AGENCY: Alcohol and Tobacco Tax and requirements that applied to alcohol Trade Bureau, Treasury. partners, payment of the special tax, beverage dealers (including all persons special tax stamps, and abatement or ACTION: Final rule; Treasury decision. in the business of selling alcohol refund of special taxes. products fit for beverage use) and SUMMARY: This Treasury decision adopts In addition, the temporary rule nonbeverage drawback claimants prior included a number of miscellaneous as a final rule, without change, a to the SOT repeal. Further, the Act did temporary rule that amended the regulatory amendments to remove no not eliminate the SOT and related longer needed references to the SOT. regulations administered by the Alcohol registration requirements for certain and Tobacco Tax and Trade Bureau to The amendments made by T.D. TTB–79 tobacco occupations (manufacturer of are discussed in more detail in the reflect the repeal of certain special tobacco products, manufacturer of (occupational) taxes effected by section preamble of that document. cigarette papers and tubes, and export In conjunction with the publication of 11125 of the Safe, Accountable, warehouse proprietor). the temporary rule, TTB also published Flexible, Efficient Transportation Equity The Alcohol and Tobacco Tax and on July 28, 2009, a notice of proposed Act: A Legacy for Users. The regulatory Trade Bureau (TTB) is responsible for rulemaking, Notice No. 96, in the amendments involved the repeal of the administration of the provisions in Federal Register (74 FR 37426). This special taxes on alcohol beverage Chapters 51 and 52 of the IRC relating notice invited the submission of public producers and dealers, tax-free alcohol to these tax, recordkeeping, and comments on the regulatory users, denatured spirits users and registration requirements, including the amendments contained in the temporary dealers, and persons claiming drawback promulgation of regulations thereunder rule, with the comment period closing for the manufacture of nonbeverage in chapter 1 of title 27 of the Code of on September 28, 2009. The Bureau did alcoholic products, and the inclusion of Federal Regulations. not receive any comments on the recordkeeping and registration temporary rule in response to Notice requirements for dealers in distilled Publication of Temporary Rule No. 96. Accordingly, for the reasons set spirits, wines, and beer, and for On July 28, 2009, TTB published in forth in the preamble of T.D. TTB–79, manufacturers of nonbeverage products the Federal Register (74 FR 37394) a we have determined that it is who claim drawback. temporary rule, T.D. TTB–79, amending appropriate to adopt that temporary rule DATES: Effective Date: Effective May 3, certain provisions in 27 CFR parts 17, as a final rule without change. 2010, the temporary rule published in 19, 20, 22, 24, 25, 26, 27, 28, 31, 40, 44, the Federal Register at 74 FR 37394 on 46, and 70. The temporary rule Regulatory Flexibility Act July 28, 2009, is adopted as a final rule eliminated the regulatory provisions We certify that this regulation will not without change, and by this regulatory related to the SOT on the producers, have a significant impact on a action the temporary rule, which was dealers, users, and other persons substantial number of small entities. effective from July 28, 2009, through referred to above. The temporary rule Accordingly, a regulatory flexibility July 30, 2012, is effective indefinitely. also included various amendments analysis is not required. The relevant FOR FURTHER INFORMATION CONTACT: Ben relating to registration and collections of information derive Birkhill, Regulations and Rulings recordkeeping in order to clarify the directly from the Internal Revenue Code

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of 1986, as amended, and the 27 CFR Part 19 requirements, Surety bonds, Vessels, regulations in this rule concerning these Administrative practice and Warehouses, Wine. collections merely implement the procedures, Caribbean Basin Initiative, 27 CFR Part 31 statutory requirements. Likewise, any Claims, Electronic funds transfers, secondary or incidental effects, and any Excise taxes, Exports, Gasohol, Imports, Alcohol and alcoholic beverages, reporting, recordkeeping, or other Labeling, Liquors, Packaging and Excise taxes, Exports, Packaging and compliance burdens flow directly from containers, Puerto Rico, Reporting and containers, Reporting and recordkeeping the statute. Pursuant to 26 U.S.C. recordkeeping requirements, Research, requirements. 7805(f), the temporary regulation was Security measures, Surety bonds, submitted to the Chief Counsel for Vinegar, Virgin Islands, Warehouses. 27 CFR Part 40 Advocacy of the Small Business Administration (SBA) for comment 27 CFR Part 20 Cigars and cigarettes, Claims, regarding its impact on small business, Alcohol and alcoholic beverages, Electronic funds transfers, Excise taxes, and TTB has not received any Claims, Cosmetics, Excise taxes, Imports, Labeling, Packaging and comments from SBA. Labeling, Packaging and containers, containers, Reporting and recordkeeping requirements, Surety bonds, Tobacco. Paperwork Reduction Act Penalties, Reporting and recordkeeping requirements, Surety bonds. 27 CFR Part 44 TTB has provided estimates of the 27 CFR Part 22 burdens that the collections of Aircraft, Armed forces, Cigars and information contained in these Administrative practice and cigarettes, Claims, Customs duties and regulations impose, and these estimated procedure, Alcohol and alcoholic inspection, Excise taxes, Exports, burdens have been reviewed and beverages, Excise taxes, Reporting and Foreign trade zones, Labeling, Packaging approved by the Office of Management recordkeeping requirements, Surety and containers, Reporting and and Budget (OMB) in accordance with bonds. recordkeeping requirements, Surety the Paperwork Reduction Act of 1995 27 CFR Part 24 bonds, Tobacco, Vessels, Warehouses. (44 U.S.C. 3507) and assigned control numbers 1513–0088, 1513–0112, and Administrative practice and 27 CFR Part 46 1513–0113. Under the Paperwork procedure, Claims, Electronic fund Reduction Act of 1995, an agency may transfers, Excise taxes, Exports, Food Administrative practice and not conduct or sponsor, and a person is additives, Fruit juices, Labeling, procedure, Cigars and cigarettes, Claims, not required to respond to, a collection Liquors, Packaging and containers, Excise taxes, Packaging and containers, of information unless it displays a valid Reporting and recordkeeping Penalties, Reporting and recordkeeping OMB control number. requirements, Research, Scientific requirements, Seizures and forfeitures, Comments concerning suggestions for equipment, Spices and flavoring, Surety Surety bonds, Tobacco. bonds, Vinegar, Warehouses, Wine. reducing the burden of the collections of 27 CFR Part 70 information in this document should be 27 CFR Part 25 directed to Mary A. Wood, Alcohol and Administrative practice and Administrative practice and Tobacco Tax and Trade Bureau, at any procedure, Beer, Claims, Electronic procedure, Claims, Excise taxes, of these addresses: Freedom of information, Law • funds transfers, Excise taxes, Exports, P.O. Box 14412, Washington, DC Labeling, Packaging and containers, enforcement, Penalties, Reporting and 20044–4412; Reporting and recordkeeping recordkeeping requirements, Surety • 202–927–8525 (facsimile); or requirements, Research, Surety bonds. bonds. • [email protected] (e-mail). 27 CFR Part 26 The Regulatory Amendment Executive Order 12866 Administrative practice and ■ For the reasons discussed in the procedure, Alcohol and alcoholic We have determined that this preamble, the temporary rule amending beverages, Caribbean Basin Initiative, document is not a significant regulatory 27 CFR parts 17, 19, 20, 22, 24, 25, 26, Claims, Customs duties and inspection, action as defined by Executive Order 27, 28, 31, 40, 44, 46, and 70, published 12866. Therefore, a regulatory Electronic funds transfers, Excise taxes, in the Federal Register at 74 FR 37394 assessment is not required. Packaging and containers, Puerto Rico, Reporting and recordkeeping on July 28, 2009, is adopted as a final Drafting Information requirements, Surety bonds, Virgin rule without change and by this Ben Birkhill of the Regulations and Islands, Warehouses. regulatory action the temporary rule, which was effective from July 28, 2009, Rulings Division, Alcohol and Tobacco 27 CFR Part 27 Tax and Trade Bureau, drafted this through July 30, 2012, is effective document. Alcohol and alcoholic beverages, indefinitely. Beer, Cosmetics, Customs duties and Signed: February 5, 2010. List of Subjects inspection, Electronic funds transfers, John J. Manfreda, 27 CFR Part 17 Excise taxes, Imports, Labeling, Liquors, Packaging and containers, Reporting Administrator. Administrative practice and and recordkeeping requirements, Wine. Approved: March 19, 2010. procedure, Claims, Cosmetics, Customs Timothy E. Skud, duties and inspection, Drugs, Excise 27 CFR Part 28 Deputy Assistant Secretary (Tax, Trade, and taxes, Exports, Imports, Liquors, Aircraft, Alcohol and alcoholic Tariff Policy). Packaging and containers, Puerto Rico, beverages, Armed forces, Beer, Claims, [FR Doc. 2010–7269 Filed 4–1–10; 8:45 am] Reporting and recordkeeping Excise taxes, Exports, Foreign trade requirements, Spices and flavorings, zones, Labeling, Liquors, Packaging and BILLING CODE 4810–31–P Surety bonds, Virgin Islands. containers, Reporting and recordkeeping

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DEPARTMENT OF EDUCATION format (e.g., braille, large print, that the highest-quality plans can be audiotape, or computer diskette) on implemented. 34 CFR Subtitle B, Chapter II request to the contact person listed In an effort to achieve these goals, in [Docket ID ED–2010–OESE–0005] under FOR FURTHER INFORMATION the NIA, the Department provided CONTACT. direction and flexibility to States in RIN 1810–AB10 planning their budgets. Specifically, the SUPPLEMENTARY INFORMATION: NIA contained nonbinding budget Race to the Top Fund Invitation To Comment ranges for each State. The NIA provided that States could use these ranges as ACTION: Interim final requirements; We invite you to submit comments rough blueprints to guide the request for comments. regarding these interim final requirements and to assist us in development of their budgets, but that SUMMARY: The U.S. Secretary of complying with the specific States could also prepare budgets that were above or below the ranges Education (Secretary) amends the final requirements of Executive Order 12866 specified. States were encouraged to requirements for the Race to the Top and its overall requirement of reducing develop budgets that were appropriate Fund to incorporate and make binding regulatory burden that might result from to implement the plans they outlined in for Phase 2 of the competition State these interim final requirements. their applications. In developing the budget guidance. During and after the comment period budget ranges, the Department grouped DATES: These requirements are effective you may inspect all public comments the States into five categories by ranking April 2, 2010. We must receive your about these interim final requirements every State according to its share of the comments by May 3, 2010. by accessing Regulations.gov. You may national population of children ages 5 ADDRESSES: also inspect the comments, in person, in Submit your comments through 17 and identifying natural room 3W100, 400 Maryland Avenue, through the Federal eRulemaking Portal breaks in the population numbers. The SW., Washington, DC between the hours or via postal mail, commercial delivery, Department then developed overlapping or hand delivery. We will not accept of 8:30 a.m. and 4 p.m., Washington, DC budget ranges for each category based comments by fax or by e-mail. Please time, Monday through Friday of each on the student population data. submit your comments only one time, in week except Federal holidays. The Department received 41 order to ensure that we do not receive Assistance to Individuals With applications in Phase 1. States’ budget duplicate copies. In addition, please Disabilities in Reviewing the requests ranged from 90 percent to 297 include the Docket ID at the top of your Rulemaking Record: On request, we will percent of the suggested budget comments. provide an appropriate accommodation maximums. There was significant • Federal eRulemaking Portal: Go to or auxiliary aid to an individual with a variability in the extent to which State http://www.regulations.gov to submit disability who needs assistance to budget requests conformed to the your comments electronically. review the comments or other Department’s suggested budget ranges, Information on using Regulations.gov, documents in the public rulemaking including significant variability among including instructions for accessing record for this notice. If you want to the budget requests from similarly sized agency documents, submitting schedule an appointment for this type of States. comments, and viewing the docket, is accommodation or auxiliary aid, please Following the peer review of Phase 1 available on the site under ‘‘How To Use contact the person listed under FOR applications, we analyzed the rank This Site.’’ FURTHER INFORMATION CONTACT. order of States based upon their scores • Postal Mail, Commercial Delivery, Background: The Secretary published and compared the rank order with the or Hand Delivery: If you mail or deliver final requirements for the Race to the extent to which the State conformed your comments about these interim final Top Fund in the Federal Register on with or exceeded the Department’s requirements, address them to James November 18, 2009 (74 FR 59688). In suggested budget ranges. We found no Butler, U.S. Department of Education, the same issue of the Federal Register, relationship between a State’s rank and 400 Maryland Avenue, SW., room the Secretary also published the Race to its budget request. 3E108, Washington, DC 20202. the Top Fund NIA for Fiscal Year (FY) In light of this analysis, we conclude • Privacy Note: The Department’s 2010 (74 FR 59836). The NIA provides that States can propose high-quality policy for comments received from two application deadlines for the FY Race to the Top plans within the members of the public (including those 2010 Race to the Top Fund competition: Department’s suggested budget ranges, comments submitted by mail, Phase 1, due January 19, 2010, and particularly given that, as part of their commercial delivery, or hand delivery) Phase 2, due June 1, 2010. reform plans, States are expected to is to make these submissions available Through Race to the Top, the coordinate, reallocate, or repurpose for public viewing in their entirety on Department seeks to spur reform of the other Federal, State, and local sources of the Federal eRulemaking Portal at country’s education system. This funding to support their Race to the Top http://www.regulations.gov. Therefore, mission can be met by achieving two goals. To ensure a robust competition in commenters should be careful to key goals. First, we seek to ensure that Phase 2 and to stimulate comprehensive include in their comments only States that put forth the highest-quality education reform throughout the information that they wish to make reform plans and demonstrate the country, we are establishing the publicly available on the Internet. capacity to implement those plans have suggested budget ranges as mandatory FOR FURTHER INFORMATION CONTACT: sufficient funding to make their plans a funding limits for Phase 2 of the James Butler, Telephone: 202–205–3775 reality. Second, we seek to recognize a competition. or by e-mail: [email protected]. number of States that can serve as Race to the Top grantees will serve as If you use a telecommunications models of change through their Race to models of best reform practices across device for the deaf (TDD), call the the Top plans. Funding for Race to the their States and the country; Federal Relay Service (FRS), toll free, at Top is not unlimited. For this reason, accordingly, we want to ensure that the 1–800–877–8339. the Department must balance these Secretary can fund, at an adequate level, Individuals with disabilities can competing goals to maximize the Race a sufficient number of high-quality obtain this document in an accessible to the Top investment while ensuring applications within this finite ARRA

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funding. Requiring States to conform to grants by the obligation deadline of suggested budget ranges. By requiring the Department’s budget ranges will September 30, 2010. With billions of States to conform to specific budget allow more grants to be awarded. public dollars at stake, it would be ranges, we will ensure that the Secretary Accordingly, these interim final impracticable and contrary to the public can fund, at an adequate level, multiple requirements make the previously interest for the Department to take this high-quality applications. suggested budget ranges binding on risk of not obligating all funds by State applicants applying in Phase 2 of September 30. Interim Final Requirements the competition. Accordingly, and in order to make 34 CFR CHAPTER 2 Waiver of Rulemaking and Delayed timely grant awards with ARRA funds, Effective Date: Under the the Secretary is issuing these interim ■ For the reasons discussed previously, Administrative Procedure Act (APA) (5 final requirements without first the Secretary amends the final Race to U.S.C. 553), the Department is generally publishing proposed requirements for the Top Fund requirements published required to publish a notice of proposed public comment. These interim final in the Federal Register on November 18, rulemaking and provide the public with requirements govern Phase 2 of the Race 2009 (74 FR 59836) to include a new an opportunity to comment on proposed to the Top competition. section as follows: regulations prior to establishing a final Although the Department is adopting Budget Requirements: For Phase 2 of rule. However, we are waiving the these requirements on an interim final the Fiscal Year 2010 competition, and notice-and-comment rulemaking basis, the Department requests public for any subsequent competitions, the requirements under the APA. Section comment on these requirements. After State’s budget must conform to the 553(b) of the APA provides that an consideration of public comments, the following budget ranges: 1 agency is not required to conduct Secretary will publish final Category 1—$350–700 million: notice-and-comment rulemaking when requirements. The final requirements California, Texas, New York, Florida. the agency for good cause finds that would govern any subsequent Category 2—$200–400 million: notice and public procedure thereon are competition conducted under the Race Illinois, Pennsylvania, Ohio, Georgia, impracticable, unnecessary, or contrary to the Top program. Michigan, North Carolina, New Jersey. to the public interest. Although these The APA also requires that a Category 3—$150–250 million: requirements are subject to the APA’s substantive rule be published at least 30 Virginia, Arizona, Indiana, Washington, notice-and-comment requirements, the days before its effective date, except as Tennessee, Massachusetts, Missouri, Secretary has determined that it would otherwise provided for good cause Maryland, Wisconsin. be impracticable and contrary to the (5 U.S.C. 553(d)(3)). For the reasons Category 4—$60–175 million: public interest to conduct notice-and- outlined in the preceding paragraphs, Minnesota, Colorado, Alabama, comment rulemaking. the Secretary has determined that a Louisiana, South Carolina, Puerto Rico, As noted above, these interim final delayed effective date for these interim Kentucky, Oklahoma, Oregon, requirements are needed to establish final requirements would be Connecticut, Utah, Mississippi, Iowa, mandatory budget ranges in the final unnecessary and contrary to the public Arkansas, Kansas, Nevada. Race to the Top Fund requirements interest, and that good cause exists to Category 5—$20–75 million: New published on November 18, 2009. The waive the requirement for a delayed Mexico, Nebraska, Idaho, West Virginia, Department believes that mandatory effective date. As such, this rule is New Hampshire, Maine, Hawaii, Rhode budget ranges are necessary due, in part, effective on the date it is published. Island, Montana, Delaware, South to the extent to which Phase 1 Dakota, Alaska, North Dakota, Vermont, applications exceeded the Summary of the Interim Final Requirements Wyoming, District of Columbia. recommended budget ranges. The State should develop a budget Additionally, as previously indicated, Current final requirements: The that is appropriate for the plan it Phase 2 Race to the Top applications are current final requirements do not outlines in its application; however we due on June 1, 2010. We chose this date contain any requirements related to the will not consider a State’s application if to allow sufficient time for States to total amount a State may request in its its request exceeds the maximum in its prepare their applications and for the Race to the Top budget. budget range. Department to conduct Phase 2 of the Interim final requirements: The Executive Order 12866: Under competition, so that grant awards can be interim final requirements add a section Executive Order 12866, the Secretary made by September 30, 2010, when all entitled ‘‘Budget Requirements,’’ must determine whether a regulatory ARRA funds must be obligated. Even on specifying that State Race to the Top action is ‘‘significant’’ and therefore an extremely expedited timeline, it budgets must conform to the budget subject to the requirements of the would be impracticable for the ranges developed by the Department. Executive order and subject to review by Department to conduct notice-and- Reasons: In Phase 1 of the Race to the the Office of Management and Budget comment rulemaking and then Top competition, States’ budget requests (OMB). Section 3(f) of Executive Order promulgate final requirements before varied widely and almost every 12866 defines a ‘‘significant regulatory the June 1, 2010 deadline for Phase 2 applicant exceeded the budget ranges action’’ as an action likely to result in a applications. Publishing a notice of suggested in the NIA. The Department rule that may (1) have an annual effect proposed rulemaking, reviewing the did not expect that States would public comments, and issuing final propose budgets that differed so 1 The Department developed budget ranges for regulations normally takes at least four significantly from the suggested budget each State by ranking every State according to its to six months. We are concerned that, ranges, which, as indicated previously, share of the national population of children ages 5 through 17 based on data from ‘‘Estimates of the when added to the time the Department were developed based on current State Resident Population by Selected Age Groups for the will need to conduct Phase 2 of the population data. We believe that States United States, States, and Puerto Rico: July 1, 2008’’ competition in addition to the time that can propose successful Race to the Top released by the Population Division of the U.S. States will need to plan and draft plans within these ranges because we Census Bureau. The Department identified the natural breaks in the population data and then applications that conform to these did not find a relationship between developed overlapping budget ranges for each budget ranges, the Department might States’ scoring ranks and the extent to category taking into consideration the total amount not be able to award Race to the Top which States exceeded the Department’s of funds available for awards.

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on the economy of $100 million or Paperwork Reduction Act Change direct final rulemaking procedures. EPA more, or adversely affect a sector of the Worksheet for this collection that will received a notice of intent to submit economy, productivity, competition, include the changes described in this adverse comments on the rule. jobs, the environment, public health or notice. Therefore, the Agency is withdrawing safety, or State, local or Tribal Intergovernmental Review: This the SNUR, as required under the governments or communities in a program is subject to Executive Order expedited SNUR rulemaking process. material way (also referred to as an 12372 and the regulations in 34 CFR 79. Elsewhere in today’s Federal Register, ‘‘economically significant’’ rule); (2) One of the objectives of the Executive EPA is publishing (under separate create serious inconsistency or Order is to foster an intergovernmental notice and comment rulemaking otherwise interfere with an action taken partnership and a strengthened procedures) a proposed SNUR for this or planned by another agency; (3) federalism. The Executive Order relies substance. materially alter the budgetary impacts of on processes developed by State and DATES: This final rule is effective April entitlement grants, user fees, or local local governments for coordination and 2, 2010. programs or the rights and obligations of review of proposed Federal financial FOR FURTHER INFORMATION CONTACT: For recipients thereof; or (4) raise novel assistance. general information contact: Colby legal or policy issues arising out of legal This document provides notification Lintner, Regulatory Coordinator, mandates, the President’s priorities, or of our specific plans regarding budget Environmental Assistance Division the principles set forth in the Executive requirements for this program. (7408M), Office of Pollution Prevention order. The Secretary has determined Electronic Access to This Document: and Toxics, Environmental Protection that this regulatory action is significant You may view this document, as well as Agency, 1200 Pennsylvania Ave., NW., under section 3(f) of the Executive all other documents of this Department Washington, DC 20460–0001; telephone order. published in the Federal Register, in number: (202) 554–1404; e-mail address: text or Adobe Portable Document Potential Costs and Benefits [email protected]. Format (PDF) on the Internet at the For technical information contact: Under Executive Order 12866, we following site: http://www.ed.gov/news/ have assessed the potential costs and Karen Chu, Chemical Control Division fedregister. (7405M), Office of Pollution Prevention benefits of this regulatory action and To use PDF, you must have Adobe have determined that this rule will not and Toxics, Environmental Protection Acrobat Reader, which is available free Agency, 1200 Pennsylvania Ave., NW., impose additional costs to State at this site. applicants, grantees, or the Federal Washington, DC 20460–0001; telephone government. The Department is Note: The official version of this document number: (202) 564–8773; e-mail address: regulating only to incorporate is the document published in the Federal [email protected]. Register. Free Internet access to the official mandatory budget ranges into the final SUPPLEMENTARY INFORMATION: edition of the Federal Register and the Code Race to the Top requirements. It may of Federal Regulations is available on GPO I. Does this Action Apply to Me? take a State applicant time to create or Access at: http://www.gpoaccess.gov/nara/ revise its Race to the Top budget so that index.html. A list of potentially affected entities is it conforms to the required budget range provided in the Federal Register of contained in this regulatory action if the Dated: March 29, 2010. February 1, 2010 (75 FR 4983) (FRL– State had intended to request more than Arne Duncan, 8438–4). If you have questions regarding the maximum in the range. We believe, Secretary of Education. the applicability of this action to a however, that the benefits of this action [FR Doc. 2010–7409 Filed 4–1–10; 8:45 am] particular entity, consult the technical FOR FURTHER outweigh any potential burden that it BILLING CODE 4000–01–P person listed under may cause. Additionally, the INFORMATION CONTACT. Department has determined that this II. What Rule is Being Withdrawn? regulatory action does not unduly interfere with State, local, and Tribal ENVIRONMENTAL PROTECTION In the Federal Register of February 1, governments in the exercise of their AGENCY 2010 (75 FR 4983), EPA issued several direct final SNURs, including a SNUR governmental functions. 40 CFR Parts 9 and 721 Regulatory Flexibility Act for the chemical substance that is the Certification: The Secretary certifies that [EPA–HQ–OPPT–2008–0918; FRL–8816–9] subject of this withdrawal. These direct these interim final requirements will not final rules were issued pursuant to the have a significant economic impact on RIN 2070–AB27 procedures in 40 CFR part 721, subpart a substantial number of small entities. 1-Propene, 2,3,3,3-tetrafluoro-; D. In accordance with 40 CFR The Secretary makes this certification Withdrawal of Significant New Use 721.170(d)(4)(i), EPA is withdrawing the because the only entities eligible to Rule rule issued for 1-Propene, 2,3,3,3- apply for grants are States, and States tetrafluoro- (PMN P–07–601; CAS No. are not small entities. AGENCY: Environmental Protection 754–12–1) at 40 CFR 721.10182 because Paperwork Reduction Act of 1995: Agency (EPA). the Agency received a notice of intent The interim final requirements contain ACTION: Final rule. to submit adverse comments. Elsewhere information collection requirements that in today’s Federal Register, EPA is are subject to review by OMB under the SUMMARY: EPA is withdrawing a proposing a SNUR for this chemical Paperwork Reduction Act of 1995 (44 significant new use rule (SNUR) substance via notice and comment U.S.C. 3501–3520). The Department had promulgated under section 5(a)(2) of the rulemaking. received previously emergency approval Toxic Substances Control Act (TSCA) For further information regarding for the information collections in the for the chemical substance identified as EPA’s expedited process for issuing final Race to the Top Fund requirements 1-Propene, 2,3,3,3-tetrafluoro- (CAS No. SNURs, interested parties are directed to published on November 18, 2009, under 754–12–1), which was the subject of 40 CFR part 721, subpart D, and the OMB Control Number 1810–0697. The premanufacture notice (PMN) P–07– Federal Register of July 27, 1989 (54 FR Department will submit to OMB a 601. EPA published the SNUR using 31314). The record for the direct final

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SNUR for the chemical substance being Dated: March 25, 2010. the SIP rule’s paragraphs. We also are withdrawn was established at EPA–HQ– Barbara A. Cunningham, approving the new replacement rule as OPPT–2008–0918. That record includes Acting Director, Office of Pollution Prevention meeting the Minor and Major NSR SIP information considered by the Agency and Toxics. requirements for voiding of permits. in developing the rule and the notice of ■ Therefore, 40 CFR parts 9 and 721 are We are approving the portion of the intent to submit adverse comments. amended as follows: revision that addresses the recodification of the provision relating III. How Do I Access the Docket? PART 9—[AMENDED] to the granting of one 18-month extension of a permit as meeting the To access the electronic docket, ■ 1. The authority citation for part 9 Minor and Major NSR SIP requirement please go to http://www.regulations.gov continues to read as follows: for extensions of permits. The revision and follow the online instructions to Authority: 7 U.S.C. 135 et seq., 136–136y; imposes requirements on permitees, access docket ID no. EPA–HQ–OPPT– 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; requiring a review of the permit’s 2008–0918. Additional information 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 underlying permit determinations about the Docket Facility is provided U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, before this SIP-approved extension can under ADDRESSES in the Federal 1321, 1326, 1330, 1342, 1344, 1345 (d) and be granted. Finally, the revision Register document of February 1, 2010 (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, provides for a second permit extension (75 FR 4983). If you have questions, 1971–1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, if certain conditions are met, including consult the technical person listed 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, a health effects review. EPA is under FOR FURTHER INFORMATION 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., approving the new replacement rule for CONTACT. 6901–6992k, 7401–7671q, 7542, 9601–9657, this second permit extension as meeting 11023, 11048. the Major and Minor NSR and NNSR IV. What Statutory and Executive Order ■ 2. The table in § 9.1 is amended by SIP requirements. Reviews Apply to this Action? EPA finds that these changes to the removing under the undesignated center Texas SIP comply with the Federal This final rule revokes or eliminates heading ‘‘Significant New Uses of Clean Air Act (the Act or CAA) and EPA an existing regulatory requirement and Chemical Substances’’ § 721.10182. does not contain any new or amended regulations, are consistent with EPA policies, and will improve air quality. requirements. As such, the Agency has PART 721—[AMENDED] This action is being proposed under determined that this withdrawal will ■ 3. The authority citation for part 721 section 110 and parts C and D of the not have any adverse impacts, economic continues to read as follows: Act. or otherwise. The statutory and executive order review requirements Authority: 15 U.S.C. 2604, 2607, and DATES: This direct final rule is effective applicable to the direct final rule were 2625(c). on June 1, 2010 without further notice, unless EPA receives relevant adverse discussed in the Federal Register § 721.10182 [Removed] document of February 1, 2010 (75 FR comment by May 3, 2010. If EPA 4983). Those review requirements do ■ 4. Remove § 721.10182. receives such comment, EPA will publish a timely withdrawal in the not apply to this action because it is a [FR Doc. 2010–7194 Filed 4–1–10; 8:45 am] Federal Register informing the public withdrawal and does not contain any BILLING CODE 6560–50–S that this rule will not take effect. new or amended requirements. ADDRESSES: Submit your comments, V. Congressional Review Act ENVIRONMENTAL PROTECTION identified by Docket ID No. EPA–R06– AGENCY OAR–2008–0192 by one of the following The Congressional Review Act, 5 methods: U.S.C. 801 et seq., generally provides 40 CFR Part 52 (1) Federal eRulemaking Portal: that before a rule may take effect, the http://www.regulations.gov: Follow the [EPA–R06–OAR–2008–0089; FRL–9132–3] agency promulgating the rule must on-line instructions for submitting submit a rule report to each House of Approval and Promulgation of comments. the Congress and the Comptroller Implementation Plans; Texas; (2) E-mail: Mr. Jeff Robinson at General of the United States. EPA will Revisions to Chapter 116 Which Relate [email protected]. Please also cc submit a report containing this rule and to the Voiding of Permits and the person listed in the FOR FURTHER other required information to the U.S. Extension of Permits INFORMATION CONTACT paragraph below. Senate, the U.S. House of (3) U.S. EPA Region 6 ‘‘Contact Us’’ Representatives, and the Comptroller AGENCY: Environmental Protection Web site: http://epa.gov/region6/ General of the United States prior to Agency (EPA). r6coment.htm. Please click on ‘‘6PD’’ publication of the rule in the Federal ACTION: Direct final rule. (Multimedia) and select ‘‘Air’’ before Register. This rule is not a ‘‘major rule’’ submitting comments. SUMMARY: EPA is taking a direct final as defined by 5 U.S.C. 804(2). (4) Fax: Mr. Jeff Robinson, Chief, Air action to approve severable portions of Permits Section (6PD–R), at fax number List of Subjects a submittal from the State of Texas, 214–665–6762. through the Texas Commission on (5) Mail: Mr. Jeff Robinson, Chief, Air 40 CFR Part 9 Environmental Quality (TCEQ), on Permits Section (6PD–R), Environmental Environmental protection, Reporting September 25, 2003, to revise the Texas Protection Agency, 1445 Ross Avenue, and recordkeeping requirements. Major and Minor New Source Review Suite 1200, Dallas, Texas 75202–2733. (NSR) State Implementation Plan (SIP). (6) Hand or Courier Delivery: Mr. Jeff 40 CFR Part 721 EPA is approving the State’s repeal of a Robinson, Chief, Air Permits Section Environmental protection, Chemicals, paragraph of the SIP rule pertaining to (6PD–R), Environmental Protection Hazardous substances, Reporting and Texas Major and Minor NSR SIP and to Agency, 1445 Ross Avenue, Suite 1200, recordkeeping requirements. approve the consequent renumbering of Dallas, Texas 75202–2733. Such

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deliveries are accepted only between the information whose disclosure is III. EPA’s Evaluation hours of 8:30 a.m. and 4:30 p.m. restricted by statute. Certain other A. How Does the Current SIP Address the weekdays except for legal holidays. material, such as copyrighted material, Voiding of Permits? Special arrangements should be made will be publicly available only in hard B. What Revisions Did Texas Submit copy. Publicly available docket Relating to the Voiding of Permits? for deliveries of boxed information. C. How Does the Current SIP Address the Instructions: Direct your comments to materials are available either Extension of Permits? Docket ID No. EPA–R06–OAR–2008– electronically in http:// D. What Revisions Did Texas Submit 0192. EPA’s policy is that all comments www.regulations.gov or in hard copy at Relating to the Extension of Permits? received will be included in the public the Air Permits Section (6PD–R), IV. Final Action docket without change and may be Environmental Protection Agency, 1445 V. Statutory and Executive Order Reviews made available online at http:// Ross Avenue, Suite 700, Dallas, Texas I. The State’s Submittals www.regulations.gov, including any 75202–2733. The file will be made personal information provided, unless available by appointment for public On September 25, 2003, Texas the comment includes information inspection in the Region 6 FOIA Review submitted a SIP revision that included claimed to be Confidential Business Room between the hours of 8:30 a.m. an amended section 116.115 that would Information (CBI) or other information and 4:30 p.m. weekdays except for legal delete the language in the SIP’s section whose disclosure is restricted by statute. holidays. Contact the person listed in 116.115(b)(2)(A) relating to the voiding Do not submit information that you the FOR FURTHER INFORMATION CONTACT of permits and extensions of time to consider to be CBI or otherwise paragraph below to make an begin construction, renumber the protected through http:// appointment. If possible, please make paragraphs because of the deletion of www.regulations.gov or e-mail. The the appointment at least two working (A), and transfer the substance to a new http://www.regulations.gov Web site is days in advance of your visit. There will section 116.120. The new section an ‘‘anonymous access’’ system, which be a 15 cent per page fee for making 116.120 addresses the voiding of means that EPA will not know your photocopies of documents. On the day permits and the first 18-month permit identity or contact information unless of the visit, please check in at the EPA extension and contains language from you provide it in the body of your Region 6 reception area at 1445 Ross the SIP-approved section 116.115 with comment. If you send an e-mail Avenue, Suite 700, Dallas, Texas. revisions. It is EPA’s position that the comment directly to EPA without going The State submittals, which are part Texas Permit Voiding Program is through http://www.regulations.gov of the EPA docket, are also available for severable from all the other elements in your e-mail address will be public inspection at the State Air the September 2003 submittal, automatically captured and included as Agency during official business hours including the Texas Permit Extension part of the comment that is placed in the by appointment: Texas Commission on Program because it addresses the public docket and made available on the Environmental Quality, Office of Air voiding and extensions of permits. The Internet. If you submit an electronic Quality, 12124 Park 35 Circle, Austin, new section also adds criteria that must comment, EPA recommends that you Texas 78753. be met for the first permit extension to include your name and other contact FOR FURTHER INFORMATION CONTACT: Ms. be granted and adds the opportunity for information in the body of your Melanie Magee, Air Permits Section a second extension if certain conditions comment and with any disk or CD–ROM (6PD–R), Environmental Protection are met. you submit. If EPA cannot read your Agency, Region 6, 1445 Ross Avenue, The table below summarizes the comment due to technical difficulties Suite 700, Dallas, Texas 75202–2733, changes that are in the September 25, and cannot contact you for clarification, telephone (214) 665–7161; fax number 2003 SIP submittal that EPA is EPA may not be able to consider your (214) 665–6762; e-mail address addressing in today’s action. A comment. Electronic files should avoid [email protected]. summary of EPA’s evaluation of each the use of special characters, any form SUPPLEMENTARY INFORMATION: section and the basis for this proposal of encryption, and be free of any defects Throughout this document wherever is discussed in section III of this or viruses. any reference to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is preamble. The Technical Support Docket: All documents in the docket used, we mean EPA. Document (TSD) includes a detailed are listed in the http:// evaluation of the referenced SIP www.regulations.gov index. Although Table of Contents submittal. listed in the index, some information is I. The State’s Submittals Summary of each regulation that is not publicly available, e.g., CBI or other II. What Action Is EPA Taking? affected by this action:

Date Date adopted Changes adopted by Section Title submitted by the State Comments State

Chapter 116—Control of Air Pollution by Permits for New Construction of Modification Subchapter B—New Source Review Permits Division 1—Permit Application

30 TAC 116.115 ...... General and Special 9/25/03 8/20/03 Revisions and Recodi- Removed Section (b)(2)(A). Conditions. fication of 30 TAC Renumbered Section (b)(2)(B)–(I) to 116.115. Section (b)(2)(A)–(H) as a con- sequence of the removal.

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Date Date adopted Changes adopted by Section Title submitted by the State Comments State

30 TAC 116.120 ...... Voiding of Permits and 9/25/03 8/20/03 New 30 TAC 116.120 New Section. Extensions of Per- Subsection 116.120(a) is substan- mits. tially the same as the SIP rule codified in Subsection 116.115(b)(2)(A). Part of sub- section (b) is substantially the same as the SIP rule codified in subsection 116.115(b)(2)(A). Subsections (b) and (c) add new au- thority; they provide for the grant- ing of more than one 18-month ex- tension to a permit.

II. What Action Is EPA Taking? before the first extension will be paragraph, or section of this rule and if granted. that provision may be severed from the We are approving the Texas Permit The two new subsections also add remainder of the rule, we may adopt as Voiding Program, as submitted by TCEQ new authority for the Executive Director final those provisions of the rule that are on September 25, 2003, in Title 30 of to issue a second 18-month extension. not the subject of an adverse comment. the Texas Administrative Code (30 TAC) EPA interprets section 116.120(b) to at 30 TAC Chapter 116—Control of Air require that the permit holder will III. EPA’s Evaluation Pollution by Permits for New comply with all the rules and A. How Does the Current SIP Address Construction or Modification. This regulations of the commission, Texas the Voiding of Permits? includes the following under Chapter Clean Air Act, including protection of The current SIP includes 30 TAC 116: removal of 30 TAC 116.115(b)(2)(A) public health and physical property 116.115 as adopted by the TCEQ on from the Texas SIP; renumbering of the before this second permit extension may November 20, 2002, and approved by SIP’s 30 TAC 116.115(b)(2)’s be granted. This second permit EPA on September 6, 2006 (71 FR subparagraphs as a consequence of the extension would be available in the case 52664). This section addresses the removal of subparagraph (A); and of a construction delay caused by voiding of permits under 30 TAC approval into the Texas SIP of the new litigation, not of the permit holder’s subsection 116.115(b)(2)(A). This SIP 30 TAC 116.120(a) and (b). The existing initiation regarding the issuance of the rule provides that a permit or permit Texas SIP at 30 TAC 116.115(b)(2)(A) permit. The Executive Director could amendment under 30 TAC Chapter 116 and the newly submitted rule at 30 TAC also issue an extension if the permit is automatically void if the permit 116.120(a) both require that persons holder has spent, or has committed to holder does one of the following: (1) issued a NSR permit under Chapter 116 spend, 10% of the estimated cost of Fails to begin construction within 18 begin construction of the facility within construction to a maximum of $5 months of the date of issuance; (2) 18 months of permit issuance or the million. As part of the Texas Permit discontinues construction for more than permit will be voided. Consequently, Extension Program, EPA is approving 30 18 consecutive months prior to this action is merely a recodification of TAC 116.120(b) and (c), as meeting the completion of the project; or (3) fails to the SIP Permit Voiding requirements. It Major and Minor NSR and NNSR SIP. complete the project within a reasonable is EPA’s position that the Texas Permit We are publishing this rule without time. Voiding Program is severable from all prior proposal because we view this as the other elements in the September a noncontroversial amendment and B. What Revisions Did Texas Submit Relating to the Voiding of Permits? 2003 submittal, including the Texas anticipate no relevant adverse Permit Extension Program. comments. However, in the proposed On August 20, 2003, TCEQ adopted rules section of this Federal Register revisions to 30 TAC Section 116.115, In addition, the current SIP provision publication, we are publishing a and submitted them to EPA for SIP at 30 TAC 116.115(b)(2)(A) authorizes separate document that will serve as the approval on September 25, 2003. This the Executive Director to grant an 18- proposal to approve the SIP revision if amendment recodifies the language month extension to this period. This relevant adverse comments are received. relating to the voiding of permits and language was transferred to this new This rule will be effective on June 1, transfers this rule language from 30 TAC subsection and relates to the grant of 2010 without further notice unless we Subsection 116.115(b)(2)(A) to a new 30 authority to the Executive Director to receive relevant adverse comment by TAC Subsection 116.120(a). The new 30 extend permits for 18 months. Thus, May 3, 2010. If we receive relevant TAC Section 116.120(a) is located in 30 this action is a recodification of the SIP adverse comments, we will publish a TAC Chapter 116, Subchapter B, Permit Extension requirements. timely withdrawal in the Federal Division 1, Permit Application.1 The The new 30 TAC 116.120(b) and (c) Register informing the public that the add new criteria that must be met before rule will not take effect. We will address 1 A separate and unrelated 30 TAC Section the Executive Director may issue the all public comments in a subsequent 116.120 as adopted by TCEQ on June 17, 1998, Division 2: Compliance History, and approved by first 18-month extension. The new final rule based on the proposed rule. EPA on September 18, 2002 (67 FR 58697) remains criteria are that the permit will be We will not institute a second comment in the SIP. The State has not requested that EPA reviewed for its underlying best period on this action. Any parties remove this SIP rule from the Texas NSR SIP. There available control technology (BACT), interested in commenting must do so is no legal impediment to having two separate unrelated SIP requirements, each with the same lowest achievable emission rate (LAER), now. Please note that if we receive rule number. If this action is finalized as proposed, offsets, and netting determinations adverse comment on an amendment, Continued

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new 30 TAC 116.120(a) addresses the second extension if the permit holder of Management and Budget under voiding of permits and contains has spent, or has committed to spend Executive Order 12866 (58 FR 51735, language that already was SIP approved 10% of the estimated cost of October 4, 1993); in 30 TAC 116.115(b)(2)(A). Because construction to a maximum of $5 • Does not impose an information this is merely a recodification of an million. collection burden under the provisions existing SIP requirement, EPA is EPA interprets this revision to require of the Paperwork Reduction Act (44 approving the recodification of 30 TAC that before a permit holder can obtain U.S.C. 3501 et seq.); 116.115(b)(2)(A) in the Texas NSR SIP, this second extension, however, the • Is certified as not having a as the new 30 TAC 116.120(a). State must perform a new health effects significant economic impact on a analysis and the permittee must substantial number of small entities C. How Does the Current SIP Address demonstrate that emissions from the the Extension of Permits? under the Regulatory Flexibility Act facility will comply with all rules and (5 U.S.C. 601 et seq.); The current SIP includes 30 TAC regulations of the commission and the • Does not contain any unfunded 116.115 as adopted by the TCEQ on intent of the TCAA, including mandate or significantly or uniquely November 20, 2002, and approved by protection of the public’s health and affect small governments, as described EPA on September 6, 2006 (71 FR physical property. The State will also in the Unfunded Mandates Reform Act 52664). This section addresses the review again the present permit’s BACT, of 1995 (Pub. L. 104–4); granting of an 18-month extension of the LAER, netting or offsets as applicable, • Does not have Federalism date to begin construction under 30 determinations. implications as specified in Executive TAC subsection 116.115(b)(2)(A). The EPA is also interpreting subsection Order 13132 (64 FR 43255, August 10, Executive Director may grant a one-time 116.120(b) to subject a permit for which 1999); 18-month extension of the date to begin a second extension is requested to • Is not an economically significant construction if the permit holder fails to public notice and comment as a permit regulatory action based on health or begin construction within 18 months of amendment if the health effects analysis safety risks subject to Executive Order the date of issuance of the permit. or original determination regarding 13045 (62 FR 19885, April 23, 1997); D. What Revisions Did Texas Submit BACT, LAER, netting or offsets as • Is not a significant regulatory action Relating to the Extensions of Permits? applicable, is changed. subject to Executive Order 13211 (66 FR On August 20, 2003, TCEQ adopted IV. Final Action 28355, May 22, 2001); • Is not subject to requirements of revisions to 30 TAC Section 116.115, EPA is taking direct final action to section 12(d) of the National and submitted them to EPA for SIP approve revision of the SIP Texas Technology Transfer and Advancement approval on September 25, 2003. This submitted on September 25, 2003, that Act of 1995 (15 U.S.C. 272 note) because amendment recodifies the language relate to Voiding of Permits, as part of application of those requirements would relating to the granting of the additional the Texas NSR SIP. EPA is approving be inconsistent with the Clean Air Act; 18-month extension of a permit and the revisions that relate to Extensions of and transfers this rule language from 30 TAC Permits as part of the Texas NSR SIP for • Does not provide EPA with the Subsection 116.115(b)(2)(A) to a new 30 Major and Minor NSR and are merely discretionary authority to address, as TAC subsection 116.120(b), the recodification of the existing SIP appropriate, disproportionate human introductory paragraph, third sentence. requirement. EPA also is approving health or environmental effects, using The language relating to the Executive some substantive portions of the practicable and legally permissible Director’s authority to grant an 18- revisions that add new criteria for the methods, under Executive Order 12898 month extension of the permit was granting of the first permit extension as (59 FR 7629, February 16, 1994). transferred to this new subsection, third part of the Texas Major and Minor NSR sentence in the introductory paragraph. and NNSR SIP. Finally, we are In addition, this rule does not have Because this is merely a recodification approving the new substantive portions Tribal implications as specified by of an existing SIP requirement, EPA is of the revisions that add the authority to Executive Order 13175 (65 FR 67249, approving the removal of 30 TAC grant a second extension as part of the November 9, 2000), because the SIP is 116.115(b)(2)(A) from the Texas NSR Texas NSR SIP for Major and Minor not approved to apply in Indian country SIP, approving the consequent NSR and NNSR. located in the State, and EPA notes that renumbering of the paragraphs in 30 it will not impose substantial direct TAC 116.115(b)(2), and approving the V. Statutory and Executive Order costs on Tribal governments or preempt new 30 TAC subsection 116.120(b) as Reviews Tribal law. part of the Texas NSR SIP. Under the Clean Air Act, the The Congressional Review Act, 5 The new section 116.120 subsections Administrator is required to approve a U.S.C. section 801 et seq., as added by (b) and (c), would allow more than one SIP submission that complies with the the Small Business Regulatory 18-month extension, as is currently provisions of the Act and applicable Enforcement Fairness Act of 1996, provided for in the Texas NSR SIP. Federal regulations. 42 U.S.C. 7410(k); generally provides that before a rule First, the permit holder may be granted 40 CFR 52.02(a). Thus, in reviewing SIP may take effect, the agency a second extension to begin submissions, EPA’s role is to approve promulgating the rule must submit a construction in the case of a State choices, provided that they meet rule report, which includes a copy of construction delay caused by litigation, the criteria of the Clean Air Act. the rule, to each House of the Congress not of the permit holder’s initiation, Accordingly, this action merely and to the Comptroller General of the associated with the issuance of a permit. approves State law as meeting Federal United States. EPA will submit a report The Executive Director also can issue a requirements and does not impose containing this action and other additional requirements beyond those required information to the U.S. Senate, the CFR regulatory language will show there are imposed by State law. For that reason, the U.S. House of Representatives, and two 30 TAC 116.120’s in the Texas SIP; the State this action: the Comptroller General of the United adoption date and EPA’s approval date will inform • the public which 30 TAC 116.120 relates to Permit Is not a ‘‘significant regulatory States prior to publication of the rule in Voiding and Permit Extensions. action’’ subject to review by the Office the Federal Register. A major rule

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cannot take effect until 60 days after it List of Subjects in 40 CFR Part 52 Subpart SS—Texas is published in the Federal Register. This action is not a ‘‘major rule’’ as Environmental protection, Air ■ 2. The table in § 52.2270(c) entitled defined by 5 U.S.C. 804(2). pollution control, Carbon monoxide, ‘‘EPA Approved Regulations in the Incorporation by reference, Texas SIP’’ is amended under Chapter Under section 307(b)(1) of the Clean Intergovernmental relations, Lead, 116—Control of Air Pollution by Air Act, petitions for judicial review of Nitrogen dioxide, Ozone, Particulate Permits for New Construction or this action must be filed in the United matter, Reporting and recordkeeping Modification, Subchapter B—New States Court of Appeals for the requirements, Sulfur oxides, Volatile Source Review Permits, Division 1— appropriate circuit by June 1, 2010. organic compounds. Permit Application, to read as follows: Filing a petition for reconsideration by ■ a. By revising the entry for Section Dated: March 24, 2010. the Administrator of this final rule does 116.115, General and Special not affect the finality of this action for Lawrence E. Starfield, Conditions; and the purposes of judicial review nor does Acting Regional Administrator, Region 6. ■ b. Immediately following the entry for it extend the time within which a Section 116.116, by adding a new entry ■ 40 CFR part 52 is amended as follows: petition for judicial review may be filed, for Section 116.120, Voiding of Permits, and shall not postpone the effectiveness PART 52—[AMENDED] under Division 1. of such rule or action. This action may The revision and addition read as not be challenged later in proceedings to ■ 1. The authority citation for part 52 follows: enforce its requirements. (See section continues to read as follows: § 52.2270 Identification of plan. 307(b)(2).) Authority: 42 U.S.C. 7401 et seq. * * * * * (c) * * *

EPA APPROVED REGULATIONS IN THE TEXAS SIP

State ap- State citation Title/subject proval/sub- EPA approval date Explanation mittal date

******* Chapter 116—Control of Air Pollution by Permits for New Construction or Modification

******* Subchapter B—New Source Review Permits Division 1—Permit Application

******* Section 116.115 ...... General and Special Conditions ...... 8/20/2003 4/2/2010 [Insert FR page number where document begins].

******* Section 116.120 ...... Voiding of Permits ...... 8/20/2003 4/2/2010 [Insert FR page number where document begins].

*******

[FR Doc. 2010–7214 Filed 4–1–10; 8:45 am] BILLING CODE 6560–50–P

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Proposed Rules Federal Register Vol. 75, No. 63

Friday, April 2, 2010

This section of the FEDERAL REGISTER ADDRESSES: You may send comments contact Viola Pando, AGC–220, Federal contains notices to the public of the proposed identified by Docket Number [Insert Aviation Administration, 800 issuance of rules and regulations. The docket number, for example, FAA– Independence Ave., SW., Washington, purpose of these notices is to give interested 200X–XXXXX] using any of the DC 20591; telephone (202) 493–5293; persons an opportunity to participate in the following methods: facsimile (202) 267–7971, e-mail rule making prior to the adoption of the final • rules. Federal eRulemaking Portal: Go to [email protected]. http://www.regulations.gov and follow SUPPLEMENTARY INFORMATION: the online instructions for sending your Later in this preamble under the DEPARTMENT OF TRANSPORTATION comments electronically. Additional Information section, we • Mail: Send comments to Docket discuss how you can comment on this Operations, M–30; U.S. Department of Federal Aviation Administration proposal and how we will handle your Transportation, 1200 New Jersey comments. Included in this discussion Avenue, SE., Room W12–140, West 14 CFR Parts 23, 25, 27, and 29 is related information about the docket, Building Ground Floor, Washington, DC privacy, and the handling of proprietary [Docket No. FAA–2010–0224; Notice No. 10– 20590–0001. or confidential business information. 05] • Hand Delivery or Courier: Take We also discuss how you can get a copy comments to Docket Operations in of related rulemaking documents. RIN 2120–AJ57 Room W12–140 of the West Building Airworthiness Standards; Electrical Ground Floor at 1200 New Jersey Authority for This Rulemaking and Electronic System Lightning Avenue, SE., Washington, DC, between The FAA’s authority to issue rules on Protection 9 a.m. and 5 p.m., Monday through aviation safety is found in Title 49 of the Friday, except Federal holidays. • United States Code. Subtitle I, Section AGENCY: Federal Aviation Fax: Fax comments to Docket 106 describes the authority of the FAA Administration (FAA), DOT. Operations at 202–493–2251. Administrator. Subtitle VII, Aviation ACTION: Notice of proposed rulemaking For more information on the rulemaking Programs, describes in more detail the (NPRM). process, see the SUPPLEMENTARY scope of the agency’s authority. INFORMATION section of this document. This rulemaking is promulgated SUMMARY: The Federal Aviation Privacy: We will post all comments under the authority described in Administration (FAA) proposes to we receive, without change, to http:// Subtitle VII, Part A, Subpart III, Section amend the lightning protection www.regulations.gov, including any 44701(a)(1). Under that section, the FAA airworthiness standards by establishing personal information you provide. is charged with prescribing regulations new lightning protection regulations for Using the search function of our docket to promote safe flight of civil aircraft in electrical and electronic systems Web site, anyone can find and read the air commerce by prescribing minimum installed on aircraft certificated under electronic form of all comments standards in the interest of safety for parts 23, 27, and 29, and revising received into any of our dockets, appliances and for the design, material, lightning protection regulations for including the name of the individual construction, quality of work, and electrical and electronic systems sending the comment (or signing the performance of aircraft, aircraft engines, installed on airplanes certificated under comment for an association, business, and propellers. By prescribing standards part 25. The proposed rulemaking labor union, etc.). You may review to protect aircraft electrical and would establish two levels of lightning DOT’s complete Privacy Act Statement electronic systems from the effects of protection for aircraft systems based on in the Federal Register published on lightning, this regulation is within the consequences of system function failure: April 11, 2000 (65 FR 19477–78) or you scope of the Administrator’s authority. Catastrophic consequences which may visit http://DocketsInfo.dot.gov. would prevent continued safe flight and Docket: To read background Background and History landing and hazardous or major documents or comments received, go to Existing regulations for lightning consequences which would reduce the http://www.regulations.gov at any time protection of electrical and electronic capability of the aircraft or the ability of and follow the online instructions for systems installed on aircraft certificated the flightcrew to respond to an adverse accessing the docket or Docket under 14 CFR parts 23, 27 and 29 operating condition. The proposed Operations in Room W12–140 of the require the type certification applicant rulemaking would also establish West Building Ground Floor at 1200 only to ‘‘consider’’ the effects of lightning protection for aircraft systems New Jersey Avenue, SE., Washington, lightning. Unlike system lightning according to the aircraft’s potential for DC, between 9 a.m. and 5 p.m., Monday protection regulations for part 25 lightning exposure. Compliance with through Friday, except Federal holidays. airplanes, these regulations have not the new requirements would be based FOR FURTHER INFORMATION CONTACT: For been significantly amended since they on demonstration of effective lightning technical questions concerning this were first adopted, and do not reflect protection for electrical and electronic proposed rule contact Lee Nguyen, AIR– current advances in technology. systems. The proposed airworthiness 130, Federal Aviation Administration, standards would establish consistent Suite 4102, 470 L’Enfant Plaza, A. History of Lightning Regulations lightning protection requirements for Washington, DC 20591; telephone (202) In the 1960s, regulations applicable to electrical and electronic systems. 385–4676; facsimile (202) 385–4651, lightning protection for aircraft design, DATES: Send your comments on or e-mail [email protected]. For legal construction, and fuel systems were before July 1, 2010. questions concerning this proposed rule adopted for aircraft certificated under

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parts 23, 25, 27 and 29. The regulations recommended the same requirements compatible or consistent with the latest required that the aircraft be protected for all four parts. classification concepts, terminology, against catastrophic effects of lightning, The FAA considered the ARAC and practices. Parts 23, 27 and 29 but did not have specific requirements recommendations in developing this regulations for lightning protection are for electrical and electronic system notice of proposed rulemaking (NPRM) less precise, and require the applicant lightning protection. At the time, most and agrees with these recommendations, only to ‘‘consider’’ lightning. While the aircraft were designed with mechanical with one exception. After careful focus on protection of electrical and systems, or simple electrical and consideration, the FAA is unable to electronic systems that perform critical electronic systems. Airframe endorse the ARAC recommendation to or essential functions was fundamental components were made from aluminum provide an exception to the requirement to the wording of earlier airworthiness materials, with high electrical for automatic and timely recovery of a standards regarding systems, and conductivity, and offered good system that performs a function for associated advisory circulars, this protection against lightning. which failure is catastrophic. ARAC proposal focuses on the effects that The early 1980s ushered in part 25 recommended an exception to recovery failure conditions would have on transport airplane designs that routinely of such a system in instances where the aircraft safety. The FAA proposes that included more complex electrical and recovery of the system would conflict lightning protection design required for electronic systems. Flight-critical with other operational or functional each aircraft would be determined by electronic primary flight controls, requirements of the system. We are the type of electrical and electronic electronic primary flight displays, and unable to identify a situation where systems installed on the aircraft, and full-authority electronic engine controls such an exception would be how critical the system or function is to became common on transport airplanes appropriate, nor could we justify the either continued flight and landing, or certificated under part 25. At this time, need for such an exception and propose the aircraft capability and flightcrew’s the FAA began to impose lightning requirements that could ensure an ability to respond to adverse operating protection requirements for critical and equivalent level of safety. conditions. essential electrical and electronic The recommendations of the ARAC In aircraft, the term ‘‘electrical and systems through special conditions, are available at the following Web electronic system’’ refers to the electrical when appropriate, for part 25 airplane address: http://www.faa.gov/ _ and electronic equipment, associated certification projects. regulations policies/rulemaking/ software, and interconnecting wires As electrical and electronic systems _ committees/arac/issue areas/tae/eeh/. installed on aircraft to perform one or became more common on part 25 more functions. The term ‘‘function’’ airplanes, the FAA issued § 25.1316, C. Advisory Material refers to the action that the system specifically requiring protection for In the absence of performance performs. An aircraft system may electrical and electronic systems on part standards for protection of electrical and perform multiple functions with 25 transport category airplanes. The electronic systems from lightning final rule was published on April 28, effects, the FAA has issued Advisory different failure conditions. For 1994 (59 FR 22112). This regulation, in Circular (AC) 20–136A, ‘‘Protection of example, an engine control system may effect today, requires lightning Aircraft Electrical/Electronic System perform the function of the engine protection for electrical and electronic against the Indirect Effects of thrust control—for which failure could systems based on the consequences of Lightning.’’ Since advisory circulars are have catastrophic effects on the failure for functions these systems not mandatory, a type certificate continued safe flight and landing of the perform. The present regulation applicant may elect to ignore or deviate aircraft. The engine control system may provides specific considerations that the from the guidance therein, while still also perform the function of engine applicant must design for to validate satisfying the requirement to ‘‘consider’’ condition monitoring—for which failure that the electrical and electronic lightning. The lack of specific could have hazardous or major effects systems and functions are protected performance standards has resulted in a on continued safe operation of the from the effects of lightning strikes. variety of different interpretations and aircraft. A function may also be means of compliance for system performed by multiple systems or B. Related Rulemaking Activity lightning protection. subsystems. For example, the function The FAA tasked the Aviation of controlling engine thrust may be Rulemaking Advisory Committee General Discussion of the Proposal provided by an electronic engine control (ARAC) on Transport Airplane and The proposed rulemaking would subsystem, with a separate backup Engine Issues (57 FR 58843; December establish type certification standards for mechanical control subsystem. 11, 1992) to develop recommendations lightning protection of electrical and A. Proposed Performance Standards for specific electrical and electronic electronic systems for aircraft systems lightning protection certificated under parts 23, 27 and 29. The proposed regulations would requirements for aircraft certificated This action also proposes to revise establish consistent performance under parts 23, 27, and 29 standards. § 25.1316 for transport category standards to design lightning protection The ARAC submitted airplanes to be consistent in format with for those aircraft electrical and recommendations to the FAA in the proposed regulations applicable to electronic systems that provide: November 1998. The recommendations other aircraft. 1. Functions for which failure would included lightning protection This rulemaking reflects a change in prevent the continued safe flight and requirements, based on the our approach to achieving lightning landing of the aircraft: Failure of these consequences of the failure of system protection for aircraft by protecting functions could result in catastrophic functions, similar to the requirements in functions of electrical and electronic consequences such as loss of life and § 25.1316. The ARAC also systems. The current part 25 regulation loss of the aircraft; recommended changes to § 25.1316 for lightning protection focuses on 2. Functions for which failure would consistent with its recommendations for protection of electrical and electronic reduce the capability of the aircraft or classification of the failure conditions systems that perform critical and the ability of the flightcrew to cope with for parts 23, 27, and 29. ARAC essential functions and are no longer adverse operating conditions: Failure of

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these functions could have hazardous or adversely affected during or after consequences of system failure. The major consequences. lightning exposure. proposed requirements for parts 25 and This NPRM identifies system The aircraft display is another 29 would apply to all aircraft lightning performance standards for function for which failure would have certificated under part 25 and part 29. item 1 as ‘‘protection against catastrophic effects on continued safe The proposed requirements would also catastrophic failure.’’ These standards flight and landing. This function apply to part 23 and part 27 aircraft are addressed by paragraph (a) of the provides aircraft attitude, altitude, and approved for operations under proposed regulations. System lightning airspeed information to the pilot, which instrument flight rules (IFR). In performance standards for item 2 will be are required for continued safe flight addition, the proposed requirements referenced as ‘‘protection against and landing of the aircraft. The aircraft would apply to part 23 airplanes and hazardous or major failure.’’ These display may be provided by two part 27 rotorcraft approved solely for standards are addressed by paragraph systems: An electronic primary display operations under visual flight rules (b) of the proposed regulations. and an electromechanical standby (VFR); for those electrical and electronic The proposed standards for protection display. In this situation, the primary systems that perform functions for against catastrophic failure would display may momentarily blank while which failures would be catastrophic. require an applicant to show that the the aircraft is exposed to lightning, function would not be adversely provided the information is available Parts 25 and 29 Aircraft affected during or after the time the from a standby display. The applicant aircraft is exposed to lightning. would be required to demonstrate that Parts 25 and 29 transport category Compliance with the standard would the primary display system aircraft are now routinely equipped depend on the specific aircraft function, automatically recovers normal operation with complex electrical and electronic the system that performs that function, in a timely manner with no adverse systems. These systems are highly and the effects of failure on the system effect on providing the attitude, altitude, integrated, and provide a range of flight- and function. Further guidance on and airspeed information. critical functions. The FAA has defining the adverse effects for specific The proposed requirements for tentatively determined that these aircraft system functions can be found protection against hazardous or major transport category aircraft should be in various FAA advisory materials. failure would require the applicant to required to provide full protection for The system could be affected during show that the system would not be those systems that perform functions for lightning exposure because a backup damaged, and the function would which failure could result in both system continues to provide the recover normal operation in a timely catastrophic and hazardous or major function, even though the function may manner after the aircraft is exposed to failure effects. not be adversely affected. Accordingly, lightning. This proposed requirement the applicant would be required to show would primarily focus on the recovery Part 23 Airplanes that the system would automatically of the function to normal operation. For Application of the proposed recover normal operation after the these systems, ‘‘damaged’’ refers to the requirements for airplanes certificated lightning exposure in a timely manner. inability to recover. As with the to part 23 standards depends on ‘‘ ’’ Normal operation means the ability of proposed standard for protection against whether the airplane is approved for IFR the system to perform functions to the catastrophic failure, the FAA would or VFR-only operations. This difference extent necessary to continue safe flight determine what constitutes a ‘‘timely’’ exists because, compared to part 23 and landing. For systems that provide recovery of normal function based on VFR-only airplanes, part 23 IFR- one or more functions, the proposal engineering judgment of the specific approved airplanes are more likely would require the system to function and its failure effects upon the equipped with complex electrical and automatically recover normal operations design submitted for certification. electronic systems that allow them to of those functions for which failure An example of a function for which operate into instrument meteorological could be catastrophic. Other functions failure could result in or have a conditions (IMC), where lightning would not be required to return to hazardous or major effect on aircraft strikes are prevalent. As a result, part 23 normal operation. The FAA would operation is voice communication IFR-approved airplanes are designed for, determine what constitutes ‘‘timely’’ provided by radio. Failure of this and expected to operate into, weather automatic recovery on a case-by-case function would increase the flightcrew’s conditions that present greater potential evaluation, based on engineering normal workload and affect their ability for exposure to lightning. judgment of the specific function and its to maintain situational awareness, as the failure effects. flightcrew would no longer be able to In contrast, part 23 VFR-only The aircraft engine thrust/power transmit or receive voice airplanes are prohibited by regulation control is an example of a function for communication information with other from operating into IMC. Nevertheless, which failure would have catastrophic pilots or air traffic control. As proposed, there is still some likelihood of the effects on the aircraft’s ability to the applicant would be required to airplanes being exposed to lightning. continue safe flight and landing. A full- ensure the radio system is not damaged Therefore, the FAA has determined that authority electronic engine control after lightning exposure and the voice the resulting risk to part 23 VFR-only system may provide this function, and communication function would recover airplanes for which failure would be perform aircraft engine thrust/power in a timely manner. Recovery may catastrophic may be sufficiently great to control by automatically regulating fuel require flightcrew interaction. require lightning protection to prevent flow and airflow to the engine(s). The catastrophic failures. However, the FAA loss or malfunction of this function B. Applicability of the Proposed has tentatively determined that the could stop the engines or result in Lightning Protection Requirements resulting risk to part 23 VFR-only engine overspeed, which could result in Application of the proposed standards airplanes with electrical or electronic a catastrophic failure condition. In this for aircraft electrical and electronic systems installed for which failure situation, the applicant would be system lightning protection would be would be hazardous or major remains required to ensure the aircraft engine based on the aircraft’s potential for sufficiently low as to not require thrust/power control function is not lightning exposure and the lightning protection.

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Part 27 Rotorcraft system, based on the failure effects of applicant ‘‘consider’’ the effects of the function. lightning. Sections 27.610(d)(4) and Similar to the applicability of Section 25.1316(a) currently requires 29.610(d)(4) both address general design proposed changes to part 23, application those electrical and electronic systems requirements for electrical bonding and of the proposed requirements for part 27 that provide functions where failure protection against lightning and static would depend on whether the rotorcraft would be catastrophic to be designed electricity. They require electrical is approved for IFR or VFR-only and installed so their operation and bonding against lightning to reduce to operations. The proposed lightning operational capabilities are not an acceptable level the effects of protection requirements would apply to adversely affected when the airplane is lightning on the functioning of essential IFR-approved rotorcraft in the same exposed to lightning. Section 25.1316(b) electrical and electronic equipment. way, and for the same reasons. requires that lightning protection for Adoption of the proposed §§ 27.1316 Likewise, part 27 VFR-only rotorcraft electrical and electronic systems that and 29.1316 would replace these would be required to protect those perform functions for which failure references to lightning with specific systems that perform functions where would be hazardous or major must be performance standards for lightning failure could have catastrophic effects. designed and installed to ensure that protection of parts 27 and 29 electrical This requirement is intended to address these functions can be timely recovered and electronic systems. the unique performance capabilities that after exposure to lightning. Also, we propose to add a cross make rotorcraft VFR operations The proposed regulation is reference to § 27.1316 in Appendix B of vulnerable to lightning. Rotorcraft are distinguishable from existing § 25.1316 Part 27 on electrical and electronic inherently more maneuverable, and in that it places the emphasis on the system lightning protection for have more versatile landing capability function and also sets forth specific rotorcraft approved for IFR operation. standards for the function and the than fixed wing aircraft. Accordingly, Paperwork Reduction Act they are permitted to operate with low system respectively. By focusing on minimum altitude, low flight visibility, functions performed by systems, rather The Paperwork Reduction Act of 1995 and nearer to clouds. Although than the systems themselves, the (44 U.S.C. 3507(d)) requires that the prohibited from operating directly into proposed revision would allow the FAA consider the impact of paperwork IMC, part 27 VFR-only rotorcraft are applicant to choose appropriate system and other information collection able to operate close to meteorological configurations and designs to comply burdens imposed on the public. We conditions that have a high potential for with this regulation, but would also have determined that there is no new lightning strikes. This means rotorcraft require that the applicant demonstrate information collection requirement certificated to part 27 standards in VFR- that the proposed configuration associated with this proposed rule. provides effective protection. only operations are likely to encounter International Compatibility lightning exposure. The FAA has Finally, the proposal would remove In keeping with U.S. obligations determined that the resulting risk to part § 25.1316(c), which contains specific step-by-step actions required to show under the Convention on International 27 VFR-only rotorcraft systems for compliance. The ARAC recommended Civil Aviation, it is FAA policy to which failure would be catastrophic is removing § 25.1316(c) because this conform to International Civil Aviation sufficiently great to propose requiring information is more appropriately Organization (ICAO) Standards and lightning protection to prevent addressed in guidance for means of Recommended Practices to the catastrophic failures. As with part 23 compliance. Since § 25.1316 was maximum extent practicable. The FAA VFR-only airplanes, the FAA has adopted in 1994, significant guidance has determined that there are no ICAO determined that the resulting risk to has been developed by the FAA and Standards and Recommended Practices rotorcraft certificated to part 27 lightning technical committees. that correspond to these proposed standards that operate in VFR-only Advisory circulars 20–136A and 20–155 regulations. operations with electrical or electronic provide much more comprehensive systems installed for which failure Regulatory Evaluation, Regulatory guidance on means of compliance with would be hazardous or major likely Flexibility Determination, International the lightning regulations. Removing remains sufficiently low as to not Trade Impact Assessment, and § 25.1316(c) allows for the use of means require lightning protection. Unfunded Mandates Assessment of compliance that achieve the intent of C. Specific Changes to Part 25 § 25.1316(a) and (b) without the Changes to Federal regulations must prescriptive list that is currently in undergo several economic analyses. The proposed changes to § 25.1316 § 25.1316(c). The technology for First, Executive Order 12866 directs that are intended to rephrase the existing showing compliance with § 25.1316(a) each Federal agency shall propose or regulation to clarify intent, to reformat and (b) has progressed substantially adopt a regulation only upon a reasoned it so that it is in keeping with the other since § 25.1316 was adopted in 1994, determination that the benefits of the three parts, and to delete § 25.1316(c) which makes the prescriptive list in intended regulation justify its costs. which sets forth specific requirements § 25.1316(c) obsolete. Second, the Regulatory Flexibility Act for compliance. If adopted, the proposal of 1980 (Pub. L. 96–354) requires would not change the current part 25 D. Miscellaneous Changes agencies to analyze the economic practices for lightning protection. This rulemaking would remove impact of regulatory changes on small Rather, the proposal would shift the §§ 27.1309(d) and 29.1309(h), and delete entities. Third, the Trade Agreements emphasis placed on protecting functions ‘‘lightning and’’ from §§ 27.610(d)(4) and Act (Pub. L. 96–39) prohibits agencies of electrical and electronic systems, and 29.610(d)(4). Section 27.1309(d) from setting standards that create focus on the effects that systems and currently governs lightning protection unnecessary obstacles to the foreign equipment failure conditions have on for part 27 electrical and electronic commerce of the United States. In aircraft safety. The most significant systems, and requires only that the developing U.S. standards, this Trade change would be to clearly set forth applicant ‘‘consider’’ the effects of Act requires agencies to consider lightning protection performance lightning according to § 27.610. Section international standards and, where standards for the function and the 29.1309(h) requires only that the appropriate, that they be the basis of

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U.S. standards. Fourth, the Unfunded these firms are already in compliance Assumptions and Sources of Mandates Reform Act of 1995 (Pub. L. with the proposed rule as it represents Information 104–4) requires agencies to prepare a a codification of AC 20–136A. For • We use a ten-year period of written assessment of the costs, benefits, manufacturers of Part 25 airplanes, cost analysis, 2009–2018. and other effects of proposed or final changes should be minimal in any case, • Data on costs of compliance and rules that include a Federal mandate as the proposed changes in the rule are benefits of this rule were obtained from likely to result in the expenditure by clarifying only. Moreover, four of the an FAA survey of industry. State, local, or Tribal governments, in seven respondents reported at least • Firms are defined as ‘‘small’’ or the aggregate, or by the private sector, of some expected benefits from the ‘‘large’’ using Small Business $100 million or more annually (adjusted proposed rule (See ‘‘Benefits’’ section Administration (SBA) size standards for inflation with base year of 1995). below). The FAA therefore has (U.S. SBA. Table of Small Business Size This portion of the preamble determined that this proposed rule Standards Matched to North American summarizes the FAA’s analysis of the would have minimal costs with positive Industry Classification System Codes, economic impact of the proposed rule. net benefits and does not warrant a full July 21, 2006). Department of Transportation Order regulatory evaluation. The FAA requests DOT 2100.5 prescribes policies and comments with supporting justification Costs of This Rulemaking procedures for simplification, analysis, on the FAA determination of minimal On February 9, 2009, we sent a and review of regulations. If the impact. Our analysis follows below. detailed cost survey to six expected cost impact is so minimal that The FAA has also determined that manufacturers of Parts 23, 25, 27, and a proposed or final rule does not ‘‘ this proposed rule is not a significant 29 aircraft and three manufacturers of warrant a full evaluation, this order ’’ regulatory action as defined in section electrical and electronic systems for permits that a statement to that effect 3(f) of Executive Order 12866, and is not those aircraft. In addition to several and the basis for it be included in the ‘‘ ’’ significant as defined in DOT’s detailed cost questions, the survey also preamble. Such a determination has Regulatory Policies and Procedures. asked one question about potential been made for this proposed rule. The benefits from the proposed rule. We reasoning for this determination Total Costs and Benefits of This received four responses to this initial follows: Rulemaking survey. On March 17, 2009, we In a cost survey of industry conducted As noted above, there are little or no resurveyed the five non-respondents by the FAA, six of the seven replying expected costs for this proposed rule and received three additional replies, firms reported no incremental cost from and some benefits. The benefits although the last response came only on this proposed rule. One firm reported therefore justify the costs. See details in August 8, 2009. The seven responses we ‘‘little or no cost.’’ The reason for little the separate costs and benefits sections received were from manufacturers or no incremental cost is that these below. ranging from a small aircraft firms (six out of seven) reported usage Who Is Potentially Affected by This manufacturer (less than 1,500 of Advisory Circular (AC) 20–136A, Rulemaking? employees) to the largest U.S. aircraft ‘‘Protection of Aircraft Electrical/ manufacturer. As shown in the table Electronic Systems Against the Indirect Manufacturers of Parts 23, 25, 27, and below, the respondents indicated little Effects of Lightning,’’ as guidance for 29 aircraft and manufacturers of or no cost from the proposed rule. demonstrating compliance with electrical and electronic systems for lightning requirements. Consequently, those aircraft. Summary of Cost Survey Results

Firm Type Products certified to: Costs Benefits

A ...... Airplane manufacturer .. Part 23 ...... No cost ...... ‘‘The certification process will be less ambig- uous and slightly streamlined by writing some of the AC 20–136A requirements directly into the regulations.’’ B ...... Airplane manufacturer .. Parts 23 & 25 ...... No cost ...... ‘‘The commonality between parts and the ability to use the same substantiation across product lines is a very large benefit.’’ C ...... Airplane manufacturer .. Parts 23 & 25 ...... No cost ...... ‘‘Harmonization of Part 23 and Part 25 rules will simplify our certification process as our inter- nal procedures benefit from any similarity of the two Parts.’’ D ...... Airplane manufacturer .. Part 25 ...... Little or no cost ...... No response to benefits question. E ...... Electrical/electronic sys- Parts 23 & 25 ...... No cost ...... ‘‘NA.’’ tems manufacturer. F ...... Electrical/electronic sys- Parts 23, 25, 27, & 29 .. No cost ...... ‘‘None.’’ tems manufacturer. G ...... Electrical/electronic sys- Parts 23, 25, 27, & 29 .. No cost ...... ‘‘Standardization of the rule across all aircraft tems manufacturer. types may simplify requirements capture re- sulting in some limit[ed] non-recurring cost re- duction.’’

Benefits of This Rulemaking standardization of rule language would Regulatory Flexibility Determination reduce firm costs by clarifying and As supported by the responses to the simplifying the certification process. The Regulatory Flexibility Act of 1980 benefits question, shown in the table, (Pub. L. 96–354) (RFA) establishes ‘‘as a the proposed rule and the principle of regulatory issuance that

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agencies shall endeavor, consistent with unnecessary obstacles to the foreign paragraph 308(c)(1) and involves no the objectives of the rule and of commerce of the United States. extraordinary circumstances. applicable statutes, to fit regulatory and Pursuant to these Acts, the Regulations That Significantly Affect informational requirements to the scale establishment of standards is not Energy Supply, Distribution, or Use of the businesses, organizations, and considered not considered an governmental jurisdictions subject to unnecessary obstacle to the foreign The FAA has analyzed this NPRM regulation. To achieve this principle, commerce of the United States, so long under Executive Order 13211, Actions agencies are required to solicit and as the standard have a legitimate Concerning Regulations that consider flexible regulatory proposals domestic objective, such as the Significantly Affect Energy Supply, and to explain the rationale for their protection of safety, and do not operate Distribution, or Use (May 18, 2001). We actions to assure that such proposals are in a manner that excludes imports that have determined that it is not a given serious consideration.’’ The RFA meet this objective. The statute also ‘‘significant energy action’’ under the covers a wide-range of small entities, requires consideration of international executive order, it is not a ‘‘significant including small businesses, not-for- standards and, where appropriate, that regulatory action’’ under Executive profit organizations, and small they be the basis for U.S. standards. The Order 12866 and DOT’s Regulatory governmental jurisdictions. FAA notes the purpose is to ensure the Policies and Procedures. Agencies must perform a review to safety of the American public, and has Additional Information determine whether a rule will have a assessed the effect of this proposed rule significant economic impact on a to ensure that it does not exclude Comments Invited substantial number of small entities. If imports that meet this objective. As a The FAA invites interested persons to the agency determines that it will, the result, this proposed rule is not agency must prepare a regulatory participate in this rulemaking by considered as creating an unnecessary submitting written comments, data, or flexibility analysis as described in the obstacle to foreign commerce because RFA. However, if an agency determines views. We also invite comments relating the FAA found little or no expected to the economic, environmental, energy, that a rule is not expected to have a costs from this proposed rule. significant economic impact on a or federalism impacts that might result substantial number of small entities, Unfunded Mandates Assessment from adopting the proposals in this section 605(b) of the RFA provides that Title II of the Unfunded Mandates document. The most helpful comments the head of the agency may so certify Reform Act of 1995 (Pub. L. 104–4) reference a specific portion of the and a regulatory flexibility analysis is requires each Federal agency to prepare proposal, explain the reason for any not required. The certification must a written statement assessing the effects recommended change, and include include a statement providing the of any Federal mandate in a proposed or supporting data. To ensure the docket factual basis for this determination, and final agency rule that may result in an does not contain duplicate comments, the reasoning should be clear. expenditure of $100 million or more (in please send only one copy of written As noted above, in a cost survey of 1995 dollars) in any one year by State, comments, or if you are filing comments industry, the FAA found little or no local, and Tribal governments, in the electronically, please submit your expected costs from this proposed rule. aggregate, or by the private sector; such comments only one time. The reason for this finding is that all but a mandate is deemed to be a ‘‘significant We will file in the docket all one respondent reported usage of AC regulatory action.’’ The FAA currently comments we receive, as well as a 20–136A, ‘‘Protection of Aircraft uses an inflation-adjusted value of report summarizing each substantive Electrical/Electronic Systems Against $136.1 million in lieu of $100 million. public contact with FAA personnel the Indirect Effects of Lightning,’’ as This proposed rule does not contain concerning this proposed rulemaking. guidance for complying with system such a mandate. The requirements of Before acting on this proposal, we will lightning requirements. Accordingly, Title II do not apply. consider all comments we receive on or this proposed rule represents current before the closing date for comments. practice and imposes no more Executive Order 13132, Federalism We will consider comments filed after requirements than those previously The FAA has analyzed this proposed the comment period has closed if it is recommended by AC 20–136A. rule under the principles and criteria of possible to do so without incurring Consequently, these firms are already in Executive Order 13132, Federalism. We expense or delay. We may change this compliance with the proposed rule as it determined that this action would not proposal in light of the comments we represents a codification of AC 20– have a substantial direct effect on the receive. 136A. For manufacturers of Part 25 States, on the relationship between the Proprietary or Confidential Business airplanes, cost changes should, in any national Government and the States, or Information case, be minimal as the proposed on the distribution of power and changes in the rule are clarifying only. responsibilities among the various Do not file in the docket information Therefore, the FAA certifies that this levels of government, and, therefore, that you consider to be proprietary or proposed rule would not have a would not have federalism implications. confidential business information. Send significant economic impact on a or deliver this information directly to Environmental Analysis substantial number of small entities. the person identified in the FOR FURTHER The FAA solicits comments regarding FAA Order 1050.1E identifies FAA INFORMATION CONTACT section of this this determination. actions that are categorically excluded document. You must mark the from preparation of an environmental information that you consider International Trade Impact Assessment assessment or environmental impact proprietary or confidential. If you send The Trade Agreements Act of 1979 statement under the National the information on a disk or CD–ROM, (Pub. L. 96–39), as amended by the Environmental Policy Act in the mark the outside of the disk or CD–ROM Uruguay Round Agreement Act (Pub. L. absence of extraordinary circumstances. and also identify electronically within 103–465), prohibits Federal agencies The FAA has determined this proposed the disk or CD–ROM the specific from establishing any standards or rulemaking action qualifies for the information that is proprietary or engaging in related activities that create categorical exclusion identified in confidential.

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Under 14 CFR 11.35(b), when we are PART 23—AIRWORTHINESS which failure would reduce the aware of proprietary information filed STANDARDS: NORMAL, UTILITY, capability of the airplane or the ability with a comment, we do not place it in ACROBATIC, AND COMMUTER of the flightcrew to respond to an the docket. We hold it in a separate file CATEGORY AIRPLANES adverse operating condition, must be to which the public does not have designed and installed so that— 1. The authority citation for part 23 access, and we place a note in the (1) The system is not damaged after continues to read as follows: docket that we have received it. If we the airplane is exposed to lightning; and receive a request to examine or copy Authority: 49 U.S.C. 106(g), 40113, 44701, (2) The function recovers normal this information, we treat it as any other 44702, 44704. operation in a timely manner after the request under the Freedom of 2. Add new § 23.1306 to read as airplane is exposed to lightning. follows: Information Act (5 U.S.C. 552). We PART 27—AIRWORTHINESS process such a request under the DOT § 23.1306 Electrical and electronic system STANDARDS: NORMAL CATEGORY procedures found in 49 CFR part 7. lightning protection. ROTORCRAFT (a) Each electrical and electronic Availability of Rulemaking Documents 5. The authority citation for part 27 system that performs a function, for continues to read as follows: You can get an electronic copy of which failure would prevent the rulemaking documents using the continued safe flight and landing of the Authority: 49 U.S.C. 106(g), 40113, 44701, Internet by— airplane, must be designed and installed 44702, 44704. 1. Searching the Federal eRulemaking so that— 6. Amend § 27.610 by revising Portal (http://www.regulations.gov); (1) The function is not adversely paragraph (d)(4) to read as follows: affected during and after the time the 2. Visiting the FAA’s Regulations and airplane is exposed to lightning; and § 27.610 Lightning and static electricity Policies Web page at http:// (2) The system automatically recovers protection. _ www.faa.gov/regulations policies or normal operation of that function in a * * * * * 3. Accessing the Government Printing timely manner after the airplane is (d) * * * Office’s Web page at http:// exposed to lightning. (4) Reduce to an acceptable level the www.gpoaccess.gov/fr/index.html. (b) For airplanes approved for effects of static electricity on the instrument flight rules operation, each functioning of essential electrical and You can also get a copy by sending a electrical and electronic system that electronic equipment. request to the Federal Aviation performs a function, for which failure Administration, Office of Rulemaking, § 27.1309 [Amended] would reduce the capability of the ARM–1, 800 Independence Avenue, airplane or the ability of the flightcrew 7. Amend § 27.1309 by removing SW., Washington, DC 20591, or by to respond to an adverse operating paragraph (d). calling (202) 267–9680. Make sure to condition, must be designed and 8. Add a new § 27.1316 to read as identify the docket or notice number of installed so that— follows: this rulemaking. (1) The system is not damaged after § 27.1316 Electrical and electronic system You may access all documents the the airplane is exposed to lightning; and lightning protection. (2) The function recovers normal FAA considered in developing this (a) Each electrical and electronic operation in a timely manner after the proposed rule, including economic system that performs a function, for airplane is exposed to lightning. analyses and technical reports, from the which failure would prevent the Internet through the Federal PART 25—AIRWORTHINESS continued safe flight and landing of the eRulemaking Portal referenced in STANDARDS: TRANSPORT rotorcraft, must be designed and paragraph (1). CATEGORY AIRPLANES installed so that— List of Subjects (1) The function is not adversely 3. The authority citation for part 25 affected during and after the time the 14 CFR Part 23 continues to read as follows: rotorcraft is exposed to lightning; and (2) The system automatically recovers Aircraft, Aviation safety, Signs and Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. normal operation of that function in a symbols. 4. Revise § 25.1316 to read as follows: timely manner after the rotorcraft is 14 CFR Part 25 exposed to lightning. § 25.1316 Electrical and electronic system (b) For rotorcraft approved for Aircraft, Aviation safety, Reporting lightning protection. instrument flight rules operation, each and recordkeeping requirements. (a) Each electrical and electronic electrical and electronic system that system that performs a function, for performs a function, for which failure 14 CFR Part 27 which failure would prevent the would reduce the capability of the Aircraft, Aviation safety. continued safe flight and landing of the rotorcraft or the ability of the flightcrew airplane, must be designed and installed to respond to an adverse operating 14 CFR Part 29 so that— condition, must be designed and (1) The function is not adversely installed so that— Aircraft, Aviation safety. affected during and after the time the (1) The system is not damaged after The Proposed Amendment airplane is exposed to lightning; and the rotorcraft is exposed to lightning; (2) The system automatically recovers and In consideration of the foregoing, the normal operation of that function in a (2) The function recovers normal Federal Aviation Administration timely manner after the airplane is operation in a timely manner after the proposes to amend parts 23, 25, 27, and exposed to lightning. rotorcraft is exposed to lightning. 29 of Title 14, Code of Federal (b) Each electrical and electronic 9. Add paragraph X. to Appendix B of Regulations, as follows: system that performs a function, for part 27 to read as follows:

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Appendix B to Part 29—Airworthiness DEPARTMENT OF TRANSPORTATION service information at the FAA, Criteria for Helicopter Instrument Transport Airplane Directorate, 1601 Flight Federal Aviation Administration Lind Avenue, SW., Renton, Washington. * * * * * For information on the availability of 14 CFR Part 39 X. Electrical and electronic system this material at the FAA, call 425–227– lightning protection. For regulations [Docket No. FAA–2010–0280; Directorate 1221. concerning lightning protection for electrical Identifier 2009–NM–259–AD] Examining the AD Docket and electronic systems, see § 27.1316. RIN 2120–AA64 You may examine the AD docket on PART 29—AIRWORTHINESS the Internet at http:// STANDARDS: TRANSPORT Airworthiness Directives; The Boeing www.regulations.gov; or in person at the CATEGORY ROTORCRAFT Company Model 777–200LR and Docket Management Facility between 9 –300ER Series Airplanes a.m. and 5 p.m., Monday through 10. The authority citation for part 29 Friday, except Federal holidays. The AD continues to read as follows: AGENCY: Federal Aviation Administration (FAA), DOT. docket contains this proposed AD, the Authority: 49 U.S.C. 106(g), 40113, 44701, regulatory evaluation, any comments ACTION: 44702, 44704. Notice of proposed rulemaking received, and other information. The (NPRM). 11. Amend § 29.610 by revising street address for the Docket Office paragraph (d)(4) to read as follows: SUMMARY: We propose to adopt a new (telephone 800–647–5527) is in the airworthiness directive (AD) for certain ADDRESSES section. Comments will be § 29.610 Lightning and static electricity available in the AD docket shortly after protection. Model 777–200LR and –300ER series airplanes. This proposed AD would receipt. * * * * * require doing a high frequency eddy FOR FURTHER INFORMATION CONTACT: (d) * * * current inspection for cracking of the Duong Tran, Aerospace Engineer, (4) Reduce to an acceptable level the keyway of the fuel tank access door Airframe Branch, ANM–120S, FAA, effects of static electricity on the cutout on the left and right wings Seattle Aircraft Certification Office, functioning of essential electrical and between wing rib numbers 8 (wing 1601 Lind Avenue, SW., Renton, electronic equipment. station 387) and 9 (wing station 414.5), Washington 98057–3356; telephone § 29.1309 [Amended] and related investigative and corrective (425) 917–6452; fax (425) 917–6590. SUPPLEMENTARY INFORMATION: 12. Amend § 29.1309 by removing actions if necessary. This proposed AD paragraph (h). results from reports of cracks emanating Comments Invited from the keyway of the fuel tank access 13. Add new § 29.1316 to read as We invite you to send any written follows: door cutout of the lower wing skin between wing rib numbers 8 and 9. We relevant data, views, or arguments about § 29.1316 Electrical and electronic system are proposing this AD to prevent loss of this proposed AD. Send your comments lightning protection. the lower wing skin load path, which to an address listed under the (a) Each electrical and electronic could cause catastrophic structural ADDRESSES section. Include ‘‘Docket No. system that performs a function, for failure of the wing. FAA–2010–0280; Directorate Identifier 2009–NM–259–AD’’ at the beginning of which failure would prevent the DATES: We must receive comments on your comments. We specifically invite continued safe flight and landing of the this proposed AD by May 17, 2010. rotorcraft, must be designed and comments on the overall regulatory, ADDRESSES: You may send comments by installed so that— economic, environmental, and energy any of the following methods: (1) The function is not adversely aspects of this proposed AD. We will • Federal eRulemaking Portal: Go to affected during and after the time the consider all comments received by the http://www.regulations.gov. Follow the rotorcraft is exposed to lightning; and closing date and may amend this instructions for submitting comments. (2) The system automatically recovers proposed AD because of those • Fax: 202–493–2251. normal operation of that function in a comments. • Mail: U.S. Department of timely manner after the rotorcraft is We will post all comments we Transportation, Docket Operations, M– exposed to lightning. receive, without change, to http:// 30, West Building Ground Floor, Room (b) Each electrical and electronic www.regulations.gov, including any W12–140, 1200 New Jersey Avenue, SE., system that performs a function, for personal information you provide. We Washington, DC 20590. which failure would reduce the will also post a report summarizing each • Hand Delivery: U.S. Department of capability of the airplane or the ability substantive verbal contact we receive Transportation, Docket Operations, M– of the flightcrew to respond to an about this proposed AD. 30, West Building Ground Floor, Room adverse operating condition, must be W12–140, 1200 New Jersey Avenue, SE., Discussion designed and installed so that— We have received reports of cracks (1) The system is not damaged after Washington, DC 20590, between 9 a.m. emanating from the keyway of the fuel the rotorcraft is exposed to lightning; and 5 p.m., Monday through Friday, tank access door cutout of the lower and except Federal holidays. (2) The function recovers normal For service information identified in wing skin between wing rib numbers 8 operation in a timely manner after the this proposed AD, contact Boeing and 9. The keyway is found on Model rotorcraft is exposed to lightning. Commercial Airplanes, Attention: Data 777–200LR and 777–300ER airplanes at & Services Management, P.O. Box 3707, this location as the access door has a Issued in Washington, DC, on March 29, MC 2H–65, Seattle, Washington 98124– fuel measuring stick installed. The 2010. 2207; telephone 206–544–5000, keyway is used to ensure that the fuel Kalene C. Yanamura, extension 1; fax 206–766–5680; e-mail measuring stick is oriented properly in Acting Director, Aircraft Certification Service. [email protected]; Internet the access door cutout. The crack is the [FR Doc. 2010–7525 Filed 4–1–10; 8:45 am] https://www.myboeingfleet.com. You result of fatigue due to the position of BILLING CODE 4910–13–P may review copies of the referenced the keyway. After the crack initiates, if

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it grows unchecked, it could result in identified unsafe condition. We are List of Subjects in 14 CFR Part 39 the loss of the lower wing skin load path considering similar rulemaking related Air transportation, Aircraft, Aviation with catastrophic structural failure of to the identified unsafe condition for safety, Incorporation by reference, the wing. certain Model 737–900ER airplanes. Safety. Relevant Service Information Costs of Compliance The Proposed Amendment We have reviewed Boeing Alert We estimate that this proposed AD Accordingly, under the authority Service Bulletin 777–57A0069, dated would affect 16 airplanes of U.S. delegated to me by the Administrator, November 5, 2009. The service bulletin registry. We also estimate that it would the FAA proposes to amend 14 CFR part describes procedures for doing a high take 2 work-hours per product to 39 as follows: frequency eddy current (HFEC) comply with this proposed AD. The inspection for cracking at the keyway of average labor rate is $85 per work-hour. PART 39—AIRWORTHINESS the fuel tank access door cutout on the Based on these figures, we estimate the DIRECTIVES left and right wings between wing rib cost of this proposed AD to the U.S. numbers 8 and 9, and corrective actions operators to be $2,720, or $170 per 1. The authority citation for part 39 if necessary. Corrective actions include product. continues to read as follows: making an insurance cut of the keyway Authority: 49 U.S.C. 106(g), 40113, 44701. of the fuel tank access door cutout on Authority for This Rulemaking the left and right wings; contacting Title 49 of the United States Code § 39.13 [Amended] Boeing for repair instructions and doing specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding the repair; and changing the profile of rules on aviation safety. Subtitle I, the following new AD: the keyway of the fuel tank access door section 106, describes the authority of The Boeing Company: Docket No. FAA– cutout on the left and right wings the FAA Administrator. ‘‘Subtitle VII: 2010–0280; Directorate Identifier 2009– including doing a related investigative Aviation Programs,’’ describes in more NM–259–AD. action. The related investigative action detail the scope of the Agency’s Comments Due Date is an HFEC inspection of the machined authority. areas for cracks. (a) We must receive comments by May 17, We are issuing this rulemaking under 2010. FAA’s Determination and Requirements the authority described in ‘‘Subtitle VII, Affected ADs of This Proposed AD Part A, Subpart III, Section 44701: General requirements.’’ Under that (b) None. We are proposing this AD because we section, Congress charges the FAA with Applicability evaluated all relevant information and promoting safe flight of civil aircraft in determined the unsafe condition air commerce by prescribing regulations (c) This AD applies to all The Boeing described previously is likely to exist or Company Model 777–200LR and –300ER for practices, methods, and procedures series airplanes, certificated in any category, develop in other products of the same the Administrator finds necessary for type design. This proposed AD would as identified in Boeing Alert Service Bulletin safety in air commerce. This regulation 777–57A0069, dated November 5, 2009. require accomplishing the actions is within the scope of that authority specified in the service information because it addresses an unsafe condition Subject described previously, except as that is likely to exist or develop on (d) Air Transport Association (ATA) of discussed under ‘‘Differences between products identified in this rulemaking America Code 57: Wings. the Proposed AD and Service Bulletin.’’ action. Unsafe Condition Differences Between the Proposed AD Regulatory Findings (e) This AD results from reports of cracks and Service Bulletin emanating from the keyway of the fuel tank We determined that this proposed AD Boeing Alert Service Bulletin 777– access door cutout of the lower wing skin would not have federalism implications between wing rib numbers 8 and 9. The 57A0069, dated November 5, 2009, under Executive Order 13132. This Federal Aviation Administration is issuing specifies to contact the manufacturer for proposed AD would not have a this AD to prevent loss of the lower wing instructions on how to repair certain substantial direct effect on the States, on skin load path, which could cause conditions, but this proposed AD would the relationship between the national catastrophic structural failure of the wing. require repairing those conditions in Government and the States, or on the Compliance one of the following ways: distribution of power and • Using a method that we approve; or (f) You are responsible for having the • Using data that meet the responsibilities among the various actions required by this AD performed within certification basis of the airplane, and levels of government. the compliance times specified, unless the that have been approved by the Boeing For the reasons discussed above, I actions have already been done. Commercial Airplanes Organization certify this proposed regulation: Inspection 1. Is not a ‘‘significant regulatory Designation Authorization (ODA) whom (g) At the applicable time specified in we have authorized to make those action’’ under Executive Order 12866, paragraphs (g)(1) and (g)(2) of this AD, do a findings. 2. Is not a ‘‘significant rule’’ under the high frequency eddy current (HFEC) DOT Regulatory Policies and Procedures inspection for cracking of the keyway of the Other Rulemaking (44 FR 11034, February 26, 1979), and fuel tank access door cutout on the left and The lower wing skins on The Boeing 3. Will not have a significant right wings between wing rib numbers 8 Company Model 737–900ER airplanes economic impact, positive or negative, (wing station 387) and 9 (wing station 414.5), have fuel tank access door cutouts with on a substantial number of small entities and do all applicable corrective actions under the criteria of the Regulatory including applicable related investigative the same configuration as those of the action (an HFEC inspection for cracking of affected fuel tank access door cutouts on Flexibility Act. machined areas), in accordance with the Model 777–200LR and 777–300ER You can find our regulatory Accomplishment Instructions of Boeing Alert airplanes. Therefore, Model 737–900ER evaluation and the estimated costs of Service Bulletin 777–57A0069, dated airplanes may be subject to the compliance in the AD Docket. November 5, 2009, except as required by

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paragraph (h) of this AD. Do all applicable Issued in Renton, Washington, on March W12–140, 1200 New Jersey Avenue, SE., related investigative and corrective actions 25, 2010. Washington, DC 20590. before further flight. Ali Bahrami, • Hand Delivery: U.S. Department of (1) For Group 1, Configuration 1 airplanes, Manager, Transport Airplane Directorate, Transportation, Docket Operations, M– as identified in Boeing Alert Service Bulletin Aircraft Certification Service. 30, West Building Ground Floor, Room 777–57A0069, dated November 5, 2009: [FR Doc. 2010–7458 Filed 4–1–10; 8:45 am] W12–40, 1200 New Jersey Avenue, SE., Before the accumulation of 3,500 total flight BILLING CODE 4910–13–P Washington, DC, between 9 a.m. and 5 cycles, or within 500 flight cycles after the p.m., Monday through Friday, except effective date of this AD, whichever occurs Federal holidays. later. DEPARTMENT OF TRANSPORTATION For service information identified in (2) For Group 1, Configuration 2 airplanes this proposed AD, contact Airbus SAS— and Group 2 airplanes, as identified in Federal Aviation Administration EAW (Airworthiness Office), 1 Rond Boeing Alert Service Bulletin 777–57A0069, Point Maurice Bellonte, 31707 Blagnac dated November 5, 2009, on which a crack 14 CFR Part 39 Cedex, France; telephone +33 5 61 93 36 was found in the cutout keyway when the [Docket No. FAA–2010–0281; Directorate 96; fax +33 5 61 93 44 51; e-mail: cutout keyway was changed: Within 1,125 Identifier 2009–NM–184–AD] [email protected]; days after the effective date of this AD. Internet http://www.airbus.com. You RIN 2120–AA64 Note 1: For Group 1, Configuration 2 may review copies of the referenced airplanes and Group 2 airplanes, as identified Airworthiness Directives; Airbus Model service information at the FAA, in Boeing Alert Service Bulletin 777– A300–600 and A310 Airplanes Transport Airplane Directorate, 1601 57A0069, dated November 5, 2009, on which Lind Avenue, SW., Renton, Washington. no crack was found in the cutout keyway AGENCY: Federal Aviation For information on the availability of when the cutout keyway was changed: No Administration (FAA), DOT. this material at the FAA, call 425–227– further action is required by this AD. ACTION: Notice of proposed rulemaking 1221. Exceptions to Service Bulletin (NPRM). Examining the AD Docket (h) If any cracking is found during any SUMMARY: We propose to adopt a new You may examine the AD docket on inspection required by this AD, and Boeing airworthiness directive (AD) for the the Internet at http:// Alert Service Bulletin 777–57A0069, dated products listed above. This proposed www.regulations.gov; or in person at the November 5, 2009, specifies to contact AD results from mandatory continuing Docket Operations office between 9 a.m. Boeing for appropriate action: Before further airworthiness information (MCAI) and 5 p.m., Monday through Friday, flight, repair the crack using a method originated by an aviation authority of except Federal holidays. The AD docket approved in accordance with the procedures another country to identify and correct contains this proposed AD, the specified in paragraph (i) of this AD. an unsafe condition on an aviation regulatory evaluation, any comments Alternative Methods of Compliance product. The MCAI describes the unsafe received, and other information. The (AMOCs) condition as: Surface defects were street address for the Docket Operations (i)(1) The Manager, Seattle Aircraft visually detected on the rudder of one office (telephone (800) 647–5527) is in Certification Office (ACO), FAA, has the Airbus A319 and one A321 in-service the ADDRESSES section. Comments will authority to approve AMOCs for this AD, if aeroplane. Investigation has determined be available in the AD docket shortly requested using the procedures found in 14 that the defects reported on both after receipt. CFR 39.19. Send information to ATTN: rudders corresponded to areas that had FOR FURTHER INFORMATION CONTACT: Dan Duong Tran, Aerospace Engineer, Airframe been reworked in production. The Rodina, Aerospace Engineer, Branch, ANM–120S, FAA, Seattle ACO, 1601 investigation confirmed that the defects International Branch, ANM–116, Lind Avenue, SW., Renton, Washington were the result of de-bonding between Transport Airplane Directorate, FAA, 98057–3356; telephone (425) 917–6452; fax the skin and honeycomb core. Such 1601 Lind Avenue, SW., Renton, (425) 917–6590. Or, e-mail information to 9- reworks were also performed on some Washington 98057–3356; telephone [email protected]. rudders fitted on A310 and A300–600 (425) 227–2125; fax (425) 227–1149. aeroplanes. An extended de-bonding, if (2) To request a different method of SUPPLEMENTARY INFORMATION: compliance or a different compliance time not detected and corrected, may degrade for this AD, follow the procedures in 14 CFR the structural integrity of the rudder. Comments Invited 39.19. Before using any approved AMOC on The loss of the rudder leads to We invite you to send any written any airplane to which the AMOC applies, degradation of the handling qualities relevant data, views, or arguments about notify your principal maintenance inspector and reduces the controllability of the this proposed AD. Send your comments (PMI) or principal avionics inspector (PAI), aeroplane. to an address listed under the as appropriate, or lacking a principal The proposed AD would require ADDRESSES section. Include ‘‘Docket No. inspector, your local Flight Standards District actions that are intended to address the FAA–2010–0281; Directorate Identifier Office. The AMOC approval letter must unsafe condition described in the MCAI. 2009–NM–184–AD’’ at the beginning of specifically reference this AD. DATES: We must receive comments on your comments. We specifically invite (3) An AMOC that provides an acceptable this proposed AD by May 17, 2010. comments on the overall regulatory, level of safety may be used for any repair ADDRESSES: You may send comments by economic, environmental, and energy required by this AD if it is approved by the any of the following methods: aspects of this proposed AD. We will Boeing Commercial Airplanes Organization • Federal eRulemaking Portal: Go to consider all comments received by the Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO http://www.regulations.gov. Follow the closing date and may amend this to make those findings. For a repair method instructions for submitting comments. proposed AD based on those comments. • Fax: (202) 493–2251. We have lengthened the 30-day to be approved, the repair must meet the • certification basis of the airplane, and the Mail: U.S. Department of comment period for proposed ADs that approval must specifically refer to this AD. Transportation, Docket Operations, M– address MCAI originated by aviation 30, West Building Ground Floor, Room authorities of other countries to provide

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adequate time for interested parties to obtain further information by examining Aviation Programs,’’ describes in more submit comments. The comment period the MCAI in the AD docket. detail the scope of the Agency’s for these proposed ADs is now typically authority. Relevant Service Information 45 days, which is consistent with the We are issuing this rulemaking under comment period for domestic transport Airbus has issued All Operators Telex the authority described in ‘‘Subtitle VII, ADs. (AOT) A300–55A6047, Revision 02, Part A, Subpart III, Section 44701: We will post all comments we dated October 12, 2009; and AOT A310– General requirements.’’ Under that receive, without change, to http:// 55A2048, Revision 02, dated October section, Congress charges the FAA with www.regulations.gov, including any 12, 2009. The actions described in this promoting safe flight of civil aircraft in personal information you provide. We service information are intended to air commerce by prescribing regulations will also post a report summarizing each correct the unsafe condition identified for practices, methods, and procedures substantive verbal contact we receive in the MCAI. the Administrator finds necessary for about this proposed AD. safety in air commerce. This regulation FAA’s Determination and Requirements is within the scope of that authority Discussion of This Proposed AD because it addresses an unsafe condition This product has been approved by that is likely to exist or develop on The European Aviation Safety Agency the aviation authority of another products identified in this rulemaking (EASA), which is the Technical Agent country, and is approved for operation action. for the Member States of the European in the United States. Pursuant to our Community, has issued EASA Regulatory Findings bilateral agreement with the State of Airworthiness Directive 2010–0002, Design Authority, we have been notified We determined that this proposed AD dated January 5, 2010 (referred to after of the unsafe condition described in the would not have federalism implications this as ‘‘the MCAI’’), to correct an unsafe MCAI and service information under Executive Order 13132. This condition for the specified products. referenced above. We are proposing this proposed AD would not have a The MCAI states: AD because we evaluated all pertinent substantial direct effect on the States, on Surface defects were visually detected on information and determined an unsafe the relationship between the national the rudder of one Airbus A319 and one A321 condition exists and is likely to exist or Government and the States, or on the in-service aeroplane. Investigation has develop on other products of the same distribution of power and determined that the defects reported on both type design. responsibilities among the various rudders corresponded to areas that had been levels of government. reworked in production. The investigation Differences Between This AD and the For the reasons discussed above, I confirmed that the defects were the result of MCAI or Service Information de-bonding between the skin and honeycomb certify this proposed regulation: core. Such reworks were also performed on We have reviewed the MCAI and 1. Is not a ‘‘significant regulatory some rudders fitted on A310 and A300–600 related service information and, in action’’ under Executive Order 12866; aeroplanes. general, agree with their substance. But 2. Is not a ‘‘significant rule’’ under the An extended de-bonding, if not detected we might have found it necessary to use DOT Regulatory Policies and Procedures and corrected, may degrade the structural different words from those in the MCAI (44 FR 11034, February 26, 1979); and integrity of the rudder. The loss of the rudder to ensure the AD is clear for U.S. 3. Will not have a significant leads to degradation of the handling qualities operators and is enforceable. In making economic impact, positive or negative, and reduces the controllability of the these changes, we do not intend to differ on a substantial number of small entities aeroplane. under the criteria of the Regulatory To address this unsafe condition [this substantively from the information provided in the MCAI and related Flexibility Act. EASA AD] requires inspections of specific We prepared a regulatory evaluation areas and, depending on findings, the service information. application of corrective actions for those We might also have proposed of the estimated costs to comply with rudders where production reworks have been different actions in this AD from those this proposed AD and placed it in the identified. in the MCAI in order to follow FAA AD docket. This * * * [EASA] AD * * * also requires policies. Any such differences are List of Subjects in 14 CFR Part 39 for the vacuum loss hole restoration: highlighted in a Note within the Air transportation, Aircraft, Aviation —A local ultrasonic inspection for reinforced proposed AD. area instead of the local thermographic safety, Incorporation by reference, inspection, which is maintained for non- Costs of Compliance Safety. reinforced areas, and Based on the service information, we —Additional work performance for rudders The Proposed Amendment on which this thermographic inspection estimate that this proposed AD would Accordingly, under the authority has been performed in the reinforced area. affect about 194 products of U.S. delegated to me by the Administrator, registry. We also estimate that it would The inspections include vacuum loss the FAA proposes to amend 14 CFR part take about 4 work-hours per product to 39 as follows: inspections and elasticity laminate comply with the basic requirements of checker inspections for defects this proposed AD. The average labor PART 39—AIRWORTHINESS including de-bonding between the skin rate is $85 per work-hour. Based on DIRECTIVES and honeycomb core of the rudder, and these figures, we estimate the cost of the ultrasonic inspections for rudders on proposed AD on U.S. operators to be 1. The authority citation for part 39 which temporary restoration with resin $65,960, or $340 per product. continues to read as follows: or permanent vacuum loss hole Authority: 49 U.S.C. 106(g), 40113, 44701. restoration has been performed. The Authority for This Rulemaking corrective action is contacting the Title 49 of the United States Code § 39.13 [Amended] manufacturer for repair instructions and specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding doing the repair. We are considering rules on aviation safety. Subtitle I, the following new AD: similar rulemaking action on Models section 106, describes the authority of Airbus: Docket No. FAA–2010–0281; A319 and A321 airplanes. You may the FAA Administrator. ‘‘Subtitle VII: Directorate Identifier 2009–NM–184–AD.

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Comments Due Date Applicability airplanes; certificated in any category; (a) We must receive comments by May 17, (c) This AD applies to Airbus Model A300 equipped with carbon fiber reinforced plastic 2010. B4–601, B4–603, B4–620, B4–622, B4–605R, rudders having part numbers and serial B4–622R, F4–605R, F4–622R, and C4–605R numbers listed in Table 1 of this AD. Affected ADs Variant F airplanes; and Model A310–203, (b) None. –204, –221, –222, –304, –322, –324, and –325

TABLE 1—RUDDER INFORMATION

Rudder part No. Affected rudder Core density serial No. 24 kg/m3

A554–71500–016–91 ...... HF–1017 ...... Yes. A554–71500–016–91 ...... HF–1020 ...... No. A554–71500–016–91 ...... HF–1059 ...... No. A554–71500–016–91 ...... HF–1061 ...... No. A554–71500–016–91 ...... HF–1064 ...... No. A554–71500–014–00 ...... HF–1087 ...... Yes. A554–71500–014–00 ...... HF–1119 ...... Yes. A554–71500–016–00 ...... HF–1189 ...... Yes. A554–71500–016–00 ...... HF–1203 ...... Yes. A554–71500–016–00 ...... HF–1266 ...... Yes. A554–71500–026–00 ...... TS–1405 ...... No. A554–71710–000–00 ...... TS–2001 ...... No. A554–71710–000–00 ...... TS–2004 ...... No. A554–71710–000–00 ...... TS–2007 ...... No. A554–71710–000–00 ...... TS–2009 ...... No. A554–71710–000–00 ...... TS–2011 ...... No. A554–71710–000–00 ...... TS–2012 ...... No. A554–71710–000–00 ...... TS–2013 ...... No. A554–71710–000–00 ...... TS–2014 ...... No. A554–71710–000–00 ...... TS–2016 ...... No. A554–71710–000–00 ...... TS–2017 ...... No. A554–71710–000–00 ...... TS–2018 ...... No. A554–71710–000–00 ...... TS–2020 ...... No. A554–71710–000–00 ...... TS–2021 ...... No. A554–71710–000–00 ...... TS–2022 ...... No. A554–71710–000–00 ...... TS–2024 ...... No. A554–71710–000–00 ...... TS–2025 ...... No. A554–71710–000–00 ...... TS–2026 ...... No. A554–71710–000–00 ...... TS–2028 ...... No. A554–71710–000–00 ...... TS–2029 ...... No. A554–71710–002–00 ...... TS–2031 ...... No. A554–71710–002–00 ...... TS–2032 ...... No. A554–71710–002–00 ...... TS–2035 ...... No. A554–71710–002–00 ...... TS–2040 ...... No. A554–71710–002–00 ...... TS–2041 ...... No. A554–71710–002–00 ...... TS–2044 ...... No. A554–71710–002–00 ...... TS–2046 ...... No. A554–71710–004–00 ...... TS–2050 ...... No. A554–71710–004–00 ...... TS–2056 ...... No. A554–71710–004–00 ...... TS–2058 ...... No. A554–71710–004–00 ...... TS–2060 ...... No. A554–71710–004–00 ...... TS–2062 ...... No. A554–71710–004–00 ...... TS–2065 ...... No. A554–71710–004–00 ...... TS–2066 ...... No. A554–71710–004–00 ...... TS–2074 ...... No. A554–71710–004–00 ...... TS–2075 ...... No. A554–71710–004–00 ...... TS–2076 ...... No. A554–71710–004–00 ...... TS–2079 ...... No.

Subject confirmed that the defects were the result of areas and, depending on findings, the (d) Air Transport Association (ATA) of de-bonding between the skin and honeycomb application of corrective actions for those America Code 55: Stabilizers. core. Such reworks were also performed on rudders where production reworks have been some rudders fitted on A310 and A300–600 identified. Reason aeroplanes. This * * * [EASA] AD * * * also requires (e) The mandatory continuing An extended de-bonding, if not detected for the vacuum loss hole restoration: airworthiness information (MCAI) states: and corrected, may degrade the structural —A local ultrasonic inspection for reinforced Surface defects were visually detected on integrity of the rudder. The loss of the rudder area instead of the local thermographic the rudder of one Airbus A319 and one A321 leads to degradation of the handling qualities inspection, which is maintained for non- in-service aeroplane. Investigation has and reduces the controllability of the reinforced areas, and determined that the defects reported on both aeroplane. —Additional work performance for rudders rudders corresponded to areas that had been To address this unsafe condition [this on which this thermographic inspection reworked in production. The investigation EASA AD] requires inspections of specific has been performed in the reinforced area.

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The inspections include vacuum loss protection, and repeat the inspection effective date of this AD, whichever occurs inspections and elasticity laminate checker required by paragraph (g)(3) of this AD at later, do a vacuum loss inspection on the inspections for defects including de-bonding intervals not to exceed 4,500 flight cycles other locations (lower rib/upper edge/leading between the skin and honeycomb core of the until permanent restoration is completed. edge/other location) to detect defects rudder, and ultrasonic inspections for (10) If any defect is found during any including de-bonding. rudders on which temporary restoration with inspection required by paragraphs (g)(1), (7) Accomplishment of the inspection resin or permanent vacuum loss hole (g)(2), (g)(4), and (g)(6) of this AD, at the required by paragraph (h)(6) of this AD restoration has been performed. The applicable time in paragraph (g)(10)(i) or terminates the initial and repetitive corrective action is contacting the (g)(10)(ii) of this AD: Report the inspection inspections required by paragraphs (h)(4) and manufacturer for repair instructions and results to Airbus SAS, SEER1/SEER2/SEER3, (h)(5) of this AD. doing the repair. We are considering similar Customer Services, 1 Rond Point Maurice (8) If any defect is found during any rulemaking action on Models A319 and A321 Bellonte, 31707 Blagnac Cedex, France; fax inspection required by paragraph (h)(1), airplanes. +33 (0) 5 61 93 28 73; or e-mail to (h)(2), (h)(4), or (h)(6) of this AD, before [email protected], Compliance further flight, contact Airbus for repair [email protected], instructions and do the repair. (f) You are responsible for having the or (9) If no defects are found during the actions required by this AD performed within [email protected]. inspections required by paragraphs (h)(1) and the compliance times specified, unless the (i) Inspections done before the effective (h)(6) of this AD, before further flight, restore actions have already been done. date of this AD: Within 30 days after the the vacuum loss holes with the temporary effective date of this AD. Actions and Compliance restoration with self adhesive patches, (ii) Inspections done on or after the temporary restoration with resin, or (g) For rudders with a honeycomb core effective date of this AD: Within 30 days after permanent restoration with resin and surface density of 24 kg/m3, as identified in Table 1 accomplishment of the inspection. protection, and repeat the inspection of this AD, do the actions required in (11) If no defect is found during any required by paragraph (h)(3) of this AD at paragraphs (g)(1) through (g)(10) of this AD, inspection required by paragraphs (g)(1), intervals not to exceed 4,500 flight cycles in accordance with Airbus All Operators (g)(2), (g)(4), and (g)(6) of this AD, at the Telex (AOT) A310–55A2048 or A300– applicable time in (g)(10)(i) or (g)(10)(ii): until permanent restoration is completed. 55A6047, both Revision 02, both dated Report the inspection results to Airbus SAS, (10) If any defect is found during any October 12, 2009, as applicable. Jean-Luc BOITEUX, SEES1, Customer inspection required by paragraphs (h)(1), (1) In the reinforced location: Within 8 Services, fax (0) 5 61 93 36 14; or e-mail to (h)(2), (h)(4), and (h)(6) of this AD, at the months after the effective date of this AD, do [email protected]. applicable time in paragraph (h)(10)(i) or a vacuum loss inspection to detect defects (h) For rudders not having a honeycomb (h)(10)(ii) of this AD: Report the inspection including de-bonding. core density of 24 kg/m3, as identified in results to Airbus SAS, SEER1/SEER2/SEER3, (2) In the trailing edge location: Within 24 Table 1 of this AD, do the actions required Customer Services, 1 Rond Point Maurice months after the effective date of this AD, do in paragraph (h)(1) through (h)(10) of this AD Bellonte, 31707 Blagnac Cedex, France; fax an elasticity laminate checker inspection to in accordance with Airbus AOT A310– +33 (0) 5 61 93 28 73; or e-mail to detect defects including de-bonding. 55A2048 or AOT A300–55A6047, both [email protected], (3) Repeat the inspection required by Revision 02, both dated October 12, 2009, as [email protected], paragraph (g)(2) of this AD two times at applicable. or intervals not to exceed 4,500 flight cycles, (1) In the reinforced location: Within 8 [email protected]. but not fewer than 4,000 flight cycles from months after the rudder has accumulated (i) Inspections done before the effective the last inspection. 13,000 flight cycles since first installation, or date of this AD: Within 30 days after the (4) In other locations (lower rib/upper within 8 months after the effective date of effective date of this AD. edge/leading edge/other locations): Within 8 this AD, whichever occurs later, do a vacuum (ii) Inspections done on or after the months after the effective date of this AD, do loss inspection to detect defects including effective date of this AD: Within 30 days after an elasticity laminate checker inspection to de-bonding. accomplishment of the inspection. detect defects including de-bonding. (2) In the trailing edge location: Within 24 (11) If no defect is found during any (5) Repeat the inspection required by months after the rudder has accumulated inspection required by paragraphs (h)(1), paragraph (g)(4) of this AD at intervals not to 13,000 flight cycles since first installation, or (h)(2), (h)(4), and (h)(6) of this AD, at the exceed 8 months from the last inspection. within 24 months after the effective date of applicable time in (h)(10)(i) or (h)(10)(ii): (6) Within 24 months after the effective this AD, whichever occurs later, do an Report the inspection results to Airbus SAS, date of this AD, do a vacuum loss inspection elasticity laminate checker inspection to Jean-Luc BOITEUX, SEES1, Customer on the other locations (lower rib/upper edge/ detect defects including de-bonding. Services, fax (0) 5 61 93 36 14; or e-mail to leading edge/other locations) to detect (3) Repeat the inspection required by [email protected]. defects including de-bonding. paragraph (h)(2) of this AD two times at (i) Actions done before the effective date of (7) Accomplishment of the inspection intervals not to exceed 4,500 flight cycles, this AD, in accordance with the service required by paragraph (g)(6) of this AD but not fewer than 4,000 flight cycles from information listed in Table 2 of this AD, are terminates the initial and repetitive the last inspection. acceptable for compliance with the inspections required by paragraphs (g)(4) and (4) In other locations (lower rib/upper requirements of paragraphs (g) and (h) of this (g)(5) of this AD. edge/leading edge/other locations): Within 8 AD for the areas inspected, for any rudder (8) If any defect is found during any months after the rudder has accumulated listed in Table 1 of this AD. inspection required by paragraph (g)(1), 13,000 flight cycles since first installation, or (j) Additional areas requiring inspection for (g)(2), (g)(4), or (g)(6) of this AD, before within 8 months after the effective date of all airplanes are defined in Airbus AOT further flight, contact Airbus for repair this AD, whichever occurs later, do an A310–55A2048 or AOT A300–55A6047, both instructions and do the repair. elasticity laminate checker inspection to Revision 02, both dated October 12, 2009, as (9) If no defects are found during any detect defects including de-bonding. applicable. For these additional areas, do the inspection required by paragraphs (g)(1) and (5) Repeat the inspection required by actions required in paragraphs (g) and (h) of (g)(6) of this AD, before further flight, restore paragraph (h)(4) of this AD at intervals not this AD, as applicable, at the times specified the vacuum loss holes with temporary to exceed 8 months from the last inspection. in those paragraphs. For all areas, do the restoration with self-adhesive patches, (6) Within 24 months after the rudder has repetitive inspections required by paragraphs temporary restoration with resin, or accumulated 13,000 flight cycles since first (g) and (h) of this AD as applicable at the permanent restoration with resin and surface installation, or within 24 months after the times specified in those paragraphs.

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TABLE 2—CREDIT SERVICE INFORMATION

Airbus AOT— Revision— Dated—

A300–55A6047 ...... Original ...... May 11, 2009. A300–55A6047 ...... 01 ...... July 8, 2009. A310–55A2048 ...... Original ...... May 11, 2009. A310–55A2048 ...... 01 ...... July 8, 2009.

(k) For rudders on which temporary approved the information collection integrity of the rudder. The loss of the restoration with resin or permanent vacuum requirements and has assigned OMB Control rudder leads to degradation of the loss hole restoration has been done in Number 2120–0056. handling qualities and reduces the accordance with the applicable service controllability of the aeroplane. bulletin in Table 2 of this AD, as required in Related Information paragraph (g)(9) or (h)(9) of this AD, before (n) Refer to MCAI European Aviation The proposed AD would require the effective date of this AD: Within 4,500 Safety Agency (EASA) Airworthiness actions that are intended to address the flight cycles from the restoration date, do an Directive 2010–0002, dated January 5, 2010; unsafe condition described in the MCAI. ultrasonic inspection for defects, including and Airbus AOT A310–55A2048, Revision DATES: We must receive comments on debonding of the reinforced area, in 02, dated October 12, 2009, or Airbus AOT this proposed AD by May 17, 2010. accordance with Airbus AOT A310–55A2048 A300–55A6047, Revision 02, dated October or AOT A300–55A6047, both Revision 02, 12, 2009; for related information. ADDRESSES: You may send comments by both dated October 12, 2009, as applicable. any of the following methods: Issued in Renton, Washington, on March • If any defect is found, before further flight, 25, 2010. Federal eRulemaking Portal: Go to contact Airbus for repair instructions and do Ali Bahrami, http://www.regulations.gov. Follow the the repair. instructions for submitting comments. Manager, Transport Airplane Directorate, (l) After the effective date of this AD, no • Fax: (202) 493–2251. person may install any rudder listed in Table Aircraft Certification Service. • Mail: U.S. Department of 1 of this AD on any airplane, unless the [FR Doc. 2010–7459 Filed 4–1–10; 8:45 am] Transportation, Docket Operations, rudder has been inspected and all applicable BILLING CODE 4910–13–P corrective actions have been done in M–30, West Building Ground Floor, accordance with paragraph (g) or (h) of this Room W12–140, 1200 New Jersey AD. DEPARTMENT OF TRANSPORTATION Avenue, SE., Washington, DC 20590. • FAA AD Differences Hand Delivery: U.S. Department of Federal Aviation Administration Transportation, Docket Operations, Note 1: This AD differs from the MCAI M–30, West Building Ground Floor, and/or service information as follows: No 14 CFR Part 39 Room W12–40, 1200 New Jersey differences. Avenue, SE., Washington, DC, between [Docket No. FAA–2010–0279; Directorate Other FAA AD Provisions Identifier 2009–NM–148–AD] 9 a.m. and 5 p.m., Monday through (m) The following provisions also apply to Friday, except Federal holidays. RIN 2120–AA64 this AD: For service information identified in (1) Alternative Methods of Compliance this proposed AD, contact Airbus, (AMOCs): The Manager, International Airworthiness Directives; Airbus Model Airworthiness Office—EAS, 1 Rond Branch, ANM–116, FAA, has the authority to A318, A319, A320, and A321 Series Point Maurice Bellonte, 31707 Blagnac approve AMOCs for this AD, if requested Airplanes Cedex, France; fax +33 5 61 93 44 51; using the procedures found in 14 CFR 39.19. AGENCY: Federal Aviation e-mail: account.airworth- Send information to ATTN: Dan Rodina, [email protected]; Internet http:// Aerospace Engineer, International Branch, Administration (FAA), DOT. ANM–116, Transport Airplane Directorate, ACTION: Notice of proposed rulemaking www.airbus.com. You may review FAA, 1601 Lind Avenue, SW., Renton, (NPRM). copies of the referenced service Washington 98057–3356; telephone (425) information at the FAA, Transport 227–2125; fax (425) 227–1149. Before using SUMMARY: We propose to adopt a new Airplane Directorate, 1601 Lind any approved AMOC on any airplane to airworthiness directive (AD) for the Avenue, SW., Renton, Washington. For which the AMOC applies, notify your products listed above. This proposed information on the availability of this principal maintenance inspector (PMI) or AD results from mandatory continuing material at the FAA, call 425–227–1221 principal avionics inspector (PAI), as airworthiness information (MCAI) or 425–227–1152. appropriate, or lacking a principal inspector, originated by an aviation authority of your local Flight Standards District Office. another country to identify and correct Examining the AD Docket The AMOC approval letter must specifically reference this AD. an unsafe condition on an aviation You may examine the AD docket on (2) Airworthy Product: For any requirement product. The MCAI describes the unsafe the Internet at http:// in this AD to obtain corrective actions from condition as: Surface defects were www.regulations.gov; or in person at the a manufacturer or other source, use these visually detected on the rudder of one Docket Operations office between 9 a.m. actions if they are FAA-approved. Corrective A319 and one A321 in-service and 5 p.m., Monday through Friday, actions are considered FAA-approved if they aeroplane. Investigation has determined except Federal holidays. The AD docket are approved by the State of Design Authority that the defects reported on both contains this proposed AD, the (or their delegated agent). You are required rudders corresponded to areas that had regulatory evaluation, any comments to assure the product is airworthy before it been reworked in production. The received, and other information. The is returned to service. (3) Reporting Requirements: For any investigation confirmed that the defects street address for the Docket Operations reporting requirement in this AD, under the were a result of de-bonding between the office (telephone (800) 647–5527) is in provisions of the Paperwork Reduction Act skin and honeycomb core. An extended the ADDRESSES section. Comments will (44 U.S.C. 3501 et seq.), the Office of de-bonding, if not detected and be available in the AD docket shortly Management and Budget (OMB) has corrected, may degrade the structural after receipt.

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FOR FURTHER INFORMATION CONTACT: Tim corrective actions for those rudders where this proposed AD. The average labor Dulin, Aerospace Engineer, production reworks have been identified. rate is $85 per work-hour. Based on International Branch, ANM–116, Inspections include vacuum loss these figures, we estimate the cost of the Transport Airplane Directorate, FAA, inspections for de-bonding of the proposed AD on U.S. operators to be 1601 Lind Avenue, SW., Renton, rudders in reinforced areas and other $144,925, or $935 per product. Washington 98057–3356; telephone areas (splice/lower rib/upper edge/ Authority for This Rulemaking (425) 227–2141; fax (425) 227–1149. leading edge/other specified locations), SUPPLEMENTARY INFORMATION: and elasticity laminate checks for de- Title 49 of the United States Code bonding of the rudders in the trailing specifies the FAA’s authority to issue Comments Invited edge area and other areas (splice/lower rules on aviation safety. Subtitle I, We invite you to send any written rib/upper edge/leading edge/other section 106, describes the authority of relevant data, views, or arguments about specified locations). Corrective actions the FAA Administrator. ‘‘Subtitle VII: this proposed AD. Send your comments include contacting Airbus for further Aviation Programs,’’ describes in more to an address listed under the instruction and doing the repair. You detail the scope of the Agency’s ADDRESSES section. Include ‘‘Docket No. may obtain further information by authority. FAA–2010–0279; Directorate Identifier examining the MCAI in the AD docket. We are issuing this rulemaking under 2009–NM–148–AD’’ at the beginning of the authority described in ‘‘Subtitle VII, your comments. We specifically invite Relevant Service Information Part A, Subpart III, Section 44701: comments on the overall regulatory, Airbus has issued All Operators Telex General requirements.’’ Under that economic, environmental, and energy A320–55A1038, Revision 02, dated section, Congress charges the FAA with aspects of this proposed AD. We will September 28, 2009. The actions promoting safe flight of civil aircraft in consider all comments received by the described in this service information are air commerce by prescribing regulations closing date and may amend this intended to correct the unsafe condition for practices, methods, and procedures proposed AD based on those comments. identified in the MCAI. the Administrator finds necessary for We have lengthened the 30-day safety in air commerce. This regulation FAA’s Determination and Requirements comment period for proposed ADs that is within the scope of that authority of This Proposed AD address MCAI originated by aviation because it addresses an unsafe condition authorities of other countries to provide This product has been approved by that is likely to exist or develop on adequate time for interested parties to the aviation authority of another products identified in this rulemaking submit comments. The comment period country, and is approved for operation action. for these proposed ADs is now typically in the United States. Pursuant to our Regulatory Findings 45 days, which is consistent with the bilateral agreement with the State of comment period for domestic transport Design Authority, we have been notified We determined that this proposed AD ADs. of the unsafe condition described in the would not have federalism implications We will post all comments we MCAI and service information under Executive Order 13132. This receive, without change, to http:// referenced above. We are proposing this proposed AD would not have a www.regulations.gov, including any AD because we evaluated all pertinent substantial direct effect on the States, on personal information you provide. We information and determined an unsafe the relationship between the national will also post a report summarizing each condition exists and is likely to exist or Government and the States, or on the substantive verbal contact we receive develop on other products of the same distribution of power and about this proposed AD. type design. responsibilities among the various levels of government. Differences Between This AD and the Discussion For the reasons discussed above, I MCAI or Service Information The European Aviation Safety Agency certify this proposed regulation: (EASA), which is the Technical Agent We have reviewed the MCAI and 1. Is not a ‘‘significant regulatory for the Member States of the European related service information and, in action’’ under Executive Order 12866; Community, has issued EASA general, agree with their substance. But 2. Is not a ‘‘significant rule’’ under the Airworthiness Directive 2009–0141, we might have found it necessary to use DOT Regulatory Policies and Procedures dated July 2, 2009 (referred to after this different words from those in the MCAI (44 FR 11034, February 26, 1979); and as ‘‘the MCAI’’), to correct an unsafe to ensure the AD is clear for U.S. 3. Will not have a significant condition for the specified products. operators and is enforceable. In making economic impact, positive or negative, The MCAI states: these changes, we do not intend to differ on a substantial number of small entities Surface defects were visually detected on substantively from the information under the criteria of the Regulatory the rudder of one A319 and one A321 in- provided in the MCAI and related Flexibility Act. service aeroplane. service information. We prepared a regulatory evaluation Investigation has determined that the We might also have proposed of the estimated costs to comply with defects reported on both rudders different actions in this AD from those this proposed AD and placed it in the corresponded to areas that had been in the MCAI in order to follow FAA AD docket. reworked in production. The investigation policies. Any such differences are confirmed that the defects were a result of highlighted in a NOTE within the List of Subjects in 14 CFR Part 39 de-bonding between the skin and honeycomb proposed AD. Air transportation, Aircraft, Aviation core. safety, Incorporation by reference, An extended de-bonding, if not detected Costs of Compliance Safety. and corrected, may degrade the structural Based on the service information, we integrity of the rudder. The loss of the rudder The Proposed Amendment leads to degradation of the handling qualities estimate that this proposed AD would and reduces the controllability of the affect about 155 products of U.S. Accordingly, under the authority aeroplane. registry. We also estimate that it would delegated to me by the Administrator, This AD requires inspections of specific take about 11 work-hours per product to the FAA proposes to amend 14 CFR part areas and, when necessary, the application of comply with the basic requirements of 39 as follows:

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PART 39—AIRWORTHINESS Airbus: Docket No. FAA–2010–0279; A319–111, –112, –113, –114, –115, –131, DIRECTIVES Directorate Identifier 2009–NM–148–AD. –132, and –133 airplanes; Model A320–111, Comments Due Date –211, –212, –214, –231, –232, and –233 airplanes; and Model A321–111, –112, –131, 1. The authority citation for part 39 (a) We must receive comments by May 17, –211, –212, –213, –231, and –232 airplanes; continues to read as follows: 2010. certificated in any category, all manufacturer Authority: 49 U.S.C. 106(g), 40113, 44701. Affected ADs serial numbers (S/Ns), if equipped with § 39.13 [Amended] (b) None. carbon fiber reinforced plastic rudders having part numbers (P/Ns) and S/Ns as Applicability 2. The FAA amends § 39.13 by adding listed in Table 1 of this AD. (c) This AD applies to Airbus Model A318– the following new AD: BILLING CODE 4910–13–P 111, –112, –121, and –122 airplanes; Model

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BILLING CODE 4910–13–C the compliance times specified, unless the with Airbus AOT A320–55A1038, Revision Note 1: Only rudder P/N D554 71000 010 actions have already been done. 02, dated September 28, 2009, for the locations defined in the AOT. For this AD, 00 having affected rudder S/Ns TS–1069 and Actions TS–1090 and rudder P/N D554 71000 012 00 ‘‘reference date’’ is defined as the effective having affected rudder S/N TS–1227, have a (g) For rudders with a honeycomb core date of this AD or the date when the rudder core density of 24 kilogram (kg)/meters cubed density of 24 kg/m3 (rudder P/N D554 71000 will accumulate 20,000 total flight cycles (m3). 010 00 having affected rudder S/Ns TS–1069 from its first installation on an airplane, and TS–1090 and rudder P/N D554 71000 whichever occurs later. Subject 012 00 having affected rudder S/N TS–1227), (1) Within 200 days after the reference (d) Air Transport Association (ATA) of do the actions specified in paragraphs (g)(1), date, perform a vacuum loss inspection on America Code 55: Stabilizers. (g)(2), (g)(3), and (g)(4) of this AD, in the rudder reinforced area. accordance with Airbus All Operators Telex (2) Within 20 months after the reference Reason (AOT) A320–55A1038, Revision 02, dated date, perform an elasticity laminate checker (e) The mandatory continuing September 28, 2009, for the locations defined inspection on the rudder trailing edge area. airworthiness information (MCAI) states: in the AOT. Repeat the inspection two times at intervals Surface defects were visually detected on (1) Within 200 days after the effective date not to exceed 4,500 flight cycles but not the rudder of one A319 and one A321 in- of this AD, perform a vacuum loss inspection sooner than 4,000 flight cycles after the last service aeroplane. on the rudder reinforced area. inspection. Investigation has determined that the (2) Within 20 months after the effective (3) Within 200 days after the reference defects reported on both rudders date of this AD, perform an elasticity date, perform an elasticity laminate checker corresponded to areas that had been laminate checker inspection on the rudder inspection of the other areas (splice/lower reworked in production. The investigation trailing edge area. Repeat the inspection two rib/upper edge/leading edge/other specified confirmed that the defects were a result of times, at intervals not to exceed 4,500 flight locations). Repeat the inspection at intervals de-bonding between the skin and honeycomb cycles but not sooner than 4,000 flight cycles not to exceed 1,500 flight cycles or 200 days, core. after the last inspection. whichever comes first. An extended de-bonding, if not detected (3) Within 200 days after the effective date (4) Within 20 months after the reference and corrected, may degrade the structural of this AD, perform an elasticity laminate date, perform a vacuum loss inspection of the integrity of the rudder. The loss of the rudder checker inspection of the other areas (splice/ other areas (splice/lower rib/upper edge/ leads to degradation of the handling qualities lower rib/upper edge/leading edge/and other leading edge/other specified locations). and reduces the controllability of the specified locations). Repeat the inspection at Accomplishment of the actions specified in aeroplane. intervals not to exceed 1,500 flight cycles or this paragraph terminates the requirements of This AD requires inspections of specific 200 days, whichever comes first. paragraph (h)(3) of this AD. areas and, when necessary, the application of (4) Within 20 months after the effective (i) In case of de-bonding found during any corrective actions for those rudders where date of this AD, perform a vacuum loss inspection required by paragraph (g) or (h) of production reworks have been identified. inspection of the other areas (splice/lower this AD, before further flight, contact Airbus Inspections include vacuum loss rib/upper edge/leading edge/other specified for further instructions and apply the inspections for de-bonding of the rudders in locations). Accomplishment of the action associated instructions and corrective actions reinforced areas and other areas (splice/lower specified in paragraph (g)(4) of this AD in accordance with the approved data rib/upper edge/leading edge/other specified terminates the requirements of paragraph provided. locations), and elasticity laminate checks for (g)(3) of this AD. (j) At the applicable time specified in de-bonding of the rudders in the trailing edge (h) For rudders that do not have a paragraph (j)(1) or (j)(2) of this AD, submit a area and other areas (splice/lower rib/upper honeycomb core density of 24 kg/m3 (all report of the findings (both positive and edge/leading edge/other specified locations). rudders identified in Table 1 of this AD, negative), of each inspection required by Corrective actions include contacting Airbus except: Rudder P/N D554 71000 010 00 paragraphs (g) and (h) of this AD. The report for further instruction and doing the repair. having affected rudder S/Ns TS–1069 and must include the inspection results, as TS–1090 and rudder P/N D554 71000 012 00 specified in Airbus Technical Disposition Compliance having affected rudder S/N TS–1227), do the TD/K4/S2/27086/2009, Issue E, dated (f) You are responsible for having the actions specified in paragraphs (h)(1), (h)(2), September 17, 2009. For positive findings, actions required by this AD performed within (h)(3), and (h)(4) of this AD, in accordance submit the report to the Manager, Seer1/

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Seer2/Seer3 Customer Services; fax +33 (0)5 are approved by the State of Design Authority consequently to engine separation from 61 93 28 73; e-mail (or their delegated agent). You are required the aeroplane during flight, which [email protected], to assure the product is airworthy before it would constitute an unsafe condition. [email protected], is returned to service. The proposed AD would require or (3) Reporting Requirements: For any actions that are intended to address the [email protected]. reporting requirement in this AD, under the For negative findings, submit the report to provisions of the Paperwork Reduction Act unsafe condition described in the MCAI. Nicolas Seynaeve, Sees1, Customer Services; (44 U.S.C. 3501 et seq.), the Office of DATES: We must receive comments on telephone +33 (0)5 61 93 34 38; fax +33 (0)5 Management and Budget (OMB) has this proposed AD by May 17, 2010. 61 93 36 14; e-mail approved the information collection ADDRESSES: You may send comments by [email protected]. requirements and has assigned OMB Control any of the following methods: (1) For any inspection done on or after the Number 2120–0056. • Federal eRulemaking Portal: Go to effective date of this AD: Submit the report http://www.regulations.gov. Follow the within 30 days after the inspection. Related Information (2) For any inspection done before the (n) Refer to MCAI European Aviation instructions for submitting comments. • Fax: (202) 493–2251. effective date of this AD: Submit the report Safety Agency Airworthiness Directive 2009– • within 30 days after the effective date of this 0141, dated July 2, 2009; Airbus All Mail: U.S. Department of AD. Operators Telex A320–55A1038, Revision 02, Transportation, Docket Operations, M– (k) All rudders that have passed the dated September 28, 2009; and Airbus 30, West Building Ground Floor, Room inspection specified in paragraphs (g)(1), Technical Disposition TD/K4/S2/27086/ W12–140, 1200 New Jersey Avenue, SE., (g)(2), (g)(3), (g)(4), (h)(1), (h)(2), (h)(3), and 2009, Issue E, dated September 17, 2009; for Washington, DC 20590. (h)(4) of this AD, before the effective date of related information. • Hand Delivery: U.S. Department of this AD in accordance with Airbus AOT Transportation, Docket Operations, M– A320–55A1038, dated April 22, 2009; AOT Issued in Renton, Washington, on March 25, 2010. 30, West Building Ground Floor, Room A320–55A1038, Revision 01, dated June 10, W12–40, 1200 New Jersey Avenue, SE., 2009; or Airbus Technical Disposition TD/ Ali Bahrami, K4/S2/27051/2009, Issue B, dated February Manager, Transport Airplane Directorate, Washington, DC, between 9 a.m. and 5 25, 2009; are compliant with this AD for the Aircraft Certification Service. p.m., Monday through Friday, except Federal holidays. areas inspected; except additional areas [FR Doc. 2010–7461 Filed 4–1–10; 8:45 am] requiring inspection, as defined in Section 0, For service information identified in ‘‘Reason for Revision,’’ of Airbus AOT A320– BILLING CODE 4910–13–P this proposed AD, contact Airbus SAS— 55A1038, Revision 02, dated September 28, Airworthiness Office—EAL, 1 Rond 2009, must be inspected as specified in DEPARTMENT OF TRANSPORTATION Point Maurice Bellonte, 31707 Blagnac paragraph (g) or (h) of this AD. For all areas, Cedex, France; telephone +33 5 61 93 36 the repetitive inspections required by 96; fax +33 5 61 93 45 80; e-mail paragraph (g) or (h) of this AD remain Federal Aviation Administration applicable. airworthiness.A330–[email protected]; (l) After the effective date of this AD, no 14 CFR Part 39 Internet http://www.airbus.com. You rudder listed in Table 1 of this AD may be may review copies of the referenced installed on any airplane, unless the rudder [Docket No. FAA–2010–0278; Directorate service information at the FAA, is in compliance with the requirements of Identifier 2009–NM–255–AD] Transport Airplane Directorate, 1601 this AD. RIN 2120–AA64 Lind Avenue, SW., Renton, Washington. FAA AD Differences For information on the availability of Airworthiness Directives; Airbus Model this material at the FAA, call 425–227– Note 2: This AD differs from the MCAI A330–223, –321, –322, and –323 1221. and/or service information as follows: No differences. Airplanes Examining the AD Docket Other FAA AD Provisions AGENCY: Federal Aviation You may examine the AD docket on Administration (FAA), DOT. the Internet at http:// (m) The following provisions also apply to www.regulations.gov; or in person at the this AD: ACTION: Notice of proposed rulemaking (1) Alternative Methods of Compliance (NPRM). Docket Operations office between 9 a.m. (AMOCs): The Manager, International and 5 p.m., Monday through Friday, Branch, ANM–116, Transport Airplane SUMMARY: We propose to adopt a new except Federal holidays. The AD docket Directorate, FAA, has the authority to airworthiness directive (AD) for the contains this proposed AD, the approve AMOCs for this AD, if requested products listed above. This proposed regulatory evaluation, any comments using the procedures found in 14 CFR 39.19. AD results from mandatory continuing received, and other information. The Send information to ATTN: Tim Dulin, airworthiness information (MCAI) street address for the Docket Operations Aerospace Engineer, International Branch, originated by an aviation authority of office (telephone (800) 647–5527) is in ANM–116, Transport Airplane Directorate, another country to identify and correct the ADDRESSES section. Comments will FAA, 1601 Lind Avenue, SW., Renton, be available in the AD docket shortly Washington 98057–3356; telephone (425) an unsafe condition on an aviation 227–2141; fax (425) 227–1149. Before using product. The MCAI describes the unsafe after receipt. any approved AMOC on any airplane to condition as: During accomplishment of FOR FURTHER INFORMATION CONTACT: which the AMOC applies, notify your Damage Tolerant—Airworthiness Vladimir Ulyanov, Aerospace Engineer, principal maintenance inspector (PMI) or Limitation Item task 712106–01–01 from International Branch, ANM–116, principal avionics inspector (PAI), as A330 ALS Part 2, an A330 operator Transport Airplane Directorate, FAA, appropriate, or lacking a principal inspector, found a Fluorescent Penetrant 1601 Lind Avenue, SW., Renton, your local Flight Standards District Office. Inspection (FPI) indication in the head Washington 98057–3356; telephone The AMOC approval letter must specifically of the shank filet radius in one of the reference this AD. (425) 227–1138; fax (425) 227–1149. (2) Airworthy Product: For any requirement Pratt & Whitney (PW) forward (FWD) SUPPLEMENTARY INFORMATION: engine mount pylon bolts. Dual-bolt in this AD to obtain corrective actions from Comments Invited a manufacturer or other source, use these fractures could lead to inability for actions if they are FAA-approved. Corrective mount assembly to sustain loads which We invite you to send any written actions are considered FAA-approved if they may lead to an engine mount failure and relevant data, views, or arguments about

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this proposed AD. Send your comments Appendix 1, dated June 10, 2009. The section 106, describes the authority of to an address listed under the actions described in this service the FAA Administrator. ‘‘Subtitle VII: ADDRESSES section. Include ‘‘Docket No. information are intended to correct the Aviation Programs,’’ describes in more FAA–2010–0278; Directorate Identifier unsafe condition identified in the detail the scope of the Agency’s 2009–NM–255–AD’’ at the beginning of MCAI. authority. your comments. We specifically invite We are issuing this rulemaking under FAA’s Determination and Requirements comments on the overall regulatory, the authority described in ‘‘Subtitle VII, of This Proposed AD economic, environmental, and energy Part A, Subpart III, Section 44701: aspects of this proposed AD. We will This product has been approved by General requirements.’’ Under that consider all comments received by the the aviation authority of another section, Congress charges the FAA with closing date and may amend this country, and is approved for operation promoting safe flight of civil aircraft in proposed AD based on those comments. in the United States. Pursuant to our air commerce by prescribing regulations We have lengthened the 30-day bilateral agreement with the State of for practices, methods, and procedures comment period for proposed ADs that Design Authority, we have been notified the Administrator finds necessary for address MCAI originated by aviation of the unsafe condition described in the safety in air commerce. This regulation authorities of other countries to provide MCAI and service information is within the scope of that authority adequate time for interested parties to referenced above. We are proposing this because it addresses an unsafe condition submit comments. The comment period AD because we evaluated all pertinent that is likely to exist or develop on for these proposed ADs is now typically information and determined an unsafe products identified in this rulemaking 45 days, which is consistent with the condition exists and is likely to exist or action. develop on other products of the same comment period for domestic transport Regulatory Findings ADs. type design. We will post all comments we We determined that this proposed AD Differences Between This AD and the would not have federalism implications receive, without change, to http:// MCAI or Service Information www.regulations.gov, including any under Executive Order 13132. This personal information you provide. We We have reviewed the MCAI and proposed AD would not have a will also post a report summarizing each related service information and, in substantial direct effect on the States, on substantive verbal contact we receive general, agree with their substance. But the relationship between the national about this proposed AD. we might have found it necessary to use Government and the States, or on the different words from those in the MCAI distribution of power and Discussion to ensure the AD is clear for U.S. responsibilities among the various The European Aviation Safety Agency operators and is enforceable. In making levels of government. (EASA), which is the Technical Agent these changes, we do not intend to differ For the reasons discussed above, I for the Member States of the European substantively from the information certify this proposed regulation: Community, has issued EASA provided in the MCAI and related 1. Is not a ‘‘significant regulatory Airworthiness Directive 2009–0240, service information. action’’ under Executive Order 12866; ‘‘ ’’ dated November 5, 2009 (referred to We might also have proposed 2. Is not a significant rule under the after this as ‘‘the MCAI’’), to correct an different actions in this AD from those DOT Regulatory Policies and Procedures unsafe condition for the specified in the MCAI in order to follow FAA (44 FR 11034, February 26, 1979); and 3. Will not have a significant products. The MCAI states: policies. Any such differences are highlighted in a Note within the economic impact, positive or negative, During accomplishment of Damage proposed AD. on a substantial number of small entities Tolerant—Airworthiness Limitation Item task under the criteria of the Regulatory 712106–01–01 from A330 ALS Part 2, an Costs of Compliance Flexibility Act. A330 operator found a Fluorescent Penetrant We prepared a regulatory evaluation Inspection (FPI) indication in the head of the Based on the service information, we shank filet radius in one of the Pratt & estimate that this proposed AD would of the estimated costs to comply with Whitney (PW) forward (FWD) engine mount affect about 41 products of U.S. registry. this proposed AD and placed it in the pylon bolts. We also estimate that it would take AD docket. Investigation has confirmed that this FPI about 7 work-hours per product to List of Subjects in 14 CFR Part 39 indication was due to a quality comply with the basic requirements of manufacturing process issue which led to a this proposed AD. The average labor Air transportation, Aircraft, Aviation bolt non-conformance and is also applicable rate is $85 per work-hour. Required safety, Incorporation by reference, to aft ward (AFT) mount pylon bolts. parts would cost about $16,672 per Safety. Dual-bolt fractures could lead to inability for mount assembly to sustain loads which product. Where the service information The Proposed Amendment lists required parts costs that are may lead to an engine mount failure and Accordingly, under the authority covered under warranty, we have consequently to engine separation from the delegated to me by the Administrator, assumed that there will be no charge for aeroplane during flight, which would the FAA proposes to amend 14 CFR part constitute an unsafe condition. these costs. As we do not control 39 as follows: This AD requires a one time detailed visual warranty coverage for affected parties, inspection of the FWD and AFT mount pylon some parties may incur costs higher PART 39—AIRWORTHINESS bolts on all A330 aeroplanes fitted with PW than estimated here. Based on these DIRECTIVES engines (8 bolts per engine) and replacement figures, we estimate the cost of the of any affected bolt. proposed AD on U.S. operators to be 1. The authority citation for part 39 You may obtain further information by $707,947, or $17,267 per product. continues to read as follows: examining the MCAI in the AD docket. Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. Relevant Service Information Title 49 of the United States Code § 39.13 [Amended] Airbus has issued Mandatory Service specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding Bulletin A330–71–3020, including rules on aviation safety. Subtitle I, the following new AD:

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Airbus: Docket No. FAA–2010–0278; Mandatory Service Bulletin A330–71–3020, Issued in Renton, Washington, on March Directorate Identifier 2009–NM–255–AD. dated June 10, 2009. 25, 2010. Comments Due Date (i) If the bolt part number, serial number, Ali Bahrami, or lot number is unreadable, before further (a) We must receive comments by May 17, Manager, Transport Airplane Directorate, flight remove the affected bolt and replace 2010. Aircraft Certification Service. with a serviceable bolt, in accordance with [FR Doc. 2010–7460 Filed 4–1–10; 8:45 am] Affected ADs the Accomplishment Instructions of Airbus BILLING CODE 4910–13–P (b) None. Mandatory Service Bulletin A330–71–3020, dated June 10, 2009. Applicability (j) As of the effective date of this AD, no (c) This AD applies to Airbus Model A330– OFFICE OF THE DIRECTOR OF person may install any forward or aft mount NATIONAL INTELLIGENCE 223, –321, –322, and –323 airplanes; pylon bolt on any airplane, unless this bolt certificated in any category; all manufacturer has been identified as a non-suspect bolt, in serial numbers. 32 CFR Part 1701 accordance with the Accomplishment Subject Instructions of Airbus Mandatory Service Privacy Act of 1974: Implementation (d) Air Transport Association (ATA) of Bulletin A330–71–3020, dated June 10, 2009. America Code 71: Powerplant. (k) Although Airbus Mandatory Service AGENCY: Office of the Director of National Intelligence. Reason Bulletin A330–71–3020, dated June 10, 2009, specifies to submit certain information to the ACTION: Proposed rulemaking. (e) The mandatory continuing manufacturer, this AD does not include that airworthiness information (MCAI) states: requirement. SUMMARY: The Office of the Director of During accomplishment of Damage National Intelligence (ODNI) proposes Tolerant—Airworthiness Limitation Item task FAA AD Differences to exempt fourteen (14) new systems of 712106–01–01 from A330 ALS Part 2, an A330 operator found a Fluorescent Penetrant Note 1: This AD differs from the MCAI records from subsections (c)(3); (d)(1), Inspection (FPI) indication in the head of the and/or service information as follows: (2), (3), (4); (e)(1) and (e)(4)(G), (H), (I); shank filet radius in one of the Pratt & Although the MCAI or service information and (f) of the Privacy Act, pursuant to Whitney (PW) forward (FWD) engine mount tells you to submit information to the 5 U.S.C. 552a(k). pylon bolts. manufacturer, paragraph (k) of this AD DATES: Submit comments on or before Investigation has confirmed that this FPI specifies that such submittal is not required. May 12, 2010. indication was due to a quality ADDRESSES: manufacturing process issue which led to a Other FAA AD Provisions You may submit comments bolt non-conformance and is also applicable by any of the following methods: to aft ward (AFT) mount pylon bolts. (l) The following provisions also apply to Federal eRulemaking Portal: http:// Dual-bolt fractures could lead to inability this AD: www.regulations.gov. for mount assembly to sustain loads which (1) Alternative Methods of Compliance Mail: Director, Information may lead to an engine mount failure and (AMOCs): The Manager, International Management, Office of the Director of consequently to engine separation from the Branch, ANM–116, Transport Airplane National Intelligence, Washington DC, aeroplane during flight, which would Directorate, FAA, has the authority to 20511. constitute an unsafe condition. approve AMOCs for this AD, if requested This AD requires a one time detailed visual using the procedures found in 14 CFR 39.19. FOR FURTHER INFORMATION CONTACT: Mr. inspection of the FWD and AFT mount pylon Send information to ATTN: Vladimir John F. Hackett, Director, Information bolts on all A330 aeroplanes fitted with PW Management, (703) 275–2215. engines (8 bolts per engine) and replacement Ulyanov, Aerospace Engineer, International of any affected bolt. Branch, ANM–116, Transport Airplane SUPPLEMENTARY INFORMATION: In Directorate, FAA, 1601 Lind Avenue, SW., compliance with the Privacy Act, 5 Compliance Renton, Washington 98057–3356; telephone U.S.C. 552a(e)(4), the ODNI describes in (f) You are responsible for having the (425) 227–1138; fax (425) 227–1149. Before the notice section of today’s Federal actions required by this AD performed within using any approved AMOC on any airplane Register the following fourteen (14) new the compliance times specified, unless the to which the AMOC applies, notify your systems of records: Manuscript, actions have already been done. principal maintenance inspector (PMI) or Presentation and Resume Review Actions principal avionics inspector (PAI), as Records; Executive Secretary Action (g) Do a detailed inspection to determine appropriate, or lacking a principal inspector, Management System Records; Public the part number, serial number, and lot your local Flight Standards District Office. Affairs Office Records; Office of number of the forward and aft mount pylon The AMOC approval letter must specifically Legislative Affairs Records; ODNI Guest bolts on both engines, in accordance with the reference this AD. Speaker Records; Office of General Accomplishment Instructions of Airbus (2) Airworthy Product: For any requirement Counsel Records; Analytic Resources Mandatory Service Bulletin A330–71–3020, in this AD to obtain corrective actions from Catalog; Intelligence Community dated June 10, 2009. Inspect at the later of a manufacturer or other source, use these Customer Registry; EEO and Diversity the times specified in paragraphs (g)(1) and actions if they are FAA-approved. Corrective (g)(2) of this AD. Office Records; Office of Protocol actions are considered FAA-approved if they Records; IC Security Clearance and (1) Before the accumulation of 8,000 total are approved by the State of Design Authority Access Approval Repository; Security flight cycles or 24,000 total flight hours, (or their delegated agent). You are required whichever occurs first. Clearance Reform Research Records; to assure the product is airworthy before it (2) Within 24 months after the effective is returned to service. Civil Liberties and Privacy Office date of this AD. Complaint Records, and National (h) If the identified part number, serial Related Information Intelligence Council Consultation number, or lot number corresponds to a Records. The ODNI has previously suspect bolt number identified in Pratt & (m) Refer to MCAI European Aviation Whitney Service Bulletin PW4G–100–71–35, Safety Agency (EASA) Airworthiness established a rule that it will preserve dated March 14, 2008, before further flight Directive 2009–0240, dated November 5, the exempt status of records it receives remove the affected bolt and replace with a 2009; and Airbus Mandatory Service Bulletin when the reason for the exemption serviceable bolt, in accordance with the A330–71–3020, dated June 10, 2009; for remains valid (73 FR 166531, March 28, Accomplishment Instructions of Airbus related information. 2008).

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Regulatory Flexibility Act imposes no Federal mandate on any (2) Executive Secretary Action This proposed rule affects the manner State, local, or tribal government or on Management System Records (ODNI–02) in which ODNI collects and maintains the private sector. Accordingly, no (3) Public Affairs Office Records information about individuals. ODNI UMRA analysis of economic and (ODNI–03) certifies that this rulemaking will not regulatory alternatives is required. (4) Office of Legislative Affairs Records (ODNI–04) have a significant economic impact on Executive Order 13132, Federalism a substantial number of small entities. (5) ODNI Guest Speaker Records Accordingly, pursuant to the Regulatory Executive Order 13132 requires ODNI (ODNI–05) (6) Office of General Counsel Records Flexibility Act, 5 U.S.C. 601–612, no to examine the implications for the regulatory flexibility analysis is required distribution of power and (ODNI–06) (7) Analytic Resources Catalog for this rule. responsibilities among the various levels of government resulting from this (ODNI–07) Small Entity Inquiries proposed rule. ODNI concludes that the (8) Intelligence Community Customer The Small Business Regulatory proposed rule does not affect the rights, Registry (ODNI–09) Enforcement Fairness Act (SBREFA) of roles and responsibilities of the States, (9) EEO and Diversity Office Records 1996 requires the ODNI to comply with involves no preemption of State law and (ODNI–10) small entity requests for information does not limit State policymaking (10) Office of Protocol Records and advice about compliance with discretion. This rule has no federalism (ODNI–11) statutes and regulations within the implications as defined by the Executive (11) IC Security Clearance and Access ODNI jurisdiction. Any small entity that Order. Approval Repository (ODNI–12) (12) Security Clearance Reform has a question regarding this document Environmental Impact Research Records (ODNI–13) may address it to the information (13) Civil Liberties and Privacy Office contact listed above. Further The ODNI has reviewed this action for Complaint Records (ODNI–14) information regarding SBREFA is purposes of the National Environmental (14) National Intelligence Council available on the Small Business Policy Act of 1969 (NEPA), 42 U.S.C. Records (ODNI–15) 4321–4347, and has determined that Administration’s Web page at http:// (b) Exemption of records in theses _ this action will not have a significant www.sga.gov/advo/law/law lib.html. systems from any or all of the effect on the human environment. Paperwork Reduction Act enumerated requirements may be The Paperwork Reduction Act of 1995 Energy Impact necessary for the following reasons: (1) From subsection (c)(3) (accounting (44 U.S.C. 3507(d)) requires that the The energy impact of this action has of disclosures) because an accounting of ODNI consider the impact of paperwork been assessed in accordance with the disclosures from records concerning the and other burdens imposed on the Energy Policy and Conservation Act record subject would specifically reveal public associated with the collection of (EPCA), Public Law 94–163, as an intelligence or investigative interest information. There are no information amended, 42 U.S.C. 6362. This on the part of the ODNI or recipient collection requirements associated with rulemaking is not a major regulatory agency and could result in release of this proposed rule and therefore no action under the provisions of the properly classified national security or analysis of burden is required. EPCA. foreign policy information. Executive Order 12866, Regulatory List of Subjects in 32 CFR Part 1701 (2) From subsections (d)(1), (2), (3) Planning and Review Records and Privacy Act. and (4) (record subject’s right to access This proposed rule is not a and amend records) because affording For the reasons set forth above, ODNI ‘‘significant regulatory action’’ within access and amendment rights could proposes to amend 32 CFR part 1701 as the meaning of Executive Order 12866. alert the record subject to the follows: This rule will not have an annual effect investigative interest of intelligence or 1. The authority citation for part 1710 on the economy of $100 million or more law enforcement agencies or continues to read as follows: or otherwise adversely affect the compromise sensitive information economy or sector of the economy in a Authority: 50 U.S.C. 401–442; 5 U.S.C. classified in the interest of national material way; will not create 552a. security. In the absence of a national inconsistency with or interfere with security basis for exemption, records in Subpart B—[Amended] other agency action; will not materially this system may be exempted from alter the budgetary impact of 2. Add § 1701.24 to subpart B to read access and amendment to the extent entitlements, grants, fees or loans or the as follows: necessary to honor promises of right and obligations of recipients confidentiality to persons providing thereof; or raise legal or policy issues § 1701.24 Exemption of Office of the information concerning a candidate for arising out of legal mandates, the Director of National Intelligence (ODNI) position. Inability to maintain such systems of records. President’s priorities or the principles confidentiality would restrict the free set forth in the Executive Order. (a) The ODNI exempts the following flow of information vital to a Accordingly, further regulatory systems of records from the determination of a candidate’s evaluation is not required. requirements of subsections (c)(3); qualifications and suitability. (d)(1), (2), (3) and (4); (e)(1); (e)(4)(G), (3) From subsection (e)(1) (maintain Unfunded Mandates (H), (I); and (f) of the Privacy Act to the only relevant and necessary records) Title II of the Unfunded Mandates extent that information in the system is because it is not always possible to Reform Act of 1995 (UMRA), Public subject to exemption pursuant establish relevance and necessity before Law 104–4, 109 Stat. 48 (Mar. 22, 1995), subsections (k)(1), (k)(2) or (k)(5) of the all information is considered and requires Federal agencies to assess the Act as noted in the individual systems evaluated in relation to an intelligence effects of certain regulatory actions on notices: concern. In the absence of a national State, local, and tribal governments, and (1) Manuscript, Presentation and security basis for exemption under the private sector. This proposed rule Resume Review Records (ODNI–01) subsection (k)(1), records in this system

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may be exempted from the relevance DEPARTMENT OF HOMELAND USCG Sector Long Island Sound at 203– requirement pursuant to subsection SECURITY 468–4459, e-mail (k)(5) because it is not possible to [email protected]. If you have determine in advance what exact Coast Guard questions on viewing or submitting information may assist in determining material to the docket, call Renee V. the qualifications and suitability of a 33 CFR Part 100 Wright, Program Manager, Docket Operations, telephone 202–366–9826. candidate for position. Seemingly [Docket No. USCG–2009–0395] irrelevant details, when combined with SUPPLEMENTARY INFORMATION: other data, can provide a useful RIN 1625–AA08 composite for determining whether a Public Participation and Request for Special Local Regulation, Swim Across candidate should be appointed. Comments the Sound, Long Island Sound, Port (4) From subsections (e)(4)(G) and (H) Jefferson, NY to Captain’s Cove We encourage you to participate in (publication of procedures for notifying Seaport, Bridgeport, CT this rulemaking by submitting subjects of the existence of records comments and related materials. All about them and how they may access AGENCY: Coast Guard, DHS. comments received will be posted records and contest contents) because ACTION: Supplemental notice of without change to http:// the system is exempted from subsection proposed rulemaking. www.regulations.gov and will include (d) provisions regarding access and any personal information you have SUMMARY: amendment, and from the subsection (f) This document supplements provided. the Coast Guard’s July 21, 2009 proposal requirement to promulgate agency rules. to establish a permanent Special Local Submitting Comments Nevertheless, the ODNI has published Regulation on the navigable waters of notice concerning notification, access, If you submit a comment, please Long Island Sound between Port and contest procedures because it may include the docket number for this Jefferson, NY and Captain’s Cove rulemaking (USCG–2009–0395), in certain circumstances determine it Seaport, Bridgeport, CT due to the indicate the specific section of this appropriate to provide subjects access to annual Swim Across the Sound event. document to which each comment all or a portion of the records about The proposed amendment is necessary applies, and provide a reason for each them in a system of records. to provide for the safety of life by suggestion or recommendation. You (5) From subsection (e)(4)(I) protecting swimmers and their safety may submit your comments and (identifying sources of records in the craft from the hazards imposed by material online (via http:// system of records) because identifying marine traffic. This supplemental notice www.regulations.gov) or by fax, mail, or sources could result in disclosure of of proposed rulemaking describes an hand delivery, but please use only one properly classified national defense or amendment to the list of potential dates of these means. If you submit a foreign policy information, intelligence and clarifies the limitations placed on comment online via http:// marine traffic. sources and methods, and investigatory www.regulations.gov, it will be techniques and procedures. DATES: Comments and related material considered received by the Coast Guard Notwithstanding its proposed must be received by the Coast Guard on when you successfully transmit the exemption from this requirement, ODNI or before May 3, 2010. comment. If you fax, hand deliver, or identifies record sources in broad ADDRESSES: You may submit comments mail your comment, it will be categories sufficient to provide general identified by docket number USCG– considered as having been received by notice of the origins of the information 2009–0395 using any one of the the Coast Guard when it is received at it maintains in its systems of records. following methods: the Docket Management Facility. We (6) From subsection (f) (agency rules (1) Federal eRulemaking Portal: recommend that you include your name for notifying subjects to the existence of http://www.regulations.gov. and a mailing address, an e-mail records about them, for accessing and (2) Fax: 202–493–2251. address, or a telephone number in the amending records, and for assessing (3) Mail: Docket Management Facility body of your document so that we can fees) because the system is exempt from (M–30), U.S. Department of contact you if we have questions subsection (d) provisions regarding Transportation, West Building Ground regarding your submission. access and amendment of records by Floor, Room W12–140, 1200 New Jersey To submit your comment online, go to record subjects. Nevertheless, the ODNI Avenue, SE., Washington, DC 20590– http://www.regulations.gov, select the has published agency rules concerning 0001. Advanced Docket Search option on the notification of a subject in response to (4) Hand delivery: Same as mail right side of the screen, insert ‘‘USCG– his request if any system of records address above, between 9 a.m. and 5 2009–0395’’ in the Docket ID box, press named by the subject contains a record p.m., Monday through Friday, except Enter, and then click on the balloon pertaining to him and procedures by Federal holidays. The telephone number shape in the Actions column. If you which the subject may access or amend is 202–366–9329. submit your comments by mail or hand the records. Notwithstanding To avoid duplication, please use only delivery, submit them in an unbound exemption, the ODNI may determine it one of these four methods. See the format, no larger than 8c by 11 inches, ‘‘ appropriate to satisfy a record subject’s Public Participation and Request for suitable for copying and electronic Comments’’ portion of the access request. filing. If you submit comments by mail SUPPLEMENTARY INFORMATION section and would like to know that they Dated: March 23, 2010. below for instructions on submitting reached the Facility, please enclose a John F. Kimmons, comments. stamped, self-addressed postcard or Lieutenant General, USA, Director of the FOR FURTHER INFORMATION CONTACT: If envelope. We will consider all Intelligence Staff. you have questions on this proposed comments and material received during [FR Doc. 2010–7503 Filed 4–1–10; 8:45 am] rule, call or e-mail: Chief Petty Officer the comment period and may change BILLING CODE P Christie Dixon, Prevention Department, the rule based on your comments.

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Viewing Comments and Documents comments or requests for meetings were Regulatory Planning and Review To view comments, as well as received, however, during the final edits This proposed rule is not a significant documents mentioned in this preamble of the Final Rule we realized that the regulatory action under section 3(f) of as being available in the docket, go to description of the regulated area was Executive Order 12866, Regulatory http://www.regulations.gov, select the incorrect and needed clarification, and Planning and Review, and does not Advanced Docket Search option on the that the anticipated dates for the event require an assessment of potential costs right side of the screen, insert USCG– should include the last weekend in July. and benefits under section 6(a)(3) of that 2009–0395 in the Docket ID box, press This supplemental notice of proposed Order. The Office of Management and rulemaking clarifies the proposed Enter, and then click on the item in the Budget has not reviewed it under that regulation and the proposed dates for Docket ID column. You may also visit Order. the annual event. The new proposed the Docket Management Facility in We expect the economic impact of regulation creates less of a burden on Room W12–140 on the ground floor of this proposed rule to be so minimal that vessel traffic by minimizing the the Department of Transportation West a full Regulatory Evaluation is restrictions in the regulated area. Building, 1200 New Jersey Avenue, SE., unnecessary. This regulation may have Washington, DC 20590, between 9 a.m. Discussion of Proposed Rule some impact on the public, but any and 5 p.m., Monday through Friday, The Coast Guard proposes to establish potential impact would be minimized except Federal holidays. We have an a permanent special local regulation on for the following reasons: Marine traffic agreement with the Department of the navigable waters of Long Island may transit in all areas of Long Island Transportation to use the Docket Sound that would exclude all Sound, other than within 100 yards of Management Facility. unauthorized persons and vessels from event participants within the regulated Privacy Act approaching within 100 yards of any area. Marine traffic passing through the regulated area would only have minimal Anyone can search the electronic swimmer or safety craft on the race course. The race course, hereby referred increased transit time and the special form of comments received into any of local regulation will only be enforced our dockets by the name of the to as the regulated area, is bounded by the following approximate points: for approximately 11 hours on a single individual submitting the comment (or specified Saturday in either July or signing the comment, if submitted on Starting Point of Port Jefferson Beach ° ′ ″ ° ′ ″ August, made publicly known in behalf of an association, business, labor 40 58 13 N 073 05 51 W, advance of the scheduled event. union, etc.). You may review a Privacy northwesterly to the finishing point at Act notice regarding our public dockets Captain’s Cove Seaport at approximate Small Entities position 41°09′25″ N 073°12′48″ W. in the January 17, 2008 issue of the Under the Regulatory Flexibility Act Federal Register (73 FR 3316). The duration of the event, and thus the enforcement period of the special (5 U.S.C. 601–612), we have considered Public Meeting local regulation, is generally from 8:30 whether this proposed rule would have We do not plan to hold a public a.m. to 7:30 p.m. on the day of the race. a significant economic impact on a meeting. But you may submit a request The special local regulation will only be substantial number of small entities. for one using one of the four methods enforced for approximately 11 hours on The term ‘‘small entities’’ comprises specified under ADDRESSES. Please the day of the race, normally held on a small businesses, not-for-profit explain why you believe a public single Saturday during the last weekend organizations that are independently meeting would be beneficial. If we of July or the first two weekends of owned and operated and are not determine that one would aid this August, depending on the tides. dominant in their fields, and rulemaking, we will hold one at a time During the enforcement period of this governmental jurisdictions with and place announced by a later notice regulation no person or vessel may populations of less than 50,000. in the Federal Register. approach or remain within 100 yards of The Coast Guard certifies that under any swimmer or safety craft within the 5 U.S.C. 605(b) that this proposed rule Background and Purpose regulated area unless they are officially would not have a significant economic The Swim Across the Sound has been participating in the Swim Across the impact on a substantial number of small successfully held for over twenty years Sound event or are otherwise authorized entities. This proposed rule may affect on the waters of Long Island Sound by the Captain of the Port Long Island the following entities, some of which between Port Jefferson, NY and Sound or Designated On-scene Patrol may be small entities: The owners or Bridgeport, CT. This 25km swim has Personnel. Notification of the race date operators of vessels intending to transit historically involved over 200 and subsequent enforcement of the in those portions of Long Island Sound swimmers and accompanying safety special local regulation will be made via covered by the special local regulation. craft. The swim course is located a Notice of Enforcement in the Federal Before the activation of the zone, we directly northwest of Port Jefferson, NY Register, marine broadcasts and would issue maritime advisories in and extends to Captain’s Cove Seaport, broadcast notice to mariners. Any advance of the event and make them Bridgeport, CT. Currently there is no violation of the special local regulation widely available to users of the regulation in place to protect the described herein is punishable by, waterway. For the reasons outlined in swimmers or safety craft from the among others, civil and criminal the Regulatory Evaluation section above, hazards imposed by marine traffic. penalties, in rem liability against the this rule will not have a significant On July 21, 2009 the Coast Guard offending vessel, and license sanctions. impact on a substantial number of small published a Notice of Proposed entities. Rulemaking with request for comments Regulatory Analyses If you think that your business, titled, ‘‘Special Local Regulation, Swim We developed this proposed rule after organization, or governmental Across the Sound, Long Island Sound, considering numerous statutes and jurisdiction qualifies as a small entity Port Jefferson, NY to Captain’s Cove executive orders related to rulemaking. and that this rule would have a Seaport, Bridgeport, CT’’ (Docket Below we summarize our analyses significant economic impact on it, number USCG–2009–0395) in the based on 13 of these statutes or please submit a comment (see Federal Register (74 FR 35834). No executive orders. ADDRESSES) explaining why you think it

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qualifies and how and to what degree Civil Justice Reform adopted by voluntary consensus this rule would economically affect it. This proposed rule meets applicable standards bodies. This proposed rule does not use standards in sections 3(a) and 3(b)(2) of Assistance for Small Entities technical standards. Therefore, we did Executive Order 12988, Civil Justice not consider the use of voluntary Under section 213(a) of the Small Reform, to minimize litigation, consensus standards. Business Regulatory Enforcement eliminate ambiguity, and reduce Fairness Act of 1996 (Pub. L. 104–121), burden. Environment we want to assist small entities in Protection of Children We have analyzed this proposed rule understanding this proposed rule so that under Department of Homeland they can better evaluate its effects on We have analyzed this proposed rule Security Management Directive 023–01 them and participate in the rulemaking. under Executive Order 13045, and Commandant Instruction If the rule would affect your small Protection of Children from M16475.lD, which guide the Coast business, organization, or governmental Environmental Health Risks and Safety Guard in complying with the National jurisdiction and you have questions Risks. This rule is not an economically Environmental Policy Act of 1969 concerning its provisions or options for significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and compliance, please contact: Chief Petty environmental risk to health or risk to have made a preliminary determination Officer Christie Dixon, Prevention safety that might disproportionately that this action is one of a category of Department, USCG Sector Long Island affect children. actions which do not individually or Sound at 203–468–4459, Indian Tribal Governments cumulatively have a significant effect on [email protected]. The Coast the human environment. A preliminary Guard will not retaliate against small This proposed rule does not have environmental analysis checklist entities that question or complain about tribal implications under Executive supporting this determination is this proposed rule or any policy or Order 13175, Consultation and available in the docket where indicated Coordination with Indian Tribal action of the Coast Guard. under ADDRESSES. This proposed rule Governments, because it would not have involves the promulgation of special Collection of Information a substantial direct effect on one or local regulations in conjunction with a more Indian tribes, on the relationship permitted marine event and falls under This proposed rule would call for no between the Federal Government and new collection of information under the the category of actions under paragraph Indian tribes, or on the distribution of 34(h) of the instruction for which Paperwork Reduction Act of 1995 (44 power and responsibilities between the U.S.C. 3501–3520). further environmental analysis is not Federal Government and Indian tribes. normally required. We seek any Federalism Energy Effects comments or information that may lead to the discovery of a significant We have analyzed this proposed rule A rule has implications for federalism environmental impact from this under Executive Order 13211, Actions under Executive Order 13132, proposed rule. Federalism, if it has a substantial direct Concerning Regulations That effect on State or local governments and Significantly Affect Energy Supply, List of Subjects in 33 CFR Part 100 would either preempt State law or Distribution, or Use. We have Marine safety, Navigation (water), impose a substantial direct cost of determined that it is not a ‘‘significant Reporting and recordkeeping compliance on them. We have analyzed energy action’’ under that order because requirements, Waterways. it is not a ‘‘significant regulatory action’’ this proposed rule under that Order and For the reasons discussed in the under Executive Order 12866 and is not have determined that it does not have preamble, the Coast Guard proposes to likely to have a significant adverse effect implications for federalism. amend 33 CFR part 100 as follows: on the supply, distribution, or use of Unfunded Mandates Reform Act energy. The Administrator of the Office PART 100—SAFETY OF LIFE ON of Information and Regulatory Affairs The Unfunded Mandates Reform Act NAVIGABLE WATERS has not designated it as a significant of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not 1. The authority citation for part 100 Federal agencies to assess the effects of require a Statement of Energy Effects continues to read as follows: their discretionary regulatory actions. In under Executive Order 13211. particular, the Act addresses actions Authority: 33 U.S.C. 1233. that may result in the expenditure by a Technical Standards 2. Add § 100.121 to read as follows: State, local, or tribal government, in the The National Technology Transfer § 100.121: Swim Across the Sound, Long aggregate, or by the private sector of and Advancement Act (NTTAA) (15 Island Sound, Port Jefferson, NY to $100,000,000 or more (adjusted for U.S.C. 272 note) directs agencies to use Captain’s Cove Seaport, Bridgeport, CT. inflation) in any one year. Though this voluntary consensus standards in their (a) Regulated area. All navigable proposed rule would not result in such regulatory activities unless the agency waters of Long Island Sound within 100 expenditure, we do discuss the effects of provides Congress, through the Office of yards of any swimmer or safety craft on this rule elsewhere in this preamble. Management and Budget, with an the race course bounded by the Taking of Private Property explanation of why using these following points: Starting Point at Port standards would be inconsistent with Jefferson Beach at approximate position This proposed rule would not affect a applicable law or otherwise impractical. 40°58′12″ N 073°05′51″ W, north- taking of private property or otherwise Voluntary consensus standards are westerly to the finishing point at have taking implications under technical standards (e.g., specifications Captain’s Cove Seaport at approximate Executive Order 12630, Governmental of materials, performance, design, or location 41°09′25″ N 073°12′48″ W. Actions and Interference with operation; test methods; sampling (b) Definitions. The following Constitutionally Protected Property procedures; and related management definition applies to this section: Rights. systems practices) that are developed or Designated On-scene Patrol Personnel,

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means any commissioned, warrant and DEPARTMENT OF HOMELAND Public Participation and Request for petty officers of the U.S. Coast Guard SECURITY Comments operating Coast Guard vessels who have We encourage you to participate in Coast Guard been authorized to act on the behalf of this rulemaking by submitting the Captain of the Port Long Island comments and related materials. All 33 CFR Part 165 Sound. comments received will be posted without change to http:// (c) Special local regulations. (1) No [Docket No. USCG–2010–0158] person or vessel may approach or www.regulations.gov and will include any personal information you have remain within 100 yards of any RIN 1625–AA00 swimmer or safety craft within the provided. regulated area during the enforcement Safety Zone; Wilson Bay, Jacksonville, Submitting Comments period of this regulation unless they are NC If you submit a comment, please officially participating in the Swim AGENCY: Coast Guard, DHS. include the docket number for this Across the Sound event or are otherwise rulemaking (USCG–2010–1058), authorized by the Captain of the Port ACTION: Notice of proposed rulemaking. indicate the specific section of this Long Island Sound or by Designated On- SUMMARY: The Coast Guard proposes to document to which each comment scene Patrol Personnel. establish a temporary safety zone on the applies, and provide a reason for each (2) All persons and vessels must waters of Wilson Bay at Jacksonville, suggestion or recommendation. You comply with the instructions from Coast North Carolina for training purposes. may submit your comments and Guard Captain of the Port or the The safety zone is necessary to provide material online (via http:// Designated On-scene Patrol Personnel. for the safety of the general public and www.regulations.gov) or by fax, mail, or The Designated On-scene Patrol exercise participants from potential hand delivery, but please use only one Personnel may delay, modify, or cancel hazards associated with low flying of these means. If you submit a the swim event as conditions or helicopters and vessels participating in comment online via http:// circumstances require. this multi agency exercise. www.regulations.gov, it will be DATES: considered received by the Coast Guard (3) Upon being hailed by a U.S. Coast Comments and related material must be received by the Coast Guard on when you successfully transmit the Guard vessel by siren, radio, flashing or before May 3, 2010. comment. If you fax, hand deliver, or light or other means, the operator of the mail your comment, it will be vessel must proceed as directed. ADDRESSES: You may submit comments identified by docket number USCG– considered as having been received by (4) Persons and vessels desiring to 2010–0158 using any one of the the Coast Guard when it is received at enter the regulated area within 100 following methods: the Docket Management Facility. We yards of a swimmer or safety craft may (1) Federal eRulemaking Portal: recommend that you include your name request permission to enter from the http://www.regulations.gov. and a mailing address, an e-mail designated on scene patrol personnel by (2) Fax: 202–493–2251. address, or a telephone number in the contacting them on VHF–16 or by a (3) Mail: Docket Management Facility body of your document so that we can request to the Captain of the Port Long (M–30), U.S. Department of contact you if we have questions Island Sound via phone at (203) 468– Transportation, West Building Ground regarding your submission. 4401. Floor, Room W12–140, 1200 New Jersey To submit your comment online, go to Avenue, SE., Washington, DC 20590– http://www.regulations.gov, click on the (d) Enforcement Period. This rule is ‘‘submit a comment’’ box, which will enforced annually on a single Saturday 0001. (4) Hand delivery: Same as mail then become highlighted in blue. In the during the last weekend of July or one ‘‘Document Type’’ drop down menu of the first two weekends in August, address above, between 9 a.m. and 5 p.m., Monday through Friday, except select ‘‘Proposed Rule’’ and insert depending on the tides. Notification of Federal holidays. The telephone number ‘‘USCG–2010–0158’’ in the ‘‘Keyword’’ the specific date and enforcement of the is 202–366–9329. box. Click ‘‘Search’’ then click on the special local regulation will be made via To avoid duplication, please use only balloon shape in the ‘‘Actions’’ column. a Notice of Enforcement in the Federal one of these four methods. See the If you submit your comments by mail or Register, separate marine broadcasts ‘‘Public Participation and Request for hand delivery, submit them in an 12 and local notice to mariners. Comments’’ portion of the unbound format, no larger than 8 by Dated: February 11, 2010. SUPPLEMENTARY INFORMATION section 11 inches, suitable for copying and electronic filing. If you submit Daniel A. Ronan, below for instructions on submitting comments. comments by mail and would like to Captain, U.S. Coast Guard, Captain of the know that they reached the Facility, Port Long Island Sound. FOR FURTHER INFORMATION CONTACT: If please enclose a stamped, self-addressed [FR Doc. 2010–7429 Filed 4–1–10; 8:45 am] you have questions on this proposed postcard or envelope. We will consider BILLING CODE 9110–04–P rule, call or e-mail CWO4 Stephen all comments and material received Lyons, Waterways Management during the comment period and may Division Chief, Coast Guard Sector change the rule based on your North Carolina; telephone (252) 247– comments. 4525, e-mail [email protected]. If you Viewing Comments and Documents have questions on viewing or submitting To view comments, as well as material to the docket, call Renee V. documents mentioned in this preamble Wright, Program Manager, Docket as being available in the docket, go to Operations, telephone 202–366–9826. http://www.regulations.gov, click on the SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then

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become highlighted in blue. In the Discussion of Proposed Rule governmental jurisdictions with ‘‘ ’’ ‘‘ Keyword box insert USCG–2010– The Coast Guard is proposing to populations of less than 50,000. ’’ ‘‘ ’’ The Coast Guard certifies under 5 0158 and click Search. Click the establish a temporary safety zone on the ‘‘ ’’ ‘‘ ’’ U.S.C. 605(b) that this proposed rule Open Docket Folder in the Actions waters of Wilson Bay, Onslow County, would not have a significant economic column. You may also visit the Docket North Carolina. During the exercise the impact on a substantial number of small Management Facility in Room W12–140 safety zone applies to the navigable on the ground floor of the Department entities. waters, from the surface to the seafloor, This rule will affect the following of Transportation West Building, 1200 defined by enclosing an area south of a New Jersey Avenue, SE., Washington, entities, some of which may be small boundary line drawn from New River entities: the owners or operators of DC 20590, between 9 a.m. and 5 p.m., Channel Daybeacon 61 (34°44′30″ N/ Monday through Friday, except Federal ° ′ ″ recreational and fishing vessels 077 26 20 W) to the north tip of intending to transit the specified portion holidays. We have an agreement with Ethridge Point (34°44′37″ N/077°26′06″ the Department of Transportation to use of Wilson Bay from 6 a.m. to 5 p.m. on W) and extending 1⁄2 nautical mile south the Docket Management Facility. June 9, 2010. from the boundary line. All vessels are This safety zone will not have a Privacy Act prohibited from transiting this section of significant economic impact on a the waterway while the safety zone is in substantial number of small entities for Anyone can search the electronic effect. Entry into the zone will not be the following reasons. This rule will form of comments received into any of permitted except as specifically only be in effect from 6 a.m. to 5 p.m. our dockets by the name of the authorized by the Captain of the Port or on June 9, 2010. Although the safety individual submitting the comment (or a designated representative. To seek zone will apply to the section of Wilson signing the comment, if submitted on permission to transit the area, mariners Bay, it will not restrict vessel traffic in behalf of an association, business, labor can contact Sector North Carolina at the federally marked channel. Before the union, etc.). You may review a Privacy telephone number (252) 247–4570. This effective period, the Coast Guard will Act, systems of records notice regarding zone will be enforced from 6 a.m. to 5 issue maritime advisories widely our public dockets in the January 17, p.m. on June 9, 2010. available to the users of the waterway. 2008, issue of the Federal Register (73 Regulatory Analyses If you think that your business, FR 3316). organization, or governmental We developed this proposed rule after Public Meeting jurisdiction qualifies as a small entity considering numerous statutes and and that this rule would have a We do not now plan to hold a public executive orders related to rulemaking. significant economic impact on it, meeting. But you may submit a request Below we summarize our analysis based please submit a comment (see for one using one of the four methods on 13 of these statutes or executive ADDRESSES) explaining why you think it specified under ADDRESSES. Please orders. qualifies and how and to what degree explain why you believe a public Regulatory Planning and Review this rule would economically affect it. meeting would be beneficial. If we determine that one would aid this This proposed rule is not a significant Assistance for Small Entities rulemaking, we will hold one at a time regulatory action under section 3(f) of Under section 213(a) of the Small and place announced by a later notice Executive Order 12866, Regulatory Business Regulatory Enforcement in the Federal Register. Planning and Review, and does not Fairness Act of 1996 (Pub. L. 104–121), require an assessment of potential costs we want to assist small entities in For information on facilities or and benefits under section 6(a)(3) of that services for individuals with disabilities understanding this proposed rule so that Order. The Office of Management and they can better evaluate its effects on or to request special assistance at the Budget has not reviewed it under that public meeting, contact CWO4 Stephen them and participate in the rulemaking. Order. If the proposed rule would affect your Lyons at the telephone number or e-mail Although this regulation will restrict address indicated under the FOR small business, organization, or access to the area, the effect of this rule governmental jurisdiction and you have FURTHER INFORMATION CONTACT section of will not be significant because: (i) The this notice. questions concerning its provisions or safety zone will only be in effect from options for compliance, please contact Background and Purpose 6 a.m. to 5 p.m. on June 9, 2010, (ii) the CWO4 Stephen Lyons, Waterways Coast Guard will give advance Management Division Chief, Sector The Onslow County North Carolina notification via maritime advisories so North Carolina, at (252) 247–4525. The Emergency Services will be conducting mariners can adjust their plans Coast Guard will not retaliate against a multi agency exercise to test response accordingly, and (iii) although the safety small entities that question or complain capabilities of water rescue services in zone will apply to a section of Wilson about this proposed rule or any policy a mass casualty scenario on the waters Bay, it will not restrict vessel traffic in or action of the Coast Guard. of Wilson Bay, Onslow County, North the federally marked channel. Carolina from 6 a.m. to 5 p.m. June 9, Collection of Information Small Entities 2010. The exercise is designed to train This proposed rule would call for no and test air and surface personnel in the Under the Regulatory Flexibility Act new collection of information under the judgmental decisionmaking process (5 U.S.C. 601–612), we have considered Paperwork Reduction Act of 1995 (44 necessary to safely and effectively whether this proposed rule would have U.S.C. 3501–3520). respond to a mass casualty incident. a significant economic impact on a The exercise will involve helicopters, substantial number of small entities. Federalism vessels, safety craft, divers, and rescue The term ‘‘small entities’’ comprises A rule has implications for federalism swimmers. This zone is necessary to small businesses, not-for-profit under Executive Order 13132, establish a temporary restricted area in organizations that are independently Federalism, if it has a substantial direct Wilson Bay to ensure the safety of owned and operated and are not effect on State or local governments and participants within the exercise site. dominant in their fields, and would either preempt State law or

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impose a substantial direct cost of determined that it is not a ‘‘significant environmental impact from this compliance on them. We have analyzed energy action’’ under that order because proposed rule. this proposed rule under that Order and it is not a ‘‘significant regulatory action’’ List of Subjects in 33 CFR Part 165 have determined that it does not have under Executive Order 12866 and is not implications for federalism. likely to have a significant adverse effect Harbors, Marine safety, Navigation on the supply, distribution, or use of (water), Reporting and recordkeeping Unfunded Mandates Reform Act energy. The Administrator of the Office requirements, Security measures, The Unfunded Mandates Reform Act of Information and Regulatory Affairs Waterways. of 1995 (2 U.S.C. 1531–1538) requires has not designated it as a significant For the reasons discussed in the Federal agencies to assess the effects of energy action. Therefore, it does not preamble, the Coast Guard proposes to their discretionary regulatory actions. In require a Statement of Energy Effects amend 33 CFR Part 165 as follows: particular, the Act addresses actions under Executive Order 13211. that may result in the expenditure by a PART 165—REGULATED NAVIGATION Technical Standards State, local, or tribal government, in the AREAS AND LIMITED ACCESS AREAS aggregate, or by the private sector of The National Technology Transfer 1. The authority citation for part 165 $100,000,000 (adjusted for inflation) or and Advancement Act (NTTAA) (15 continues to read as follows: more in any one year. Though this U.S.C. 272 note) directs agencies to use proposed rule would not result in such voluntary consensus standards in their Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. an expenditure, we do discuss the regulatory activities unless the agency Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; effects of this rule elsewhere in this provides Congress, through the Office of 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department preamble. Management and Budget, with an explanation of why using these of Homeland Security Delegation No. 0170.1. Taking of Private Property standards would be inconsistent with 2. Add § 165.T05–0158 to read as This proposed rule would not cause a applicable law or otherwise impractical. follows: taking of private property or otherwise Voluntary consensus standards are technical standards (e.g., specifications § 165.T05–0158 Safety Zone; Wilson Bay, have taking implications under Jacksonville, NC. Executive Order 12630, Governmental of materials, performance, design, or Actions and Interference with operation; test methods; sampling (a) Definitions. For the purposes of Constitutionally Protected Property procedures; and related management this section, Captain of the Port means Rights. systems practices) that are developed or the Commander, Sector North Carolina. adopted by voluntary consensus Representative means any Coast Guard Civil Justice Reform standards bodies. commissioned, warrant, or petty officer This proposed rule meets applicable This proposed rule does not use who has been authorized to act on the standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did behalf of the Captain of the Port. Executive Order 12988, Civil Justice not consider the use of voluntary (b) Location. The following area is a Reform, to minimize litigation, consensus standards. safety zone: The safety zone is established for the navigable waters, eliminate ambiguity, and reduce Environment burden. from the surface to the seafloor, defined We have analyzed this proposed rule by enclosing an area south of a Protection of Children under Department of Homeland boundary line drawn from New River We have analyzed this proposed rule Security Management Directive 023–01 Channel Daybeacon 61 (34°44′30″ N/ under Executive Order 13045, and Commandant Instruction 077°26′20″ W) to the north tip of Protection of Children from M16475.lD, which guide the Coast Ethridge Point (34°44′37″ N/077°26′06″ Environmental Health Risks and Safety Guard in complying with the National W) and extending 1⁄2 nautical mile south Risks. This rule is not an economically Environmental Policy Act of 1969 from the boundary line into Wilson Bay, significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and Jacksonville, North Carolina. environmental risk to health or risk to have made a preliminary determination (c) Regulations. (1) The general safety that might disproportionately that this action is one of a category of regulations contained in § 165.23 of this affect children. actions that do not individually or part apply to the area described in cumulatively have a significant effect on paragraph (b) of this section. Indian Tribal Governments the human environment. A preliminary (2) Persons or vessels requiring entry This proposed rule does not have environmental analysis checklist into or passage through any portion of tribal implications under Executive supporting this determination is the safety zone must first request Order 13175, Consultation and available in the docket where indicated authorization from the Captain of the Coordination with Indian Tribal under ADDRESSES. This proposed rule is Port, or a designated representative, Governments, because it would not have categorically excluded, under figure 2– unless the Captain of the Port a substantial direct effect on one or 1, paragraph (34)(g), of this instruction. previously announced via Marine Safety more Indian tribes, on the relationship The safety zone is necessary to provide Radio Broadcast on VHF Marine Band between the Federal Government and for the safety of the general public and Radio channel 22 (157.1 MHz) that this Indian tribes, or on the distribution of exercise participants from potential regulation will not be enforced in that power and responsibilities between the hazards associated with low flying portion of the safety zone. The Captain Federal Government and Indian tribes. helicopters and vessels participating in of the Port can be contacted at telephone this multiagency exercise. An number (252) 247–4570 or by radio on Energy Effects environmental analysis checklist and a VHF Marine Band Radio, channels 13 We have analyzed this proposed rule categorical exclusion determination are and 16. under Executive Order 13211, Actions available in the docket where indicated (d) Enforcement. The U.S. Coast Concerning Regulations That under ADDRESSES. We seek any Guard may be assisted in the patrol and Significantly Affect Energy Supply, comments or information that may lead enforcement of the zone by Federal, Distribution, or Use. We have to the discovery of a significant State, and local agencies.

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(e) Enforcement period. This section This action is being proposed under ENVIRONMENTAL PROTECTION will be enforced from 6 a.m. to 5 p.m. section 110 and parts C and D of the AGENCY on June 9, 2010 unless cancelled earlier Act. by the Captain of the Port. 40 CFR Parts 721 DATES: Comments must be received on Dated: March 22, 2010. [EPA–HQ–OPPT–2008–0918; FRL–8818–2] or before May 3, 2010. A. Popiel, RIN 2070–AB27 Captain, U.S. Coast Guard, Captain of the ADDRESSES: Comments may be mailed to Port North Carolina. Mr. Jeff Robinson, Chief, Air Permits Proposed Significant New Use Rule for [FR Doc. 2010–7427 Filed 4–1–10; 8:45 am] Section (6PD–R), Environmental 1-Propene, 2,3,3,3-tetrafluoro- BILLING CODE 9110–04–P Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202–2733. AGENCY: Environmental Protection Comments may also be submitted Agency (EPA). ENVIRONMENTAL PROTECTION electronically or through hand delivery/ ACTION: Proposed rule. courier by following the detailed AGENCY SUMMARY: EPA is proposing a significant instructions in the ADDRESSES section of new use rule (SNUR) under section 40 CFR Part 52 the direct final rule located in the rules 5(a)(2) of the Toxic Substances Control [EPA–R06–OAR–2008–0089; FRL–9132–2] section of the Federal Register. Act (TSCA) for the chemical substance FOR FURTHER INFORMATION CONTACT: If identified as 1-Propene, 2,3,3,3- Approval and Promulgation of you have questions concerning today’s tetrafluoro- (CAS No. 754–12–1) which Implementation Plans; Texas; proposal, please contact Ms. Melanie was subject to premanufacture notice Revisions to Voiding of Permits and (PMN) P–07–601. This proposed rule Extension of Permits Magee (6PD–R), Air Permits Section, Environmental Protection Agency, would require persons who intend to AGENCY: Environmental Protection Region 6, 1445 Ross Avenue (6PD–R), manufacture, import, or process the Agency (EPA). Suite 1200, Dallas, TX 75202–2733. The substance for an activity that is designated as a significant new use to ACTION: Proposed rule. telephone number is (214) 665–7161. Ms. Magee can also be reached via notify EPA at least 90 days before SUMMARY: EPA is proposing to approve electronic mail at commencing that activity. The required notification would provide EPA with severable portions of a submittal from [email protected]. the State of Texas, through the Texas the opportunity to evaluate the intended Commission on Environmental Quality SUPPLEMENTARY INFORMATION: In the use and, if necessary, to prohibit or limit (TCEQ), on September 25, 2003, to final rules section of this Federal the activity before it occurs. revise the Texas Major and Minor New Register, EPA is approving the State’s DATES: Comments must be received on Source Review (NSR) State SIP submittal as a direct final rule or before May 3, 2010. Implementation Plan (SIP). Within this without prior proposal because the ADDRESSES: Submit your comments, SIP submittal, the State repealed a Agency views this as a noncontroversial identified by docket identification (ID) paragraph of the SIP rule pertaining to submittal and anticipates no relevant number EPA–HQ–OPPT–2008–0918, by the Texas Major and Minor NSR SIP and adverse comments. A detailed rationale one of the following methods: renumbered the SIP rule’s paragraphs. for the approval is set forth in the direct • Federal eRulemaking Portal: http:// We are proposing to approve the new final rule. If no adverse comments are www.regulations.gov. Follow the on-line replacement rule as meeting the Major received in response to this action, no instructions for submitting comments. • and Minor NSR SIP requirements for further activity is contemplated. If EPA Mail: Document Control Office voiding of permits. receives relevant adverse comments, the (7407M), Office of Pollution Prevention We are also proposing to approve the direct final rule will be withdrawn and and Toxics (OPPT), Environmental portion of the revision that addresses all public comments received will be Protection Agency, 1200 Pennsylvania the recodification of the provision addressed in a subsequent final rule Ave., NW., Washington, DC 20460– relating to the granting of one 18-month 0001. based on this proposed rule. EPA will • extension of a permit as meeting the not institute a second comment period. Hand Delivery: OPPT Document Major and Minor NSR SIP requirement Any parties interested in commenting Control Office (DCO), EPA East Bldg., for extensions of permits. The revision on this action should do so at this time. Rm. 6428, 1201 Constitution Ave., NW., imposes requirements on permitees, Please note that if EPA receives adverse Washington, DC. Attention: Docket ID requiring a review of the permit’s Number EPA–HQ–OPPT–2008–0918. comment on an amendment, paragraph, underlying permit determinations The DCO is open from 8 a.m. to 4 p.m., or section of the rule, and if that before this SIP-approved extension can Monday through Friday, excluding legal provision may be severed from the be granted. Finally, the revision holidays. The telephone number for the remainder of the rule, EPA may adopt provides for a second permit extension DCO is (202) 564–8930. Such deliveries as final those provisions of the rule that if certain conditions are met, including are only accepted during the DCO’s a health effects review. EPA is are not the subject of an adverse normal hours of operation, and special proposing to approve the new comment. arrangements should be made for replacement rule for this second permit For additional information, see the deliveries of boxed information. extension as meeting the Major and direct final rule which is located in the Instructions: Direct your comments to Minor NSR and NNSR SIP rules section of this Federal Register. docket ID number EPA–HQ–OPPT– requirements. Dated: March 24, 2010. 2008–0918. EPA’s policy is that all EPA finds that these changes to the comments received will be included in Texas SIP comply with the Federal Lawrence E. Starfield, the docket without change and may be Clean Air Act (the Act or CAA) and EPA Acting Regional Administrator, Region 6. made available on-line at http:// regulations, are consistent with EPA [FR Doc. 2010–7212 Filed 4–1–10; 8:45 am] www.regulations.gov, including any policies, and will improve air quality. BILLING CODE 6560–50–P personal information provided, unless

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the comment includes information (7408M), Office of Pollution Prevention this proposed rule on or after May 3, claimed to be Confidential Business and Toxics, Environmental Protection 2010 are subject to the export Information (CBI) or other information Agency, 1200 Pennsylvania Ave., NW., notification provisions of TSCA section whose disclosure is restricted by statute. Washington, DC 20460–0001; telephone 12(b) (15 U.S.C. 2611(b)) (see § 721.20) Do not submit information that you number: (202) 554–1404; e-mail address: and must comply with the export consider to be CBI or otherwise [email protected]. notification requirements in 40 CFR part protected through regulations.gov or e- For technical information contact: 707, subpart D. mail. The regulations.gov website is an Kenneth Moss, Chemical Control B. What Should I Consider as I Prepare ‘‘anonymous access’’ system, which Division (7405M), Office of Pollution My Comments for EPA? means EPA will not know your identity Prevention and Toxics, Environmental or contact information unless you Protection Agency, 1200 Pennsylvania 1. Submitting CBI. Do not submit this provide it in the body of your comment. Ave., NW., Washington, DC 20460– information to EPA through If you send an e-mail comment directly 0001; telephone number: (202) 564– regulations.gov or e-mail. Clearly mark to EPA without going through 9232; e-mail address: the part or all of the information that regulations.gov, your e-mail address [email protected]. you claim to be CBI. For CBI will be automatically captured and SUPPLEMENTARY INFORMATION: information in a disk or CD-ROM that included as part of the comment that is you mail to EPA, mark the outside of the placed in the docket and made available I. General Information disk or CD-ROM that you mail to EPA, on the Internet. If you submit an A. Does this Action Apply to Me? mark the outside of the disk or CD-ROM as CBI and then identify electronically electronic comment, EPA recommends You may be potentially affected by that you include your name and other within the disk or CD-ROM the specific this action if you manufacture, import, information that is claimed as CBI. In contact information in the body of your process, or use the chemical substance comment and with any disk or CD-ROM addition to one complete version of the contained in this proposed rule. comment that includes information you submit. If EPA cannot read your Potentially affected entities may comment due to technical difficulties claimed as CBI, a copy of the comment include, but are not limited to: that does not contain the information and cannot contact you for clarification, • Manufacturers, importers, or claimed as CBI must be submitted for EPA may not be able to consider your processors of the subject chemical inclusion in the public docket. comment. Electronic files should avoid substance (NAICS codes 325 and Information so marked will not be the use of special characters, any form 324110), e.g., chemical manufacturing disclosed except in accordance with of encryption, and be free of any defects and petroleum refineries. or viruses. This listing is not intended to be procedures set forth in 40 CFR part 2. Docket: All documents in the docket exhaustive, but rather provides a guide 2. Tips for preparing your comments. are listed in the docket index available for readers regarding entities likely to be When submitting comments, remember at http://www.regulations.gov. Although affected by this action. Other types of to: listed in the index, some information is entities not listed in this unit could also i. Identify the document by docket ID not publicly available, e.g., CBI or other be affected. The North American number and other identifying information whose disclosure is Industrial Classification System information (subject heading, Federal restricted by statute. Certain other (NAICS) codes have been provided to Register date and page number). material, such as copyrighted material, assist you and others in determining ii. Follow directions. The Agency may will be publicly available only in hard whether this action might apply to ask you to respond to specific questions copy. Publicly available docket certain entities. To determine whether or organize comments by referencing a materials are available electronically at you or your business may be affected by Code of Federal Regulations (CFR) part http://www.regulations.gov, or, if only this action, you should carefully or section number. available in hard copy, at the OPPT examine the applicability provisions in iii. Explain why you agree or disagree; Docket. The OPPT Docket is located in § 721.5. If you have any questions suggest alternatives and substitute the EPA Docket Center (EPA/DC) at Rm. regarding the applicability of this action language for your requested changes. 3334, EPA West Bldg., 1301 to a particular entity, consult the iv. Describe any assumptions and provide any technical information and/ Constitution Ave., NW., Washington, technical person listed under FOR or data that you used. DC. The EPA/DC Public Reading Room FURTHER INFORMATION CONTACT. hours of operation are 8:30 a.m. to 4:30 This action may also affect certain v. If you estimate potential costs or p.m., Monday through Friday, excluding entities through pre-existing import burdens, explain how you arrived at legal holidays. The telephone number of certification and export notification your estimate in sufficient detail to the EPA/DC Public Reading Room is rules under TSCA. Chemical importers allow for it to be reproduced. (202) 566–1744, and the telephone are subject to the TSCA section 13 (15 vi. Provide specific examples to number for the OPPT Docket is (202) U.S.C. 2612) import certification illustrate your concerns and suggest 566–0280. Docket visitors are required requirements promulgated at 19 CFR alternatives. to show photographic identification, 12.118 through 12.127 and 19 CFR vii. Explain your views as clearly as pass through a metal detector, and sign 127.28 (the corresponding EPA policy possible, avoiding the use of profanity the EPA visitor log. All visitor bags are appears at 40 CFR part 707, subpart B). or personal threats. processed through an X-ray machine Chemical importers must certify that the viii. Make sure to submit your and subject to search. Visitors will be shipment of the chemical substance comments by the comment period provided an EPA/DC badge that must be complies with all applicable rules and deadline identified. visible at all times in the building and orders under TSCA. Importers of II. Background returned upon departure. chemicals subject to a final SNUR must FOR FURTHER INFORMATION CONTACT: For certify their compliance with the SNUR A. What Action is the Agency Taking? general information contact: Colby requirements. In addition, any persons EPA is proposing a significant new Lintner, Regulatory Coordinator, who export or intend to export a use rule (SNUR) under section 5(a)(2) of Environmental Assistance Division chemical substance that is the subject of TSCA for the chemical substance

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identified as 1-Propene, 2,3,3,3- TSCA section 5(h)(1), (h)(2), (h)(3), and For the chemical substance 1- tetrafluoro- (PMN P–07–601; CAS No. (h)(5), and the regulations at 40 CFR Propene, 2,3,3,3-tetrafluoro- (PMN P– 754–12–1). This SNUR would require part 720. Once EPA receives a SNUN, 07–601; CAS No. 754–12–1), EPA did persons who intend to manufacture, EPA may take regulatory action under not find that the use scenarios described import, or process the chemical TSCA section 5(e), 5(f), 6, or 7 to control in the PMN triggered the determination substance for any activity designated as the activities for which it has received set forth under section 5(e) of TSCA. a significant new use to notify EPA at the SNUN. If EPA does not take action, EPA did, however, determine that least 90 days before commencing the EPA is required under TSCA section certain changes from the use scenario activity. 5(g) to explain in the Federal Register described in the PMN could result in In the Federal Register of February 1, its reasons for not taking action. increased exposures, thereby 2010 (75 FR 4983) (FRL–8438–4), EPA Chemical importers are subject to the constituting a ‘‘significant new use.’’ issued a direct final SNUR for the TSCA section 13 (15 U.S.C. 2612) EPA has determined that activities substance in accordance with the import certification requirements proposed as a ‘‘significant new use’’ procedures at § 721.170(d)(4)(i). EPA promulgated at 19 CFR 12.118 through satisfy the two requirements stipulated received notice of intent to submit 12.127, and 19 CFR 127.28 (the in § 721.170(c)(2), i.e., these significant adverse comments on this SNUR. corresponding EPA policy appears at 40 new use activities: ‘‘(i) are different from Therefore, as required by at CFR part 707, subpart B). Chemical those described in the premanufacture § 721.170(d)(4)(i), EPA is withdrawing importers must certify that the shipment notice for the substance, including any the direct final SNUR, which is of the chemical substance complies with amendments, deletions, and additions published elsewhere in this Federal all applicable rules and orders under of activities to the premanufacture Register and is now issuing this TSCA. Importers of chemical substances notice, and (ii) may be accompanied by proposed SNUR on this substance. The subject to a final SNUR must certify changes in exposure or release levels record for the direct final SNUR on this their compliance with the SNUR that are significant in relation to the substance was established as docket requirements. In addition, any persons health or environmental concerns EPA–HQ–OPPT–2009–0918. That who export or intend to export a identified’’ for the PMN substance. record includes information considered chemical substance identified in a final by the Agency in developing the direct IV. Substance Subject to this Proposed SNUR are subject to the export Rule and Basis for the Action final rule and the notice of intent to notification provisions of TSCA section EPA is proposing to establish submit adverse comments. 12(b) (15 U.S.C. 2611 (b)) (see § 721.20) significant new use and recordkeeping and must comply with the export B. What is the Agency’s Authority for requirements for the chemical substance notification requirements in 40 CFR part Taking this Action? identified as 1-Propene, 2,3,3,3- 707, subpart D. Section 5(a)(2) of TSCA (15 U.S.C. tetrafluoro- (PMN P–07–601; CAS No. 2604(a)(2)) authorizes EPA to determine III. Significant New Use Determination 754–12–1). The specific activities that a use of a chemical substance is a proposed as significant new uses and Section 5(a)(2) of TSCA states that ‘‘significant new use.’’ EPA must make other requirements are listed in 40 CFR EPA’s determination that a use of a this determination by rule after 721.10182 of the proposed regulatory chemical substance is a significant new considering all relevant factors, text. use must be made after consideration of including those listed in TSCA section PMN Number P–07–601 all relevant factors, including: 5(a)(2). Once EPA determines that a use • Chemical name: 1-Propene, 2,3,3,3- of a chemical substance is a significant The projected volume of tetrafluoro-. new use, TSCA section 5(a)(1)(B) manufacturing and processing of a CAS number: 754–12–1. chemical substance. Basis for action: The PMN states that the requires persons to submit a significant • new use notice (SNUN) to EPA at least The extent to which a use changes substance will be used as a motor 90 days before they manufacture, the type or form of exposure of human vehicle air conditioning (MVAC) import, or process the chemical beings or the environment to a chemical refrigerant in new passenger cars and substance for that use. The mechanism substance. vehicles (i.e., as defined in 40 CFR 82.32 • for reporting under this requirement is The extent to which a use increases (c) and (d)). Initial charging of MVAC established under § 721.5. the magnitude and duration of exposure units with the PMN substance will be of human beings or the environment to done by the motor vehicle original C. Applicability of General Provisions a chemical substance. equipment manufacturer. All servicing, General provisions for SNURs appear • The reasonably anticipated manner maintenance, and disposal involving the in 40 CFR part 721, subpart A. These and methods of manufacturing, PMN substance will be done only by provisions describe persons subject to processing, distribution in commerce, Clean Air Act (CAA) section 609 the rule, recordkeeping requirements, and disposal of a chemical substance. certified technicians using CAA section exemptions to reporting requirements, In addition to these factors 609 certified refrigerant handling and applicability of the rule to uses enumerated in TSCA section 5(a)(2), the equipment. Based on test data on the occurring before the effective date of the statute authorized EPA to consider any PMN substance, EPA identified health final rule. Provisions relating to user other relevant factors. concerns for developmental toxicity and fees appear at 40 CFR part 700. To determine what would constitute a lethality to workers and consumers if According to § 721.1(c), persons subject significant new use for the chemical they were exposed to a significant to this SNUR must comply with the substance that is the subject of this amount of the PMN substance via same notice requirements and EPA proposed SNUR, EPA considered inhalation. The PMN substance has an regulatory procedures as submitters of relevant information about the toxicity ozone depletion potential of zero, and, PMNs under TSCA section 5(a)(1)(A). In of the chemical substance, likely human based on test data, has a low global particular, these requirements include exposures and environmental releases warming potential (GWP100 of about 4). the information submission associated with possible uses, and the For the use scenario described in the requirements of TSCA section 5(b) and four bulleted TSCA section 5(a)(2) PMN, significant industrial or 5(d)(1), the exemptions authorized by factors listed in this Unit. commercial worker exposure is unlikely

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due to the use of CAA section 609 proposed use conditions include substance before the described certified refrigerant handling equipment incorporation of engineering strategies significant new use of that chemical and other protective measures. Potential and/or devices to mitigate flammability substance occurs, provided that consumer (vehicle passenger) exposure risks for this substance (see Unit V. of regulation is warranted pursuant to from refrigerant leaks into the passenger the proposed SNAP rule). Use of most TSCA sections 5(e), 5(f), 6, or 7. compartment of a vehicle is not flammable refrigerants, including the Issuance of a SNUR for a chemical expected to present significant risk of PMN substance, in existing MVAC substance does not signify that the serious health effects. Flammability systems as a retrofit has previously been chemical substance is listed on the concerns with the PMN substance are determined by EPA to be unacceptable. TSCA Inventory. Guidance on how to being addressed through regulatory The proposed SNAP rule would require determine if a chemical substance is on actions by EPA’s Office of Air and a petition and a new SNAP submission the TSCA Inventory is available on the Radiation (see the following paragraph). specifically for the use of the PMN Internet at http://www.epa.gov/opptintr/ Further, ‘‘do-it-yourself’’ consumer substance in existing MVAC equipment newchems/pubs/invntory.htm. exposures are not expected because the as a retrofit before EPA would consider VI. Applicability of the Proposed Rule PMN substance only will be sold or allowing such use (see Unit VI. of the to Uses Occurring Before Effective Date distributed in 20–pound containers or proposed SNAP rule). EPA also intends of the Final Rule larger. Therefore, EPA has not to promulgate a follow-on rulemaking ‘‘ ’’ determined that the manufacturing, under section 609 of the CAA to address To establish a significant new use, processing, or use of the substance as service equipment, technician EPA must determine that the use is not described in the PMN may present an certification, and end-of-life disposal ongoing. EPA solicits comments on unreasonable risk. EPA has determined, specifications. whether any of the uses proposed as however, that (1) use of the substance Recommended testing: EPA has significant new uses are ongoing. As discussed in the Federal Register other than as a MVAC refrigerant in new determined that the results of an acute of April 24, 1990 (55 FR 17376), EPA passenger cars and vehicles as defined inhalation toxicity study (OPPTS has decided that the intent of TSCA in 40 CFR 82.32 (c) and (d), (2) initial Harmonized Test Guideline 870.1300 or section 5(a)(1)(B) is best served by charging of MVAC units with the PMN Organisation for Economic Co-operation designating a use as a significant new substance by any person other than and Development (OECD) 403 test use as of the date of publication of the CAA section 609 certified technicians guideline) with rabbits would help proposed rule rather than as of the without using CAA section 609 certified characterize the human health effects of effective date of the final rule. If uses refrigerant handling equipment, (3) the PMN substance. Exposure begun after publication of the proposed servicing, maintenance, and disposal concentrations of 10,000, 50,000, and rule were considered ongoing rather involving the PMN substance by 100,000 parts per million (ppm) should than new, it would be difficult for EPA persons other than CAA section 609 be used. Further, rabbits should be to establish SNUR notice requirements certified technicians without using CAA exposed for 1 hour, and pregnant rabbits because a person could defeat the SNUR section 609 certified refrigerant should be exposed on Gravid Day 12. by initiating the significant new use handling equipment, or (4) sale or CFR citation: 40 CFR 721.10182. before the rule became final, and then distribution of the PMN substance in V. Rationale and Objectives of the argue that the use was ongoing before containers smaller than 20–pounds (net Proposed Rule the effective date of the final rule. Thus, weight) may cause serious health effects persons who begin commercial in accordance with 40 CFR A. Rationale manufacture, import, or processing with 721.170(b)(3)(i). During the review of the chemical the chemical substances that would be This proposed SNUR is intended to substance P–07–601, EPA determined regulated as a ‘‘significant new use’’ complement recently proposed and that one or more of the criteria of through this proposed rule, must cease forthcoming regulations on the PMN concern established at § 721.170 were any such activity before the effective substance under the CAA in that this met, as discussed in Unit IV. date of the rule if and when finalized. SNUR addresses health risk issues of the B. Objectives To resume their activities, these persons subject refrigerant. On October 19, 2009, would have to comply with all EPA published a proposed rule on the EPA is proposing this SNUR for a applicable SNUR notice requirements PMN substance entitled ‘‘Protection of chemical substance that has undergone and wait until the notice review period, Stratospheric Ozone: New Substitute in premanufacture review because the including all extensions, expires. the Motor Vehicle Air Conditioning Agency wants to achieve the following EPA has promulgated provisions to Sector under the Significant New objectives with regard to the significant allow persons to comply with this Alternatives Policy (SNAP) Program’’ new uses designated in this proposed proposed SNUR before the effective (74 FR 53445) (FRL–8969–7). The SNAP rule: date. If a person were to meet the Program, mandated under section 612 of • EPA would receive notice of any conditions of advance compliance the CAA, requires EPA to develop a person’s intent to manufacture, import, under § 721.45(h), the person would be program for evaluating alternatives to or process a listed chemical substance considered to have met the ozone-depleting substances and to for the described significant new use requirements of the final SNUR, for create lists of substitutes for specific before that activity begins. those activities. uses that do not present greater overall • EPA would have an opportunity to risk to human health and the review and evaluate data submitted in a VII. Test Data and Other Information environment than other alternatives that SNUN before the notice submitter EPA recognizes that TSCA section 5 are available. In the October 19, 2009, begins manufacturing, importing, or does not require developing any action, EPA proposed to find HFO– processing a listed chemical substance particular test data before submission of 1234yf acceptable, subject to certain use for the described significant new use. a SNUN, except where the chemical conditions, as a substitute for CFC–12 in • EPA would be able to regulate substance subject to the SNUR is also new motor vehicle air conditioning prospective manufacturers, importers, subject to a test rule under TSCA systems (passenger cars and trucks). The or processors of a listed chemical section 4 (see TSCA section 5(b)).

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Persons are required only to submit test §§ 721.25 and 720.40). Forms and Federal Register, are listed in 40 CFR data in their possession or control and information are also available part 9, and included on the related to describe any other data known to or electronically at http://www.epa.gov/ collection instrument or form, if reasonably ascertainable by them (see opptintr/newchems. applicable. EPA would amend the table § 720.50). However, upon review of in 40 CFR part 9 to list the OMB IX. Economic Analysis PMNs and SNUNs, the Agency has the approval number for the information authority to require appropriate testing. EPA has evaluated the potential costs collection requirements contained in EPA recommended certain testing listed of establishing SNUN requirements for this proposed rule. This listing of the in Unit IV. Descriptions of tests are potential manufacturers, importers, and OMB control numbers and their provided for informational purposes. processors of the chemical substance at subsequent codification in the CFR EPA strongly encourages persons, before the time of the direct final rule. The satisfies the display requirements of performing any testing, to consult with Agency’s complete economic analysis is PRA and OMB’s implementing the Agency pertaining to protocol available in the public docket for the regulations at 5 CFR part 1320. This selection. To access the OPPTS direct final rule (EPA–HQ–OPPT–2008– Information Collection Request (ICR) harmonized test guidelines referenced 0918). was previously subject to public notice in this document electronically, please X. References and comment prior to OMB approval, go to http://www.epa.gov/oppts and and given the technical nature of the select ‘‘Test Methods and Guidelines.’’ The official record for this proposed table, EPA finds that further notice and The Organisation for Economic Co- rule has been established. The following comment to amend it is unnecessary. As operation and Development (OECD) test is a listing of the documents that have a result, EPA finds that there is ‘‘good guidelines are available from the OECD been placed in the proposed rule phase cause’’ under section 553(b)(3)(B) of the Bookshop at http:// of the docket under docket ID number Administrative Procedure Act, 5 U.S.C. www.oecdbookshop.org or SourceOECD EPA–HQ–OPPT–2008–0918, which is 553(b)(3)(B), to amend this table without at http://www.sourceoecd.org. available for inspection as specified further notice and comment. The recommended test(s) may not be under ADDRESSES. These documents The information collection the only means of addressing the serve as supplementary information requirements related to this action have potential risks of the chemical specific to P–07–601 (aka HFO–1234yf) already been approved by OMB substance. However, SNUNs submitted for consideration when submitting pursuant to PRA under OMB control for significant new uses without any test comments. number 2070–0012 (EPA ICR No. 574). data may increase the likelihood that 1. Letter Confirming Release of CBI This action would not impose any EPA will take action under TSCA Claims for HFO–1234yf Gradient burden requiring additional OMB section 5(e), particularly if satisfactory Report. approval. If an entity were to submit a test results have not been obtained from 2. Gradient Corporation. 2008. Risk SNUN to the Agency, the annual burden a prior PMN or SNUN submitter. EPA Assessment for Alternative Refrigerant is estimated to average between 30 and recommends that potential SNUN HFO–1234yf. 170 hours per response. This burden 3. WIL Research Laboratories, LLC. submitters contact EPA early enough so estimate includes the time needed to 2008. An Inhalation Prenatal that they will be able to conduct the review instructions, search existing data Developmental Toxicity Study of HFO– appropriate test(s). sources, gather and maintain the data SNUN submitters should be aware 1234yf (2,3,3,3-tetrafluoropropene) in needed, and complete, review, and that EPA would be better able to Rabbits. submit the required SNUN. 4. United States Environmental evaluate SNUNs which provide detailed Send any comments about the Protection Agency (EPA). 2009. information on the following: accuracy of the burden estimate, and • Human exposure and Addendum to Risk Assessment: PMN P– any suggested methods for minimizing environmental release that may result 07–601. respondent burden, including through from the significant new use of the XI. Statutory and Executive Order the use of automated collection chemical substance. Reviews techniques, to the Director, Collection • Potential benefits of the chemical Strategies Division, Office of substance. A. Executive Order 12866 Environmental Information (2822T), • Information on risks posed by the This proposed rule would establish a Environmental Protection Agency, 1200 chemical substance compared to risks SNUR for a chemical substance that was Pennsylvania Ave., NW., Washington, posed by potential substitutes. the subject of a PMN. The Office of DC 20460–0001. Please remember to Management and Budget (OMB) has include the OMB control number in any VIII. SNUN Submissions exempted these types of actions from correspondence, but do not submit any As stated in Unit II.C., according to review under Executive Order 12866, completed forms to this address. § 721.1(c), persons submitting a SNUN entitled Regulatory Planning and C. Regulatory Flexibility Act must comply with the same notice Review (58 FR 51735, October 4, 1993). requirements and EPA regulatory Pursuant to section 605(b) of the procedures as persons submitting a B. Paperwork Reduction Act Regulatory Flexibility Act (RFA) (5 PMN, including submission of test data According to the Paperwork U.S.C. 601 et seq.), the Agency hereby on health and environmental effects as Reduction Act (PRA), 44 U.S.C. 3501 et certifies that promulgation of this SNUR described in § 720.50. SNUNs must be seq., an Agency may not conduct or would not have a significant adverse submitted to the Environmental sponsor, and a person is not required to economic impact on a substantial Protection Agency on EPA Form No. respond to a collection of information number of small entities. The rationale 7710–25 in accordance with the that requires OMB approval under the supporting this conclusion is discussed procedures set forth in §§ 721.25 and PRA, unless it has been approved by in this unit. The requirement to submit 720.40. This form is available from the OMB and displays a currently valid a SNUN applies to any person Environmental Assistance Division OMB control number. The OMB control (including small or large entities) who (7408M), 1200 Pennsylvania Ave., NW., numbers for EPA’s regulations in title 40 intends to engage in any activity Washington, DC 20460–0001 (see of the CFR, after appearing in the described in the rule as a ‘‘significant

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new use.’’ Because these uses are ‘‘new,’’ F. Executive Order 13175 Dated: March 25, 2010. based on all information currently Barbara A. Cunningham, This proposed rule would not have available to EPA, it appears that no Acting Director, Office of Pollution Prevention Tribal implications because it is not small or large entities presently engage and Toxics. in such activities. A SNUR requires that expected to have substantial direct Therefore, it is proposed that 40 CFR any person who intends to engage in effects on Indian Tribes. This proposed part 721 be amended as follows: such activity in the future must first rule would not significantly or uniquely affect the communities of Indian Tribal notify EPA by submitting a SNUN. PART 721—[AMENDED] Although some small entities may governments, nor would it involve or impose any requirements that affect decide to pursue a significant new use 1. The authority citation for part 721 Indian Tribes. Accordingly, the in the future, EPA cannot presently continues to read as follows: determine how many, if any, there may requirements of Executive Order 13175, Authority: 15 U.S.C. 2604, 2607, and be. However, EPA’s experience to date entitled Consultation and Coordination 2625(c). is that, in response to the promulgation with Indian Tribal Governments (65 FR of over 1,400 SNURs, the Agency 67249, November 9, 2000), do not apply 2. Add § 721.10182 to subpart E to receives on average only 5 notices per to this proposed rule. read as follows: year. Of those SNUNs submitted from G. Executive Order 13045 § 721.10182 1-Propene, 2,3,3,3-tetrafluoro-. 2006–2008, only one appears to be from a small entity. In addition, the estimated This action is not subject to Executive (a) Chemical substance and reporting cost for submission of a SNUN Order 13045, entitled Protection of significant new uses subject to reporting. (see Unit IX.) is minimal regardless of Children from Environmental Health (1) The chemical substance identified as the size of the firm. Therefore, the Risks and Safety Risks (62 FR 19885, 1-propene, 2,3,3,3-tetrafluoro- (PMN P– potential economic impacts of April 23, 1997), because this is not an 07–601; CAS No. 754–12–1; also known complying with this SNUR are not economically significant regulatory as HFO–1234yf) is subject to reporting expected to be significant or adversely action as defined by Executive Order under this section for the significant impact a substantial number of small 12866, and this action does not address new uses described in paragraph (a)(2) entities. In a SNUR that published in the environmental health or safety risks of this section. Federal Register of June 2, 1997 (62 FR disproportionately affecting children. (2) The significant new uses are: 29684) (FRL–5597–1), the Agency (i) Industrial, commercial, and presented its general determination that H. Executive Order 13211 consumer activities. Requirements as final SNURs are not expected to have a This proposed rule is not subject to specified in § 721.80(j) (use as a motor significant economic impact on a Executive Order 13211, entitled Actions vehicle air conditioning (MVAC) substantial number of small entities, Concerning Regulations That which was provided to the Chief refrigerant in new passenger cars and Significantly Affect Energy Supply, vehicles as defined in 40 CFR 82.32 (c) Counsel for Advocacy of the Small Distribution, or Use (66 FR 28355, May Business Administration. and (d). The initial charging of MVAC 22, 2001), because this action is not units with the PMN substance will be D. Unfunded Mandates Reform Act expected to affect energy supply, done by the motor vehicle original distribution, or use and because this equipment manufacturer. All servicing, Based on EPA’s experience with action is not a significant regulatory maintenance, and disposal involving the proposing and finalizing SNURs, State, action under Executive Order 12866. PMN substance will be done only by local, and Tribal governments have not Clean Air Act (CAA) section 609 been impacted by these rulemakings, I. National Technology Transfer and certified technicians using CAA section and EPA does not have any reasons to Advancement Act 609 certified refrigerant handling believe that any State, local, or Tribal In addition, since this action does not equipment. The PMN substance only government would be impacted by this involve any technical standards, section will be sold or distributed in 20–pound proposed rule. As such, EPA has 12(d) of the National Technology (net weight) containers or larger. determined that this proposed rule Transfer and Advancement Act of 1995 would not impose any enforceable duty, (ii) [Reserved] (NTTAA), Public Law 104–113, section contain any unfunded mandate, or 12(d) (15 U.S.C. 272 note), does not (b) Specific requirements. The otherwise have any affect on small apply to this action. provisions of subpart A of this part governments subject to the requirements apply to this section except as modified of sections 202, 203, 204, or 205 of the J. Executive Order 12898 by this paragraph. Unfunded Mandates Reform Act of 1995 (1) Recordkeeping. Recordkeeping (UMRA) (Public Law 104–4). This action does not entail special considerations of environmental justice requirements as specified in § 721.125 E. Executive Order 13132 related issues as delineated by (a), (b), (c), and (i) are applicable to Executive Order 12898, entitled Federal manufacturers, importers, and This action would not have a processors of this substance. substantial direct effect on States, on the Actions to Address Environmental relationship between the national Justice in Minority Populations and (2) Limitations or revocation of government and the States, or on the Low-Income Populations (59 FR 7629, certain notification requirements. The distribution of power and February 16, 1994). provisions of § 721.185 apply to this section. responsibilities among the various List of Subjects in 40 CFR Part 721 levels of government, as specified in [FR Doc. 2010–7191 Filed 4–1–10; 8:45 am] Executive Order 13132, entitled Environmental protection, Chemicals, BILLING CODE 6560–50–S Federalism (64 FR 43255, August 10, Hazardous substances, Reporting and 1999). recordkeeping requirements.

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DEPARTMENT OF TRANSPORTATION Cir. 2009) (CSX Transp. I), and vacated comparison groups in any combination in part on reh’g, CSX Transp., Inc. v. they choose from the released Waybill Surface Transportation Board STB, 584 F.3d 1076 (D.C. Cir. 2009) Sample data. The Board will consider (CSX Transp. II), the Board modified its comments on both of these proposals. 49 CFR Part 1244 simplified rail rate guidelines, creating The Regulatory Flexibility Act of a simplified stand-alone cost approach [STB Ex Parte No. 646 (Sub-No. 3)] 1980, 5 U.S.C. 601–612, generally for medium-size rail rate disputes and requires a description and analysis of Waybill Data Released in Three- revising its Three-Benchmark approach final rules that will have significant Benchmark Rail Rate Proceedings for smaller rail rate disputes. The Three-Benchmark method economic impact on a substantial AGENCY: Surface Transportation Board, compares a challenged rate to the rates number of small entities. In drafting a DOT. of a comparison group drawn from the rule an agency is required to: (1) Assess ACTION: Notice of proposed rulemaking. Waybill Sample data. The Waybill the effect that its regulation will have on Sample is a statistical sampling of small entities; (2) analyze effective SUMMARY: The Board proposes to amend railroad waybills that is collected and alternatives that may minimize a its rules with respect to the Three- maintained for use by the Board. See 49 regulation’s impact; and (3) make the Benchmark methodology used to CFR 1244. The proposed rule in analysis available for public comment. 5 adjudicate rate complaints. The Simplified Standards would have U.S.C. 601–604. In its notice of proposed rule would provide for the required parties to draw their proposed rulemaking, the agency must release to the parties of the unmasked comparison groups from the most recent either include an initial regulatory Waybill Sample data of the defendant year of Waybill Sample data. Slip op. at flexibility analysis, 5 U.S.C. 603(a), or carrier for the 4 years that correspond 32–33 (STB served July 28, 2006). The certify that the proposed rule will not with the most recently published final rule, however, allowed parties to have a ‘‘significant impact on a Revenue Shortfall Allocation Method form comparison groups using Waybill (RSAM) figures. The parties would then substantial number of small entities,’’ 5 Sample data from the 4 years that U.S.C. 605(b). The impact must be a use the released Waybill Sample data in corresponded with the most recently any configuration they see fit to form direct impact on small entities ‘‘whose published RSAM figures. Simplified conduct is circumscribed or mandated’’ their comparison groups. The Board Standards, slip op. at 18, 80 (STB seeks comments concerning the amount by the proposed rule. White Eagle Coop. served Sept. 5, 2007). Ass’n v. Conner, 553 F.3d 467, 480 (7th of data that would be available under Several railroads 1 and the Cir. 2009). the proposed rule and the proposal that Association of American Railroads the parties could draw from all 4 years (collectively, petitioners) challenged the The rule proposed here would be of waybill data to form their comparison aforementioned final rule in court on permissive, not mandatory; i.e., it would groups. the basis that, under 5 U.S.C. 553(b)(3), provide a rate complainant and the DATES: Comments on this proposal are the Board had not provided adequate defendant railroad (possibly small due by May 3, 2010. Replies are due by notice and opportunity to comment on entities) the option of using more data, June 1, 2010. the expansion from 1 to 4 years of data but the proposed rule would not force ADDRESSES: Comments may be from which the parties could draw to them to use all of that data. submitted either via the Board’s e-filing form their proposed comparison groups. Accordingly, pursuant to 5 U.S.C. format or in the traditional paper CSX Transp. I, 568 F.3d at 246. Initially, 605(b), the Board certifies that the format. Any person using e-filing should the court determined that it would not regulations proposed herein would not attach a document and otherwise address the merits of petitioners’ have a significant impact on a comply with the instructions at the E- argument because the issue had not substantial number of small entities FILING link on the Board’s Web site, at been presented to the Board prior to within the meaning of the Regulatory http://www.stb.dot.gov. Any person seeking judicial review and, therefore, Flexibility Act. A copy of this decision submitting a filing in the traditional had been waived. Id. at 246–47. will be served upon the Chief Counsel paper format should send an original On rehearing, however, the court for Advocacy, Office of Advocacy, U.S. and 10 copies to: Surface Transportation reversed its waiver determination and Small Business Administration, Board, Attn: STB Ex Parte No. 646 (Sub- considered the merits of petitioners’ Washington, DC 20416. No. 3), 395 E Street, SW., Washington, argument. The court concluded that the DC 20423–0001. Board had failed to provide adequate This action will not significantly Copies of written comments will be notice of the final rule regarding the affect either the quality of the human available for viewing and self-copying at available range of Waybill Sample data. environment or the conservation of the Board’s Public Docket Room, Room Accordingly, the court vacated that energy resources. 131, and will be posted to the Board’s portion of Simplified Standards. CSX Decided: March 29, 2010. Web site. Transp. II, 584 F.3d at 1083. By the Board, Chairman Elliott, Vice FOR FURTHER INFORMATION CONTACT: For Three-Benchmark proceedings, the Board now proposes to release to the Chairman Mulvey, and Commissioner Valerie Quinn at (202) 245–0382. Nottingham. (Assistance for the hearing impaired is parties the unmasked Waybill Sample Kulunie L. Cannon, available through the Federal data of the defendant carrier for the 4 Information Relay Service (FIRS) at years that correspond with the most Clearance Clerk. 1–800–877–8339.) recently published RSAM figures. The [FR Doc. 2010–7408 Filed 4–1–10; 8:45 am] SUPPLEMENTARY INFORMATION: In Board also proposes to permit the BILLING CODE 4915–01–P Simplified Standards for Rail Rate parties to draw their proposed Cases, STB Docket No. 646 (Sub-No. 1) 1 Canadian Pacific Railway Co., Soo Line Railroad (Simplified Standards) (STB served Company, Delaware & Hudson Railway Company, Sept. 5, 2007), aff’d sub nom. CSX CSX Transportation, Inc., Norfolk Southern Railway Transp., Inc. v. STB, 568 F.3d 236 (D.C. Company, and Union Pacific Railroad Company.

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DEPARTMENT OF COMMERCE NMFS will accept anonymous bumphead parrotfish populations have comments. Attachments to electronic been declining throughout their range National Oceanic and Atmospheric comments will be accepted in Microsoft and placed this species on our Species Administration Word, Excel, WordPerfect, or Adobe of Concern list in 2004. PDF file formats only. ESA Statutory Provisions and Policy 50 CFR Parts 223 and 224 Interested persons may obtain a copy Considerations [Docket No. 100322160–0161–01] of the petition from the above address or online from the NMFS website: Section 4(b)(3)(A) of the ESA of 1973, RIN 0648–XV10 http://www.fpir.noaa.gov/PRD/ as amended (U.S.C. 1531 et seq.), prdlesalsectionl4.html requires, to the maximum extent Endangered and Threatened Wildlife; practicable, that within 90 days of FOR FURTHER INFORMATION CONTACT: Notice of 90–Day Finding on a Petition receipt of a petition to list a species as to List the Bumphead Parrotfish as Patrick Opay, NMFS, Pacific Islands threatened or endangered, the Secretary Threatened or Endangered and Region, (808) 944–2242 or Dwayne of Commerce (Secretary) make a finding Designate Critical Habitat Under the Meadows, NMFS, Office of Protected on whether that petition presents Endangered Species Act (ESA) Resources, (301) 713–1401. substantial scientific or commercial SUPPLEMENTARY INFORMATION: information indicating that the AGENCY: National Marine Fisheries petitioned action may be warranted (see Service (NMFS), National Oceanic and Background 16 U.S.C. 1533(b)(3)(A)). Joint ESA- Atmospheric Administration (NOAA), On January 4, 2010, we received a implementing regulations issued by Department of Commerce. petition from WildEarth Guardians to NMFS and U.S. Fish and Wildlife ACTION: 90–day petition finding; request list the bumphead parrotfish as Service (50 CFR 424.14(b)) define for information. threatened or endangered under the ‘‘substantial information’’ in this context ESA. The petitioner also requested that as the amount of information that would SUMMARY: We (NMFS) announce a 90– critical habitat be designated for this day finding on a petition to list the lead a reasonable person to believe that species concurrent with listing under the measure proposed in the petition bumphead parrotfish (Bolbometopon the ESA. The petition asserts that muricatum) as threatened or endangered may be warranted. overfishing is a significant threat to the In making a finding on a petition to and designate critical habitat under the bumphead parrotfish and that this ESA. We find that the petition presents list a species, the Secretary must species is declining across its range and consider whether the petition: ‘‘(i) substantial scientific or commercial is nearly eliminated from many areas. information indicating that the clearly indicates the administrative The petition also asserts that measure recommended and gives the petitioned actions may be warranted. degradation of its coral habitat through scientific and any common name of the Therefore, we initiate a status review of coral bleaching and ocean acidification species involved; (ii) contains a detailed the bumphead parrotfish to determine if is a threat to this species, as coral is its narrative justification for the listing under the ESA is warranted. To primary food source. The petition recommended measure, describing, ensure this status review is asserts that biological traits (e.g., slow based on available information, past and comprehensive, we solicit scientific and maturation and low reproductive rates), present numbers and distribution of the commercial information regarding this shrinking remnant populations and species involved and any threats faced species. range reductions, the effects from by the species; (iii) provides information DATES: Information and comments must increasing human populations in the regarding the status of the species over be submitted to NMFS by May 3, 2010 species range, and inadequate regulatory all or a significant portion of its range; ADDRESSES: You may submit comments, protection are subjecting the bumphead and (iv) is accompanied by the information, or data, identified by the parrotfish to extinction in the appropriate supporting documentation Regulation Identifier Number (RIN) foreseeable future. The petition briefly in the form of bibliographic references, 0648–XV10, by any of the following summarizes the description, taxonomy, reprints of pertinent publications, methods: natural history, distribution, and status copies of reports or letters from Electronic Submissions: Submit all for the petitioned species. authorities, and maps’’ (50 CFR electronic public comments via the The bumphead parrotfish is the 424.14(b)(2)). To the maximum extent Federal eRulemaking Portal: http:// largest of the parrotfish species and has practicable, this finding is to be made www.regulations.gov. a wide range. It can be found throughout within 90 days of the date the petition Mail: Alecia Van Atta, Assistant the Indo-Pacific including the Red Sea was received, and the finding is to be Regional Administrator, Protected and East Africa to the Line Islands and published promptly in the Federal Resources Division, NMFS, Pacific Samoa, north to Taiwan and the Register. When it is found that Islands Regional Office, 1601 Kapiolani Yaeyama Islands (Japan), south to the substantial information indicating that Blvd., Suite 1110, Honolulu, HI 96814. Great Barrier Reef and New Caledonia, the petitioned action may be warranted Instructions: All comments received to Palau, Caroline, Marshall, and the is presented in the petition, we are are a part of the public record and will Mariana Islands in Micronesia. In the required to promptly commence a generally be posted to http:// United States it occurs in Guam, review of the status of the species www.regulations.gov without change. American Samoa, the Commonwealth of concerned during which we will Comments will be posted for public the Northern Mariana Islands, and the conduct a comprehensive review of the viewing after the comment period has Pacific Remote Island Areas. It is not best available scientific and commercial closed. All Personal Identifying found in Hawaii or Johnston Atoll. information. In such cases, within 1 Information (e.g., name, address, etc.) The petition states that this species is year of receipt of the petition, we shall voluntarily submitted by the commenter classified as vulnerable by the World conclude the review with a finding as to may be publicly accessible. Do not Conservation Union (IUCN). The IUCN whether or not the petitioned action is submit confidential business defines vulnerable as a species warranted. Because the finding at the information or otherwise sensitive or considered to be facing a high risk of 12–month stage is based on a more protected information. extinction in the wild. We believe that thorough review of the available

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information, as compared to the narrow of listing the bumphead parrotfish as modification, or curtailment of habitat scope of the 90–day stage, a ‘‘may be endangered or threatened and or range; overutilization for commercial, warranted’’ finding does not prejudge designating critical habitat, and gives recreational, scientific, or educational the outcome of the status review. the scientific and common name of the purposes; disease or predation; Under the ESA, a listing species. The petition contains a inadequacy of existing regulatory determination may address a ‘‘species,’’ narrative justification for the mechanisms; and any other natural or which is defined to include taxonomic recommended measure, and discusses manmade factors affecting the species’ species as well as subspecies and, for past and present population status and existence (16 U.S.C. 1533(a)(1)). The any vertebrate species which trends. The petitioner argues that while petition describes factors which it interbreeds when mature, a distinct historically common or abundant asserts have led to the current status of population segment (DPS) (16 U.S.C. throughout its range, the bumphead the bumphead parrotfish, as well as 1532(16)). The bumphead parrotfish is parrotfish is now declining and globally threats which it asserts the species classified as a taxonomic species. The rare, citing Donaldson and Dulvy (2004), currently face, categorizing them under petitioner requested consideration of the Chan et al. (2007), and NMFS (2009). the section 4(a)(1) factors. entire taxonomic species. A species or The petition further asserts that the The petition asserts destruction of subspecies is ‘‘endangered’’ if it is in populations of this species have coral reefs is an important threat to reef danger of extinction throughout all or a declined at least 30 percent over the fishes, citing Dulvy et al. (2003) and significant portion of its range, and past 30 years, citing IUCN information Waddell and Clarke (2008), further ‘‘threatened’’ if it is likely to become (Chan et al., 2007). The petition argues asserting that the bumphead parrotfish endangered within the foreseeable that the bumphead parrotfish is rarely is vulnerable to degradation of its coral future throughout all or a significant encountered in U.S. Line and Phoenix habitat, citing NMFS (2009). Coral is a portion of its range (ESA sections 3(6) Islands, and is nearly extirpated in primary food source for this species, and 3(20), respectively, 16 U.S.C. Guam, East Africa, and the Marshall and the petition provides examples of 1532(6) and (20)). Islands. Our Pacific Islands Fisheries activities that are adversely affecting corals in Micronesia, the Marshall Biology of the Bumphead Parrotfish Science Center surveys of U.S. Pacific Islands and reefs conducted from 2000 Islands, the Mariana Islands, Indonesia, This species is slow growing and to 2009 indicate that this species is American Samoa, Palau, and Guam. long-lived (up to 40 years), with delayed extremely rare throughout the U.S. Additionally, the petition asserts that reproduction and low replenishment Pacific Islands except for Wake Atoll. the negative effects of coral bleaching rates (Choat and Robertson, 2002; The petition asserts that while the and ocean acidification present a Hamilton, 2003). Bumphead parrotfish species was commercially important in significant threat to the bumphead live in coral reef habitats from 3 to 160 the 1990s, the species is now rare in parrotfish throughout its range (through feet (1–50 m) depth (Donaldson and degradation or loss of its food source Dulvy, 2004). They occur in barrier and markets and nearly extirpated in Fiji, and is declining in Palau, Indonesia, and habitat). The petition cites fringing reefs during the day, but rest in examples of coral bleaching events in caves or shallow sandy lagoon flats at and the south end of the Great Barrier Reef, citing Hasurmai et al. (2005), American Samoa (citing Aeby et al., night (Donaldson and Dulvy, 2004). 2008), the Pamyra Atoll and Kingman Juveniles use seagrass beds inside Foster et al. (2006), Chan et al. (2007), Habibi et al. (2007), Waddell and Clarke Reef (citing Clarke et al., 2008), Jarvis lagoons while adults are more Island (citing Id.), Howland Island (2008), and NMFS (2009). The petition commonly found in outer lagoons and (citing Id.), the Marshall Islands (citing discusses interviews of local fishers in seaward reefs. This species sleeps in Berger et al., 2008), Indonesia (citing Palau conducted in 2003 by the Society large groups, making them highly Habibi et al., 2007), Micronesia (citing for Conservation of Reef Fish vulnerable to exploitation by George et al., 2008), Palau (citing Aggregations in which fishers explained spearfishers and netters at night (Myers, Marino et al., 2008), and Guam (citing that many bumphead parrot fish were 1999; Donaldson and Dulvy, 2004). The Burdick et al., 2008). The petition caught years ago, but very few are found bumphead parrotfish is primarily a asserts that the increased frequency and now. Respondents stated that 250 corallivore, but also eats benthic algae. intensity of extreme weather events due animals of this species were caught in They use their large head to ram corals to climate change harm coral reefs and and break them into pieces that are just 1 fishing trip in 1975, whereas thus may negatively impact bumphead more easily ingested (each fish ingests captures declined to 30 to 50 per trip parrotfish. The petition further asserts tons of structural reef carbonates per after 1975, and now very few are caught. that increasing human populations year) (Bellwood et al., 2003), Another interview respondent reported within the range of the bumphead contributing significantly to the ecology that in their area they could catch up to parrotfish present additional threats to and dynamics of reefs. Aggregations of 150 bumphead parrotfish in a month in the species through increased fishing this species are important coral sand the 1960’s, but only up to 60 could be pressure and impacts on coral habitat. producers on reefs and may be caught in a month after 1990, and the The petition asserts that important in maintaining ecosystem animals were half the size. The overutilization through commercial and resilience (Bellwood et al., 2003). interviews suggested that this species subsistence overfishing is a significant had declined noticeably by the early threat to the bumphead parrotfish, Analysis of Petition 1990’s. The petition asserts that in a claiming it is one of the most vulnerable We evaluated the petition and global survey of over 300 reefs, the species to fishing pressure, citing information readily available in our files bumphead parrotfish was not found in Donaldson and Dulvy (2004) and NMFS to determine if the petition presents an 67 percent the sites in the Indo-Pacific, (2009). It is particularly susceptible to amount of scientific or commercial citing NMFS (2009). spear and net fishing, as this fish sleeps information that would lead a The ESA requires us to determine in large groups at night. One of the main reasonable person to believe that the whether species are threatened or threats to this species is measure proposed in the petition may endangered because of any of the overexploitation, especially the taking be warranted. The petition clearly following section 4(a)(1) factors: the of sleeping adults at night with spears recommends the administrative measure present or threatened destruction, or nets. The petition asserts that this

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species is not adequately protected by throughout its range (U.S. and foreign determine effectiveness of recovery federal or state laws or policies to waters); efforts and that permit adaptive prevent its endangerment or extinction. (2) Historic and current condition of management (Policy on the Evaluation The petition asserts that more or better the species and its habitat; of Conservation Efforts, 68 FR 15100; protective measures are needed for large (3) Population trends; March 28, 2003). In some cases, females, and that a moratorium on (4) The effects of climate change on conservation efforts may be relatively commercial fishing and export, gear this species and the coral reef new or may not have had sufficient time restrictions, and blanket protection for ecosystems on which it depends over to demonstrate their biological benefit. the species is necessary. the short- and long-term; In such cases, provisions of adequate The petition also asserts that the (5) The level of current fishing monitoring and funding for bumphead parrotfish is nearly pressure and known effects of such conservation efforts are essential to extirpated from many areas within its fishing; ensure that the intended conservation range and that small population sizes (6) The effects of other threats, benefits will be realized. We encourage and narrowing range may increase the including but not limited to, coastal all parties to submit information on likelihood of extinction through random development, coastal point source ongoing efforts to protect and conserve events, or loss of genetic variability over pollution, agricultural and land use the bumphead parrotfish, as well as time and a concomitant inability to cope practices, disease, predation, reef information on recently implemented or with environmental change. fishing, physical damage from boats and planned activities and their likely anchors, marine debris, and aquatic impact(s). Petition Finding invasive species, on the distribution and abundance of coral habitat important to Information Regarding Potential Critical We have reviewed the petition, the Habitat literature cited in the petition, and other the species over the short- and long- literature and information available in term; Critical habitat is defined in section our files. Based on that literature and (7) The coral species consumed by 3(5) of the ESA as: (1) the specific areas information, we find that the petition this species and the status of each those within the geographical area occupied meets the aforementioned requirements corals; and by the species, at the time it is listed in of the ESA regulations under 50 CFR (8) Management programs for accordance with the ESA, on which are 424.14(b)(2). The petition (i) clearly conservation of this species, including found those physical or biological indicates the administrative measure mitigation measures related to any of features (a) essential to the conservation recommended and gives the scientific the threats listed above. of the species and (b) which may require We request that all data and and any common name of the species special management considerations or information be accompanied by involved; (ii) contains a detailed protection; and (2) specific areas outside supporting documentation such as narrative justification for the the geographical area occupied by the maps, bibliographic references, or recommended measure, describing, species at the time it is listed upon a reprints of pertinent publications. based on available information, past and determination that such areas are Please send any comments to the present numbers and distribution of the essential for the conservation of the ADDRESSES listed above. We will base species involved and any threats faced species (16 U.S.C. 1532(5)). Once our findings on a review of the best by the species; (iii) provides information critical habitat is designated, section scientific and commercial information regarding the status of the species over 7(a)(2) of the ESA requires Federal available, including all information all or a significant portion of its range; agencies to ensure that they do not fund, received during the public comment and (iv) is accompanied by the authorize or carry out any actions that period. appropriate supporting documentation are likely to destroy or adversely modify that habitat (16 U.S.C. 1536(a)(2)). This in the form of citations to journals that Information Regarding Protective Efforts requirement is in addition to the section are readily accessible. This information Section 4(b)(1)(A) of the ESA requires would lead a reasonable person to 7(a)(2) requirement that Federal the Secretary to make listing agencies ensure that their actions do not believe that the measure proposed in the determinations solely on the basis of the jeopardize the continued existence of petition may be warranted. Therefore best scientific and commercial data listed species. we determine that the requested listing available after conducting a review of Section 4(a)(3)(A) of the ESA requires actions may be warranted. the status of a species and after taking that, to the extent prudent and Information Solicited into account efforts being made to determinable, critical habitat be protect the species (16 U.S.C. designated concurrently with the listing Information on Status of the Species 11533(b)(1)(A)). Therefore, in making its of a species (16 U.S.C. 11533(a)(3)(A)(i)). As a result of this finding, we listing determinations, we first assess Designations of critical habitat must be commence a status review on the the status of the species and identify based on the best scientific data bumphead parrotfish to determine factors that have led to its current status. available and must take into whether listing this species under the We then assess conservation measures consideration the economic, national ESA is warranted. We intend that any to determine whether they ameliorate a security, and other relevant impacts of final action resulting from this review species’ extinction risk (50 CFR specifying any particular area as critical be as accurate and as effective as 424.11(f)). In judging the efficacy of habitat (16 U.S.C. 1533(b)(2)). In possible. Therefore, we open a 30–day conservation efforts, we consider the advance of any determination to public comment period to solicit following: the substantive, protective, propose listing of the bumphead information from the public, and conservation elements of such parrotfish as threatened or endangered government agencies, the scientific efforts; the degree of certainty that such under the ESA, we solicit information community, industry, and any other efforts will reliably be implemented; the that would assist us in developing a interested parties on the status of this degree of certainty that such efforts will critical habitat proposal. species throughout its range, including: be effective in furthering the Joint NMFS/FWS regulations for (1) Historical and current distribution conservation of the species; and the listing endangered and threatened and abundance of the species presence of monitoring provisions to species and designating critical habitat

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(50 CFR 424.12(b)) state that the agency Peer Review through April 30, 2011). The ‘‘shall consider those physical and On July 1, 1994, NMFS, jointly with implementing regulations for the Spiny biological features that are essential to the U.S. Fish and Wildlife Service, Dogfish Fishery Management Plan the conservation of a given species and published a series of policies regarding (FMP) require NMFS to publish that may require special management listings under the ESA, including a specifications for up to a period of 5 considerations or protection.’’ Pursuant policy for peer review of scientific data years and to provide an opportunity for to the regulations, such requirements (59 FR 34270). The intent of the peer public comment. This specification include, but are not limited to the review policy is to ensure listings are setting will apply to FY 2010 only. The following: (1) space for individual and based on the best scientific and intent of this rulemaking is to specify population growth, and for normal commercial data available. The Office of the commercial quota and other behavior; (2) food, water, air, light, Management and Budget issued its Final management measures, and to rebuild minerals, or other nutritional or Information Quality Bulletin for Peer the spiny dogfish resource. NMFS physiological requirements; (3) cover or Review on December 16, 2004. The proposes that the annual quota be set at shelter; (4) sites for breeding, Bulletin went into effect June 16, 2005, 12 million lb (5,443.11 mt), and that the reproduction, rearing of offspring, and generally requires that all possession limit for dogfish remain set germination, or seed dispersal; and ‘‘influential scientific information’’ and at 3,000 lb (1.36 mt). These proposed generally, (5) habitats that are protected ‘‘highly influential scientific specifications and management from disturbance or are representative of information’’ disseminated on or after measures are consistent with the FMP the historic geographical and ecological that date be peer reviewed. Because the and promote the utilization and distributions of a species. Id. information used to evaluate this conservation of the spiny dogfish resource. Section 4(b)(2) of the ESA requires the petition may be considered ‘‘influential Secretary to consider the ‘‘economic scientific information,’’ we solicit the DATES: Public comments must be impact, impact on national security, and names of recognized experts in the field received no later than 5 p.m. eastern any other relevant impact,’’ of that could take part in the peer review standard time on May 3, 2010. designating a particular area as critical process for this status review (see ADDRESSES: You may submit comments, habitat (16 U.S.C. 1533(b)(2)). Section ADDRESSES). Independent peer identified by RIN 0648–AY50, by any 4(b)(2) further authorizes the Secretary reviewers will be selected from the one of the following methods: to exclude any area from a critical academic and scientific community, • Electronic Submissions: Submit all habitat designation if the Secretary finds tribal and other Native American electronic public comments via the that the benefits of exclusion outweigh groups, Federal and state agencies, the Federal eRulemaking Portal http:// the benefits of designation, unless private sector, and public interest www.regulations.gov. excluding that area will result in groups. • Fax: 978–281–9135, Attn: Lindsey extinction of the species. Id. We seek Feldman. Authority • information regarding the benefits of Mail: Patricia A. Kurkul, Regional The authority for this action is the designating specific areas Administrator, NMFS, Northeast Endangered Species Act of 1973, as geographically throughout the range of Regional Office, 55 Great Republic amended (16 U.S.C. 1531 et seq.). the bumphead parrotfish as critical Drive, Gloucester, MA 01930. Mark the habitat. We also seek information on the Dated: March 30, 2010. outside of the envelope: ‘‘Comments on economic impact of designating Eric C. Schwaab, 2010 Dogfish Spex.’’ particular areas as part of the critical Assistant Administrator for Fisheries, Instructions: No comments will be habitat designation. In keeping with the National Marine Fisheries Service. posted for public viewing until after the guidance provided by the Office of [FR Doc. 2010–7495 Filed 4–1–10; 8:45 am] comment period has closed. All comments received are a part of the Management and Budget (2000, 2003), BILLING CODE 3510–22–S we seek information that would allow public record and will generally be the monetization of these effects to the posted to http://www.regulations.gov without change. All Personal Identifying extent possible, as well as information DEPARTMENT OF COMMERCE Information (for example, name, on qualitative impacts to economic National Oceanic and Atmospheric address, etc.) voluntarily submitted by values. We also seek information on Administration the commenter may be publicly impacts to national security and any accessible. Do not submit Confidential other relevant impacts of designating 50 CFR Part 648 Business Information or otherwise critical habitat in these areas. [Docket No. 100201058–0158–01] sensitive or protected information. In accordance with our regulations NMFS will accept anonymous (50 CFR 424.13) we will consult as RIN 0648–AY50 comments (enter N/A in the required appropriate with affected states, fields, if you wish to remain interested persons and organizations, Fisheries of the Northeastern United anonymous). You may submit other affected Federal agencies, and, in States; Proposed 2010 Specifications attachments to electronic comments in cooperation with the Secretary of State, for the Spiny Dogfish Fishery Microsoft Word, Excel, WordPerfect, or with the country or countries in which AGENCY: National Marine Fisheries Adobe PDF file formats only. the species concerned are normally Service (NMFS), National Oceanic and Copies of supporting documents used found or whose citizens harvest such Atmospheric Administration (NOAA), by the Mid-Atlantic Fishery species from the high seas. Data Commerce. Management Council (MAFMC), reviewed may include, but are not ACTION: Proposed rule; request for including the Environmental limited to, scientific or commercial comments. Assessment (EA) and Regulatory Impact publications, administrative reports, Review (RIR)/Initial Regulatory maps or other graphic materials, SUMMARY: NMFS proposes specifications Flexibility Analysis (IRFA), are information received from experts, and for the spiny dogfish fishery for the available from: Richard Seagraves, comments from interested parties. 2010 fishing year (FY) (May 1, 2010, Acting Deputy Director, Mid-Atlantic

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Fishery Management Council, Room reviews those recommendations, and fishing mortality for spiny dogfish 2115, Federal Building, 300 South New may modify them if necessary to assure should be one consistent with Street, Dover, DE 19904–6790. The EA/ that the target F will not be exceeded. continuing to achieve Frebuild (0.11). RIR/IRFA is also accessible via the NMFS then publishes proposed According to model projections, the Internet at http://www.nero.noaa.gov. measures for public comment. ABC associated with Frebuild for spiny dogfish would be 10,064 mt (22.188 FOR FURTHER INFORMATION CONTACT: Spiny Dogfish Stock Status Update Lindsey Feldman, Fisheries million lb). Management Specialist, phone: 978– In the fall of 2009, the Northeast The MC met on October 29, 2009, and 675–2179, fax: 978–281–9135. Fisheries Science Center (NEFSC) November 13, 2009, to recommend the updated the spiny dogfish stock status appropriate quota and possession limits SUPPLEMENTARY INFORMATION: Spiny using the population modeling for FY 2010 based on the SSC’s ABC dogfish were declared overfished by approach from the 43rd Stock recommendation. To set the appropriate NMFS on April 3, 1998, and added to Assessment Workshop (43rd SAW, commercial quota, the MC took into the list of overfished stocks in the 2006), 2008 catch data, and results from account all other sources of fishing Report on the Status of the Fisheries of the 2009 trawl survey. The update mortality for the spiny dogfish stock the United States, prepared pursuant to indicates that the female spawning stock (U.S. commercial dead discards, section 304 of the Magnuson-Stevens biomass (SSB) for 2009 is 163,256 mt recreational landings and discards, and Fishery Conservation and Management (360 M lb), about 2.7% below the Canadian commercial landings). The Act (Magnuson-Stevens Act). maximum spawning stock biomass, commercial quota that is available after Consequently, the Magnuson-Stevens SSBmax (167,800mt), the current deducting the estimated values for these Act required the preparation of maximum sustainable yield biomass other factors is 12.251 million lb measures to end overfishing and to (Bmsy) proxy. However, no biomass (5,556.96 mt). The MC chose to rebuild the spiny dogfish stock. A joint target currently exists in the Federal recommend a commercial quota of 12.0 FMP was developed by the MAFMC and FMP because the Councils’ million lb (5,443.11 mt) in order to NEFMC during 1998 and 1999. The recommended target (90% SSBmax) was maintain the same quota in FY 2010 as Mid-Atlantic Fishery Management disapproved during the review of the in FY 2009. The MC felt that Council (MAFMC) was designated as FMP in 2000. maintaining the slightly lower (status the administrative lead on the FMP. The NEFSC stock status update quo) commercial quota accommodated The regulations implementing the estimated that overfishing is not some management uncertainty for FY FMP at 50 CFR part 648, subpart L, occurring. Total removals (U.S. 2010. The MC also recommended outline the process for specifying the commercial dead discards, recreational maintaining possession limits at 3,000 commercial quota and other landings and discards, and Canadian lb (1.36 mt), unchanged from 2009. management measures (e.g., minimum commercial landings) in 2008 were or maximum fish sizes, seasons, mesh approximately 10,828 mt (23.871 M lb), Joint Committee Recommendations size restrictions, possession limits, and corresponding to a fishing mortality (F) The Joint Committee did not meet to other gear restrictions) necessary to estimate of 0.11, well below the review the Monitoring Committee’s assure that the target fishing mortality overfishing threshold of F = 0.39 and recommendations due to time rate (target F) specified in the FMP will equivalent to the F level necessary to limitations associated with the not be exceeded in any fishing year rebuild the stock (Frebuild). specification process. The Joint (May 1–April 30), for a period of 1–5 While the stock status update shows Committee review was encompassed in fishing years. The annual quota is that the stock is close to the biomass the meetings of both of the full allocated to two semi-annual quota target proxy, the 2009 stock assessment Councils. periods as follows: Period 1, May 1 could not conclude that the stock is through October 31 (57.9 percent); and rebuilt. In addition, there are still a Council Recommendations Period 2, November 1 through April 30 number of concerns about the stock The MAFMC and NEFMC met in (42.1 percent). condition. Although recruitment to the December and November 2009, The Spiny Dogfish Monitoring fishery increased in 2009, a decline in respectively, to review the technical Committee (MC), comprised of SSB is expected when these small 1997– recommendations. While management representatives from states; MAFMC 2003 year-classes recruit to the SSB measures may be established in the staff; NEFMC staff; NMFS staff; (approximately 2015) due to estimated specification setting process for up to academia; and two non-voting, ex- low pup production from 1997–2003 five years, the Councils are both officio industry representatives (one and low survey catches of the size recommending that the specifications each from the MAFMC and NEFMC categories for these year classes. In and management measures be set for FY regions) is required to review the best addition, the current survival rate of 2010 only. This is primarily because the available information and to pups may be lower than historic levels Transboundary Resource Assessment recommend a commercial quota and due to reduced maternal size and a Committee (TRAC) conducted a other management measures necessary skewed male-to-female sex ratio in the benchmark stock assessment for spiny to achieve the target F for 1–5 fishing population. dogfish in early February 2010, the years, with the fishing year being from results of which are expected in late May 1 through April 30. The Council’s Technical Recommendations March 2010. The Councils intend to Joint Spiny Dogfish Committee (Joint The MAFMC’s Scientific and utilize these results in developing Committee) then considers the MC’s Statistical Committee (SSC) met on specifications for FY 2011 and beyond. recommendations and any public October 27, 2009, to develop an The MAFMC adopted the MC’s comment in making its recommendation acceptable biological catch (ABC) recommendation for 12.0 million lb to the two Councils. The MAFMC and recommendation for spiny dogfish for (5,443.11 mt). The NEFMC did not the NEFMC review the FY 2010 based on the NEFSC stock adopt the MC recommendation and recommendations of the MC and Joint status update. The SSC discussed the instead derived their recommendation Committee and make their fact that the stock had not been declared from an ABC based on F = 0.20. The recommendations to NMFS. NMFS rebuilt, and that the appropriate target commercial quota that results after

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deductions of U.S. commercial dead authorized to fish only in state waters. annually. Information from FY 2008 was discards, recreational landings, and As in previous years, when the federal used to evaluate impacts of this action, Canadian commercial landings is 21.6 spiny dogfish fishery is closed but state as that is the most recent year for which million lb (9,797.60 mt). Both Councils fisheries remain open, fishing vessels data are complete. recommended maintaining the issued federal permits may not fish for, Description of Projected Reporting, possession limits of 3,000 lb (1.36 mt). possess, or land spiny dogfish from state or federal waters. In addition, Recordkeeping, and Other Compliance Proposed Measures Addendum II to the ASMFC’s Interstate Requirements The FMP provides for disagreement FMP for Spiny Dogfish allocated the This action does not contain any new between the Councils on management ASMFC quota with 58 percent to states collection-of-information, reporting, measures for the upcoming fishing year from Maine through Connecticut, 26 recordkeeping, or other compliance by specifying that NMFS may propose percent to New York through Virginia, requirements. It does not duplicate, measures that were not rejected by both and 16 percent to North Carolina. Due overlap, or conflict with any other Councils assuring that the target F (in to this difference in allocation, state and Federal rules. this case Frebuild until the fishery is Federal waters may close at different declared rebuilt) will not be exceeded in times, depending on regional and Minimizing Significant Economic any fishing year. seasonal quota attainment. Impacts on Small Entities NMFS reviewed both Councils’ Classification recommendations and concluded that The IRFA considered three distinct the MC’s recommendation would assure Pursuant to section 304(b)(1)(A) of the alternatives. The proposed action (Alternative 1, Status quo and that the Frebuild (0.11) is not exceeded, as Magnuson-Stevens Act, the NMFS required by the FMP until the stock is Assistant Administrator has determined equivalent to No Action) is expected to determined to be rebuilt. Therefore, that the proposed rule is consistent with achieve Frebuild = 0.11 and recommends NMFS proposes the measures the Spiny Dogfish FMP, other a commercial quota of 12.0 million lb recommended by the MAFMC: a provisions of the Magnuson-Stevens (5,443.11 mt) and a possession limit of commercial spiny dogfish quota of 12.0 Act, and other applicable law, subject to 3,000 lb (1.36 mt), for FY 2010. The million lb (5443.11 mt) and maintaining further consideration after public proposed commercial quota is lower the current possession limit of 3,000 lb comment. than those that result from the higher F (1.36 mt). As specified in the FMP, This proposed rule has been targets associated with Alternative 2 (F quota Period 1 (May 1 through October determined to be not significant for = 0.20) and Alternative 3 (F = 0.28). 31) would be allocated 6,948,000 lb purposes of Executive Order 12866. Alternative 2 proposes a 21.6 million lb An initial regulatory flexibility (3,151.56 mt), and quota Period 2 (9,797.60 mt) quota and Alternative 3 analysis (IRFA) was prepared, as (November 1 through April 30) would proposes a 29.5 million lb (13,380.97 required by section 603 of the be allocated 5,052,000 lb (2,291.55 mt). mt) quota. None of the alternatives Regulatory Flexibility Act (RFA). The The FMP authorizes NMFS to update propose to modify the current 3,000 lb IRFA describes the economic impact biological reference points through the possession limit. this proposed rule, if adopted, would Assuming that the quota implemented specification process based on the have on small entities. A description of would be attained, the proposed action results of a peer-reviewed resource the action, why it is being considered, would be expected to maintain current assessment such as the TRAC. and the legal basis for this action are revenue levels. Alternatives 2 and 3 Therefore, this rule also proposes that; contained at the beginning of this would be expected to increase revenue if the results of the TRAC assessment, section in the preamble and in the from dogfish landings, which would including any additional analysis, SUMMARY section of the preamble. A have positive or null economic impact provide a biomass target that indicates copy of this analysis is available from on small entities. Total spiny dogfish the stock is rebuilt, NMFS may consider the Council (see ADDRESSES). A setting a higher quota for FY 2010 in the summary of the analysis follows: revenue from the last complete fishing final rule consistent with an appropriate year (FY 2008) was reported as $2.157 F value. The Councils have analyzed the Statement of Objective and Need million. Using the average FY 2008 impacts of a quota of 29.5 million lb A description of the reasons why this price/lb ($0.24), landing the 12 million (13,380.97 mt), consistent with a target action is being considered, and the lb (5,443.11 mt) quota would yield F (0.28) which is the current F target for objectives of and legal basis for this $2.880 million in fleet revenue. Using a rebuilt stock. action, is contained in the preamble to the same approach, revenue would be expected to increase to $5.191 million Measures Adopted by the Atlantic this proposed rule and is not repeated here. under Alternative 2 and $7.070 million States Marine Fisheries Commission under Alternative 3. However, under (ASMFC) Description and Estimate of Number of Alternative 1, the proposed quota Small Entities to Which the Rule Will NMFS notes that the proposed 2010 assures that Frebuild (0.11) is not spiny dogfish commercial quota is Apply exceeded until the stock is determined inconsistent with the commercial quota According to NMFS permit file data, to be rebuilt, as required by the FMP. adopted by the ASMFC. On February 5, 3,019 vessels were issued Federal spiny Authority: 16 U.S.C. 1801 et seq. 2010, the ASMFC approved a 15 million dogfish permits in FY 2008, while 229 lb (6,803.89 mt) quota with a maximum of these vessels contributed to overall Dated: March 29, 2010. possession limit of 3,000 lb (1.36 mt) for landings. All of the potentially affected Eric C. Schwaab, FY 2010. As the quota implemented businesses are considered small entities Assistant Administrator for Fisheries, under the ASMFC is higher, the under the standards described in NMFS National Marine Fisheries Service. proposed Federal quota is likely to be guidelines because they have gross [FR Doc. 2010–7489 Filed 4–1–10; 8:45 am] exceeded by landings by vessels receipts that do not exceed $3.5 million BILLING CODE 3510–22–P

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Notices Federal Register Vol. 75, No. 63

Friday, April 2, 2010

This section of the FEDERAL REGISTER Abstract: The Forest Service is Estimate of Annual Burden: 20 contains documents other than rules or proposing to augment the public minutes. proposed rules that are applicable to the participation process for revision of Type of Respondents: Individuals; public. Notices of hearings and investigations, national forest land management plans State, county, and tribal governments; as committee meetings, agency decisions and by collecting data about the nature and well as for-profit and non-profit entities. rulings, delegations of authority, filing of Estimated Annual Number of petitions and applications and agency location of landscape values and special statements of organization and functions are places recognized by the public on Respondents: 3,500 (average of 3 years). examples of documents appearing in this national forest lands. Over the next 3 Estimated Annual Number of section. years, up to 15 national forest units will Responses per Respondent: 1. collect the aforementioned information Estimated Total Annual Burden on as part of the national forest plan Respondents: 1,167 hours (average of 3 DEPARTMENT OF AGRICULTURE revision public participation process. years). The forest plan revision includes Comment is Invited: Comment is Forest Service determining public desire for use (along invited on: (1) Whether this collection with suitability of areas for different of information is necessary for the stated Information Collection; Forest uses), identification of special areas, purposes and the proper performance of Landscape Value and Special Place collaboration with the public, and the functions of the Agency, including Mapping for National Forest Planning monitoring for adaptive management. whether the information will have practical or scientific utility; (2) the AGENCY: Forest Service, USDA. Primarily using an Internet-based accuracy of the Agency’s estimate of the ACTION: Notice; request for comment. geographic information system (GIS), burden of the collection of information, national forests will invite the public to SUMMARY: In accordance with the including the validity of the share values regarding specific forest Paperwork Reduction Act of 1995, the methodology and assumptions used; (3) landscapes and special places. A Forest Service is seeking comments ways to enhance the quality, utility, and comparable paper-based option, suitable from all interested individuals and clarity of the information to be for use in mail back surveys and focus organizations on the new information collected; and (4) ways to minimize the group meetings, may be provided to collection, Forest Landscape Value and burden of the collection of information individuals who do not have access to Special Place Mapping for National on respondents, including the use of the Internet or as an alternative primary Forest Planning. automated, electronic, mechanical, or means of collecting data. DATES: Comments must be received in other technological collection writing on or before June 1, 2010 to be The information will be used in the techniques or other forms of information assured of consideration. Comments revision of specific national forest plans. technology. All comments received in response to received after that date will be Forest planners and managers will use this notice, including names and considered to the extent practicable. the collected information to develop land management plans that are addresses when provided, will be a ADDRESSES: Comments concerning this consistent with public values, while matter of public record. Comments will notice should be addressed to Dr. working within the regulatory be summarized and included in the Patrick Reed, National Human framework. The data collected would submission request toward Office of Dimensions Program Social Scientist, provide Forest Service managers with a Management and Budget approval. USDA Forest Service, 3301 C Street, new, systematic science-based tool for Suite 202, Anchorage, AK 99503. Dated: March 29, 2010. Comments may also be submitted by collecting and analyzing public opinion Gloria Manning, e-mail to [email protected]. about desired forest conditions and use Associate Deputy Chief, NFS. of specific geographic forest locations. The public may inspect comments [FR Doc. 2010–7551 Filed 4–1–10; 8:45 am] Survey results will be useful in gauging received at 201 14th St., SW., 3CEN BILLING CODE 3410–11–P during normal business hours. Visitors public support for proposed forest are encouraged to call ahead to 202– management options and in 205–9969 or 202–360–3486 to facilitate collaborative and participatory DEPARTMENT OF AGRICULTURE entry to the building. approaches to planning. While the collection is designed to assist with FOR FURTHER INFORMATION CONTACT: Dr. Commodity Credit Corporation Patrick Reed, USDA Forest Service, development of forest land management Agricultural Water Enhancement 907–743–9571. Individuals who use plans under NFMA, the information Program telecommunication devices for the deaf collected could be used in a variety of forest planning processes (i.e., travel (TDD) may call the Federal Relay AGENCY: Commodity Credit Corporation management and recreation facilities Service (FRS) at 1–800–877–8339, 24 and Natural Resources Conservation planning) and projects. hours a day, every day of the year, Service, Department of Agriculture. including holidays. The legal authorities supporting the ACTION: Notice of request for proposals. SUPPLEMENTARY INFORMATION: collection of this information include Title: Forest Landscape Value and the National Environmental Policy Act SUMMARY: Section 2510 of the Food, Special Place Mapping for National (NEPA) of 1969, the National Forest Conservation, and Energy Act of 2008 Forest Planning. Management Act (NFMA) of 1976, and (2008 Act) established the Agricultural OMB Number: 0596–NEW. the proposed 2008 NFMA Planning Rule Water Enhancement Program (AWEP) Type of Request: New. (36 CFR part 219). by amending section 1240I of the Food

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Security Act of 1985. The Secretary of • By courier: Gregory K. Johnson, resources to help partners apply, and Agriculture delegated the authority for Director, Financial Assistance Programs other general improvements. The AWEP to the Chief of the Natural Division, Department of Agriculture, requirements for submission of the Resources Conservation Service (NRCS), Natural Resources Conservation Service, proposal are not significantly different who is Vice President of the Commodity ‘‘AWEP Proposal,’’ 1400 Independence from 2009, and pose no additional Credit Corporation (CCC). NRCS is an Avenue, SW., Room 5239 South burden or workload. agency of the Department of Agriculture Building, Washington, DC 20250, (USDA). Effective upon publication of Telephone: (202) 720–1845. Proposals Availability of Funding will be accepted between 9 a.m. and 4 this notice, NRCS announces the Effective upon publication of this p.m., Monday through Friday, except availability of approximately $20.7 notice, NRCS announces the availability Federal Holidays. Please ask the guard million in AWEP financial assistance of approximately $20.7 million in during fiscal year (FY) 2010 to support at the entrance to the South Building to AWEP financial assistance during FY new AWEP projects. The AWEP is a call (202) 720–1845. 2010 to support new AWEP projects. voluntary conservation initiative that Note: Proposals submitted via fax, e-mail, NRCS will implement AWEP by provides financial and technical or after the deadline date listed in this notice entering into partnership agreements assistance to agricultural producers to will not be considered. with eligible entities to conserve ground implement agricultural water FOR FURTHER INFORMATION CONTACT: enhancement activities on agricultural and surface water or improve water Gregory K. Johnson, Director, Financial quality, or both, through a regional land for the purposes of conserving Assistance Programs Division, surface and ground water and approach. Eligible partners must submit Department of Agriculture, Natural complete proposals, as described in this improving water quality. As part of the Resources Conservation Service, 1400 Environmental Quality Incentives notice, to Gregory K. Johnson, Director, Independence Avenue, SW., Room 5239 Financial Assistance Programs Division. Program (EQIP), AWEP operates through South Building, Washington, DC 20250, program contracts with producers to Proposals are submitted by eligible Telephone: (202) 720–1845; Fax: (202) partners, and project evaluation will be plan and implement conservation 720–4265; or E-mail: practices in project areas established based upon a competitive process and [email protected]. Additional the criteria established in this notice. through partnership agreements. The information regarding AWEP is purpose of this notice is to inform Once the Chief approves a partner’s available at the following NRCS Web proposal and announces selection, agricultural producers of the potential page: http://www.nrcs.usda.gov/ agricultural producers within the availability of program funds and to programs/AWEP/. solicit proposals from potential partners Persons with disabilities who require project area may submit an AWEP seeking partnership agreements with the alternative means for communication application directly to their local NRCS Chief to promote the conservation of (Braille, large print, audio tape, etc.) office. Only specific kinds of entities are ground and surface water and the should contact the USDA TARGET eligible to submit a proposal and enter improvement of water quality. This is Center at: (202) 720–2600 (voice and into partnership agreements with NRCS; not a grant program to partners, and all TDD). these include federally recognized Federal funding offered through this Indian tribes, State and local units of SUPPLEMENTARY INFORMATION: This authority will be paid directly to government, agricultural or silvicultural notice includes significant additions agricultural producers through associations, and other groups of from the 2009 notice issued last fiscal individual contract agreements. producers such as an irrigation year. The basic authority, procedures, association, agricultural land trust, or DATES: Effective Date: The notice of and program requirements have not other nongovernmental organization request is effective April 2, 2010. changed. Partners who responded to the that has experience working with Eligible partners may submit 2009 notice reported difficulty in agricultural producers. proposals by mail or via courier. understanding where and how to apply, Nongovernmental organizations are • By mail: proposals must be confusion about administration and purpose of the new AWEP authority and entities as defined by the Internal postmarked May 17, 2010. Revenue Service and as cited in the • requirements of partners, By courier: proposals must be definitions section of this notice. This is delivered May 17, 2010. misunderstanding that AWEP was not a grant program for partners, lack of not a grant program, and all Federal ADDRESSES: Written proposals should be knowledge about NRCS resource funds made available through this submitted to the addresses identified concerns and conservation practices request for proposals will be paid below, with copies to the appropriate that needed to be addressed through the directly to producers through program NRCS State Conservationist whose partnership, frustration in NRCS contract agreements. Individual names and addresses are identified as terminology used in the notices, and agricultural producers are not AWEP an attachment to this notice. If a project other similar concerns. As the result of eligible entities and may not submit is multi-State in scope, potential these concerns, the agency conducted AWEP proposals, nor may they apply partners must send each State an internal examination of AWEP to for program benefits through this Conservationist in the proposed project better clarify the program and proposal submission process; however, areas the proposal for review. requirements for proposal submission. once an AWEP project area has been • By mail: Gregory K. Johnson, In addition to the internal review, the approved and announced, individual Director, Financial Assistance Programs agency also invited suggestions from producers may apply for program Division, Department of Agriculture, legislators, producers, and other benefits through their local NRCS office. Natural Resources Conservation Service, organizations with an interest in AWEP. No Federal AWEP funding may be used ‘‘AWEP Proposal,’’ 1400 Independence As a result of the review, this notice to cover administrative expenses of Avenue, SW., Room 5239 South includes more explanation of the partners. Administrative activities Building, Washington, DC 20250. (Note: program, added definitions, clarification include any indirect or direct costs Registered or Certified Mail to a Post of the requirements and criteria to be relating to submitting or implementing Office will not be accepted.) addressed in the proposal, links to the project proposal.

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Definitions (a) Has not operated a farm or ranch, Contract as defined in the EQIP Activities means conservation or who has operated a farm or ranch for regulation means a legal document that not more than 10 consecutive years. specifies the rights and obligations of systems, practices, or management This requirement applies to all members any participant accepted to participate measures needed to address a resource of an entity who will materially and in the AWEP program. An AWEP concern or improve environmental substantially participate in the contract is a binding agreement for the quality through the treatment of natural operation of the farm or ranch. transfer of assistance from the resources, and includes structural, (b) In the case of a contract with an Department of Agriculture (USDA) to vegetative, and management practices, individual, individually, or with the the participant to share in the costs of as well as the activity for development immediate family, material and applying conservation practices. of conservation plans, as determined by substantial participation requires that Contracts funded through AWEP are NRCS. Activities may also include the individual provide substantial day- subject to requirements of EQIP actions associated with an agricultural to-day labor and management of the regulation (7 CFR 1466.21) (http:// operation or other activities conducted farm or ranch consistent with the www.nrcs.usda.gov/programs/eqip). by an AWEP partner which may or may practices in the county or State where Designated Conservationist means an not be associated with an NRCS the farm is located. NRCS employee whom the State conservation practice or program (c) In the case of a contract with an Conservationist has designated as support. entity or joint operation, all members responsible for administration of NRCS Agricultural land means cropland, must materially and substantially programs at the local level. grassland, rangeland, pasture, and other participate in the operation of the farm Environmental Quality Incentives agricultural land on which agricultural or ranch. Material and substantial Program means a program administered and forest-related products or livestock participation requires that each of the by NRCS in accordance with 7 CFR part are produced and resource concerns members provide some amount of the 1466 (http://www.nrcs.usda.gov/ may be addressed. Other agricultural management or labor and management programs/eqip), which provides lands may include cropped woodland, necessary for day-to-day activities, such technical and financial assistance to marshes, incidental areas included in that if each of the members did not eligible producers for the installation the agricultural operation, and other provide these inputs, operation of the and implementation of conservation types of agricultural land used for farm or ranch would be seriously practices and activities on private production of livestock. impaired. agricultural and nonindustrial forest Agricultural water enhancement Chief means Chief of the Natural land. activity means the following, conducted Resources Conservation Service, or Exceptional Drought (D–4) means, as in accordance with State water law: designee. defined by the National Oceanic and (a) Water quality or water Conservation Activity Plan means a Atmospheric Administration, conservation plan development, resource-specific conservation plan exceptional widespread crop/pasture including resource condition prepared by a certified Technical losses; exceptional fire risk; and assessment and modeling; Service Provider (TSP) as authorized by shortages of water in reservoirs, streams, (b) Water conservation restoration or the 2008 Act for financial assistance and wells creating water emergencies. enhancement projects, including the payment through EQIP for eligible land Field Office Technical Guide means conversion to the production of less of the producer. the official local NRCS source of water-intensive agricultural Conservation planning means using resource information, conservation commodities or dryland farming; the planning process outlined in the practice standards, specifications, and (c) Water quality or quantity NRCS National Planning Procedures interpretation of guidelines, criteria, and restoration or enhancement projects; Handbook (NPPH). The NPPH is requirements for planning and applying (d) Irrigation system improvement available at: http:// conservation practices, activities, and and irrigation efficiency enhancements; directives.sc.egov.usda.gov/. conservation management systems. It (e) Activities designed to mitigate the Conservation practice means one or contains natural resource quality criteria effects of drought, (e.g., construction, more conservation improvements and to be achieved to provide for the improvement, or maintenance of planning activities, including structural conservation and sustainability of soil, irrigation ponds, small on-farm practices, land management practices, water, air, plant, and animal resources reservoirs, or other agricultural water vegetative practices, forest management applicable to the geographic area where impoundment structures that are practices, and other improvements that resource concerns are addressed. The designed to capture surface water are planned and applied according to FOTG can be accessed online at: http:// runoff); and standards and specifications contained www.nrcs.usda.gov/technical/efotg/. (f) Related activities that the Chief in the NRCS Field Office Technical Financial Assistance means a determines will help achieve water Guide (FOTG). Conservation practices payment made to the program quality or water conservation benefits and activities funded through AWEP are participant. Forest management plan means a site- on agricultural land. subject to requirements of EQIP regulation (7 CFR 1466.10) (http:// specific plan that is prepared by a Note: Not all listed activities are currently www.nrcs.usda.gov/programs/eqip). professional resource manager, in supported by NRCS practice standards or Only EQIP may provide financial consultation with the participant, and is funded through NRCS programs. assistance for support of the activity of approved by the State Conservationist. Applicant means a person, legal conservation planning. Forest management plans may include a entity, joint operation, or tribe that has Conservation system means a forest stewardship plan, as specified in an interest in an agricultural or forestry combination of conservation practices section 5 of the Cooperative Forestry operation, as defined in 7 CFR part and management measures used to Assistance Act of 1978 (16 U.S.C. 1400, who has requested to participate address natural resource and 2103a); another practice plan approved in AWEP. environmental concerns in a by the State Forester; or another plan Beginning Farmer or Rancher means a comprehensive, holistic, and integrated determined appropriate by the State person or legal entity who: manner.

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Conservationist. The plan must comply principally for one or more of the practices. AWEP payments are only with Federal, State, tribal, and local conservation purposes specified in made to eligible agricultural producers laws, regulations, and permit clause (i), (ii), (iii), or (iv) of section through program contracts. Payments requirements. 170(h)(4)(A) of the Internal Revenue and payment rates are established by Indian land is an inclusive term Code of 1986; is an organization program rule. Payments are only describing all lands held in trust by the described in section 501(c)(3) or that is provided to assist with implementation United States for individual Indians or described in section 509(a)(2) of that of approved conservation practices and tribes, or all lands, titles to which are Code; or is described in section activities listed in the FOTG and must held by individual Indians or tribes, 509(a)(3) of that Code and is controlled meet other requirements of EQIP subject to Federal restrictions against by an organization described in section regulation (7 CFR 1466.23–24) (http:// alienation or encumbrance, or all lands 509(a)(2) of that Code. www.nrcs.usda.gov/programs/eqip). that are subject to the rights of use, Nonindustrial private forest land Priority resource concern means a occupancy, or benefit of certain tribes. means rural land, as determined by the resource concern that is identified by For purposes of this notice, the term Secretary, that has existing tree cover or the State Conservationist, with advice Indian land also includes land for is suitable for growing trees and is from the State Technical Committee and which the title is held in fee status by owned by any nonindustrial private local work groups, as a priority for a Indian tribes and the United States individual, group, association, State or the specific geographic areas Government owned land under the corporation, Indian tribe, or other within a State. Bureau of Indian Affairs jurisdiction. private legal entity that has definitive Producer means a person, legal entity, Indian tribe means any Indian tribe, decisionmaking authority over the land. or joint operation who has an interest in band, nation, or other organized group Participant means a person, legal the agricultural operation, according to or community, including any Alaska entity, joint operation, or tribe that is 7 CFR part 1400, or who is engaged in Native village or regional or village receiving payment or is responsible for agricultural production or forestry corporation as defined in or established implementing the terms and conditions management. pursuant to the Alaska Native Claims of an EQIP contract. Projects of Special Environmental Settlement Act (43 U.S.C. 1601 et seq.) Partner means an entity that enters Significance means projects, as defined that is federally recognized as eligible into a partnership agreement with NRCS in 7 CFR 1466(d) and approved by the for the special programs and services to carry out the approved AWEP project. Chief, which meet the following criteria: provided by the United States to Indians Eligible partners include federally (a) Site-specific evaluations have been because of their status as Indians. recognized Indian tribes, State and local completed, documenting that the project Joint Agreement means a business units of government, agricultural or will have substantial positive impacts arrangement where two or more silvicultural associations, or other such on critical resources in or near the participants cooperate to carry out groups of agricultural producers. Note: project area (e.g., impaired water bodies conservation practices that can best be Individual agricultural producers are or at-risk species); accomplished by combining resources. not partners under provisions of AWEP (b) The project clearly addresses a Such agreements must be formally and are not eligible to submit proposals national priority and State, tribal, or documented and signed by all as outlined in this notice. local priorities, as applicable; and applicable parties. Partner applicant means an eligible (c) The project assists the participant Joint Operation means a general entity that enters into a partnership in complying with Federal, State, and partnership, joint venture, or other agreement with NRCS to carry out the local regulatory requirements. similar business arrangement in which approved AWEP project. Rangeland means land on which the the members are jointly and severally Partnership agreement means a multi- historic climax plant community is liable for the obligations of the year agreement between NRCS and the predominantly grasses, grass-like plants, organization. partner. The AWEP partnership forbs, or shrubs, and includes lands Limited Resource Farmer or Rancher agreement describes the activities and revegetated naturally or artificially means: resources, such as technical or financial when routine management of that (a) A person with direct or indirect assistance, that may be provided by vegetation is accomplished mainly gross farm sales not more than $155,200 NRCS and the partner to help producers through manipulation of grazing. in each of the previous 2 years (adjusted meet the objectives of AWEP in an Rangelands include natural grasslands, for inflation using Prices Paid by Farmer approved project area. The AWEP savannas, shrublands, most deserts, Index as compiled by the National partnership agreement does not transfer tundra, alpine communities, coastal Agricultural Statistical Service); and financial or technical assistance funding marshes, and wet meadows. (b) Has a total household income at or to a partner, nor provide for the Resource concern means a specific below the national poverty level for a administrative expenses of the partner. natural resource problem that represents family of four, or less than 50 percent Individual producers may not enter into a significant concern in a State or of county median household income in partnership agreements under AWEP region, and is likely to be addressed each of the previous 2 years (to be authority. successfully through the determined annually using Department Payment means financial assistance implementation of conservation of Commerce data). provided to a contract participant under activities by producers. The two natural Local working group means the the terms of the program contract. The resource concerns that may be advisory body pursuant to 16 U.S.C. payment is based upon the estimated addressed through AWEP are water 3861 and described in 7 CFR part 610. costs incurred for performing or conservation or water quality and Information regarding these groups can implementing conservation practices include the following sub categories: be found at: http://www.nrcs.usda.gov/ and activities, including costs for Water Quantity (Water Conservation): programs/StateTech/. planning, materials, equipment, labor, • Aquifer Overdraft Nongovernmental organization is any design and installation, maintenance, • Excessive Runoff, Flooding, or legal entity that is organized for, and at management, or training, as well as the Ponding all times since, the formation of the estimated income foregone by the • Excessive Seepage organization has been operated producer for designated conservation • Excessive Subsurface Water

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• Inadequate Outlets with the design and implementation of modeling). The partner is not required • Inefficient Water Use on Irrigated conservation practices; and (2) technical to provide financial or technical Land infrastructure including activities, resources towards the project (match); • Inefficient Water Use on processes, tools, and agency functions however, proposals that include or offer Nonirrigated Land needed to support delivery of technical partner provided resources will be given • Insufficient Flows in Water Courses services, such as technical standards, higher priority consideration in the • Rangeland Hydrologic Cycle resource inventories, training, data, evaluation process. AWEP financial • Reduced Capacity of Conveyances technology, monitoring, and effects assistance is delivered directly to by Sediment Deposition analyses. Information regarding producers in approved project areas • Reduced Storage of Water Bodies by technical assistance can be found at: through contract agreements. No Sediment Accumulation http://www.nrcs.usda.gov/programs/ technical or financial assistance funding Water Quality: cta/. may be provided to a partner through • Excessive Nutrients and Organics in Technical Service Provider means an the AWEP partner agreement. However, Groundwater individual, private-sector entity, or if requested by a partner, the State • Excessive Nutrients and Organics in public agency certified by NRCS, in Conservationist or Chief may consider Surface Water accordance with 7 CFR part 652, to development of a separate funding • Excessive Salinity in Groundwater agreement with a qualified partner for • provide technical services to program Excessive Salinity in Surface Water delivery of technical services to • participants in lieu of or on behalf of Excessive Suspended Sediment and NRCS. Information regarding TSP producers participating in an approved Turbidity in Surface Water services available through AWEP is AWEP project. • Harmful Levels of Pathogens in found in the EQIP regulation (7 CFR Submitting Proposals Groundwater 1466.11) (http://www.nrcs.usda.gov/ • Harmful Levels of Pathogens in programs/eqip). Potential partners must submit a Surface Water complete proposal to Gregory K. • Harmful Levels of Pesticides in Overview of the Agricultural Water Johnson, Director, Financial Assistance Groundwater Enhancement Program Programs Division, addressing all • Harmful Levels of Pesticides in Background questions and items listed in the Surface Water ‘‘Proposal Requirements’’ section of this • Harmful Temperatures of Surface The AWEP is a voluntary notice. The proposal must include Water conservation program that provides sufficient detail to allow NRCS to Resource concerns used by NRCS are financial and technical assistance to understand the partner’s priority found in section III of each State or local agricultural producers to implement resource concerns, objectives, and FOTG which can be found at: http:// agricultural water enhancement expected outcomes. Incomplete www.nrcs.usda.gov/technical/efotg/. activities using conservation practices proposals and those that do not meet the Socially Disadvantaged Farmer or on eligible land for the purposes of requirements set forth in this notice will Rancher means a farmer or rancher who conserving surface and ground water not be considered, and notification of has been subjected to racial or ethnic and improving water quality. As part of elimination will be mailed to the prejudices because of their identity as a EQIP, AWEP operates through contracts applicant. The proposal must also be member of a group without regard to with eligible producers to plan and accompanied by letters of review from their individual qualities. Those groups implement approved conservation the appropriate State Conservationists to include African Americans, American practices and activities to conserve the Director, Financial Assistance Indians or Alaskan natives, Hispanics, ground and surface water and improve Programs Division as specified in this Asians, and native Hawaiians or other water quality in project areas notice. The Chief or designee will Pacific Islanders. established through partnership review, prioritize, and evaluate the State Conservationist means the agreements. Producers located in proposals based on the criteria provided NRCS employee who is authorized to approved AWEP project areas, in this notice. State Conservationists implement conservation programs announced by partners and NRCS, may will provide guidance to potential administered by NRCS, and who directs submit an application for program partners regarding resource concerns and supervises NRCS activities in a assistance at their local NRCS service that may be addressed in the proposed State, the Caribbean Area, or the Pacific center or field office. As part of the project area, local working group and Islands Area. partnership agreement, approved State Technical Committee natural State Technical Committee means a partners may also help facilitate the resource priorities, approved committee established by the USDA submission of producers’ applications, conservation practices and activities, Secretary in a State pursuant to 16 or they may provide additional and other program requirements the U.S.C. 3861 and described in 7 CFR part technical or financial assistance to partner should consider when 610. Information regarding these participating agricultural producers, or developing a proposal. committees can be found at: http:// provide other resources as defined in www.nrcs.usda.gov/programs/ the agreement. A primary intent of Partner Entity Eligibility StateTech/. AWEP is to leverage other non-Federal Potential partner entities that are Technical assistance means technical resources along with NRCS program eligible to participate as partners expertise, information, and tools resources to achieve program objectives. include federally recognized Indian necessary for the conservation of natural Partners are encouraged to include in tribes, States and local units of resources on land active in agricultural, their proposals resources to help government, agricultural or silvicultural forestry, or related uses. The term producers implement approved associations, or other groups of includes the following: (1) Technical conservation practices and activities producers, such as an irrigation services provided directly to farmers, and provisions to address those AWEP association, agricultural land trust, or ranchers, and other eligible entities, priority activities that NRCS does not other nongovernmental organization such as conservation planning, have the authority to implement (e.g. that has experience working with technical consultation, and assistance resource condition assessment and agricultural producers. Individual

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producers are not eligible to submit receiving assistance through AWEP electronic copy for single-State or multi- proposals under this notice. must meet EQIP program eligibility State projects that do not exceed 5 years requirements and will be subject to in length. The proposal must be in the Producer Eligibility EQIP payment limitations and other following format and contain the Individual producers are eligible to requirements. Producers applying for information set forth below: apply for program benefits as part of an AWEP are not required to have an Proposal Format: Five copies of the approved AWEP project as determined existing EQIP contract. However, they proposal should be typewritten or by the requirements of this notice and must be determined eligible for EQIP printed on 81⁄2″ × 11″ white paper. The EQIP regulation found in 7 CFR 1466.8 assistance prior to entering into an text of the application should be in a (http://www.nrcs.usda.gov/programs/ AWEP contract. Information about font no smaller than 12-point, with one- eqip). Producers seeking to participate limitations and benefits that apply to inch margins. One additional copy of in an approved AWEP project must land and agricultural producers enrolled the proposal must be in a format such meet all EQIP program eligibility in the AWEP program are found in the as Microsoft Word or PDF on one CD requirements. EQIP authorizing legislation (16 U.S.C. ROM. If submitting more than one Producer Applications and Contracts 3839aa) and regulation (7 CFR part proposal, submit a separate proposal for 1466) (http://www.nrcs.usda.gov/ each project. Consult the NRCS national Agricultural producers in approved programs/eqip). AWEP Web site for an example of an project areas may apply for available acceptable AWEP proposal document at: AWEP funds at their local USDA service Land Eligibility http://www.nrcs.usda.gov/programs/ center or NRCS field office (http:// The following land is eligible for awep/. The entire proposal may not offices.sc.egov.usda.gov/locator/ enrollment in the AWEP through exceed 12 pages in length including app?agency=nrcs). Once an application program contracts with producers: summary, maps, reference materials, is selected, an eligible agricultural • Private agricultural land. and related reports. producer will enter into a contract with • NRCS to implement approved Indian land. • Proposal Summary conservation practices that address the Publicly owned land where: Æ The basic format for the AWEP water conservation and water quality The conservation practices to be implemented on the public land are proposal is a narrative written response resource concerns identified in the to the questions and information partnership proposal and agreement. necessary and will contribute to an improvement in the identified requested in this notice. There are no Through these contracts, NRCS provides forms required or associated with the payments to agricultural producers for resource concern; Æ proposal submission process; however, implementing conservation practices The land is a working component of the participant’s agricultural or the proposal must include the that meet the agricultural water following: enhancement activities and goals of the forestry operation; and Æ (1) Proposal Cover Sheet and project. The term of the contract The participant has control of the land for the term of the contract. Summary: The first two pages of the agreement with a producer will be for a proposal summary must include: minimum duration of one year after For producer contracts that address (a) Project Title. completion of the last practice, but not water conservation and irrigation (b) Project director/manager name, more than 10 years. related conservation practices, EQIP telephone number, and e-mail address. In States with water quantity regulation requires that land must be (c) Name of lead partner entity concerns, where the partner proposal irrigated 2 of the previous 5 years prior submitting proposal and other includes conservation management to application for assistance (7 CFR collaborating partners. practices that assist producers with the 1466.10(d)). AWEP projects that include (d) Mailing address and phone conversion of agricultural land from agricultural lands not irrigated for 2 of numbers for lead partner submitting irrigated farming to dryland farming, the previous 5 years, the construction, proposal. NRCS may enter into contracts that improvement, or maintenance of (e) Short general description/ provide a producer payments for irrigation ponds, small on-farm summary of project; describe whether applicable practices for up to 5 years as reservoirs, or other agricultural water proposal will address water needed to complete the conversion impoundment structures that are conservation resource issues, water when the conversion activity is designed to capture surface water quality resource issues, or both. Identify consistent with State law. Conversion runoff, are eligible only in an area that the specific natural resource concerns to activities are supported through AWEP is experiencing or has experienced be addressed, and describe the approved by implementation of approved exceptional drought conditions between FOTG conservation practices and conservation practices. June 18, 2006, and June 18, 2008. A list activities that will be used to address An agricultural producer may elect to of States and counties that are those resource concerns, including use a TSP for technical assistance designated exceptional drought areas is practices that will be used to help associated with conservation planning found on the AWEP Web site at: http:// producers in the conversion of irrigated or practice design and implementation. www.nrcs.usda.gov/programs/awep/. farming to dryland farming. A participant may not receive payments Additional information regarding land (f) Specify the geographic location: that exceed an aggregate of $300,000, eligibility to meet EQIP requirements State(s), County(s), congressional directly or indirectly, for all EQIP and are found in 7 CFR 1466.8 and available district(s), and whether proposal is a AWEP contracts, including prior year at: http://www.nrcs.usda.gov/programs/ multi-State proposal or within-State contracts entered into during any 6-year eqip. proposal. Include a general location period. The Chief may waive this Proposal Requirements map that shows if the location of the limitation allowing up to $450,000 for project area is within an AWEP national projects of special environmental For consideration of a proposal, a priority area, which are: significance as defined in this notice potential partner must submit five • Eastern Snake Plains Aquifer. and EQIP regulation in section copies of the written proposal and one • Everglades. § 1466.21(d). All agricultural producers • Ogallala Aquifer.

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• Puget Sound. program resources to achieve program resources from other than the submitter • Sacramento River Basin. objectives. The partner is not required to must include a letter or other • Red River. provide financial or technical resources documentation from the other partner • Upper Mississippi River Basin. towards the project (match); however, confirming this commitment of Additional information, maps, and a proposals that include or offer partner resources. Proposals that demonstrate list of States and counties located in provided resources will be given higher efforts to collaborate with other partners AWEP priority areas can be found at: priority through the evaluation process. and producers are likely to provide http://www.nrcs.usda.gov/programs/ The partner needs to clearly state, by increased environmental benefits, meet awep/. project objective, how they intend to the objectives of AWEP, and may (g) Proposed project start and end leverage Federal funds along with receive higher ranking consideration in dates (not to exceed a period of 5 years). partner resources to address water the evaluation process. (h) Total amount of AWEP financial quantity or water quality resource (h) A description of the proposed assistance being requested for entire issues. Note: The funding and time agricultural water enhancement project. contribution by agricultural producers activities and approved NRCS (2) Project Natural Resource to implement agreed-to conservation conservation practices and activities to Objectives and Actions: practices in program contracts may not be applied within the designated 5-year The proposal must include project be considered any part of a match from timeframe allowed for AWEP projects objectives that address water quality or the potential partner for purposes of and the general sequence of water quantity resource concerns. AWEP. One purpose of AWEP is to implementation of the project. (a) Identify and provide detail about leverage new resources from partners Enhancement activities include efforts the natural resource concern(s) to be above and beyond those contributions undertaken by the partner and those addressed and how the proposals made by individual producers. that the partner requests NRCS to objectives will address those concerns. (d) Demonstrate the ability to monitor address through financial support to Objectives should be specific, and evaluate project effects on natural implement eligible approved measurable, achievable, results- resources. Priority will be given to conservation practices and activities. In oriented, and include a timeline for projects where the partner can provide this section, list all the NRCS completion. resources, services, or conduct activities conservation practices the partner (b) For each objective, identify the to monitor and evaluate effects of wishes NRCS to offer to producers actions to be completed to achieve the conservation practices and activities through the AWEP project. Information objective and to address the identified implemented through the project. about NRCS practices can be found in natural resource concern using AWEP (e) Provide evidence the partner has the FOTG at: http://www.nrcs.usda.gov/ assistance or the actions being the capacity to deliver a final project technical/efotg/ and descriptions of addressed using alternate non-Federal performance report. If a proposal is practices at: http://www.nrcs.usda.gov/ resources or fund sources. approved, the partnership agreement technical/standards/. For each (c) Identify the total number of acres will provide additional details and conservation practice, estimate the that need conservation treatment along requirements for reporting performance extent (feet, acres, number, etc.) the with the kinds of conservation practices of the project effort. partner expects producers to implement and activities needed to treat priority (f) Identify potential criteria to be each fiscal year during the life of the resource concerns in the project area. used by NRCS to prioritize and rank project and the amount of financial Identify specific priorities within the agricultural producers’ AWEP assistance requested to support project area that need to be addressed applications in the project area. implementation of each practice first. Potential partners should collaborate through producer contracts. Provide (d) The proposed agricultural water with NRCS in the State where the detail if the project will address enhancement activities that may be project is proposed to develop regulatory compliance and any other implemented through partner efforts meaningful criteria that NRCS can use outcomes the partner expects to alone and those to be implemented to evaluate and rank producer program complete during the project period. using AWEP financial support. applications. For approved projects, this (i) A description of the resources (3) Partnership Capacity: joint effort will help NRCS select (financial or technical assistance) Potential partners must fully describe producer applications which will best requested annually from AWEP for their project and demonstrate their accomplish the projects intended producer contracts and the non-Federal history of working with agricultural conservation goals and address priority resources provided by the partner that producers to address water quality and resource issues identified by the partner will be leveraged by the Federal quantity issues. Information provided in in the proposal. Additional information contribution. From the estimated the proposal must: regarding the process NRCS uses to amount of financial assistance needed to (a) Demonstrate the commitment and evaluate and rank individual producer implement the conservation practices experience of the partner to accomplish applications is found in EQIP regulation identified in the previous section, the long-term conservation of surface 7 CFR 1466.20. Proposals which include include the total amount of financial and ground water or water quality specific ranking criteria developed in assistance funds requested for each improvement and related historical collaboration with NRCS may receive fiscal year of the project to be made activities that show this experience. higher consideration in the evaluation available for producer contracts. If (b) Demonstrate the ability and process. Additional guidance and resources other than funding are being history of the partner to coordinate assistance to develop appropriate offered by the partner, describe the kind water quality and quantity efforts among criteria may be obtained from the State of resources and services that will be agricultural producers. office where the project will be located. made available to producers to help (c) Demonstrate the availability of (g) A description of how the partners implement conservation practices and non-Federal matching funds or other and entities will collaborate to achieve activities. Note: The funding and time resources being contributed. A primary the project objectives and the roles, contribution by agricultural producers intent of AWEP is to leverage other non- responsibilities, and capabilities of each to implement agreed-to conservation Federal resources along with NRCS partner. Proposals that include practices in the program contracts may

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not be considered as part of a match conservation practices and activities (d) Other issues or concerns the State from the potential partner. All funding that are needed to treat significant Conservationist is aware of that should requests and information regarding resource concerns in the project area. be considered by the Chief. partner resources may be included in Identify specific priorities within the (e) A general recommendation for the form of a budget narrative. If project area that need to be addressed support or denial of project approval. financial assistance is approved and first. State Conservationist(s) must submit available, these funds must be obligated (5) Producer Information: letters of review to Gregory K. Johnson, in individual producer contracts that The partner must identify in the Director, Financial Assistance Programs may be from 2 to 10 years in length. proposal: (4) Lands to be Treated: Division no later than 10 calendar days An estimate of the number of eligible after the deadline for proposal The proposal should describe the agricultural producers the partner geographic area to be covered by the submission. A list of NRCS State expects to participate in the project Conservationists, addresses, and phone partnership agreement. Specifically, the compared with the estimated total proposal should include: numbers is included as an attachment at number of producers in the project area the end of this notice. Prior to (a) A map showing the proposed (estimate the percentage of project area. Describe the location and submission of the proposal, potential participation). Producer participation is partners are strongly encouraged to size of the proposed project area. Are a requirement for delivery of AWEP the size and scope of the project area consult with the appropriate State program benefits. How will the partner Conservationist(s) during proposal and proposed practices to address encourage participation to guarantee resource concerns reasonable and development to obtain guidance as to success of the project? Does the project achievable? What kinds of agricultural appropriate resource concerns to include socially disadvantaged farmers operations are in the project area? Is the address needed water quality or water or ranchers, beginning farmers or project located in a water conservation conservation enhancements, needed ranchers, limited resource farmers or priority area or include any Indian land? conservation practices and activities, (b) A description of the agricultural ranchers, or Indian tribes? Are there and other details of the project proposal. water quality or water conservation groups of producers who may submit All AWEP proposals become the issues to be addressed by the joint program applications to address property of NRCS for use in the partnership agreement. Provide resource issues of common interest and administration of the program, may be information about the extent and kinds need? filed or disposed of by the agency, and of water quality issues to be addressed (6) Proposal Implementation Plan and will not be returned to the potential such as pollutants, designated priority Schedule: partner. Once proposals have been areas, groundwater overdraft, surface Potential partners must submit project submitted to the agency for review and water deficiencies, etc. action plans and schedules, not to ranking, there will be no further (c) A description of the agricultural exceed 5 years, detailing activities, opportunity to change or re-submit the water enhancement objectives to be including timeframes related to project proposal document. achieved through the partnership and milestones and monitoring and the NRCS practices expected to be evaluation activities that will likely be Acknowledgement of Submission and implemented. What are the primary documented in the partnership Notifications agreement. A project action plan should objectives to be accomplished in the Partners whose proposals have been describe how often the potential partner project by the partner and expected selected will receive a letter of official plans to monitor and evaluate the environmental improvements from notification. Upon notification of project and how it plans to quantify the producer implementation of AWEP selection, the partner should contact the results or performance of the project for funded conservation practices and State Conservationist listed in the letter the final project performance report. activities? How will progress toward to develop the required partnership Indicate the practices the partner achieving environmental benefits be agreement and other project expects to implement during the project measured? What kinds of water implementation requirements. Potential timeframe and general sequence of conservation plans, assessments, or partners should note that depending implementation. modeling will be done to help achieve upon available funding, NRCS may offer (7) Letter of Review: project objectives or encourage practice a reduced amount of program financial Potential partners must include a implementation? Will the project assistance from what was requested in copy of the letter showing that the include specific efforts to encourage the proposal. Partner submissions of written proposal was sent to the producers to convert irrigated land to proposals that were not selected will be appropriate State Conservationist(s). If a less water-intensive operations or notified by official letter. dryland farming? What percentage of project is multi-State in scope, all State the project area is expected to be Conservationists in the proposed project Withdrawal of Proposals converted to dryland farming? Will the area must be sent the proposal for Partner proposals may be withdrawn proposal restore or enhance water review. The State Conservationist(s) will by written notice to the Director, quantity or quality in the project area or review the proposal to address: Financial Assistance Programs Division reduce the impacts of drought? What (a) Potential duplication of efforts at any time prior to selection. kinds of irrigation system improvements with other projects or existing programs. will be implemented? Will the planned (b) Adherence to, and consistency Ranking Considerations activities significantly solve or improve with, overall EQIP regulation including the resource issues being addressed? requirements related to land and The Chief or designee will evaluate Describe any activities that are producer eligibility and use of approved the proposals using a competitive innovative or include outcome-based NRCS resource concerns and process. Higher priority may be given to performance measures implemented by conservation practices and other proposals that: the partner. program requirements. (a) Include high percentages of (d) Include the total acres that need (c) Expected benefits for project agricultural land and producers in a conservation treatment and the priority implementation in their State(s). region or other appropriate area;

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(b) Result in high levels of applied participating in the project and located 19904–8713, Phone: 302/678–4160, agricultural water quality and water in the approved geographic area. Fax: 302/678–0843, (V) 9060–199, (E) conservation activities; Participating producers must meet all [email protected]. (c) Significantly enhance agricultural EQIP eligibility requirements (7 CFR FL—Carlos Suarez, 2614 N.W. 43rd activity; 1466.8). Street, Gainesville, Florida 32606– (d) Allow for monitoring and Waiver Authority 6611 or P.O. Box 141510, Gainesville, evaluation by the partner; FL 32614, Phone: 352/338–9500, Fax: (e) Assist agricultural producers in To assist in the implementation of 352/338–9574, (V) 9012–3501, (E) meeting a regulatory requirement that agricultural water enhancement [email protected]. reduces the economic scope of the activities under the program, the Chief GA—James Tillman, Federal Building, producer’s operation; and may waive the applicability of the Stop 200, 355 East Hancock Avenue, (f) Achieve the project’s land and Adjusted Gross Income Limitation, on a Athens, Georgia 30601–2769, Phone: water treatment objectives within 5 case-by-case basis, in accordance with 706/546–2272, Fax: 706/546–2120, years or less. policy and processes promulgated in 7 (V) 9021–2082, (E) For proposals from States with water CFR part 1400. Such waiver requests [email protected]. quantity concerns, the Chief will give must be submitted in writing from the GU—Lawrence T. Yamamoto, Director, higher priority to projects from States program applicant, addressed to the Pacific Basin Area, FHB Building, where the proposal will: Chief, and submitted through the local Suite 301, 400 Route 8, Mongmong, (a) Include conservation practices that NRCS designated conservationist. Guam 96910, Phone: 671/472–7490, support the conversion of agricultural Signed March 29, 2010, in Washington, Fax: 671/472–7288, (V) 9000–822– land from irrigated farming to dryland DC. 1265, (E) farming; Dave White, [email protected]. (b) Leverage Federal funds provided Vice President, Commodity Credit HI—Lawrence T. Yamamoto, 300 Ala under the program with funds provided Corporation and Chief, Natural Resources Moana Blvd., Room 4–118, P.O. Box by partners; and Conservation Service. 50004, Honolulu, Hawaii 96850–0002, (c) Assist producers in States with Attachment Phone: 808/541–2600 x107, Fax: 808/ high priority water quantity concerns, as 541–1335, (V) 9042–108, (E) determined by the Chief. The high State Conservationists [email protected]. priority areas are located in the AL—William E. Puckett, 3381 Skyway ID—Jeffrey B. Burwell, 9173 West following regions: Eastern Snake Plain Drive, P.O. Box 311, Auburn, Barnes Drive, Suite C, Boise, Idaho Aquifer, Everglades, Ogallala Aquifer, Alabama 36830, Phone: 334/887– 83709, Phone: 208/378–5700, Fax: Puget Sound, Sacramento River Basin, 4500, Fax: 334/887–4552, (V) 9027– 208/378–5735, (V) 9000–291–4551, Red River, and Upper Mississippi River 4557, (E) (E) [email protected]. Basin. [email protected]. IL—William J. Gradle, 2118 W. Park The Chief may include other factors AK—Robert Jones, 800 West Evergreen, Court, Champaign, Illinois 61821, and criteria which help identify those Atrium Building, Suite 100, Palmer, Phone: 217/353–6601, Fax: 217/353– proposals which best achieve the Alaska 99645–6539, Phone: 907/761– 6676, (V) 9057–6601, (E) purposes of AWEP. 7760, Fax: 907/761–7790, (V) 9035– [email protected]. Partnership Agreements 2227, (E) IN—Jane E. Hardisty, 6013 Lakeside [email protected]. Blvd., Indianapolis, Indiana 46278– Upon selection and approval by the AZ—David L. McKay, 230 North First Chief, the agency will enter into a 2933, Phone: 317/290–3200, Fax: 317/ Avenue, Suite 509, Phoenix, Arizona 290–3225, (V) 9029–301, (E) partnership agreement with the partner. 85003–1706, Phone: 602/280–8801, The partnership agreement will not [email protected]. Fax: 602/280–8809 or 8805, (V) 9011– IA—Richard Sims, 693 Federal obligate funds, but will address: 8810, (E) (a) Agricultural water enhancement Building, 210 Walnut Street, Suite [email protected]. 693, Des Moines, Iowa 50309–2180, activities anticipated to be addressed AR—Michael E. Sullivan, Federal Phone: 515/284–6655, Fax: 515/284– and conservation practices to be Building, Room 3416, 700 West 4394, (V) 9000–945–1065, (E) implemented; Capitol Avenue, Little Rock, Arkansas [email protected]. (b) The role of NRCS; 72201–3228, Phone: 501/301–3100, (c) The responsibilities of the partner Fax: 501/301–3194, (V) 9044–3110, KS—Kasey Taylor, Acting, Eric B. related to the monitoring and evaluation (E) [email protected]. Banks, 760 South Broadway, Salina, of project performance; CA—Lincoln E. (Ed) Burton, 430 G Kansas 67401–4642, Phone: 785/823– (d) The frequency and duration of the Street, Suite 4164, Davis, California 4565, Fax: 785/452–3369, (V) 9000– monitoring and evaluation of project 95616–4164, Phone: 530/792–5600, 345–8770, (E) [email protected]. performance; Fax: 530/792–5790, (V) 9040–5601, KY—Tom Perrin, 771 Corporate Drive, (e) The content and format of the final (E) [email protected]. Suite 110, Lexington, Kentucky project performance report that is CO—Allen Green, 655 Parfet Street, 40503–5479, Phone: 859/224–7350, required as a condition of the Room E200C, Lakewood, Colorado Fax: 859/224–7399, (V) 9032–7390, agreement; 80215–5521, Phone: 720–544–2810, (E) [email protected]. (f) The specified project schedule and Fax: 720–544–2965, (V) 9059–2802, LA—Kevin D. Norton, 3737 Government timeframe; and (E) [email protected]. Street, Alexandria, Louisiana 71302, (g) Other requirements deemed CT—Douglas Zehner, 344 Merrow Road, Phone: 318/473–7751, Fax: 318/473– necessary by NRCS to achieve the Suite A, Tolland, Connecticut 06084, 7626, (V) 9000–965–1635, (E) purposes of AWEP. Phone: 860/871–4011, Fax: 860/871– [email protected]. Once the Chief or designee has 4054, (V) 9013–114, (E) ME—Juan Hernandez, 967 Illinois entered into a partnership agreement, [email protected]. Avenue, Suite #3, Bangor, Maine NRCS may enter into contracts directly DE—Russell Morgan, 1221 College Park 04401, Phone: 207/990–9100, ext. #3, with eligible agricultural producers Drive, Suite 100, Dover, Delaware Fax: 207/990–9599, (V) 9000–757–

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1028, (E) Fax: 505/761–4481, (V) 9016–4401, 277–2531, Fax: 615/277–2578, (V) 90 [email protected]. (E) [email protected]. 58–2530, (E) MD—Jon F. Hall, John Hanson Business NY—Astor Boozer, 441 South Salina [email protected]. Center, 339 Busch’s Frontage Road, Street, Suite 354, Syracuse, New York TX—Donald W. Gohmert, W.R. Poage Suite 301, Annapolis, Maryland 13202–2450, Phone: 315/477–6504, Federal Building, 10l South Main 21401–5534, Phone: 410/757–0861 Fax: 315/477–6550, (V) 9015–6501, Street, Temple, Texas 76501–7602, x315, Fax: 410/757–0687, (V) 9053– (E) [email protected]. Phone: 254/742–9800, Fax: 254/742– 315, (E) [email protected]. NC—J. B. Martin, Acting, 4405 Bland 9819, (V) 9038–9803, (E) MA—Christine Clarke, 451 West Street, Road, Suite 205, Raleigh, North [email protected]. Amherst, Massachusetts 01002–2995, Carolina 27609–6293, Phone: 919/ UT—Sylvia A. Gillen, W.F. Bennett Phone: 413/253–4351, Fax: 413/253– 873–2102, Fax: 919/873–2156, (V) Federal Building, 125 South State 4375, (V) 9047–4352, (E) 9025–2101, (E) Street, Room 4402, Salt Lake City, [email protected]. [email protected]. Utah 84111, Phone: 801/524–4555, MI—Garry D. Lee, 3001 Coolidge Road, ND—Paul Sweeney, 220 E. Rosser Fax: 801/524–4403, (V) 9000–625– Suite 250, East Lansing, Michigan Avenue, Room 278, P.O. Box 1458, 1550, (E) [email protected]. 48823–6350, Phone: 517/324–5270, Bismarck, North Dakota 58502–1458, VT—Judith M. Doerner, 356 Mountain Fax: 517/324–5171, (V) 9048–5277, Phone: 701/530–2000, Fax: 701/530– View Drive, Suite 105, Colchester, (E) [email protected]. 2110, (V) 9051–2003, (E) Vermont 05446, Phone: 802/951– MN—Jennifer Heglund, Acting, 375 [email protected]. 6795, Fax: 802/951–6327, (V) 9000– Jackson Street, Suite 600, St. Paul, OH—Terry J. Cosby, 200 North High 768–1240, (E) Minnesota 55101–1854, Phone: 651/ Street, Room 522, Columbus, Ohio [email protected]. 602–7900, Fax: 651/602–7913 or 43215–2478, Phone: 614/255–2472, VA—Vicky Drew, Acting, Jack Bricker, 7914, (V) 9041–7854, (E) Fax: 614/255–2548, (V) 9000–881– Culpeper Building, Suite 209, 1606 [email protected]. 1870, (E) [email protected]. Santa Rosa Road, Richmond, Virginia MS—Homer Wilkes, Suite 1321, Federal OK—Ronald L. Hilliard, 100 USDA, 23229–5014, Phone: 804/287–1691, Building, 100 West Capitol Street, Suite 206, Stillwater, Oklahoma Fax: 804/287–1737, (V) 9003–1682, Jackson, Mississippi 39269–1399, 74074–2655, Phone: 405/742–1204, (E) [email protected]. Phone: 601/965–5205, Fax: 601/965– Fax: 405/742–1126, (V) 9037–1280, WA—Roylene Rides at the Door, Rock 4940, (V) 9000–965–2065, (E) (E) [email protected]. Pointe Tower II, W. 316 Boone [email protected]. OR—Ron Alvarado, 101 SW Main Avenue, Suite 450, Spokane, MO—J.R. Flores, Parkade Center, Suite Street, Suite 1300, Portland, Oregon Washington 99201–2348, Phone: 509/ 250, 601 Business Loop 70 West, 97204–3221, Phone: 503/414–3200, 323–2900, Fax: 509/323–2909, (V) Columbia, Missouri 65203–2546, Fax: 503/414–3103, (V) 9019–3201, 9035–2901, (E) [email protected]. Phone: 573/876–0901, Fax: 573/876– (E) [email protected]. WV—Kevin Wickey, 75 High Street, 9439, (V) 9034–1367, (E) PA—Dave Brown, Acting, 1 Credit Room 301, Morgantown, West [email protected]. Union Place, Suite 340, Harrisburg, Virginia 26505, Phone: 304/284–7540, MT—Joyce Swartzendruber, Federal Pennsylvania 17110–2993, Phone: Fax: 304/284–4839, (V) 9049–7542, Building, Room 443, 10 East Babcock 717/237–2203, Fax: 717/237–2238, (E) [email protected]. Street, Bozeman, Montana 59715– (V) 9039–2203, (E) WI—Patricia Leavenworth, 8030 4704, Phone: 406/587–6813, Fax: 406/ [email protected]. Excelsior Drive, Suite 200, Madison, PR—Angel Figueroa, Acting, Director, 587–6761, (V) 9056–6813, (E) Wisconsin 53717, Phone: 608/662– Caribbean Area, IBM Building, Suite [email protected]. 4422, Fax: 608/662–4430, (V) 9018– NE—Stephen K. Chick, Federal 604, 654 Munoz Rivera Avenue, Hato 222, (E) [email protected]. Building, Room 152, 100 Centennial Rey, Puerto Rico 00918–4123, Phone: WY—J. Xavier Montoya, Federal Mall, North, Lincoln, Nebraska 787/766–5206, ext. 237, Fax: 787/ Building, Room 3124, 100 East B 68508–3866, Phone: 402/437–5300, 766–5987, (V) 9000–769–1030, (E) Street, Casper, Wyoming 82601–1911, Fax: 402/437–5327, (V) 9026–4103, [email protected]. Phone: 307/233–6750, Fax: 307/233– (E) [email protected]. RI—Richard ‘‘Pooh’’ Vongkhamdy, 60 NV—Bruce Petersen, 5301 Longley Quaker Lane, Suite 46, Warwick, 6753, (V) 9000–951–1015, (E) Lane, Building F, Suite 201, Reno, Rhode Island 02886–0111, Phone: [email protected]. Nevada 89511–1805, Phone: 775/857– 401/828–1300, Fax: 401/828–0433, [FR Doc. 2010–7515 Filed 4–1–10; 8:45 am] 8500, Fax: 775/857–8524, (V) 9000– (V) 9023–115, (E) BILLING CODE 3410–16–P 784–1390, (E) [email protected]. [email protected]. SC—Keisha Brown, Acting, Strom NH—George Cleek, Federal Building, 2 Thurmond Federal Building, 1835 DEPARTMENT OF AGRICULTURE Madbury Road, Durham, New Assembly Street, Room 950, Forest Service Hampshire 03824–2043, Phone: 603/ Columbia, South Carolina 29201– 868–7581 ext. 125, Fax: 603/868– 2489, Phone: 803/253–3935, Fax: 803/ Beaver Creek Landscape Management 5301, (V) 9000–868–8035, (E) 253–3670, (V) 9031–3940, (E) Project, Ashland Ranger District, [email protected]. [email protected]. Custer National Forest; Powder River NJ—Thomas Drewes, 220 Davidson SD—Janet L. Oertly, Federal Building, County, MT Avenue, Somerset, New Jersey 08873, Room 203, 200 Fourth Street, S.W., Phone: 732/537–6040, Fax: 732/537– Huron, South Dakota 57350–2475, AGENCY: Forest Service, USDA. 6095, (V) 9000–767–1000, (E) Phone: 605/352–1200, Fax: 605/352– ACTION: Notice; intent to prepare [email protected]. 1288, (V) 9036–1201, (E) environmental impact statement. NM—Dennis L. Alexander, 6200 [email protected]. Jefferson Street, N.E., Suite 305, TN—Kevin Brown, 675 U.S. SUMMARY: The Forest Service will Albuquerque, New Mexico 87109– Courthouse, 801 Broadway, Nashville, prepare an Environmental Impact 3734, Phone: 505/761–4402 (Rita), Tennessee 37203–3878, Phone: 615/ Statement (EIS) to disclose the effects of

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managing forest vegetation in a manner If you prefer, you can submit consistent with Custer Forest that increases resiliency of the Beaver comments on the Internet at comments- Management Plan (Forest Plan) Creek Landscape Management Project [email protected] by direction (p. 18), where ‘‘Management area ecosystem to future wildland fires. typing on the subject line ‘‘Beaver Creek activities, including prescribed fire, will Vegetation treatments proposed as part Landscape Management Project.’’ be conducted to maintain or enhance of this project are needed to trend the FOR FURTHER INFORMATION CONTACT: Dan the unique value associated within project area towards a more desired fire Seifert, Project Coordinator, at (406) woody draws and riparian zones, as adapted state and to perpetuate short- 446–2103. well as a variety of successional stages.’’ and long-term forest health and habitat SUPPLEMENTARY INFORMATION: Also, where timber harvest on suitable management goals. The decision will be forest lands is proposed, the Forest Plan to determine whether to proceed with Purpose and Need for Action (p. 24) directs that timber management the action as proposed, as modified by The purpose for the Beaver Creek is to be designed and applied to another alternative or not at all. If an Landscape Management Project is to maintain a variety of age classes. The action alternative is selected, the manage forest vegetation in a manner Forest Plan (p. 25) notes that Timber Responsible Official will determine that increases resiliency of this harvest on unsuitable forest lands may what design features, mitigation ecosystem to future wildland fires. occur to further management area goals. measures and monitoring requirements Vegetation treatments proposed as part The need for fuels reduction in the to require. of this project are needed to trend the project area was also identified in the The Beaver Creek Landscape project area towards a more desired fire 2004 Powder River Community Fire Management Project includes treatments adapted state and to perpetuate short- Plan (Powder River County 2004). In previously proposed as the Whitetail and long-term forest health and habitat this jointly produced document between Hazardous Fuels Reduction Project, and management goals. local landowners, Powder River County East Otter Hazardous Fuels project. The Currently, there are high Staff, and Forest Service personnel, the Whitetail project was initially proposed accumulations of forest fuels in the Beaver Creek project area was identified in 2007 and the East Otter project in project area. Continuous fuel beds, as part of the highest priority for fuel 2008. Since that time, the Forest Service increased ladder fuels, high surface fuel reduction within the 2,102,400 acres of has refined these treatment proposals in loading and landscapes dominated by Powder River County. The project is response to public comment and closed canopy stands have played a located adjacent to or within close collaboration and to better address major role in increasing wildfire size proximity of private landholdings and multiple landscape objectives. and severity for recent fires on the Forest Service infrastructure, including The use of prescribed fire, thinning, Ashland District, as evidenced by the the historic Whitetail Cabin and Holiday no treatment, commercial and pre- effects of the Tobin, Stag, Watt Draw, Campground. commercial forest vegetation treatments and Lost wildfires. In some cases, these Primary Objectives Include wildfires have resulted in burn to address the project purpose and need 1. Increase fire resiliency throughout severities that preclude timely natural was evaluated for 14,052 acres of the project area by reducing high fuel forest revegetation, have reduced or National Forest System Lands on the loads. Ashland Ranger District. A team of eliminated habitats for intrinsically and 2. Respond to Forest Plan direction to interdisciplinary specialists proposed economically important wildlife encourage management activities that treatments based on a multitude of species, and have reduced or eliminated maintain or enhance a variety of factors, including topography, tree an economically important sawtimber successional vegetative stages. This crown densities, access, ladder fuel and sustainable wood product base. project is intended to improve forest components, wildlife habitat needs, and Current fuel conditions threaten the stand health and create a diversity of past management activities. future availability of cover habitat stand conditions throughout the project Proposed vegetation treatments would attributes important to wildlife species area by managing for early development be accomplished using appropriate due to a higher probability of stand (post disturbance), mid development tools, such as mechanical fuels replacement fires and consequently, closed, mid development open, late treatment, commercial and non- significantly reduced forest cover across development closed, and late commercial timber harvest, and the project area. development open conditions. prescribed burning. In the event that a Currently the project area is commercial timber product is not dominated by late development closed Secondary Objectives Include marketable, use of mechanical canopy stands. There is a need to 1. Perpetuate diverse and sustainable treatments and prescribed fire would manage vegetation for more early-, mid- wildlife habitats that are more resilient proceed where appropriate and as and late-development open forest to wildfire consistent with Forest Plan allocated funding allows. structural classes to promote direction. disturbance regimes and processes more 2. Provide a source of wood products DATES: The draft environmental impact consistent with a fire adapted for dependent local markets and statement is planned to be released in ecosystem. Without a diversity of these perpetuate a sustainable wood product mid-April 2010 and the final conditions the risk of large stand source for the future consistent with environmental impact statement is replacement events is higher. More Forest Plan direction. planned for release in June 2010. The specifically, the proposal is needed to 3. Reduce risk to private property in project was initially released for public change vegetation characteristics across proximity to Federal lands in which scoping January 28, 2010 through March the landscape and create a spatial conditions are conducive to a large-scale 1, 2010. distribution of forest development wildfire. ADDRESSES: Send written comments to classes and structure that is more There is also a need to obliterate roads Beaver Creek Landscape Management resistant to large scale, high severity, in the project area that were Project, Ashland Ranger District, P.O. stand replacement fires in order to recommended for decommissioning in Box 168, Ashland, MT 59003 or by provide sustainable environmental, the Ashland Ranger District Travel phone at 406–784–2344. social, and economic benefits. This is Management Plan Final Environmental

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Impact Statement and Record of ecosystems and prescribed burning alternatives is developed and the Decision (USDA 2009). (natural and activity fuels) within the environmental analysis is begun. non-forested ecosystem. In addition, the Proposed Action Persons and organizations proposed action would reduce the risk commenting or requesting project The Forest Service, Custer National of a large fire event, reintroduce fire into information during the initial scoping Forest, Ashland Ranger District, these ecosystems and reduce the will be maintained on the mailing list proposes to move portions of the incidence of epidemic levels of insect for future information about Beaver ponderosa pine, grassland, and woody infestations and disease infections Creek Landscape Management Project. draw ecosystems toward their desired within the project area. The Responsible Official has conditions. The desired condition is The harvesting of timber, thinning, determined, at this time that it is in the contrasted with the existing condition prescribed burning, and construction best interest of the Forest Service to in the following sections. Fuel load and reconstruction of roads will be prepare an environmental impact reduction/alteration would be analyzed in accordance to the standards statement. accomplished through the tools of and guidelines identified in the Forest timber harvest, non timber harvest (non Plan, Best Management Practices, as Comments Requested commercial) thinning, and prescribed well as, other requirements of pertinent Given that scoping and public burning to restore or maintain the Federal and State laws and regulations. meetings have been conducted, structure, function, and composition of These may include, but are not limited comments are not being requested at the ecosystems across the Project Area. to, the National Forest Management Act, this time. The proposal may reduce the quality of Endangered Species Act, Clean Water wildlife habitat for the short-term but Act, National Historic Preservation Act, Early Notice of Importance of Public would ensure the long-term diversity and State Water Quality Standards. Participation in Subsequent and quality of habitats for selected Environmental Review species and provide wood products No Action Alternative A draft environmental impact from the area, consistent with Forest The No Action alternative would not statement will be prepared for public Plan direction. move any of the lands within the project The proposed action treats comment. The comment period on the area toward desired conditions because draft environmental impact statement approximately 2,694 acres by no treatments would be conducted. mechanical means (timber harvest) of will be 45 days from the date that the forested area suited for commercial Responsible Official Environmental Protection Agency (EPA) publishes the notice of availability in harvest. Non commercial type thinning The Responsible Official is Mary C. the Federal Register. activities (hand and mechanical) are Erickson, Forest Supervisor, Custer Written comments are preferred and proposed on 4,220 acres. Prescribed National Forest, 1310 Main Street, should include the name and address of burning is proposed on 4,463 acres of Billings, MT 59105. the harvest and non commercial the commenter. Comments submitted proposed activities post treatment. In Nature of Decision To Be Made for this proposed action, including addition to these treatments, prescribed Based on the purpose and need for the names and addresses of commentors, fire is planned on 3,594 acres. proposed action, the Responsible will be considered part of the public Prescribed fire will be used for activity Official will determine whether to record and available for public review. fuel reductions, site preparation on proceed with the action as proposed, as The Forest Service believes, at this regeneration harvests and returning fire modified by another alternative or not at early stage, it is important to give to the ponderosa pine, grassland and all. If an action alternative is selected, reviewers notice of several court rulings woody draw ecosystems across the the Responsible Official will determine related to public participation in the landscape. These proposed treatments what design features, mitigation environmental review process. will reduce ladder fuels, tree densities, measures and monitoring to require. Reviewers of draft environmental crown cover and maintain surface fuels impact statements must structure their at levels that will create a diversity of Scoping Process participation in the review of the stand conditions in the project area. Public scoping was initiated January proposal so that it is meaningful and Where burning is proposed, 28, 2010 and closed March 1, 2010. alerts an agency to the reviewer’s approximately 10 to 70 percent of each Three public meetings were conducted position and contentions, Vermont treatment unit will remain unburned, in local communities that could be Yankee Nuclear Power Corp. v. NRDC, depending upon specific unit affected by the decision. The public 435 U.S. 519, 553 (1978). Also, prescriptions. No treatment is proposed meeting in Ashland, MT was attended environmental objections that could be on 3,545 acres, within the project area. by eight people. No one attended either raised at the draft environmental impact Silvicultural prescriptions will be of the Billings, MT meetings. The Forest statement stage but that are not raised designed to minimize impacts, improve Service received seven letters or other until after completion of the final and retain wildlife habitats, alter current forms of comment (i.e. electronically environmental impact statement may be forest structures to enhance the Forest submitted comments) as a result of waived or dismissed by the courts. City Service’s ability to manage fires, and scoping. of Angoon v. Hodel, 803 F.2d 1016, provide for sustainable wood products The Forest Service will consider all 1022 (9th Cir. 1986) and Wisconsin removal. public scoping comments and concerns Heritages Inc. v. Harris, 409 F. Supp. Actions connected to the proposed that have been submitted, as well as 1334, 1338 (E.D.Wis. 1980). Because of action may involve construction of resource related input from the these court rulings, it is very important temporary roads and reconstruction of interdisciplinary team and other agency those interested in this proposed action existing roads (necessary for haul), resource specialists. This input will be participate by the close of the 45-day timber harvest, noxious weed treatment, used to identify issues to consider in the comment period so that substantive restoration of the green ash woody environmental analysis. A comments and objections are made draws, slashing, thinning, and comprehensive list of issues will be available to the Forest Service at the prescribed fire within the forested determined before the full range of time when it can meaningfully consider

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them and respond to them in the final effects of the Young Dodge project on expected to take place in or adjacent to environmental impact statement. wildlife species. treatment units authorized under this To assist the Forest Service in ADDRESSES: The line officer responsible decision; (3) Use of site-specific identifying and considering issues and for this analysis is: Glen M. McNitt, silvicultural prescriptions, logging concerns on the proposed action, District Ranger, Eureka Ranger Station, systems, fuel treatments, riparian comments on the draft environmental Rexford Ranger District, 949 Highway habitat conservation areas, and impact statement should be as specific 93 North, Eureka, MT 59917. reforestation practices; (4) as possible. It is also helpful if FOR FURTHER INFORMATION CONTACT: Pat Underburning without harvest in 19 comments refer to specific pages or Price, Team Leader, Rexford Ranger units totaling approximately 4,000 acres chapters of the draft statement. District, at (406) 296–2536. in order to achieve fuel reduction Comments may also address the SUPPLEMENTARY INFORMATION: The objectives; (5) Road maintenance adequacy of the draft environmental Young Dodge project area is activities on portions of 100 miles of impact statement or the merits of the approximately seven miles northwest of roads in order to reduce impacts to soil alternative formulated and discussed in Eureka, Montana, within all or portions and water resources; decommissioning the statement. Reviewers may wish to of T37N R28W and part of T37N R29W, of approximately 12 miles of roads to refer to the Council on Environmental PMM, Lincoln County, Montana. The provide beneficial effects to the Quality Regulations for implementing purpose and need for the project is to: watersheds; placing approximately 27 miles of roads in intermittent stored the procedural provisions of the (1) Reduce fuel accumulations, both service status to restore natural drainage National Environmental Policy Act at 40 inside and outside the Wildland-Urban patterns and reduce maintenance costs; CFR 1503.3 in addressing these points. Interface, to decrease the likelihood that reconstruct approximately 0.4 miles of Dated: March 25, 2010. fires would become stand-replacing existing roads; and adding about 9 miles Mary C. Erickson, wildfires; (2) Restore historical of ‘‘unauthorized’’ roads to the National vegetation species and stand structure; Forest Supervisor. Forest Road System; (6) Construction of and (3) Restore historical patch sizes. [FR Doc. 2010–7213 Filed 4–1–10; 8:45 am] a boat ramp, parking area, and restroom Other considerations are: (4) Identify the BILLING CODE 3410–11–M to provide access on the west shore of minimum transportation system Koocanusa Reservoir; (7) Rerouting and necessary to provide safe, reasonable, reconstructing approximately one and a DEPARTMENT OF AGRICULTURE and efficient access for Forest Service half miles of non-motorized hiking trail administrative activities and fire Forest Service and construct a small parking area; (8) suppression, recreation use and public Renovation of the Robinson Mountain access, and private land owners and Lookout to include it in the cabin rental Young Dodge SEIS; Kootenai National utility companies; (5) Manage the Forest, Lincoln County, MT program; (9) A project-specific Forest transportation system to reduce effects Plan amendment to Management Area AGENCY: Forest Service, USDA. to threatened, endangered, sensitive, (MA) 12 Wildlife and Fish standard #7 ACTION: Notice of intent to prepare a and management indicator species to allow regeneration harvest in big supplemental environmental impact habitat and security; streams, riparian game movement corridors adjacent to statement. areas, and wetlands; big game winter previous harvest openings and openings range; and old growth habitat, and to greater than 40 acres; (10) A project- SUMMARY: The Forest Service will minimize road maintenance costs; (6) specific Forest Plan amendment to MA prepare a Supplemental Environmental Evaluate recreation facilities and 12 Timber Standard #2 to allow harvest Impact Statement (SEIS) for the Young opportunities to meet growing and adjacent to units that do not provide Dodge project. The Young Dodge project anticipated demand; and (7) Evaluate suitable hiding cover; and (11) A includes urban interface fuels existing and proposed Special Use project-specific Forest Plan amendment treatments, vegetation management, Permits. to MA 12 Facilities Standard #3 to allow watershed rehabilitation activities, The Young Dodge Record of Decision open road density to exceed 0.75 mi/mi2 wildlife habitat improvement, and (ROD) was released at the same time as during project implementation and post- access management changes, including the Final EIS and the legal notice of project. road decommissioning. The project is decision was published in the The SEIS is intended to provide located in the Young Dodge planning newspaper of record on May 1, 2008. additional documentation of the effects subunit on the Rexford Ranger District, The ROD selected Alternative 1 and of the Young Dodge project on goshawk Kootenai National Forest, Lincoln authorized the following: (1) Removal of to the public. County, Montana, and seven miles commercial timber products from 29 A Draft SEIS is expected to be northwest of Eureka, Montana. The units totaling approximately 3,069 acres available for public review and Notice of Availability of the Draft EIS in order to reduce fuel accumulations, comment in April 2010; and a Final for this project was published in the both within and outside of the SEIS in June 2010. The comment period Federal Register (70 FR 14315) on wildland-urban interface, to decrease for the Draft SEIS will be 45 days from February 22, 2008, and the notice of the the likelihood that wildfires would the date the EPA publishes the notice of Final EIS (70 FR 38131) on May 1, 2008. become large stand-replacing wildfires, availability in the Federal Register. The Record of Decision on this project and to restore historical vegetation It is important that reviewers provide was administratively appealed to the patterns, stand structure, and patch their comments at such times and in Regional Forester per 36 CFR part 215. sizes on the landscape. Another 1,053 such a way that they are useful to the The Regional Forester reversed the acres may have commercial products Agency’s preparation of the EIS. decision on July 24, 2008, citing removed in units identified in the Therefore, comments should be insufficient evidence or rationale to ‘‘Prescribed Burn with Mechanical Pre- provided prior to the close of the explain why an analysis of potential Treatment’’ category; (2) Salvage of up to comment period and should clearly effects on the goshawk was not 200 acres of incidental mortality articulate the reviewer’s concerns and warranted. A Supplemental EIS is being resulting from prescribed fire, if contentions. The submission of timely prepared to further address potential necessary. This salvage would be and specific comments can affect a

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reviewer’s ability to participate in meeting is to continue planning civil Folsom, CA 95763, and 116 Hopper subsequent administrative review or rights projects. Lane, Folsom, CA 95630, Respondent. judicial review. This meeting is available to the public Order Relating to Aqua-Loop Cooling Comments received in response to through the following toll-free call-in Towers, Co. this solicitation, including names and number: (866) 364–7584, conference call addresses of those who comment, will access code number 65896860. Any The Bureau of Industry and Security, be part of the public record for this interested member of the public may U.S. Department of Commerce (‘‘BIS’’), proposed action. Comments submitted call this number and listen to the initiated this administrative proceeding anonymously will be accepted and meeting. Callers can expect to incur against Aqua-Loop Cooling Towers, Co. considered; however, anonymous charges for calls they initiate over (‘‘Aqua-Loop’’) pursuant to section 766.3 comments will not provide the wireless lines, and the Commission will of the Export Administration respondent with standing to participate not refund any incurred charges. Callers Regulations (the ‘‘Regulations’’),1 and in subsequent administrative review or will incur no charge for calls they section 13(c) of the Export judicial review. initiate over land-line connections to Administration Act of 1979, as amended Reviewers may wish to refer to the the toll-free telephone number. Persons (the ‘‘Act’’),2 through the issuance and Council on Environmental Quality with hearing impairments may also tiling of a charging letter as to Aqua- regulations for implementing the follow the proceedings by first calling Loop that alleges that Aqua-Loop has procedural provisions of the National the Federal Relay Service at 1–800–977– committed five violations of the Environmental Policy Act at 40 CFR 8339 and providing the Service with the Regulations (‘‘Charging Letter’’). 1503.3 in addressing these points. conference call number and contact Specifically, these charges are: name Farella E. Robinson. Responsible Official Charge 1: 15 CFR 764.2(d)—Conspiracy To ensure that the Commission to Export Items From the United States The Forest Supervisor of the Kootenai secures an appropriate number of lines to Iran Without the Required Licenses National Forest, 31374 U.S. Highway 2, for the public, persons are asked to Libby, MT 59923, is the Responsible register by contacting Corrine Sanders of Beginning at least in or about June Official for this project. The Record of the Central Regional Office and TTY/ 2004, and continuing through at least in Decision will identify the land TDD telephone number, by 4 p.m. on or about April 2005, Aqua-Loop management activities to be April 19, 2010. conspired or acted in concert with implemented in the project area Members of the public are entitled to others, known and unknown, to violate including urban interface fuels submit written comments. The the Regulations or to bring about an act treatments, vegetation management, comments must be received in the that constitutes a violation of the watershed rehabilitation activities, regional office by May 3, 2010. The Regulations. The purpose of the wildlife habitat improvement, access address is U.S. Commission on Civil conspiracy was to export items subject management changes, including road Rights, 400 State Avenue, Suite 908, to the Regulations from the United decommissioning, monitoring, and Kansas City, Kansas 66101. Comments States to Iran, via the United Arab whether or not a Forest Plan may be e-mailed to Emirates (‘‘U.A.E.’’), without the amendment is necessary. The Forest [email protected]. Records generated required U.S. Government Supervisor will make a decision on this by this meeting may be inspected and authorization. Pursuant to section 746.7 project after considering comments and reproduced at the Central Regional of the Regulations, no person may responses, environmental consequences Office, as they become available, both engage in the exportation of an item discussed in the Final SEIS, and before and after the meeting. Persons subject to both the Regulations and the applicable laws, regulations and interested in the work of this advisory Iranian Transactions Regulations 3 policies. The decision and supporting committee are advised to go to the (‘‘ITR’’), without authorization from the reasons will be documented in a Record Commission’s Web site, http:// U.S. Department of the Treasury’s Office of Decision. www.usccr.gov, or to contact the Central of Foreign Assets Control (‘‘OFAC’’). Pursuant to section 560.204 of the ITR, Dated: March 24, 2010. Regional Office at the above e-mail or street address. an export to a third country intended for Paul Bradford, transshipment to Iran is a transaction Forest Supervisor, Kootenai National Forest. The meeting will be conducted pursuant to the provisions of the rules subject to the ITR. [FR Doc. 2010–7486 Filed 4–1–10; 8:45 am] and regulations of the Commission and In furtherance of the conspiracy, the BILLING CODE 3410–11–P FACA. conspirators, including Aqua-Loop, participated in a scheme to have Aqua- Dated in Washington, DC, March 29, 2010. COMMISSION ON CIVIL RIGHTS Peter Minarik, 1 The Regulations are currently codified in the Acting Chief, Regional Programs Code of Federal Regulations at 15 CFR parts 730– Agenda and Notice of Public Meeting Coordination Unit. 774 (2009). The violations occurred in 2004 and 2005. The Regulations governing the violation at of the Nebraska Advisory Committee [FR Doc. 2010–7406 Filed 4–1–10; 8:45 am] issue are found in the 2004 and 2005 versions of BILLING CODE 6335–02–P the Code of Federal Regulations (15 CFR parts 730– Notice is hereby given, pursuant to 774 (2004–2005)). The 2009 Regulations establish the provisions of the rules and the procedures that apply to this matter. regulations of the U.S. Commission on 2 50 U.S.C. app. § 240 1–2420 (2000). Since Civil Rights (Commission), and the DEPARTMENT OF COMMERCE August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August Federal Advisory Committee Act Bureau of Industry and Security 17, 2001 (3 CFR 2001 Comp. p. 783 (2002)), which (FACA), that a planning meeting of the has been extended by successive Presidential Nebraska Advisory Committee to the Action Affecting Export Privileges; Notices, the most recent being that of August 13, Commission will convene by conference 2009 (74 FR 41.325 (Aug. 14, 2009)), has continued Aqua-Loop Cooling Towers, Co. the Regulations in effect under the International call at 2 p.m. and adjourn at Emergency Economic Powers Act (50 U.S.C. 1701, approximately 3 p.m. on Thursday, In the Matter of: 09–BIS–006, Aqua- et seq.) (IEEPA’’). April 22, 2010. The purpose of this Loop Cooling Towers, Co., P.O. Box 966, 3 31 CFR part 560.

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Loop source or obtain the items from a Charge 2: 15 CFR 764.2(b)—Causing, designated as EAR99, which Aqua-Loop U.S. distributor, and then to have Aiding or Abetting knew would be exported to Iran via the AquaLoop export the items to an Iranian Between on or about July 26, 2004, U.A.E. without the required U.S. customer and co-conspirator, Parto and on or about September 28, 2004, Government authorization. Pursuant to Abgardan Cooling Towers Co. (‘‘Parto Aqua-Loop caused, aided or abetted the section 560.204 of the ITR, an export to Abgardan’’), in Iran through a U.A.E. doing of an act prohibited by the a third country intended for entity identified by Parto Abgardan. In Regulations by facilitating or transshipment to Iran is a transaction furtherance of the scheme, Aqua-Loop coordinating the export of that requires OFAC authorization. obtained from Parto Abgardan approximately 174 rolls of hog hair filter Pursuant to section 746.7 of the Regulations, no person may engage in information regarding items Parto media, part number HH6O 130 and the exportation of an item subject to Abgardan sought to have exported from valued at approximately $11,687.76, items which are subject to the both the Regulations and the ITR the United States to Iran. Aqua-Loop without authorization from OFAC. then obtained such items and facilitated Regulations and designated as EAR99 4 Aqua-Loop knew that no OFAC their export to Parto Abgardan in Iran. items, through the U.A.E. to Iran without the required U.S. Government authorization was sought or obtained for Pursuant to the conspiracy, various the transaction described herein. items were exported to Parto Abgardan authorization. Pursuant to section 560.204 of the JTR maintained by Aqua-Loop had knowledge that a in Iran, including the items discussed in OFAC, an export to a third country violation was occurring, was about to Charges 2–5, below, for which no OFAC intended for transshipment to Iran is a occur or was intended to occur in authorization was sought or obtained. transaction that requires OFAC connection with the items because In addition, the co-conspirators authorization. Pursuant to section 746.7 Aqua-Loop was aware of the U.S. sought to bring about the export to Iran of the Regulations, no person may embargo of Iran and had knowledge that of other items subject to the Regulations. engage in the exportation of an item exporting items through the U.A.E. to Iran was a violation of U.S. law. On or about December 21, 2004, Parto subject to both the Regulations and the Aqua-Loop’s president stated to a BIS hR without authorization from OFAC. Abgardan informed Aqua-Loop that it Office of Export Enforcement special No OFAC authorization was sought or had contacted a U.S. company regarding agent in an interview on or about obtained for the transaction described the purchase of a filament winding October 14, 2005, that approximately machine, Parto Abgardan told Aqua- herein. Aqua-Loop took this action after three years earlier he had become aware Loop, ‘‘Since they can’t sell directly to of sanctions barring the shipment of Iran, they are OK with selling it having been asked by Parto Abgardan, an Iranian company, to arrange for the items to Iran and that he understood domestically and then we can transfer it export of the items to Iran ‘‘via Dubai.’’ that knowingly shipping items to Iran from U.S. to Dubai and then to Iran. Parto Abgardan did not have a location through a third country was illegal. With your permission we are going to in the U.A.E., and the address to which Aqua-Loop’s president referred to this ‘‘ ’’ give Aqua-Loop’s information to them Aqua-Loop arranged for the items to be type of activity as diverting items to so they can send you their offer’’ based exported, ‘‘do Parto Abgardan,’’ was in Iran. Moreover, on or about September on the technical information provided fact added to the BIS Unverified List of 23, 1997, AquaLoop had issued a letter ‘‘ to the U.S. company by Parto Abgardan. entities involved in transactions in to Parto Abgardan stating, I am trying to find a way to send the components Thereafter, on or about December 23, which BIS is unable to verify the that I promised to you. Unfortunately 2004, Aqua-Loop’s president, writing on existence or authenticity of the end-user after many unsuccessful attempts, I Aqua-Loop stationery, responded, that or other party to the transaction, came to a conclusion that the only way he would be ‘‘more than happy if I can published in the Federal Register on to open this channel is what you were be of assistance on your purchase of October 19, 2006. 71 FR 61,706 (Oct. 19, thinking, and if I understood correctly, filament winding machines. Please let 2006). you are going to have some kind of me know the detail, so I can pursue.’’ In In so doing, Aqua-Loop committed agent or office in one of the Gulf furtherance of the conspiracy, Parto one violation of section 764.2(b) of the Regulations. countries. I tell you this that I would Abgardan and Aqua-Loop continued to have no problem getting a container to work together to accomplish this Charge 3: 15 CFR 764.2(e)—Acting With my place and loading to a steam ship transaction; on or about January 31, Knowledge of a Violation toward Dubai.* * * Many shipping 2005, Parto Abgardan provided Aqua- Between on or about July 26, 2004, companies express that you shouldn’t Loop with Parto Abgardan’s contact at and on or about September 28, 2004, have any major problem getting the the U.S. filament winding machine Aqua-Loop ordered or financed items to goods to Tehran from Dubai.’’ company, and asked that Aqua-Loop be exported from the United States with In so doing, Aqua-Loop committed contact the U.S. company. On or about knowledge that a violation of the one violation of section 764.2(e) of the February 1, 2005, Aqua-Loop’s Regulations was occurring, was about to Regulations. president again wrote to Parto occur or was intended to occur in Charge 4: 15 CFR 764.2(b)—Causing, Abgardan, stating that he had had a connection with the items. Specifically, Aiding or Abetting ‘‘long conversation’’ with the U.S. between on or about July 26, 2004, and Between on or about February 9, company’s representative and that ‘‘I on or about September 28, 2004, Aqua- 2005, and on or about April 19, 2005, should emphasize that I found this lady Loop ordered or financed approximately Aqua-Loop caused, aided or abetted the a bit reluctant on the subject of export 174 rolls of hog hair filter media, part doing of an act prohibited by the the unit to Iran. But she sound OK to number HH60130 and valued at Regulations by facilitating or work with us, if we do not mention any approximately $11,687.76, items which coordinating the export of thing about Iran.’’ are subject to the Regulations and approximately 185 rolls of hog hair filter In so doing, Aqua-Loop committed 4 EAR99 is a designation for items subject to the media, part number HHB6O 130 and one violation of section 764.2(d) of the Regulations but not listed on the Commerce Control valued at approximately $9,838.30, Regulations. List. 15 CFR 734.3(c). items which are subject to the

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Regulations and designated as EAR99 items which are subject to the First, Aqua-Loop shall be assessed a items, through the U.A.E. to Iran Regulations and designated as EAR99, civil penalty in the amount of $100,000, without the required U.S. Government which Aqua-Loop knew would be the payment of which shall be authorization. Pursuant to section exported to Iran via the U.A.E. without suspended for a period often (10) years 560.204 of the ITR maintained by the required U.S. Government from the date of this Order, and OFAC, an export to a third country authorization. Pursuant to section thereafter shall be waived, provided that intended for transshipment to Iran is a 560.204 of the ITR, an export to a third during the period of suspension, Aqua- transaction that requires OFAC country intended for transshipment to Loop has committed no violation of the authorization. Pursuant to section 746.7 Iran is a transaction that requires OFAC Act, or any regulation, order, or license of the Regulations, no person may authorization. Pursuant to section 746.7 issued thereunder. engage in the exportation of an item of the Regulations, no person may Second, that for a period often (10) subject to both the Regulations and the engage in the exportation of an item years from the date of this Order, Aqua- ITR without authorization from OFAC. subject to both the Regulations and the Loop, his representatives, assigns or No OFAC authorization was sought or ITR without authorization from OFAC. agents (‘‘Denied Person’’) may not obtained for the transaction described Aqua-Loop knew that no OFAC participate, directly or indirectly, in any herein. authorization was sought or obtained for way in any transaction involving any Specifically, after exporting certain the transaction described herein. commodity, software or technology hog hair filter media to Parto Abgardan Aqua-Loop had knowledge that a (hereinafter collectively referred to as in Iran, as described in Charges 2–3, violation was occurring, was about to ‘‘item’’) exported or to be exported from Aqua-Loop was informed by Parto occur or was intended to occur in the United States that is subject to the Abgardan that the items were not connection with the items because Regulations, or in any other activity exactly the same as a sample Aqua- Aqua-Loop was aware of the U.S. subject to the Regulations, including, Loop’s president had brought to Parto embargo of Iran and had knowledge that but not limited to: Abgardan before the transaction exporting items through the U.A.E. to A. Applying for, obtaining, or using described in Charges 2–3 occurred. Iran was a violation of U.S. law. Aqua- any license, License Exception, or Aqua-Loop received from Parto Loop’s president stated to a BIS Office export control document; Abgardan a piece of the original sample of Export Enforcement special agent in B. Carrying on negotiations as well as a piece of the items described an interview on or about October 14, concerning, or ordering, buying, in Charges 2–3. Aqua-Loop then 2005, that approximately three years receiving, using, selling, delivering, provided both pieces to the U.S. earlier he had become aware of storing, disposing of, forwarding, distributor, and placed a new order for sanctions barring the shipment of items transporting, financing, or otherwise 185 rolls of hog hair filter media, part to Iran and that he understood that servicing in any way, any transaction number HHB6O 130, with the U.S. knowingly shipping items to Iran involving any item exported or to be distributor. Aqua-Loop arranged for the through a third country was illegal. exported from the United States that is U.S. distributor to supply the items, Aqua-Loop’s president referred to this subject to the Regulations, or in any which were destined for Iran, to a type of activity as ‘‘diverting’’ items to other activity subject to the Regulations; freight forwarder for initial shipment to Iran. Moreover, on or about September or the U.A.E., ‘‘c/o Parto Abgardan.’’ Parto C. Benefitting in any way from any 23, 1997, AquaLoop’s president had Abgardan did not have a location in the transaction involving any item exported issued a letter to Parto Abgardan, on U.A.E., and the address to which Aqua- or to be exported from the United States Aqua-Loop stationery, stating, ‘‘I am Loop arranged for the items to be that is subject to the Regulations, or in trying to find a way to send the exported, ‘‘do Parto Abgardan,’’ was in any other activity subject to the components that I promised to you. fact added to the BIS Unverified List of Regulations. Unfortunately after many unsuccessful entities involved in transactions in Third, that no person may, directly or attempts, I came to a conclusion that the which BIS is unable to verify the indirectly, do any of the following: existence or authenticity of the end-user only way to open this channel is what A. Export or reexport to or on behalf or other party to the transaction, you were thinking, and if I understood of the Denied Person any item subject to published in the Federal Register on correctly, you are going to have some the Regulations; October 19, 2006. 71 FR 61,706 (Oct. 19, kind of agent or office in one of the Gulf B. Take any action that facilitates the 2006). countries. I tell you this that I would acquisition or attempted acquisition by In so doing, Aqua-Loop committed have no problem getting a container to the Denied Person of the ownership, one violation of section 764.2(b) of the my place and loading to a steam ship possession, or control of any item Regulations. toward Dubai. * * * Many shipping subject to the Regulations that has been companies express that you shouldn’t or will be exported from the United Charge 5: 15 CFR 764.2(e)—Acting With have any major problem getting the States, including financing or other Knowledge of a Violation goods to Tehran from Dubai.’’ support activities related to a Between on or about February 9, In so doing, Aqua-Loop committed transaction whereby the Denied Person 2005, and on or about April 19, 2005, one violation of section 764.2(e) of the acquires or attempts to acquire such Aqua-Loop ordered items to be exported Regulations. ownership, possession or control; from the United States with knowledge Whereas, BIS and Aqua-Loop have C. Take any action to acquire from or that a violation of the Regulations was entered into a Settlement Agreement to facilitate the acquisition or attempted occurring, was about to occur or was pursuant to section 766.18(b) of the acquisition from the Denied Person of intended to occur in connection with Regulations, whereby they agreed to any item subject to the Regulations that the items. Specifically, between on or settle this matter in accordance with the has been exported from the United about February 9, 2005, and on or about terms and conditions set forth therein; States; April 19, 2005, Aqua-Loop ordered and D. Obtain from the Denied Person in approximately 185 rolls of hog hair filter Whereas, I have approved of the terms the United States any item subject to the media, part number HHB6O 130 and of such Settlement Agreement; it is Regulations with knowledge or reason valued at approximately $9,838.30, therefore ordered: to know that the item will be, or is

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intended to be, exported from the Section 13(c) of the Export existence or authenticity of the end-user United States; or Administration Act of 1979, as amended or other party to the transaction, E. Engage in any transaction to service (the ‘‘Act’’) 2, through the issuance and published in the Federal Register on any item subject to the Regulations that filing of a charging letter as to October 19, 2006. 71 FR 61706 (Oct. 19, has been or will be exported from the Rahimzadeh that alleges that 2006). United States and which is owned, Rahimzadeh has committed four In so doing, Rahimzadeh committed possessed or controlled by the Denied violations of the Regulations (‘‘Charging one violation of Section 764.2(b) of the Person, or service any item, of whatever Letter’’). Specifically, these charges are: Regulations. origin, that is owned, possessed or Charge 1 15 CFR 764.2(b)—Causing, Charge 2 15 CFR 764.2(e)—Acting controlled by the Denied Person if such Aiding or Abetting With Knowledge of a Violation service involves the use of any item subject to the Regulations that has been Between on or about July 26, 2004, Between on or about July 26, 2004, or will be exported from the United and on or about September 28, 2004, and on or about September 28, 2004, States. For purposes of this paragraph, Rahimzadeh caused, aided or abetted Rahimzadeh ordered or financed items servicing means installation, the doing of an act prohibited by the to be exported from the United States maintenance, repair, modification or Regulations by facilitating or with knowledge that a violation of the testing. coordinating the export of Regulations was occurring, was about to Fourth, that, after notice and approximately 174 rolls of hog hair filter occur or was intended to occur in opportunity for comment as provided in media, part number HH60130 and connection with the items. Specifically, section 766.23 of the Regulations, any valued at approximately $11,687.76, between on or about July 26, 2004, and person, firm, corporation, or business items which are subject to the on or about September 28, 2004, organization related to Aqua-Loop by Regulations and designated as EAR99 Rahimzadeh ordered or financed affiliation, ownership, control, or items,3 through the United Arab approximately 174 rolls of hog hair filter position of responsibility in the conduct Emirates (‘‘U.A.E.’’) to Iran without the media, part number HH60130 and of trade or related services may also be required U.S. Government valued at approximately $11,687.76, made subject to the provisions of this authorization. Pursuant to Section items which are subject to the Order. 560.204 of the Iranian Transactions Regulations and designated as EAR99, Fifth, that the Charging Letter, the Regulations (‘‘ITR’’) 4 maintained by the which Rahimzadeh knew would be Settlement Agreement, and this Order U.S. Department of the Treasury’s Office exported to Iran via the U.A.E. without shall be made available to the public. of Foreign Assets Control (‘‘OFAC’’), an the required U.S. Government Sixth, that this Order shall be served export to a third country intended for authorization. Pursuant to Section on the Denied Person and on BIS, and transshipment to Iran is a transaction 560.204 of the ITR, an export to a third shall be published in the Federal that requires OFAC authorization. country intended for transshipment to Register. Pursuant to Section 746.7 of the Iran is a transaction that requires OFAC This Order, which constitutes the Regulations, no person may engage in authorization. Pursuant to Section 746.7 final agency action in this matter, is the exportation of an item subject to of the Regulations, no person may effective immediately. both the Regulations and the ITR engage in the exportation of an item without authorization from OFAC. No subject to both the Regulations and the Issued this 25th day of March, 2010. OFAC authorization was sought or ITR without authorization from OFAC. David W. Mills, obtained for the transaction described Rahimzadeh knew that no OFAC Assistant Secretary of Commerce for Export herein. Rahimzadeh took this action authorization was sought or obtained for Enforcement. after having been asked by Parto the transaction described herein. [FR Doc. 2010–7439 Filed 4–1–10; 8:45 am] Abgardan Cooling Towers Co. (‘‘Parto Rahimzadeh had knowledge that a BILLING CODE 3510–DT–P Abgardan’’), an Iranian company, to violation was occurring, was about to arrange for the export of the items to occur or was intended to occur in Iran ‘‘via Dubai.’’ Parto Abgardan did not connection with the items because he DEPARTMENT OF COMMERCE have a location in the U.A.E., and the was aware of the U.S. embargo of Iran address to which Rahimzadeh arranged and had knowledge that exporting items Bureau of Industry and Security for the items to be exported, ‘‘do Parto through the U.A.E. to Iran was a [09–BIS–005] Abgardan,’’ was in fact subsequently violation of U.S. law. Rahimzadeh added to the BIS Unverified List of stated to a BIS Office of Export Action Affecting Export Privileges; entities involved in transactions in Enforcement special agent in an Bob Rahimzadeh which BIS is unable to verify the interview on or about October 14, 2005, that approximately three years earlier he In the Matter of: Bob Rahimzadeh, 116 issue are found in the 2004 and 2005 versions of had become aware of sanctions barring Hopper Lane, Folsom, CA 95630, the Code of Federal Regulations (15 CFR parts 730– the shipment of items to Iran and that Respondent; Order Relating to Bob 774 (2004–2005)). The 2009 Regulations establish he understood that knowingly shipping Rahimzadeh. the procedures that apply to this matter. items to Iran through a third country The Bureau of Industry and Security, 2 50 U.S.C. app. §§ 2401–2420 (2000). Since August 21, 2001, the Act has been in lapse and the was illegal. Rahimzadeh referred to this U.S. Department of Commerce (‘‘BIS’’), President, through Executive Order 13222 of August type of activity as ‘‘diverting’’ items to initiated this administrative proceeding 17, 2001 (3 CFR 2001 Comp. p. 783 (2002)), which Iran. Moreover, on or about September against Bob Rahimzadeh has been extended by successive Presidential 23, 1997, Rahimzadeh had issued a (‘‘Rahimzadeh’’) pursuant to Section Notices, the most recent being that of August 13, 2009 (74 FR 41325 (Aug. 14, 2009)) has continued letter to Parto Abgardan stating, ‘‘I am 766.3 of the Export Administration the Regulations in effect under the International trying to find a way to send the 1 Regulations (the ‘‘Regulations’’) , and Emergency Economic Powers Act (50 U.S.C. 1701, components that I promised to you. et seq.) (‘‘IEEPA’’). Unfortunately after many unsuccessful 1 The Regulations are currently codified in the 3 EAR99 is a designation for items subject to the Code of Federal Regulations at 15 CFR parts 730– Regulations but not listed on the Commerce Control attempts, I came to a conclusion that the 774 (2009). The violations occurred in 2004 and List. 15 CFR 734.3(c). only way to open this channel is what 2005. The Regulations governing the violation at 4 31 CFR part 560. you were thinking, and if I understood

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correctly, you are going to have some which BIS is unable to verify the you were thinking, and if I understood kind of agent or office in one of the Gulf existence or authenticity of the end-user correctly, you are going to have some countries. I tell you this that I would or other party to the transaction, kind of agent or office in one of the Gulf have no problem getting a container to published in the Federal Register on countries. I tell you this that I would my place and loading to a steam ship October 19, 2006. 71 FR 61706 (Oct. 19, have no problem getting a container to toward Dubai. * * * Many shipping 2006). my place and loading to a steam ship companies express that you shouldn’t In so doing, Rahimzadeh committed toward Dubai. * * * Many shipping have any major problem getting the one violation of Section 764.2(b) of the companies express that you shouldn’t goods to Tehran from Dubai.’’ Regulations. have any major problem getting the In so doing, Rahimzadeh committed Charge 4 15 CFR 764.2(e)—Acting goods to Tehran from Dubai.’’ one violation of Section 764.2(e) of the With Knowledge of a Violation In so doing, Rahimzadeh committed Regulations. one violation of Section 764.2(e) of the Between on or about February 9, Regulations. Charge 3 15 CFR 764.2(b)—Causing, 2005, and on or about April 19, 2005, Aiding or Abetting Whereas, BIS and Rahimzadeh have Rahimzadeh ordered items to be entered into a Settlement Agreement Between on or about February 9, exported from the United States with pursuant to Section 766.18(b) of the 2005, and on or about April 19, 2005, knowledge that a violation of the Regulations, whereby they agreed to Rahimzadeh caused, aided, or abetted Regulations was occurring, was about to settle this matter in accordance with the the doing of an act prohibited by the occur or was intended to occur in terms and conditions set forth therein; Regulations by facilitating or connection with the items. Specifically, and coordinating the export of between on or about February 9, 2005, Whereas, I have approved of the terms approximately 185 rolls of hog hair filter and on or about April 19, 2005, of such Settlement Agreement; it is media, part number HHB60130 and Rahimzadeh ordered approximately 185 therefore ordered: valued at approximately $9,838.30, rolls of hog hair filter media, part items which are subject to the number HHB60130 and valued at First, Rahimzadeh shall be assessed a Regulations and designated as EAR99 approximately $9,838.30, items which civil penalty in the amount of $100,000, items, through the U.A.E. to Iran are subject to the Regulations and the payment of which shall be without the required U.S. Government designated as EAR99, which suspended for a period of ten (10) years authorization. Pursuant to Section Rahimzadeh knew would be exported to from the date of this Order, and 560.204 of the ITR maintained by Iran via the U.A.E. without the required thereafter shall be waived, provided that OFAC, an export to a third country U.S. Government authorization. during the period of suspension, intended for transshipment to Iran is a Pursuant to Section 560.204 of the ITR, Rahimzadeh has committed no violation transaction that requires OFAC an export to a third country intended for of the Act, or any regulation, order, or authorization. Pursuant to Section 746.7 transshipment to Iran is a transaction license issued thereunder. of the Regulations, no person may that requires OFAC authorization. Second, that for a period of ten (10) engage in the exportation of an item Pursuant to Section 746.7 of the years from the date of this Order, subject to both the Regulations and the Regulations, no person may engage in Rahimzadeh, his representatives, ITR without authorization from OFAC. the exportation of an item subject to assigns or agents (‘‘Denied Person’’) may No OFAC authorization was sought or both the Regulations and the ITR not participate, directly or indirectly, in obtained for the transaction described without authorization from OFAC. any way in any transaction involving herein. Rahimzadeh knew that no OFAC any commodity, software or technology Specifically, after exporting certain authorization was sought or obtained for (hereinafter collectively referred to as hog hair filter media to Parto Abgardan the transaction described herein. ‘‘item’’) exported or to be exported from in Iran, as described in Charges 1–2, Rahimzadeh had knowledge that a the United States that is subject to the Rahimzadeh was informed by Parto violation was occurring, was about to Regulations, or in any other activity Abgardan that the items were not occur or was intended to occur in subject to the Regulations, including, exactly the same as a sample connection with the items because but not limited to: Rahimzadeh had previously brought to Rahimzadeh was aware of the U.S. A. Applying for, obtaining, or using Parto Abgardan before the transaction embargo of Iran and had knowledge that any license, License Exception, or described in Charges 1–2 occurred. exporting items through the U.A.E. to export control document; Rahimzadeh received from Parto Iran was a violation of U.S. law. B. Carrying on negotiations Abgardan a piece of the original sample Rahimzadeh stated to a BIS Office of concerning, or ordering, buying, as well as a piece of the items described Export Enforcement special agent in an receiving, using, selling, delivering, in Charges 1–2. Rahimzadeh then interview on or about October 14, 2005, storing, disposing of, forwarding, provided both pieces to the U.S. that approximately three years earlier he transporting, financing, or otherwise distributor, and placed a new order for had become aware of sanctions barring servicing in any way, any transaction 185 rolls of hog hair filter media, part the shipment of items to Iran and that involving any item exported or to be number HHB60130, with the U.S. he understood that knowingly shipping exported from the United States that is distributor. Rahimzadeh arranged for items to Iran through a third country subject to the Regulations, or in any the U.S. distributor to supply the items, was illegal. Rahimzadeh referred to this other activity subject to the Regulations; which were destined for Iran, to a type of activity as ‘‘diverting’’ items to or freight forwarder for initial shipment to Iran. Moreover, on or about September C. Benefitting in any way from any the U.A.E., ‘‘c/o Parto Abgardan.’’ Parto 23, 1997, Rahimzadeh had issued a transaction involving any item exported Abgardan did not have a location in the letter to Parto Abgardan stating, ‘‘I am or to be exported from the United States U.A.E., and the address to which trying to find a way to send the that is subject to the Regulations, or in Rahimzadeh arranged for the items to be components that I promised to you. any other activity subject to the exported, ‘‘c/o Parto Abgardan,’’ was in Unfortunately after many unsuccessful Regulations. fact added to the BIS Unverified List of attempts, I came to a conclusion that the Third, that no person may, directly or entities involved in transactions in only way to open this channel is what indirectly, do any of the following:

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A. Export or reexport to or on behalf DEPARTMENT OF COMMERCE to fielding them. Pretesting activities of the Denied Person any item subject to will involve one of the following the Regulations; U.S. Bureau of the Census methods of identifying measurement B. Take any action that facilitates the problems with the questionnaire or acquisition or attempted acquisition by Proposed Information Collection; survey procedure: Cognitive interviews, the Denied Person of the ownership, Comment Request; Generic Clearance focus groups, respondent debriefing, possession, or control of any item for Questionnaire Pretesting Research behavior coding of respondent/ subject to the Regulations that has been AGENCY: U.S. Census Bureau. interviewer interaction, and split panel tests. or will be exported from the United ACTION: Notice. States, including financing or other II. Method of Collection support activities related to a SUMMARY: The Department of transaction whereby the Denied Person Commerce, as part of its continuing Any of the following methods may be acquires or attempts to acquire such effort to reduce paperwork and used: Mail, telephone, face-to-face, ownership, possession or control; respondent burden, invites the general paper-and-pencil, CATI, CAPI, Internet, C. Take any action to acquire from or public and other Federal agencies to or IVR. to facilitate the acquisition or attempted take this opportunity to comment on III. Data acquisition from the Denied Person of proposed and/or continuing information any item subject to the Regulations that collections, as required by the OMB Number: 0607–0725. has been exported from the United Paperwork Reduction Act of 1995, Form Number: Various. States; Public Law 104–13 (44 U.S.C. Type of Review: Regular submission. D. Obtain from the Denied Person in 3506(c)(2)(A)). Affected Public: Individuals or the United States any item subject to the DATES: To ensure consideration, written Households, Farms, Business or other Regulations with knowledge or reason comments must be submitted on or for-profit. to know that the item will be, or is before June 1, 2010. Estimated Number of Respondents: intended to be, exported from the ADDRESSES: Direct all written comments 16,500. United States; or to Diana Hynek, Departmental E. Engage in any transaction to service Paperwork Clearance Officer, Estimated Time per Response: 1 hour. any item subject to the Regulations that Department of Commerce, Room 6625, Estimated Total Annual Burden has been or will be exported from the 14th and Constitution Avenue, NW., Hours: 16,500. United States and which is owned, Washington, DC 20230 (or via the Estimated Total Annual Cost: There is possessed or controlled by the Denied Internet at [email protected]). no cost to respondent, except for their Person, or service any item, of whatever FOR FURTHER INFORMATION CONTACT: time to complete the questionnaire. origin, that is owned, possessed or Requests for additional information or controlled by the Denied Person if such Respondent’s Obligation: Voluntary. copies of the information collection service involves the use of any item Legal Authority: 13 U.S.C. 131, 141, instrument(s) and instructions should subject to the Regulations that has been 142, 161, 181, 182, 193, and 301. be directed to Theresa J. DeMaio, U.S. or will be exported from the United Census Bureau, Room 5K–319, 4600 IV. Request for Comments States. For purposes of this paragraph, Silver Hill Road, Washington, DC servicing means installation, 20233–9150, (301) 763–4894 (or via the Comments are invited on: (a) Whether maintenance, repair, modification or Internet at the proposed collection of information testing. [email protected]). is necessary for the proper performance Fourth, that, after notice and of the functions of the agency, including opportunity for comment as provided in SUPPLEMENTARY INFORMATION: whether the information shall have Section 766.23 of the Regulations, any practical utility; (b) the accuracy of the I. Abstract person, firm, corporation, or business agency’s estimate of the burden organization related to Rahimzadeh by The Census Bureau plans to request (including house and cost) of the affiliation, ownership, control, or an extension of the current OMB proposed collection of information; (c) position of responsibility in the conduct approval to conduct a variety of small- ways to enhance the quality, utility, and of trade or related services may also be scale questionnaire pretesting activities clarity of the information to be made subject to the provisions of this under this generic clearance. A block of collected; and (d) ways to minimize the Order. hours will be dedicated to these burden of the collection of information Fifth, that the Charging Letter, the activities for each of the next three on respondents, including through the Settlement Agreement, and this Order years. OMB will be informed in writing use of automated collection techniques shall be made available to the public. of the purpose and scope of each of or other forms of information Sixth, that this Order shall be served these activities, as well as the timeframe technology. on the Denied Person and on BIS, and and number of burden hours used. The Comments submitted in response to shall be published in the Federal number of hours used will not exceed this notice will be summarized and/or Register. the number set aside for this purpose. included in the request for OMB This Order, which constitutes the This research program will be used by approval of this information collection; final agency action in this matter, is the Census Bureau and survey sponsors they also will become a matter of public effective immediately. to improve questionnaires and record. procedures, reduce respondent burden, Issued this 25th day of March 2010. and ultimately increase the quality of Dated: March 30, 2010. David W. Mills, data collected in the Census Bureau Glenna Mickelson, Assistant Secretary of Commerce for Export censuses and surveys. The clearance Management Analyst, Office of the Chief Enforcement. will be used to conduct pretesting of Information Officer. [FR Doc. 2010–7437 Filed 4–1–10; 8:45 am] decennial, demographic, and economic [FR Doc. 2010–7448 Filed 4–1–10; 8:45 am] BILLING CODE 3510–DT–M census and survey questionnaires prior BILLING CODE 3510–07–P

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DEPARTMENT OF COMMERCE Background the Act would be likely to lead to continuation or recurrence of dumping International Trade Administration Every five years, pursuant to section or a countervailable subsidy (as the case 751(c) of the Tariff Act of 1930, as may be) and of material injury. Antidumping or Countervailing Duty amended (‘‘the Act’’), the Department of Order, Finding, or Suspended Commerce (‘‘the Department’’) and the Upcoming Sunset Reviews for May Investigation; Advance Notification of International Trade Commission 2010 Sunset Reviews automatically initiate and conduct a The following Sunset Reviews are review to determine whether revocation scheduled for initiation in May 2010 AGENCY: Import Administration, of a countervailing or antidumping duty and will appear in that month’s Notice International Trade Administration, order or termination of an investigation of Initiation of Five-Year Sunset Department of Commerce. suspended under section 704 or 734 of Reviews.

Department contact

Antidumping Duty Proceedings Chlorinated Isocyanurates from the PRC (A–570–898) ...... Jennifer Moats, (202) 482– 5047. Chlorinated Isocyanurates from Spain (A–469–814) ...... Jennifer Moats, (202) 482– 5047. Greige Polyester Cotton Printcloth from the PRC (A–570–101) (3rd Review) ...... Jennifer Moats, (202) 482– 5047. Iron Construction Castings from Brazil (A–351–503) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Iron Construction Castings from Canada (A–122–503) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Iron Construction Castings from the PRC (A–570–502) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Potassium Permanganate from the PRC (A–570–001) (3rd Review) ...... Jennifer Moats, (202) 482– 5047. Countervailing Duty Proceedings Heavy Iron Construction Castings from Brazil (C–351–504) (3rd Review) ...... Brandon Farlander, (202) 482–0182. Suspended Investigations No Sunset Review of suspended investigations is scheduled for initiation in May 2010.

The Department’s procedures for the provide substantive comments in SUMMARY: Notice is hereby given that conduct of Sunset Reviews are set forth response to the notice of initiation no the Washington Department of Fish and in 19 CFR 351.218. Guidance on later than 30 days after the date of Wildlife (WDFW) has submitted a methodological or analytical issues initiation. Fishery Management and Evaluation relevant to the Department’s conduct of This notice is not required by statute Plan (FMEP) pursuant to the protective Sunset Reviews is set forth in the but is published as a service to the regulations promulgated for Snake River Department’s Policy Bulletin 98.3— international trading community. steelhead, Snake River spring/summer Policies Regarding the Conduct of Five- Dated: March 17, 2010. Chinook, and Snake River fall Chinook year (‘‘Sunset’’) Reviews of Antidumping salmon under the Endangered Species John M. Andersen, and Countervailing Duty Orders; Policy Act (ESA). The FMEP specifies the Bulletin, 63 FR 18871 (April 16, 1998). Acting Deputy Assistant Secretary for future management of freshwater inland The Notice of Initiation of Five-Year Antidumping and Countervailing Duty Operations. recreational fisheries potentially (‘‘Sunset’’) Reviews provides further affecting basin steelhead and Chinook [FR Doc. 2010–7415 Filed 4–1–10; 8:45 am] information regarding what is required salmon in portions of the Snake River of all parties to participate in Sunset BILLING CODE 3510–DS–P basin within the State of Washington. Reviews. This document serves to notify the Pursuant to 19 CFR 351.103(c), the DEPARTMENT OF COMMERCE public of the availability of the FMEP Department will maintain and make and associated draft environmental available a service list for these National Oceanic and Atmospheric assessment (EA) for comment prior to a proceedings. To facilitate the timely Administration decision by NMFS whether to approve preparation of the service list(s), it is the proposed fisheries. All comments requested that those seeking recognition RIN 0648–XV37 received will become part of the public as interested parties to a proceeding record and will be available for review contact the Department in writing Endangered and Threatened Species; pursuant to the ESA. within 10 days of the publication of the Take of Anadromous Fish Notice of Initiation. DATES: Comments must be received at the appropriate address or fax number Please note that if the Department AGENCY: National Marine Fisheries (see ADDRESSES) no later than 5 p.m. receives a Notice of Intent to Participate Service (NMFS), National Oceanic and Pacific time on May 3, 2010. from a member of the domestic industry Atmospheric Administration (NOAA), within 15 days of the date of initiation, Commerce. ADDRESSES: Written comments on the the review will continue. Thereafter, application should be addressed to the ACTION: Notice; availability of fishery any interested party wishing to NMFS Salmon Recovery Division, 1201 plan and request for comment. participate in the Sunset Review must NE Lloyd Boulevard, Suite 1100,

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Portland, OR 97232, or faxed to 503– the upcoming season shall be consistent charged with developing a replicable 872–2737. Comments may be submitted with the fisheries management protocols and sustainable model for coordinated by e-mail. The mailbox address for described in the FMEP. Federal and regional efforts that foster providing e-mail comments is: As specified in the July 10, 2000, ESA and use regional innovation clusters to: [email protected]. Include 4(d) rule for salmon and steelhead (65 Develop and demonstrate sustainable in the subject line of the e-mail FR 42422) and updated June 28, 2005 and efficient models for attaining comment the following identifier: (70 FR 37160), NMFS may approve an national strategic objectives; create and Comments on Washington’s fishery FMEP if it meets criteria set forth in 50 retain Good Jobs (defined below); plan. CFR 223.203(b)(4)(i)(A) through (I). eliminate gaps between the supply and FOR FURTHER INFORMATION CONTACT: Prior to final approval of an FMEP, demand for workers in specialized Enrique Patin˜ o, at phone number: (206) NMFS must publish notification fields through training and education; 526–4655, or e-mail: announcing its availability for public increase regional gross domestic [email protected]. review and comment. product (GDP); promote innovation in science and technology; and enhance Authority SUPPLEMENTARY INFORMATION: the economic, technological, and Species Covered in This Notice Under section 4 of the ESA, the commercial competitiveness of the Secretary of Commerce is required to United States on the global stage. The This notice is relevant to the Snake adopt such regulations as he deems Taskforce has selected Energy Efficient River Steelhead (Oncorhynchus mykiss) necessary and advisable for the Building Systems Design as the topical Distinct Population Segment (DPS), the conservation of species listed as focus for its first pilot project. The pilot Snake River Spring/summer-run threatened. The ESA salmon and project will be anchored around a Chinook Salmon (Oncorhynchus steelhead 4(d) rule (65 FR 42422, July Department of Energy (DOE)-funded tshawytscha) Evolutionarily Significant 10, 2000, as updated in 70 FR 37160, Energy Innovation Hub and will Unit (ESU), and the Snake River Fall- June 28, 2005) specifies categories of incorporate elements funded by each of run Chinook (Oncorhynchus activities that contribute to the EDA, SBA, and NIST/MEP. Capitalized tshawytscha) ESU. conservation of listed salmonids and terms used in this notice and request for WDFW has submitted to NMFS an sets out the criteria for such activities. ‘‘ applications have the meanings ascribed FMEP entitled WDFW Recreational Limit 4 of the updated 4(d) rule (50 CFR fisheries for summer steelhead, to them under the heading 223.203(b)(4)) further provides that the SUPPLEMENTARY INFORMATION below. warmwater fish, sturgeon, carp, and prohibitions of paragraph (a) of the other species.’’ The FMEP describes the DATES: Consortia must submit their updated 4(d) rule (50 CFR 223.203(a)) completed application package pursuant management of recreational fisheries in do not apply to activities associated the State of Washington, Snake River to the instructions set out in this notice with fishery harvest provided that an and in Section IV of the Joint Federal basin, for adipose-clipped, hatchery- FMEP has been approved by NMFS to origin summer steelhead, warmwater Funding Opportunity Announcement of be in accordance with the salmon and the Fiscal Year (FY) 2010 Energy fish, sturgeon, carp, and other game fish steelhead 4(d) rule (65 FR 42422, July species in a manner that is intended to Efficient building Systems Regional 10, 2000, as updated in 70 FR 37160, Innovation Cluster Initiative (FOA) no comply with requirements of the ESA June 28, 2005). under limit 4 of the 4(d) Rule. The later than May 6, 2010, at 5 p.m. FMEP includes adaptive management Dated: March 29, 2010. (Eastern time). measures to limit ESA impacts and Therese Conant, ADDRESSES: All application forms are proposes conservative incidental Acting Chief, Endangered Species Division, available online and may not be harvest regimes on natural-origin Office of Protected Resources, National requested in hardcopy format. members of the affected listed species. Marine Fisheries Service. Therefore, unless otherwise specified in As described in the FMEP, the proposed [FR Doc. 2010–7491 Filed 4–1–10; 8:45 am] the FOA, all forms must be downloaded fisheries are expected to result in the BILLING CODE 3510–22–S from http://www.grants.gov. As mortality of no more than 5%, 1.5%, specified in Section IV.I of the FOA, the and 0.2% of any population of listed, Consortium must submit six (6) copies natural-origin Snake River steelhead, DEPARTMENT OF COMMERCE of a compact disc (CD), labeled as specified in the FOA, with each CD fall Chinook salmon, and spring/ Economic Development Administration summer Chinook salmon, respectively. containing all required forms and The FMEP presents evidence that the [Docket No.: 100323164–0164–01] narratives from all Co-applicants. abundance of natural-origin fish has Proposals should not be submitted via trended upwards over the past five EDA Participation in the Energy Grants.gov, but should be delivered no years. In addition, the FMEP includes Efficient Building Systems Regional later than 5 p.m. (Eastern time) on May monitoring programs that are intended Innovation Cluster Initiative 6, 2010, at the following address: to ensure that the proposed fisheries AGENCY: Economic Development Maureen Klovers; Economic and associated incidental take would Administration (EDA), Department of Development Administration; U.S. not reduce the chances of survival and Commerce. Department of Commerce; Rm. 7019; 1401 Constitution Avenue, NW.; recovery of the affected listed species. ACTION: Notice and request for Washington, DC 20230. The FMEP includes a provision that applications. directs WDFW to conduct an annual FOR FURTHER INFORMATION CONTACT: For review to determine if completed SUMMARY: EDA announces its additional information please submit fisheries were conducted in manner that participation in the Energy Efficient questions via e-mail at e- complied with the guidance provided in Building Systems Regional Innovation [email protected]. The FOA, additional the FMEP. Further, WDFW will provide Cluster Initiative (Initiative), the first information about the funding a pre-season planning letter each year to pilot project of the Interagency Regional opportunity, updates, and questions and NMFS for concurrence that Innovation Clusters Taskforce answers are available at http:// demonstrates the fisheries intended for (Taskforce). The Taskforce has been www.energy.gov/hubs/eric.htm.

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Prospective applicants should check the http://www.grants.gov, the Co- file should be copied to the Consortium Web site for updates on a regular basis. applicants are not required to obtain a Proposal CD. Application Submission Grants.gov user id and password. Applicants should access the Requirements: Prospective applicants following link for assistance in are advised to read the application In Order To Apply for EDA Funding, navigating http://www.grants.gov and instructions in the FOA very carefully, the EDA Co-Applicant Must Take the for a list of useful resources: http:// as these instructions differ from typical Following Steps To Download the www.grants.gov/help/help.jsp. If you do FOA submission instructions. Required Forms not find an answer to your question Highlighted below are key aspects of the 1. Navigate to the URL http:// under General FAQs, try consulting the application process specific to this www.grants.gov. Applicant User Guides. If you still competitive solicitation. 2. Click on ‘Apply for Grants’ on the cannot find an answer to your question, send an e-mail to [email protected] or Consortium Proposals and Co- left hand menu. Note: You will not be call 1–800–518–4726. The http:// Applicant Applications submitting an application package through Grants.gov; however using the www.grants.gov Contact Center is As described in Section V of the FOA, Grants.gov ‘Apply’ function is necessary available 24 hours a day, 7 days a week only one Consortium Proposal will be in order to access the required forms in (except for Federal holidays). selected for funding under the joint a screen-fillable format. Page Limit of Proposal FOA. Each Consortium will be 3. Click on the blue link ‘Download a permitted to submit only one Proposal. Grant Application Package.’ The entire Proposal (i.e., all four Each Consortium Proposal shall include 4. Enter funding opportunity number Applications plus the Overarching four Applications for funding and the ‘ERIC2010’. Regional Innovation Cluster Project Overarching Regional Innovation Narrative) must not exceed 350 pages, 5. Under the ‘Instructions & Cluster Project Narrative (see Section IV when printed using standard 8.5″ x 11″ Application’ column, click on of the FOA for details on this paper with 1″ margins (from top, ‘download’ for your appropriate submission) that will explain proposed bottom, left, and right). The font size Competition Title (‘EDA Construction’, activities of the Consortium as a whole. must not be smaller than Times New ‘EDA Non-Construction’, or ‘EDA The four Applications within each Roman 12-point font. Evaluators will Construction and Non-Construction’), Proposal shall be: (i) The Application review only the first 350 pages if more depending on whether the EDA Co- for DOE assistance; (ii) the Application than 350 pages are submitted. Do not applicant is seeking only construction for EDA assistance; (iii) the Application include any Internet URLs that provide assistance, only non-construction for NIST/MEP assistance; and (iv) the information necessary to review the assistance, or both. Application for SBA assistance. The Co- Proposal, because the information applicants within any Consortium must 6. Click on the blue ‘Download contained in these sites will not be demonstrate in their Proposal that they Application Package’ link. reviewed. The page limit excludes: have entered into a written agreement to 7. Save the PDF file to your computer. • The cover page, table of contents, operate as a Consortium for at least as This package contains only those forms and required appendices of the Hub long a period as the term of the longest that must be completed by the EDA Co- project narrative; award made under the FOA (see Section applicant. • The copy of the region’s IV of the FOA for further details). 8. In the ‘Application Filing Name’ Comprehensive Economic Development Although the four Co-applicants will field, enter ‘[insert Consortium name]— Strategy(ies) (CEDS); and collaborate as a Consortium, each Co- EDA Application.’ • The copy of the EDA Co-applicant’s applicant will receive a separate award 9. Under ‘‘Mandatory Documents,’’ left Articles of Incorporation and By-Laws from the applicable Granting Agency. click with your mouse on the first form (if applicable). Accordingly, the DOE Co-applicant on name. Then click on the gray arrow SUPPLEMENTARY INFORMATION: the winning Proposal will receive the button labeled ‘‘Move Form to Initiative Information: The purpose of DOE grant funds, the EDA Co-applicant Complete.’’ the pilot project is to identify and on the winning Proposal will receive the 10. Continue doing so until all forms support an Energy Regional Innovation EDA funds, the NIST Co-applicant on listed as ‘‘Mandatory Documents’’ have Cluster (defined below) that will the winning Proposal will receive the been moved to the ‘‘Mandatory develop, expand, and commercialize NIST/MEP funds, and the SBA Co- Documents for Submission’’ box. innovative energy efficient building applicant on the winning Proposal will 11. If there are any forms listed under systems technologies, designs, and best receive the SBA funds. Please see ‘‘Optional Documents,’’ move these practices for national and international pertinent definitions under forms to ‘‘Optional Documents for distribution. Specifically, the SUPPLEMENTARY INFORMATION below. Submission’’ if the instructions in Participating Agencies (defined below) Please note that although each Co- Section IV.F. of the FOA indicate that seek to identify and fund a Consortium applicant will be able to download just you are required to complete these that will link the Hub and the other Co- those forms that they must complete, forms. applicants with complementary Federal the Proposal from the Consortium must 12. Continue to save your application and non-Federal investments in contain all of these forms, as well as all as you work on it. business development and support, required narratives (including the 13. Once you have completed your public infrastructure, workforce Overarching Regional Innovation application package, click on the ‘‘Check development, and education, for the Cluster Project Narrative), in a single Package for Errors’’ button at the top of purpose of growing and expanding a submission. The Consortium must the document in order to ensure that all robust E–RIC that will achieve the goals submit six (6) copies of a compact disc mandatory fields in your application are stated in the FOA. The FOA was (CD), with each CD containing all filled. published at http://www.energy.gov/ required forms and narratives from all 14. DO NOT click on SAVE & hubs/eric.htm on February 8, 2010. Co-applicants. Proposals should not be SUBMIT. Instead, save your application EDA will award up to $2 million of submitted via Grants.gov. Because the locally to your own computer or its Economic Adjustment Assistance Proposal is not to be submitted via network. The application package PDF Program funds and $3 million of its

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Public Works and Economic Granting Agencies announced through 9. E–RIC Partners: The public and Development Program funds to the EDA the FOA. private entities (i.e., local and regional Co-applicant as part of the Initiative. 2. Consortium: The collective group of governments and quasi-public entities, EDA seeks an EDA Co-applicant to help Co-applicants presenting a unified venture capitalists, private banks, facilitate a high degree of collaboration Proposal in response to the FOA. workforce investment boards, among the Consortium members and 3. Consortium MOU: The institutions of higher education offer expertise in using planned regional memorandum of understanding, or including community colleges, and economic development as a framework similar agreement, among the other public and private agencies and for achieving the maximum sustainable Consortium, the Participating Agencies, institutions) that have submitted formal economic impact. The EDA Co- and NSF that will reflect long-term Letters of Commitment to collaborate applicant should enable the Consortium commitments of the Consortium to the with the Consortium to develop and members and their E–RIC Partners to emergence and successful growth of the expand the E–RIC. E–RIC Partners are operate in an integrated, coordinated E–RIC based on plans and other entities other than the Co-applicants fashion, and may use EDA funds for materials presented in the Consortium that will work with the Consortium to constructing or renovating necessary Proposal. foster a vibrant E–RIC. E–RIC Partners infrastructure, for strategic planning 4. Co-applicants (and each, a Co- are not required to be located within the purposes, or for revolving loan fund applicant): Collectively, each member of E–RIC’s geographic region. grants. Examples of possible uses of the Consortium that is applying for 10. Energy Technologies: Refers to the funds include: Upgrading business Federal funding assistance, anticipated means of locating, assessing, harvesting, incubators or publicly-owned industrial to include the DOE Co-applicant, the transporting, processing, and or commercial buildings and EDA Co-applicant, the SBA Co- transforming the primary energy forms infrastructure so they can serve the applicant, and the NIST Co-applicant. found in nature (e.g., sunlight, biomass, purposes of the E–RIC; to conduct E– 5. Co-applicant Scope of Work: The crude petroleum, coal, uranium-bearing RIC coordination, planning or technical specific portion of the Proposal to be rocks) to yield either direct energy assistance activities; or to capitalize performed pursuant to a specific services (e.g., heat from fuel wood or revolving loan funds focused on funding agreement by a specific Co- coal) or secondary forms more supporting firms in the E–RIC. EDA applicant. convenient for human use (e.g., encourages the Consortia to consider 6. DOE Co-applicant (or Hub Co- charcoal, gasoline, electricity). Also new, energy efficient and applicant): The entity or entities included under the heading of energy environmentally beneficial ways of applying for direct funding from the technology is the means of distributing constructing or renovating Department of Energy under the FOA. secondary forms to their end users and infrastructure, including use of natural 7. EDA Co-applicant: The entity or the means of converting these forms to vegetation for storm water retention and entities applying for direct funding from energy services (e.g., electricity to light sewage filtration, green roofs, and on- the Economic Development and refrigeration, electricity and site water recycling. Administration, Department of gasoline to motive power). A distinction The two EDA programs from which Commerce, under the FOA. is often made between energy-supply funds may be awarded are the (i) Public 8. Energy Regional Innovation Cluster technologies, meaning those used to Works and Economic Development (E–RIC): The geographically-bounded, bring energy forms to a point of final Program and (ii) Economic Adjustment active network of similar, synergistic or use, and energy end-use technologies, Assistance Program. The Public Works complementary organizations, which meaning those applied at this point of Program may fund investments that includes the selected Consortium (and, use to convert an energy form to a expand, upgrade, and ‘‘green’’ therefore, the Hub), engaged in or with service such as light or motive power. infrastructure to attract new industry, the energy efficient buildings systems 11. Good Jobs: Jobs that increase support technology-led development, and design industry, with active workers’ incomes; narrow wage and accelerate new business development channels for business transactions, income inequality; provide safe and while promoting energy-efficiency, and communications, and dialogue, that healthy workplaces, particularly in enhance the ability of regions to share specialized infrastructure, labor high-risk industries; comply with capitalize on opportunities to export markets, and services. The E–RIC may applicable laws governing wages and goods and services. EDA’s Economic be located in a defined geographic overtime pay; are open to all eligible Adjustment Assistance (EAA) Program region that crosses municipal, county, job-seekers; and provide necessary skills is designed to respond flexibly to and other jurisdictional boundaries. The and training to prepare workers for pressing economic recovery issues and E–RIC should encompass local success in the high-growth and is well suited to help address challenges universities, government research emerging careers that will result from and obstacles to the formation and centers, and other research and the Energy Regional Innovation Cluster. sustenance of a successful E–RIC. EAA development (R&D) resources, which 12. Granting Agencies: DOE, the funds may be used for strategic planning shall serve as catalysts of innovation Department of Commerce’s EDA and and technical assistance, physical and drivers of regional economic NIST, and SBA. infrastructure, or revolving loan funds. growth. The E–RIC should leverage the 13. Hub (or Energy-Efficient Building Please see the FOA for more details on region’s unique competitive strengths Systems Design Hub): The DOE Co- the objectives and goals of the Initiative and seek to nurture networks for applicant’s fully-integrated, and EDA’s Public Works and EAA business financing, business-to-business multidisciplinary RD&D program that Programs. sales, education, and workforce will create practical, replicable development. These networks will strategies for reducing overall energy Capitalized Terms Used in This Notice include the E–RIC Partners and strategic consumption in buildings. and Request for Applications Shall partnerships with similar institutions 14. NIST Co-applicant: The NIST/ Have the Following Definitions, as (some of whom may be located outside MEP Center applying for direct funding More Specifically Described in the FOA of the E–RIC’s geographic region) to from NIST under the FOA. 1. Application: Any Co-applicant’s ensure that the full potential of the E– 15. NIST/MEP: The Hollings application for funding from one of the RIC is realized. Manufacturing Extension Partnership

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Program of the National Institute for notice and request for applications, Assistant Secretary determines has Standards and Technology. $2,000,000 of Economic Adjustment exhausted its effective borrowing 16. Participating Agencies: Those Assistance and $3,000,000 of Public capacity, the Assistant Secretary has the members of the Interagency Regional Works and Economic Development discretion to establish a maximum EDA Innovation Clusters Taskforce that are Program assistance is available for this investment rate of up to 100 percent of participating in the review and selection award and shall remain available until the total project cost. See sections process described in Section V of the expended. 204(c)(1) and (2) of PWEDA (42 U.S.C. FOA (i.e., DOE, DOC/EDA, DOC/NIST, (Catalog of Federal Domestic Assistance 3144) and 13 CFR 301.4(b)(5). SBA, DOL, ED). (CFDA) Numbers (EDA Co-applicant): 11.300 Funds from other Federal financial 17. Proposal: The collective, unified Grants for Public Works and Economic assistance awards are considered proposal submitted by a particular Development Facilities; 11.307, Economic matching share funds for the EDA Co- Consortium in response to the FOA. A Adjustment Assistance.) applicant Scope of Work only if authorized by statute, which may be Proposal contains four applications Eligibility Requirements: Pursuant to determined by EDA’s reasonable reflecting a DOE Co-applicant’s PWEDA, eligible applicants for EDA’s interpretation of the statute. See 13 CFR Application for DOE funding, an EDA Public Works and Economic Adjustment 300.3. The EDA Co-applicant must show Co-applicant’s Application for EDA Assistance Programs include a(n): (i) that the matching share is committed to funding; an SBA Co-applicant’s District Organization; (ii) Indian Tribe the EDA Co-applicant Scope of Work for Application for SBA funding and a or a consortium of Indian Tribes; (iii) the award period, will be available as NIST Co-applicant’s Application for State, a city or other political needed, and is not conditioned or NIST/MEP funding. subdivision of a State, including a encumbered in any way that precludes 18. Region: An economic unit of special purpose unit of a State or local its use consistent with the requirements human, natural, technological, capital or government engaged in economic or other resources, defined geographically. of EDA investment assistance. See 13 infrastructure development activities, or CFR 301.5. While cash contributions are Geographic areas comprising a region a consortium of political subdivisions; need not be defined by political preferred, in-kind contributions, (iv) institution of higher education or a consisting of contributions of space, boundaries, but should constitute a consortium of institutions of higher cohesive area capable of undertaking equipment, or services, may provide the education; or (v) public or private non- required non-Federal share of the total self-sustained economic development. profit organization or association acting 19. SBA Co-applicant: The Small project cost. See 15 CFR 24.24. in cooperation with officials of a Evaluation and Selection Procedures Business Development Center(s) political subdivision of a State. See applying for direct funding from the (Section V of the FOA): The evaluation section 3 of PWEDA (42 U.S.C. 3122) criteria and selection procedures that Small Business Administration under and 13 CFR 300.3. For-profit, private- the FOA. EDA will use when evaluating EDA sector entities and individuals are not Applications and selecting the EDA Co- 20. Taskforce: The Interagency eligible for investment assistance. Regional Innovation Clusters Taskforce applicant under the FOA differ The EDA-funded project must be markedly from EDA’s standard that is made up of DOE, DOC/EDA, located in an area that, on the date EDA DOC/NIST, DOL, ED, SBA, and NSF. operating procedures and, in some receives the Proposal, meets one (or cases, EDA’s regulations. 21. Underrepresented groups: Ethnic more) of the following economic and racial minorities—including Native distress criteria: (i) An unemployment Selection Procedures Americans, Alaskan Natives, Black- or rate that is, for the most recent 24- The selection procedures set forth African-Americans, Latinos or month period for which data are below, and in more detail in Section V Hispanics, Asian-Americans or Native available, at least one percentage point of the FOA, will supersede EDA’s Hawaiian or other Pacific Islanders; greater than the national average standard procedures for this competitive women; veterans; and persons with unemployment rate; (ii) per capita solicitation. These procedures will be disabilities. income that is, for the most recent implemented on behalf of EDA by EDA Statutory Authority: EDA’s authorizing period for which data are available, 80 Headquarters, and are as follows: statute is the Public Works and Economic percent or less of the national average Phase 1: Initial eligibility and Development Act of 1965, as amended (42 per capita income; or (iii) has a ‘‘Special responsiveness review. The Granting U.S.C. 3121 et seq.) (PWEDA). The statutory Need,’’ as determined by EDA. Agencies will conduct an initial authorities for the (i) Public Works and EDA-Specific Cost Sharing eligibility and responsiveness review to Economic Development Facilities Program; Requirement: Generally, the amount of and (ii) Economic Adjustment Assistance determine if the submitted Proposals (a) Program are sections 201 (42 U.S.C. § 3141), the EDA grant may not exceed 50 contain all required items for and 209 (42 U.S.C. 3149) of PWEDA, percent of the total cost of the project. submission, as specified in Section IV of respectively. Projects may receive an additional the FOA, and (b) include agency- amount that shall not exceed 30 percent, specific Applications that meet the EDA’s regulations are codified at 13 based on the relative needs of the region relevant agency-specific eligibility CFR chapter III. The regulations and in which the project will be located criteria, as specified in Section III of the PWEDA are accessible on EDA’s Web (when compared with other distressed FOA. site at http://www.eda.gov/ regions around the country), as Phase 2: DOE review of the Hub- InvestmentsGrants/Lawsreg.xml. determined by EDA. See section 204(a) specific portion of the Proposal. In this Funding Availability: Funding of PWEDA (42 U.S.C. 3144) and 13 CFR phase, DOE will review only those appropriated under the Consolidated 301.4(b)(1). In the case of EDA Proposals that were determined to be Appropriations Act, 2010 (Pub. L. 111– investment assistance to a(n): (i) Indian eligible and responsive during the prior 117, 123 Stat. 3034, at 3114 (2009)), Tribe, (ii) State (or political subdivision phase of review. DOE will review the together with other appropriated funds, of a State) that the Assistant Secretary Hub-specific portion of the Proposal is available for the economic determines has exhausted its effective provided by the DOE Co-Applicant (see development assistance programs taxing and borrowing capacity, or (iii) Section V.B of the FOA for the Hub- authorized by PWEDA. Under this non-profit organization that the specific criteria against which Proposals

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in this phase will be reviewed). DOE along with the results of any interviews panel will engage in negotiations with will conduct this merit review in or site visits and any supplementary the Consortium in order to establish a accordance with the nonbinding materials submitted by the Consortia collective agreement among all guidance provided in the ‘‘Department pursuant to Phase #5, and rate the Top Consortium Co-applicants and all of Energy Merit Review Guide for Tier Proposals based on the E–RIC agencies involved in the interagency Financial Assistance and Unsolicited evaluation criteria in Section V.E of the panel regarding certain matters Proposals.’’ This guide is available FOA. Proposals that either a) are proposed in the Consortium’s Proposal. under Financial Assistance, Regulations deemed unsatisfactory on the E–RIC The Consortium MOU will establish the and Guidance at http:// evaluation criteria or b) are deemed long-term commitments of the www.management.energy.gov/ unsatisfactory for funding by any Consortium as a whole to the documents/meritrev.pdf. Following this Granting Agency on the basis of its management and facilitation of the E– merit review, DOE will apply the DOE- agency-specific evaluation will be RIC. Each Selecting Official may also specific program policy factors and eliminated from further consideration. enter into individual discussions with identify the top tier of DOE Co- The interagency panel will then assign its selected recipient in order to applicants based on the Hub evaluation scores to the remaining Proposals based negotiate and finalize a satisfactory criteria and the program policy factors. on the E–RIC evaluation criteria, which award instrument consistent with the The Proposals associated with this top may be informed by the agency-specific terms in the Consortium MOU. Such tier (‘‘Top Tier Proposals’’) will continue technical merit reviews from EDA, discussions may entail (1) conforming to Phase #3. NIST/MEP, and SBA. If all Top Tier modifications to the project budget or Phase 3: EDA, NIST/MEP, and SBA Proposals are eliminated in Phase #7, Co-Applicant Scope of Work to meet review of Proposals. Representatives the interagency panel will not proceed Participating Agency requirements; or from the Granting Agencies other than to Phase #8. In this case, each Granting (2) special terms and conditions that DOE will perform an agency-specific Agency may rely upon its own analysis may be required. review of their respective Applications and use the funds available under the Any Granting Agency may enter into for funding contained within the Top FOA to fund any eligible Co-applicant it negotiations with its selected recipient Tier Proposals. This review will assess so chooses, or make no selection at all. for any reason it deems necessary, the quality of the Applications based on Phase 8: Interagency Panel including but not limited to: (1) The the agency-specific criteria set forth in Identification of Recommended budget is not appropriate or reasonable the FOA. Proposal. The interagency panel will for the requirement; (2) only a portion Phase 4: Technical merit review of then apply specific policy factors to the of the Application is selected for award; Consortium Proposals by interagency remaining Top Tier Proposals as (3) a Granting Agency needs additional panel. In this phase, an interagency described in the FOA. The interagency information to determine that the Co- review panel composed of panel will determine, based on its applicant is capable of complying with representatives from the Participating ranking and the policy factors, which the requirements in the FOA or the Agencies will review all Top Tier Proposal it will recommend (the Granting Agency’s applicable Proposals. In this phase, the interagency ‘‘Recommended Proposal’’) for funding regulations; or (4) special terms and review panel will evaluate each Top to the Granting Agencies. The conditions are required. Failure to Tier Proposal based on the E–RIC interagency panel will recommend resolve satisfactorily the issues evaluation criteria listed in Section V.E funding the top-ranked Proposal from identified by the applicable Granting of the FOA. Phase #7 unless the panel recommends Agency will preclude award to its Phase 5: Interactions with Consortia another Top Tier Proposal on the basis selected recipient. In the event that Submitting Top Tier Proposals. The of the application of the policy factors. negotiations with the selected recipient interagency panel may interact with Each Granting Agency’s representative cannot be resolved to the Granting Consortia that submitted Top Tier on the interagency panel will Agency’s satisfaction, the Granting Proposals as identified in Phase #2. In recommend to their agency’s Selecting Agencies reserve the right to select an these interactions, Consortia may be Official that their agency fund their alternate Consortium using the results notified of any shortcomings identified respective Co-applicant from the from Phases #7 and #8 above. in Phases #2, #3, or #4 and be given the Recommended Proposal. opportunity to submit supplemental Phase 9: Recommendation to Agency Notice of Selection materials to address these shortcomings. Selecting Officials and Agency Award Subject to the availability of funding, The interagency panel may elect to skip Selections. The interagency panel successful Co-applicants should expect this phase; however, if the interagency members representing Granting to receive notification of selection for panel elects to interact with any Agencies will then forward to their negotiation within sixty (60) to ninety Consortium, it will interact with all respective Selecting Officials (i) a (90) days from the closing date of the Consortia submitting Top Tier memorandum recommending the FOA. Each Co-applicant award will Proposals. selection of the Co-Applicant on the have an estimated start date between Phase 6: Interviews and Site Visits. Recommended Proposal for award, August 1, 2010, and September 30, The interagency panel may elect to together with (ii) the Recommended 2010. conduct interviews and/or site visits Proposal itself and the ranking of the with the Consortia that submitted Top Top Tier Proposals by the interagency Evaluation Criteria Tier Proposals. If the interagency panel panel. Although it is anticipated that the The evaluation criteria set forth in elects to conduct interviews with any Selecting Officials will be guided by this notice and request for applications, Consortium, it will conduct interviews their respective staff’s recommendation, and more fully described in Section V with all Consortia submitting Top Tier each Selecting Official does retain the of the FOA, will supersede any other Proposals. Site visits will be conducted right to not make an award. evaluation criteria used by EDA for this at the interagency panel’s discretion. Phase 10: Negotiation of Consortium competitive solicitation, including Phase 7: Interagency Panel Scores and MOU and Final Awards. After the without limitation those set forth in 13 Ranks Consortia. The interagency panel selected Proposal has been identified CFR 301.8. Where consistent with the will then review the Top Tier Proposals, but prior to awards, the interagency terms set forth in the FOA, applicant

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eligibility, program objectives and i. Qualifications of EDA Co- iv. Feasibility of proposed project and priorities, and other application and applicant’s key personnel to perform the project readiness. EDA may consider award requirements are set forth in proposed project. past performance of the EDA Co- EDA’s regulations and EDA Co- ii. Quality of EDA Co-applicant’s applicant with respect to the receipt of applicants must address these proposed management, and the extent to and the performance of prior awards of requirements; however, EDA’s which the proposed project effectuates Federal assistance under this factor. investment policies and priorities, EDA’s investment priorities, which are: v. Quality and amount of local match • evaluation criteria, and selection Collaborative Regional Innovation. and/or related private investment procedures shall be exclusively as set Initiatives that support the development offered as part of the project. forth in this notice and the FOA, and and growth of innovation clusters based Intergovernmental Review: EDA’s codified regulations regarding on existing regional competitive Applications for assistance under EDA’s those matters shall not apply. strengths. Initiatives must engage programs are subject to the State review stakeholders; facilitate collaboration EDA Investment Policies and Funding requirements imposed by Executive among urban, suburban and rural ‘‘ Priorities Order 12372, Intergovernmental Review (including Tribal) areas; provide of Federal Programs.’’ EDA’s mission is to catalyze and stability for economic development The Department of Commerce Pre- foster regional economic development. through long-term intergovernmental Award Notification Requirements for EDA concentrates its resources on and public/private collaboration; and Grants and Cooperative Agreements: building a new foundation for support the growth of existing and Administrative and national policy sustainable economic growth. This emerging industries. requirements for all Department of • Public/Private Partnerships. foundation builds upon two key Commerce awards are applicable to this Investments that use both public and economic drivers—innovation and competitive solicitation. These private sector resources and leverage regional collaboration. Innovation puts requirements may be found in the complementary investments by other ideas into action by developing and Department of Commerce Pre-Award government/public entities and/or non- commercializing new products, Notification Requirements for Grants services, and technologies for sale in the profits. • National Strategic Priorities. and Cooperative Agreements, which regional, national, and global was published in the Federal Register marketplace. Regional collaboration Initiatives that encourage job growth and business expansion in clean energy; on February 11, 2008 (73 FR 7696). This requires cooperation across city, county, notice may be accessed by entering the and even State lines; cross-functional green technologies; sustainable manufacturing; information technology Federal Register volume and page collaboration among government number provided in the previous agencies; and collaboration among the (e.g., broadband, smart grid) infrastructure; communities severely sentence at the following Web site: private, non-profit, and public sector. http://www.gpoaccess.gov/fr/ EDA funds approaches to economic impacted by automotive industry restructuring; natural disaster mitigation index.html. development that break down barriers to Paperwork Reduction Act: This collaboration and that support local and and resiliency; access to capital for small and medium sized and ethnically document contains collection-of- regional efforts to spur economic information requirements subject to the growth, create jobs, and enhance quality diverse enterprises; and innovations in science, health care and alternative fuel Paperwork Reduction Act (PRA). The of life. In general, EDA strives to use of Form ED–900 (Application for support a portfolio of investments that: technologies. • • Global Competitiveness. Investment Assistance) has been Promote regional development; approved by the Office of Management • Accelerate innovation, technology Investments that support high growth and Budget (OMB) under the Control transfer, and entrepreneurship to create businesses and innovation-based Number 0610–0094. The use of Forms or expand high-impact, fast-growth entrepreneurs to expand and compete in SF–424 (Application for Financial businesses; global markets. • Attract private and non-profit • Environmentally-Sustainable Assistance), SF–424A (Budget capital; Development. Investments that Information—Non-Construction • Create and retain good jobs and encompass best practices in Programs), SF–424B (Assurances—Non- increase regional per capita income; ‘environmentally sustainable Construction Programs), SF–424C • Foster a globally competitive development,’ broadly defined, to (Budget Information—Construction workforce; include projects that enhance Programs), SF–424D (Assurances— • Increase exports of U.S. products environmental quality and develop and Construction Programs), and Form SF– and services; and implement green products, processes, LLL (Disclosure of Lobbying Activities) • Leverage complementary and buildings as part of the green has been approved under OMB Control investments by other Federal, State and economy. Numbers 4040–0004, 0348–0044, 4040– local entities. • Economically Distressed and 0007, 4040–0008, 4040–0009, and 0348– Finally, EDA encourages Proposals that Underserved Communities. Investments 0046 respectively. The Form CD–346 engage the diverse populations of that strengthen diverse communities (Applicant for Funding Assistance) is America, including the most that have suffered disproportionate approved under OMB Control Number disadvantaged and historically economic and job losses and/or are 0605–0001. Notwithstanding any other underrepresented, to contribute to and rebuilding to become more competitive provision of law, no person is required reap the benefits of these funding in the global economy. to respond to, nor shall any person be priorities. iii. The extent to which the EDA Co- subject to a penalty for failure to comply applicant’s Application for EDA funding with, a collection of information subject EDA-specific Evaluation Criteria for reflects an outstanding, high quality, to the requirements of the PRA unless EDA Co-applicant and meaningful contribution to the that collection of information displays a EDA will use the following evaluation Consortium’s overall Proposal and currently valid OMB Control Number. criteria for specific evaluation of the evaluation under Section V.E. of the Executive Order 12866 (Regulatory EDA Co-applicant: FOA. Planning and Review): This notice has

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been determined to be not significant for scientific and commercial data and species on October 31, 1996 (61 FR purposes of Executive Order 12866. other information relevant to the status 56138), and subsequently reclassified as Executive Order 13132 (Federalism): of coho salmon in the coastal counties an endangered species on June 28, 2005 It has been determined that this notice south of San Francisco Bay. We will (70 FR 37160). For more information on does not contain policies with publish the results of that review and the status, biology, and habitat of this Federalism implications as that term is will make a finding as to whether the coho salmon ESU, please refer to defined in Executive Order 13132. petitioned action is or is not warranted ‘‘Endangered and Threatened Species: Administrative Procedure Act/ on or before February 8, 2011. Proposed Listing Determinations for 27 Regulatory Flexibility Act: Prior notice DATES: Written comments, data and ESUs of West Coast Salmonids; and an opportunity for public comments information related to this petition Proposed Rule’’ (69 FR 33102; June 14, are not required by the Administrative finding must be received no later than 2004) or ‘‘Final Rule Endangered and Procedure Act or any other law for rules 5 p.m. local time on June 1, 2010. Threatened Species; Threatened Status concerning grants, benefits, and ADDRESSES: You may submit comments, for Central California Coast Coho contracts (5 U.S.C. 553(a)(2)). Because identified by the RIN 0648–XV30, by Salmon Evolutionarily Significant Unit notice and opportunity for comment are any of the following methods: (ESU)’’ (61 FR 56138; October 31, 1996). not required pursuant to 5 U.S.C. 553 or • Electronic Submissions: Submit all On November 25, 2003, we received any other law, the analytical electronic public comments via the a petition from Mr. Homer T. McCrary, requirements of the Regulatory Federal eRulemaking Portal http// a Santa Cruz County forestland owner, Flexibility Act (5 U.S.C. 601 et seq.) are www.regulations.gov. Follow the to redefine the southern extent of the inapplicable. Therefore, a regulatory instructions for submitting comments. CCC coho salmon ESU by excluding flexibility analysis has not been • Facsimile (fax): 562–980–4027, coastal populations of coho salmon prepared. Attn: Craig Wingert south of San Francisco Bay, California, Dated: March 26, 2010. • Mail: Submit written comments to from the ESU. An addendum to the John R. Fernandez, the Assistant Regional Administrator, petition (dated February 6, 2004) was Assistant Secretary of Commerce for Protected Resources Division, Attn: received on February 9, 2004, that Economic Development. Craig Wingert, Southwest Region, provided additional information to [FR Doc. 2010–7467 Filed 4–1–10; 8:45 am] National Marine Fisheries Service, 501 clarify the original petition and respond BILLING CODE 3510–24–P W. Ocean Blvd., Suite 5200, Long to new information regarding museum Beach, CA, 90802–4213. specimens of coho salmon from the area Instructions: All comments received south of San Francisco Bay. The ESA DEPARTMENT OF COMMERCE are a part of the public record and will authorizes an interested person to generally be posted to http// petition for the listing or delisting of a National Oceanic and Atmospheric www.regulations.gov without change. species, subspecies, or Distinct Administration All personal identifying information (for Population Segment (DPS)(16 example, name, address, etc.) U.S.C.1533(b)(3)(A). The ESA [Docket No. 00323162–0165–01] voluntarily submitted by the commenter implementing regulations contain the RIN 0648–XV30 may be publically accessible. Do not factors to consider for delisting a species submit confidential business (50 CFR 424.11(d)). A species may be Endangered and Threatened Species; information or otherwise sensitive or delisted for one or more of the following 90–Day Finding on a Petition to Delist protected information. We will accept reasons: the species is extinct or has Coho Salmon South of San Francisco anonymous comments (if you wish to been extirpated from its previous range; Bay remain anonymous enter N/A in the the species has recovered and is no AGENCY: National Marine Fisheries required fields). Attachments to longer endangered or threatened; or Service (NMFS), National Oceanic and electronic comments will be accepted in investigations show the best scientific or Atmospheric Administration (NOAA), Microsoft Word, Excel, WordPerfect, or commercial data available when the Commerce. Adobe PDF file formats only. species was listed, or the interpretation A copy of the petition and related of such data, were in error. ACTION: Notice of 90–day petition information may be obtained by finding; request for information. Section 4(b)(3)(A) of the ESA requires submitting a request to the Assistant that, to the maximum extent practicable, SUMMARY: We, the National Marine Regional Administrator, Protected within 90 days after receiving a petition, Fisheries Service (NMFS), are accepting Resources Division, Attn: Craig Wingert, the Secretary shall make a finding a 2003 petition to delist coho salmon Southwest Region, National Marine whether the petition presents (Oncorhynchus kisutch) in coastal Fisheries Service, 501 W. Ocean Blvd., substantial scientific information counties south of the ocean entrance to Suite 5200, Long Beach, CA, 90802– indicating that the petitioned action San Francisco Bay, California, from the 4213 or from the internet at: http:// may be warranted (90–day finding). The Federal List of Endangered and swr.nmfs.noaa.gov/. ESA implementing regulations for Threatened Wildlife under the FOR FURTHER INFORMATION CONTACT: NMFS define ‘‘substantial information’’ Endangered Species Act (ESA) of 1973, Craig Wingert, NMFS, Southwest as the amount of information that would as amended. Coho salmon populations Region, (562) 980–4021; or Marta lead a reasonable person to believe that in this region are currently listed under Nammack, NMFS, HQ, (301) 713–1401. the measure proposed in the petition the ESA as part of the Central California SUPPLEMENTARY INFORMATION: may be warranted (50 CFR 424.14(b)(1)). Coast (CCC) Evolutionarily Significant If a positive 90–day finding is made, Unit (ESU). This action is being taken in Background then NMFS must promptly conduct a response to a February 8, 2010, U.S. Coho salmon in Santa Cruz and status review of the species concerned District Court decision that our previous coastal San Mateo counties south of San and publish a finding indicating rejection of the petition in 2006 was Francisco Bay are part of the larger CCC whether the petitioned action is or is arbitrary and capricious. To ensure a coho salmon ESU. The CCC coho not warranted within one year (1-year comprehensive review, we are soliciting salmon ESU was listed as a threatened finding).

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On March 23, 2006, we published a delisted because they are not Francisco Bay prior to 1906; (2) 90-day finding in the Federal Register evolutionarily significant populations archeological evidence regarding (71 FR 14683) stating that the petition and their inclusion in the CCC coho presence or absence of coho salmon in did not present substantial information salmon ESU is inconsistent with NMFS’ streams south of San Francisco Bay; (3) indicating that delisting coho salmon ESU policy for Pacific salmon (Waples, genetic information comparing coho south of San Francisco Bay may be 1991). Based on this and other salmon in the streams south of San warranted. On March 31, 2006, the information detailed in the petition and Francisco Bay with coho salmon in petitioner challenged that finding, addendums, the petitioner has streams north of San Francisco Bay alleging violations of the ESA and the requested that NMFS delist populations within the range of the CCC coho Administrative Procedure Act. Homer T. of CCC ESU coho salmon south of San salmon ESU, and in other coho salmon McCrary v. Carlos Gutierrez, et al., No. Francisco Bay and redefine the southern ESUs; (4) differences or similarities in 06–cv–86–MCE (E.D. Cal.)). The venue boundary of CCC ESU coho salmon to climate, geology, and hydrology of for the case was subsequently north of San Francisco Bay. watersheds in Santa Cruz and coastal transferred to the Northern District Information used to support the San Mateo counties compared with Court in San Jose, California, No. C–08– petitioner’s assertion that coho salmon watersheds in the northern portion of 01592–RMW (N.D. Cal.). are not native south of San Francisco the CCC coho salmon ESU range (coastal On February 8, 2010, the court issued Bay, and therefore, erroneously listed, is Marin County to Punta Gorda in an order stating that our decision to predicated on: (1) early scientific and southern coastal Humboldt County), and deny the petition was arbitrary and historical accounts indicating that the the effects of these habitat differences capricious. The court found that we entrance to San Francisco Bay is the on coho salmon; and (5) the failed to follow the proper statutory southern boundary for coho salmon; (2) reproductive isolation of coho salmon in procedures for reviewing petitions the absence of coho salmon in the coastal San Mateo and Santa Cruz under the ESA, by using information archeological record; (3) differences in counties and the importance of these beyond the four corners of the petition, geology, climate, and hydrology populations to the evolutionary legacy and in applying the 1-year standard of between regions north and south of San of the CCC coho salmon ESU in light of whether the petitioned action ‘‘is or is Francisco Bay; and (4) human NMFS’ ESU policy (56 FR 58612; not warranted,’’ rather than the 90-day intervention through out-of-area (i.e., November 20, 1991). standard of whether the petitioned non-native) coho salmon plantings to Please note that submissions merely ‘‘ ’’ action may be warranted. The court streams in coastal San Mateo and Santa stating support for or opposition to the vacated our March 23, 2006, finding and Cruz counties which resulted in the action under consideration without remanded the petition to NMFS for establishment of coho salmon in the providing supporting information, review in accordance with 16 U.S.C. area. although noted, will not be considered 1533(b)(3)(A). We considered all additional in making a determination. Section information provided by the petitioner The Petition 4(b)(1)(A) of the ESA directs that a and individuals providing supplemental determination must be made ‘‘solely on Mr. McCrary’s petition requests that information on his behalf to NMFS and the basis of the best scientific and we redefine the southern boundary of our SWFSC from 2004 2005 to be commercial data available.’’ On or before the CCC coho salmon ESU. The petition addendums to the original November February 8, 2011, we will issue a 1-year clearly identified itself as a petition and 23, 2003, petition. included the identification information finding based on a review of the best for the petitioner, as required in 50 CFR Petition Finding scientific and commercial data 424.14(a). The petition claims coho In order to address errors in the available, including all relevant salmon were introduced into Santa Cruz previous handling of the petition, we information received from the public in County, California, in 1906 and until are accepting the petition and initiating response to this 90-day finding. that time, aside from possible occasional a review of the status of CCC coho You may submit your information strays, no self-sustaining native coho populations south of San Francisco Bay. concerning this finding by one of the salmon populations existed in the methods listed in the ADDRESSES streams south of San Francisco Bay, Information Solicited section. Please note that we may not California. The petition asserts the legal To ensure that the status review is consider comments we receive after the and factual criteria supporting the complete and based on the best date specified in the DATES section in listing of coho salmon under the ESA, available scientific and commercial our final determination. If you submit as amended, were in error based on information, we are soliciting your information via http// historical and scientific data presented information concerning coho salmon in www.regulations.gov, your entire in the petition. The petition argues coho coastal streams south of San Francisco submission including personal salmon populations currently present in Bay in San Mateo and Santa Cruz identifying information will be posted the coastal watersheds south of San counties. We request information from on the website. If your submission is Francisco Bay, California, are most the public, concerned governmental made via hardcopy that includes likely non-native and persist there only agencies, Native American tribes, the personal identifying information, you due to artificial propagation, and for this scientific community, agricultural and may request at the top of your document reason do not constitute an important forestry groups, conservation groups, that we withhold this information from component in the evolutionary legacy of industry, or any other interested parties public review. However, we cannot the species. Additionally, through the concerning the current and/or historical guarantee that we will be able to do so. initial petition and subsequent written status of coho salmon in coastal streams We will post all hard copy submissions correspondence between NMFS’ south of San Francisco Bay. on http//www.regulations.gov. Southwest Fisheries Science Center Specifically, we request information on: Information and materials we receive, as (SWFSC) in Santa Cruz, California, and (1) published accounts from historical well as supporting documentation we Southwest Regional Office in Long or scientific sources regarding the used in preparing this finding, will be Beach, California, the petitioner asserted presence, absence, and distribution of available for public inspection, by coho salmon in the area should be coho salmon in streams south of San appointment, during normal business

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hours at NMFS’ Southwest Region marine mammal permit application Commerce, and adhered to the terms of Office. procedures and permit requirements to financial assistance awards funded Authority: 16 U.S.C. 1531 et seq. form the basis of one or more under the CZMA. alternatives to be evaluated in an EA for The National Estuarine Research Dated: March 30, 2010. a Proposed Rule. The internal scoping Reserve evaluation will be conducted Eric C. Schwaab, summary document for public review is pursuant to sections 312 and 315 of the Assistant Administrator for Fisheries, available at: http://www.nmfs.noaa.gov/ CZMA and regulations at 15 CFR part National Marine Fisheries Service. pr/permits/mmpalregulations.htm. 921, subpart F and part 923, subpart L. [FR Doc. 2010–7493 Filed 4–1–10; 8:45 am] NMFS will consider all comments Evaluation of a National Estuarine BILLING CODE 3510–22–S received during the comment period. Research Reserve requires findings All hardcopy submissions must be concerning the extent to which a state unbound, on paper no larger than 81⁄2 by has met the national objectives, adhered DEPARTMENT OF COMMERCE 11 inches (216 by 279 mm), and suitable to its Reserve final management plan for copying and electronic scanning. approved by the Secretary of Commerce, National Oceanic and Atmospheric NMFS requests that you include in your and adhered to the terms of financial Administration comments: (1) Your name and address; assistance awards funded under the RIN 0648–XU93 and (2) Any background documents to CZMA. support your comments, as you feel Each evaluation will include a site Notice of Intent to Prepare an necessary. A draft EA will be made visit, consideration of public comments, Environmental Assessment for a available for public review concurrent and consultations with interested Proposed Rule to Revise Marine with publication of a notice of proposed Federal, State, and local agencies and Mammal Special Exception Permit rulemaking. members of the public. A public Requirements Dated: March 29, 2010. meeting will be held as part of the site AGENCY: National Marine Fisheries P. Michael Payne, visit. When the evaluation is completed, OCRM will place a notice in the Federal Service (NMFS), National Oceanic and Chief, Permits, Conservation and Education Atmospheric Administration (NOAA), Division, Office of Protected Resources, Register announcing the availability of Commerce. National Marine Fisheries Service. the Final Evaluation Findings. Notice is hereby given of the date of the site visits ACTION: Notice of Intent to prepare [FR Doc. 2010–7492 Filed 4–1–10; 8:45 am] for the listed evaluations, and the date, Environmental Assessment; extension of BILLING CODE 3510–22–S local time, and location of the public comment period. meetings during the site visits. SUMMARY: On March 10, 2010, NMFS DEPARTMENT OF COMMERCE Dates and Times: The Louisiana announced its intent to prepare an Coastal Management Program Environmental Assessment (EA) to National Oceanic and Atmospheric evaluation site visit will be held May analyze the potential environmental Administration 10–14, 2010. One public meeting will be impacts of a proposed rule to revise held during the week. The public federal regulations implementing the Evaluation of State Coastal meeting will be held on Monday, May Section 104 permit provisions of the Management Programs and National 10, 2010, at 6:30 p.m. at the LaSalle Marine Mammal Protection Act Estuarine Research Reserves Building (Capitol Complex), Griffon (MMPA) with written comments due by AGENCY: National Oceanic and Room, 1st Floor, 617 North 3rd Street, May 10, 2010. NMFS has decided to Atmospheric Administration (NOAA), Baton Rouge, Louisiana. allow additional time for submission of Office of Ocean and Coastal Resource The Great Bay (New Hampshire) public comments on this action. Management, National Ocean Service, National Estuarine Research Reserve evaluation site visit will be held May DATES: The public comment period for Commerce. 17–21, 2010. One public meeting will be this action has been extended by 30 ACTION: Notice of intent to evaluate and held during the week. The public days. Written comments must be notice of availability of final findings. received or postmarked by June 10, meeting will be held on Wednesday, 2010. SUMMARY: The NOAA Office of Ocean May 19, 2010, at 7 p.m. at the Great Bay and Coastal Resource Management National Estuarine Research Reserve, ADDRESSES: Written comments should (OCRM) announces its intent to evaluate Hugh Gregg Coastal Conservation be mailed to: P. Michael Payne, Chief, the performance of the Louisiana Center, 89 Depot Road, Greenland, New Permits, Conservation and Education Coastal Management Program and the Hampshire. Division, Office of Protected Resources, Great Bay (New Hampshire) National ADDRESSES: Copies of states’ most recent National Marine Fisheries Service, 1315 Estuarine Research Reserve. The Coastal performance reports, as well as OCRM’s East-West Highway, Room 13705, Silver Zone Management Program evaluation evaluation notification and Spring, MD 20910–3226. Comments will be conducted pursuant to section supplemental information request may also be submitted by facsimile to 312 of the Coastal Zone Management letters to the state, are available upon (301) 713–0376 and confirmed by hard Act of 1972, as amended (CZMA) and request from OCRM. Written comments copy, or by email to regulations at 15 CFR part 923, subpart from interested parties regarding this [email protected]. L. The CZMA requires continuing Program are encouraged and will be Please include ‘‘Permit Regulations NOI’’ review of the performance of states with accepted until 15 days after the public in the subject line of the email. respect to coastal program meeting. Please direct written comments FOR FURTHER INFORMATION CONTACT: implementation. Evaluation of a Coastal to Kate Barba, Chief, National Policy Amy Sloan or Jennifer Skidmore, (301) Management Program requires findings and Evaluation Division, Office of 713–2289. concerning the extent to which a state Ocean and Coastal Resource SUPPLEMENTARY INFORMATION: NMFS has has met the national objectives, adhered Management, NOS/NOAA, 1305 East- developed proposed revisions, to its Coastal Management Program West Highway, 10th Floor, N/ORM7, additions, and restructuring of NMFS document approved by the Secretary of Silver Spring, Maryland 20910.

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SUPPLEMENTARY INFORMATION: Notice is storage and distribution system at and program; establishment of principal hereby given of the availability of the adjacent to the Phoenix Sky Harbor trade classifications and lumber sizes final evaluation findings for the Hawaii International Airport (Site 5) in for yard, structural, factory/shop use: Coastal Management Program and the Phoenix, Arizona, within the Phoenix Classification, measurement, grading Hudson River (New York) National Customs and Border Protection port of and grade-marking of lumber; Estuarine Research Reserve (NERR). entry (FTZ Docket 17–2009, filed 4/23/ Definitions of terms and procedures to Sections 312 and 315 of the Coastal 09); provide a basis for the use of uniform Zone Management Act of 1972 (CZMA), Whereas, notice inviting public methods in the grading, inspection, as amended, require a continuing comment was given in the Federal measurement and description of review of the performance of coastal Register (74 FR 19935–19936, 4/30/09) softwood lumber; commercial names of states with respect to approval of CMPs and the application has been processed the principal softwood species: and the operation and management of pursuant to the FTZ Act and the Board’s Definitions of terms used in describing NERRs. The State of Hawaii was found regulations; and, standard grades in lumber; and to be implementing and enforcing its Whereas, the Board adopts the commonly used industry abbreviations. federally approved coastal management findings and recommendations of the The Standard also includes the program, addressing the national coastal examiner’s report, and finds that the organization and functions of the management objectives identified in requirements of the FTZ Act and American Lumber Standard Committee, CZMA Section 303(2)(A)–(K), and Board’s regulations are satisfied, and the Board of Review, and the National adhering to the programmatic terms of that the proposal is in the public Grading Rule Committee. their financial assistance awards. The interest; DATES: DOC PS 20–10 ‘‘American Hudson River NERR was found to be Now, therefore, the Board hereby Softwood Lumber Standard,’’ a adhering to programmatic requirements orders: voluntary product standard developed of the NERR System. The application to expand FTZ 75 is under Department of Commerce Copies of these final evaluation approved, subject to the FTZ Act and procedures, becomes effective June 1, findings may be obtained upon written the Board’s regulations, including 2010, for products produced thereunder request from: Kate Barba, Chief, Section 400.28. on and after that date. The standard National Policy and Evaluation Signed at Washington, DC, this 23rd being superseded, DOC PS 20–05 Division, Office of Ocean and Coastal day of March 2010. ‘‘American Softwood Lumber Standard,’’ Resource Management, NOS/NOAA, is effective for products produced Ronald K. Lorentzen, 1305 East-West Highway, 10th Floor, N/ thereunder through May 31, 2010. Deputy Assistant Secretary for Import ORM7, Silver Spring, Maryland 20910, ADDRESSES: Requests for a copy of DOC or [email protected]. Administration, Alternate Chairman, Foreign–Trade Zones Board. PS 20–10 should be submitted to: FOR FURTHER INFORMATION CONTACT: Kate Attest: Standards Services Program, NIST, 100 Barba, Chief, National Policy and Bureau Drive Stop 2100, Gaithersburg, Andrew McGilvray, Evaluation Division, Office of Ocean MD 20899–2150. The standard is also and Coastal Resource Management, Executive Secretary. available at http://ts.nist.gov/Standards/ NOS/NOAA, 1305 East-West Highway, [FR Doc. 2010–7517 Filed 4–1–10; 8:45 am] Conformity/vps.cfm. 10th Floor, N/ORM7, Silver Spring, BILLING CODE 3510–DS–S FOR FURTHER INFORMATION CONTACT: Maryland 20910, (301) 563–1182. David F. Alderman, Standards Services Division, telephone: 301–975–4019, fax: Federal Domestic Assistance Catalog 11.419 DEPARTMENT OF COMMERCE Coastal Zone Management Program 301–975–4715, or e-mail Administration National Institute of Standards and [email protected]. Dated: March 24, 2010. Technology SUPPLEMENTARY INFORMATION: DOC PS Donna Wieting, ‘‘ [Document Number: 090306279–0146–02] 20–10 American Softwood Lumber Director, Office of Ocean and Coastal Standard’’ was developed by the Resource Management, National Ocean Final Voluntary Product Standard; American Lumber Standard Committee, Service, National Oceanic and Atmospheric DOC PS 20–10 ‘‘American Softwood the Standing Committee responsible for Administration. Lumber Standard’’ maintaining the standard. The revision [FR Doc. 2010–7081 Filed 4–1–10; 8:45 am] was processed in accordance with BILLING CODE 3510–22–M AGENCY: National Institute of Standards provisions of Department of Commerce and Technology, Commerce. ‘‘Procedures for the Development of ACTION: Notice. Voluntary Product Standards’’ (15 CFR DEPARTMENT OF COMMERCE part 10). A notice, which appeared in SUMMARY: The National Institute of Foreign–Trade Zones Board the Federal Register on April 3, 2009 Standards and Technology (NIST) (74 FR 15255) announced NIST’s [Order No. 1672] announces voluntary product standard circulation of the revision for public DOC PS 20–10 ‘‘American Softwood review, requested public comments, and Expansion of Foreign–Trade Zone 75, Lumber Standard’’ which will supersede provided the history of the revision. Phoenix, Arizona DOC PS 20–05. The Standard establishes standard sizes and Analysis of Comments Pursuant to its authority under the requirements for developing and Foreign–Trade Zones Act of June 18, 1934, as NIST received one comment from an amended (19 U.S.C. 81a–81u), the Foreign– coordinating the lumber grades of the association representing lumber Trade Zones Board (the Board) adopts the various species of softwood lumber, the retailers. following Order: assignment of design values, and the Comment: The commenter requested Whereas, the City of Phoenix, grantee preparation of grading rules applicable that the standard be expanded to of Foreign–Trade Zone 75, submitted an to each species. Its provisions include include a ‘‘single regime’’ for verifying application to the Board for authority to implementation of the Standard through the eco-attribute of lumber products expand its zone to include the jet–fuel an accreditation and certification with an on-product eco-label.

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Response: NIST did not make the East-West Highway, Silver Spring, DEPARTMENT OF COMMERCE requested change because the scope of Maryland 20910. DOC PS 20 deals with the grade marking National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: of various softwood lumber and the Administration (NOAA) addition of eco-labeling is therefore Requests for additional information considered outside the scope of this should be directed to Christine Marine Protected Areas Federal standard. Gallagher, Program Analyst, National Advisory Committee; Public Meeting Geodetic Survey (N/NGS1), 1315 East- DOC PS 20–10 supersedes DOC PS AGENCY: National Ocean Service, West Highway, Silver Spring, MD 20–05, effective June 1, 2010. The new NOAA, Department of Commerce. edition reflects efforts toward updating 20910; Phone: (301) 713–3231 x 105; E- ACTION: Notice of open meeting. and improving DOC PS 20 with mail: [email protected]. clarification and amplification of text SUPPLEMENTARY INFORMATION: SUMMARY: Notice is hereby given of a and terms while maintaining the meeting of the Marine Protected Areas technical requirements and Abstract Federal Advisory Committee administrative structure for (Committee) in Charleston, South implementing and enforcing the In January 2008, NGS adopted a 10- Carolina. Standard. year plan identifying the need to change DATES: The meeting will be held Dated: March 30, 2010. the geometric and vertical geodetic datums of the United States to improve Tuesday, April 20, 2010, from 9 a.m. to Marc G. Stanley, the efficient use of the NAVSTAR 5:30 p.m., Wednesday, April 21, from Acting Deputy Director. 8:30 a.m. to 12 p.m., and Thursday, Global Positioning System (GPS). [FR Doc. 2010–7494 Filed 4–1–10; 8:45 am] April 22, from 8:30 a.m. to 4:30 p.m. Continuing technological developments These times and the agenda topics BILLING CODE 3510–13–P and enhancements in space-based described below are subject to change. positioning, navigation, and timing Refer to the web page listed below for DEPARTMENT OF COMMERCE systems by the United States, as well as the most up-to-date meeting agenda. in other international programs, ADDRESSES: The meeting will be held at National Oceanic and Atmospheric including the Chinese global satellite the Francis Marion Hotel, 387 King Administration navigation system COMPASS, the Street, Charleston, South Carolina. European Union’s satellite navigation FOR FURTHER INFORMATION CONTACT: Federal Geospatial Summit To Provide system GALILEO, and the Russian Lauren Wenzel, Designated Federal Information on Upcoming GLONASS (Global’naya Officer, MPA FAC, National Marine Improvements To the National Spatial Navigatsionnaya Sputnikovaya Protected Areas Center, 1305 East West Reference System (NSRS), Including Sistema), will have a profound impact the Replacement of the North Highway, Silver Spring, Maryland on the integration of Global Navigation American Datum of 1983 (NAD 83) and 20910. (Phone: 301–713–3100 x136, Satellite System (GNSS) technologies the North American Vertical Datum of Fax: 301–713–3110); e-mail: with Federal surveying, mapping, 1988 (NAVD 88) [email protected]; or visit the charting, and GIS programs. In an effort National MPA Center Web site at AGENCY: National Geodetic Survey to support these rapid changes in http://www.mpa.gov). (NGS), National Ocean Service (NOS), positioning technologies, NGS has SUPPLEMENTARY INFORMATION: The National Oceanic and Atmospheric adopted a plan to replace NAD 83 and Committee, composed of external, Administration (NOAA), Commerce. NAVD 88, as well as other state and knowledgeable representatives of ACTION: Public meeting. territorial island datums, with more stakeholder groups, was established by contemporary geodetic reference the Department of Commerce (DOC) to SUMMARY: The National Geodetic Survey systems, thereby reducing several provide advice to the Secretaries of (NGS) will host a Federal Geospatial significant impediments to the efficient Commerce and the Interior on Summit to discuss the impact updating use of these positioning and navigation implementation of Section 4 of the National Spatial Reference System systems. This meeting will serve as a Executive Order 13158 on MPAs. The (NSRS) will have on federal government forum to allow Federal geospatial meeting will be open to public agencies by replacing the North program managers, technical specialists, participation from 4 p.m. to 4:45 p.m. American Datum of 1983 (NAD 83), the and contractors to address the impacts on Tuesday, April 20, 2010, and from North American Vertical Datum of 1988 of the planned changes, offer an 8:35 a.m. to 9:30 a.m. on Thursday, (NAVD 88), and other state and opportunity to discuss these changes, April 22, 2010. In general, each territorial island vertical datums. The and explain how NGS may provide individual or group will be limited to a proposed changes will affect the total time of five (5) minutes. If surveying, mapping, charting, and training and technical assistance to ensure minimal technical and budgetary members of the public wish to submit Geographic Information System (GIS) written statements, they should be programs of federal government impacts resulting from these new systems. submitted to the Designated Federal agencies, as well as those tribal, state, Official by April 15, 2010. county, and municipal governments that Dated: March 19, 2010. Matters to be Considered: The focus of have adopted the NSRS. Juliana P. Blackwell, the Committee’s meeting will be the DATES: The public meeting will be held Director, Office of National Geodetic Survey, establishment of appropriate Tuesday, May 11 and Wednesday, May National Ocean Service, National Oceanic Subcommittees and Workgroups and 12, 2010 from 8:30 a.m. to 5 p.m. and Atmospheric Administration. their development of work plans to ADDRESSES: The meeting location is the [FR Doc. 2010–7080 Filed 4–1–10; 8:45 am] address the Committee’s new charge. National Oceanic and Atmospheric BILLING CODE 3510–JE–M The Committee will receive an update Administration’s (NOAA) Science on the Administration’s Ocean Policy Center and Auditorium, located at 1301 Task Force and Coastal and Marine

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Spatial Planning initiatives, and their to determine if patent protection should application. Roughly fifty percent of linkages to the national system of MPAs. be sought at a relatively low cost and by provisional applications are abandoned The Committee will hear from two permitting applicants to focus efforts on without the subsequent filing of panels of MPA stakeholders: one on commercialization during this period. nonprovisional applications claiming regional MPA issues in the South The proposal would benefit the USPTO their benefit. Many applicants have Atlantic, and one on cultural MPA and the public by adding publications to expressed that a longer period of time to resources. The agenda is subject to the body of prior art, and by removing draft a complete set of claims and pay change. The latest version will be from the USPTO’s workload those fees would facilitate their efforts to posted at http://www.mpa.gov. nonprovisional applications for which determine whether their inventions the applicants have decided not to have commercial viability, and would Donna Wieting, pursue examination. Importantly, the enable more informed and economically Director, Office of Ocean and Coastal extended missing parts period would efficient decision making for applicants Resource Management. not affect the 12-month priority period considering filing nonprovisional [FR Doc. 2010–7082 Filed 4–1–10; 8:45 am] provided by the Paris Convention for applications claiming benefit of prior BILLING CODE 3510–22–M the Protection of Industrial Property provisional applications. Moreover, and, thus, any foreign filings would still these same applicants have expressed need to be made within 12 months of that they would be willing to commit to DEPARTMENT OF COMMERCE the filing date of the provisional 18-month publication of the invention application if applicant wishes to rely disclosed in their provisional Patent and Trademark Office on the provisional application in the applications benefiting from any [Docket No.: PTO–P–2010–0029] foreign-filed application. extension period, as well as any Comment Deadline Date: To be nonprovisional applications later Request for Comments on Proposed ensured of consideration, written claiming benefit of such provisional Change To Missing Parts Practice comments must be received on or before applications. June 1, 2010. In order to claim the benefit of a prior AGENCY: United States Patent and ADDRESSES: provisional application, the statute Trademark Office, Commerce. Written comments should be sent by electronic mail message over requires a nonprovisional application ACTION: Request for comments. the Internet addressed to filed under 35 U.S.C. 111(a) to be filed _ _ within 12 months after the date on SUMMARY: extended missing [email protected]. The United States Patent and which the corresponding provisional Trademark Office (USPTO), in response Comments may also be submitted by mail addressed to: Mail Stop application was filed. See 35 U.S.C. to a number of requests to reduce the 119(e). The proposed change would not costs due one year after filing a Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA alter this statutory requirement but provisional application, is considering a would allow applicants to more easily change that would effectively provide a 22313–1450, marked to the attention of Eugenia A. Jones. Although comments avail themselves of the benefits of 12-month extension to the 12-month missing parts practice in nonprovisional provisional application period (creating may be submitted by mail, the USPTO prefers to receive comments via the applications. a net 24-month period). This change Under the current missing parts would be implemented through the Internet. The written comments will be practice, if a nonprovisional application missing parts practice in nonprovisional filed under 35 U.S.C. 111(a) has been applications. Currently the missing available for public inspection at the Office of the Commissioner for Patents, accorded a filing date but does not parts practice permits an applicant on include the basic filing fee, the search payment of a surcharge to pay the up- located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, fee, the examination fee, or an oath or front filing fees and submit an executed declaration under 37 CFR 1.63, the oath or declaration after the filing of a 22314, and will be available via the USPTO Internet Web site (address: USPTO will send a missing parts notice nonprovisional application within a and set a time period for the applicant two-month time period set by the http://www.uspto.gov). Because comments will be made available for to submit the missing items and pay any USPTO that is extendable on payment required surcharge to avoid of extension of time fees for an public inspection, information that is not desired to be made public, such as abandonment. See 37 CFR 1.53(f). If additional five months. Under the excess claims fees, a multiple proposal, applicants would be permitted an address or phone number, should not be included in the comments. dependent claim fee, and/or an to file a nonprovisional application with application size fee are required and FOR FURTHER INFORMATION CONTACT: at least one claim within the 12-month such fees have not been paid, then these statutory period after the provisional Eugenia A. Jones, Senior Legal Advisor, fees are also required to be paid in application was filed, pay the basic Office of Patent Legal Administration, response to a missing parts notice. filing fee, and submit an executed oath Office of the Associate Commissioner Currently, the time period set forth in a or declaration. In addition, the for Patent Examination Policy, by missing parts notice is two months with nonprovisional application would need telephone at (571) 272–7727, or by mail extensions of time of up to five months to be in condition for publication and addressed to: Mail Stop Comments— under 37 CFR 1.136(a) being available. applicant would not be able to file a Patents, Commissioner for Patents, P.O. The USPTO is requesting public nonpublication request. Applicants Box 1450, Alexandria, VA 22313–1450, comment on whether the missing parts would be given a 12-month period to marked to the attention of Eugenia A. practice should be changed to provide decide whether the nonprovisional Jones. applicants with an extended time period application should be completed by SUPPLEMENTARY INFORMATION: to reply to a missing parts notice paying the required surcharge and the Applicants have a one-year period from requiring fees in a nonprovisional search, examination and any excess the filing date of a provisional application filed under 35 U.S.C. 111(a) claim fees due within that 12-month application to file a corresponding that claims the benefit of a provisional period. The proposal would benefit nonprovisional application in order to application under the conditions that applicants by permitting additional time claim the benefit of the provisional the basic filing fee for the

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nonprovisional application has been provisional applications were filed. In order for an applicant to be paid, an executed oath or declaration Thereafter, 73,136 nonprovisional or provided a 12-month (non-extendable) under 37 CFR 1.63 has been filed, a international applications were filed time period to reply to a missing parts nonpublication request has not been that claimed the benefit of one or more notice, the applicant would need to filed, and the application is in condition of the provisional applications filed in satisfy the following conditions: (1) The for publication. A benefit of such 2006 (or 60.2 percent of the provisional nonprovisional application filed under extension would be increased use of the applications). In 2005, 111,753 35 U.S.C. 111(a) must claim the benefit 18-month publication system resulting provisional applications were filed. of a prior-filed provisional application; from: (1) Additional nonprovisional Thereafter, 68,511 nonprovisional or (2) the basic filing fee must have been applications being filed that would not international applications were filed paid (in the nonprovisional have been filed without the ability to that claimed the benefit of one or more application); (3) an executed oath or have 12 months to reply to a missing of the provisional applications filed in declaration under 37 CFR 1.63 must parts notice with no extension of time 2005 (or 61.3 percent of the provisional have been filed; (4) applicant must not fees being required; and (2) applications). In 2004, 102,268 have filed a nonpublication request, or nonprovisional applications being filed provisional applications were filed. the applicant must have filed a request without a nonpublication request so that Thereafter, 63,146 nonprovisional or to rescind a previously filed applicant will be given the 12-month international applications were filed nonpublication request; and (5) the time period to reply to a missing parts that claimed the benefit of one or more application must be in condition for notice. A second benefit is added of the provisional applications filed in publication as provided in 37 CFR flexibility for applicants who may 2004 (or 61.7 percent of the provisional 1.211(c). After an applicant timely otherwise be forced to expend resources applications). For provisional replies to the missing parts notice completing nonprovisional applications applications filed from 1998 to 2003, the within the 12-month time period and that may prove unnecessary given an percentage of provisional applications the nonprovisional application is additional year of commercialization relied upon in a subsequent application completed, the nonprovisional efforts. Providing a longer time period to ranged from 61.2 to 63.2 percent. application would be placed in the reply to a missing parts notice would Currently, some applicants take examination queue based on the actual give applicants more time to ascertain advantage of the missing parts practice filing date of the nonprovisional the value of their inventions, thereby to file nonprovisional applications application. Therefore, there would be helping applicants to decide whether to without complete claim sets by omitting no change made in the order in which incur the additional costs associated an executed oath or declaration or applications are examined as a result of with pursuing patent rights. failing to pay the search and the current proposal. Applications not completed as examination fees up front. Such filings result in a notice to file missing parts An applicant who has filed a nonprovisional applications provisional application with a complete additionally benefit the USPTO and all which must be replied to in order to complete the application prior to disclosure and high quality application other users of the patent system, by papers (e.g., papers that satisfy the removing unnecessary workload from docketing for examination. A subset of these applicants then file a continuing requirements of 37 CFR 1.52) would, in the agency. A third benefit is better most cases, be able to file a targeting of applicant resources to application claiming the benefit of the first-filed nonprovisional application nonprovisional application with little commercialization efforts at critical time that claimed the benefit of the prior additional effort and expense. In periods, which efforts can ultimately provisional application, rather than a addition to the requirements of a result in creation of jobs as well as new reply to the notice to file missing parts, provisional application, a products and services. This sequencing in order to effectively extend the time nonprovisional application requires at of effort in turn will lead to more period to complete the nonprovisional least one claim and an executed oath or efficient and purposeful engagement application. The current proposal to declaration under 37 CFR 1.63. Thus, with the USPTO for those applications provide a time period of twelve months for example, where a provisional that are filed and completed as for an applicant to reply to a missing application was filed without any nonprovisional applications. parts notice under certain conditions claims, the applicant would need to: (1) The percentage of provisional seeks to provide applicants with a Draft at least one claim and file the applications that are subsequently relied streamlined alternative to this practice nonprovisional application using upon in a nonprovisional application by eliminating the need to refile the essentially a copy of the provisional has been declining over time, leaving a application and to pay significant application papers (e.g., specification higher percentage of provisional extension of time fees. and drawings), with minor revisions to applications as abandoned, unrelied Similarly, applicants who file several add the claim(s) at the end of the upon applications. In 2008, 143,120 nonprovisional patent applications specification and the reference to the provisional applications were filed. based on a number of provisional prior-filed provisional application in the Thereafter, 72,792 nonprovisional or applications may fail to have sufficient first sentence of the specification; (2) international applications were filed focus on what they deem to be their submit an executed oath or declaration that claimed the benefit of one or more most important applications. In under 37 CFR 1.63; and (3) submit the of the provisional applications filed in addition, by failing to prioritize USPTO basic filing fee. A preliminary 2008 (or 50.8 percent of the provisional efforts on the nonprovisional amendment adding additional claims applications). In 2007, 132,581 applications deemed most important by could be submitted along with the reply provisional applications were filed. applicants, greater delay in the to the missing parts notice. Currently, Thereafter, 75,330 nonprovisional or processing and examination of all the small entity basic filing fee for a international applications were filed nonprovisional applications by the utility application is $165.00, or $82.00 that claimed the benefit of one or more USPTO occurs. The current proposal if filed electronically using the USPTO’s of the provisional applications filed in would help applicants focus on their electronic filing system (EFS–Web). The 2007 (or 56.8 percent of the provisional most important applications and non-small entity basic filing fee for a applications). In 2006, 121,471 conserve USPTO resources. utility application is $330.00. To

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complete the application for to pursue if the application is extended missing parts period discussed examination, the remainder of the filing completed. The search report that in this notice. Comments or suggestions fees and the required surcharge ($65.00 would be prepared would be similar to are solicited on whether or how the for small entities and $130.00 for other the search report that is prepared for USPTO should revise the missing parts applicants) would be due within the 12- international applications. See PCT Rule practice. month time period set in the missing 43 and Manual of Patent Examining Dated: March 29, 2010. parts notice. Thus, an additional Procedure (MPEP) § 1844. The fee for David J. Kappos, $445.00 for small entities and $890.00 this service would be set, through rule for other applicants would be due for making, to recover the estimated average Under Secretary of Commerce for Intellectual Property and Director of the United States payment of the surcharge and the search cost of providing the service and is Patent and Trademark Office. and examination fees (plus any required anticipated to be consistent with the excess claims fees and application size current cost of conducting an [FR Doc. 2010–7520 Filed 4–1–10; 8:45 am] fee). Furthermore, the publication fee international search. See 35 U.S.C. BILLING CODE 3510–16–P would not be required until mailing of 41(d)(2) and 37 CFR 1.445(a)(2). It a notice of allowance (unless early should be noted that if applicant DEPARTMENT OF COMMERCE publication is requested). decides to file a reply to the missing Applicants are reminded that the parts notice and complete the International Trade Administration disclosure of an invention in a nonprovisional application after having provisional application should be as received such a search report, the [A–570–863] complete as possible because the applicant would still be required to pay Honey from the People’s Republic of claimed subject matter in the later-filed the search fee (set forth in 35 U.S.C. China: Notice of Rescission of nonprovisional application must have 41(d)(1) and 37 CFR 1.16) with the reply Antidumping Duty Administrative support in the provisional application to the missing parts notice, and the in order for the applicant to obtain the examiner would still conduct the search Review benefit of the filing date of the that is currently done as part of the AGENCY: Import Administration, provisional application. Applicants are examination of nonprovisional International Trade Administration, also advised that the extended missing applications. See MPEP §§ 704.01 and Department of Commerce. parts period would not affect the 12- 904–904.03. This is analogous to DATES: Effective Date: April 2, 2010. month priority period provided by the international applications where FOR FURTHER INFORMATION CONTACT: FOR Paris Convention for the Protection of applicant is required to pay the search FURTHER CONTACT INFORMATION: Industrial Property (Paris Convention) fee set forth in 37 CFR 1.445(a)(2) and Catherine Bertrand, AD/CVD and, thus, any foreign filings would still the USPTO will conduct a search and Operations, Import Administration, need to be made within 12 months of prepare an international search report International Trade Administration, the filing date of the provisional when the USPTO is the International U.S. Department of Commerce, 14th application if applicant wishes to rely Searching Authority; and then, after the on the provisional application in the international application enters the Street and Constitution Avenue, NW, foreign-filed application. national stage in the United States, Washington, DC 20230; telephone: (202) As discussed, the USPTO would applicant is required to pay the national 482–3207. require the nonprovisional application stage search fee set forth 37 CFR SUPPLEMENTARY INFORMATION: to be in condition for publication. In 1.492(b) and the examiner will conduct Background addition, the USPTO would publish the a search as part of the examination of application promptly after the the application. On December 1, 2009, the Department expiration of eighteen months from the Any patent term adjustment (PTA) of Commerce (‘‘the Department’’) earliest filing date for which a benefit is accrued by an applicant based on published a notice of opportunity to sought. Thus, if there are informalities certain administrative delays by the request an administrative review of the in the application papers that need USPTO is offset by a reduction for antidumping duty order on honey from correction for the application to be in failing to reply to a notice by the USPTO the People’s Republic of China (‘‘PRC’’). condition for publication (such as the within three months. See 37 CFR See Antidumping or Countervailing specification pages contain improper 1.704(b). Thus, if an applicant replies to Duty Order, Finding, or Suspended margins or line spacing or the drawings a notice to file missing parts more than Investigation; Opportunity to Request are not acceptable because they are not three months after mailing of the notice, Administrative Review, 74 FR 62743 electronically reproducible), the USPTO the additional time would be treated as (December 1, 2009). On December 31, would still send a missing parts notice an offset to any positive PTA that will 2009, American Honey Producers that sets a two-month (extendable) time be accrued by applicant. The USPTO Association and the Sioux Honey period (not the 12-month extended envisions that no change would be Association (collectively ‘‘Petitioners’’) missing parts period) for the applicant made to the current regulations requested that the Department conduct to correct the informalities as well as (including the patent term adjustment an administrative review of the exports submit any missing items or required regulations) except to provide for the fee to the United States of 51 companies for fees. for the optional service of an the period December 1, 2008, through The USPTO is also considering international style search report, if the November 30, 2009. Those companies offering applicants an optional service USPTO decides to implement the are: Ahcof Industrial Development of having an international style search proposed change to the missing parts Corp., Ltd.; Alfred L. Wolff (Beijing) Co. report prepared during the 12-month practice. Ltd.; Anhui Honghui Foodstuff (Group) extended missing parts period. The The USPTO is publishing this request Co., Ltd.; Anhui Honghui optional service would provide the for comments to gather public feedback Import&Export Trade Co., Ltd.; Anhui applicant with information concerning on, and to determine the level of interest Cereals Oils and Foodstuffs I/E (Group) the state of the prior art and may be in, the proposed change to missing parts Corporation; Anhui Native Produce useful in determining whether to practice as well as the optional service Imp& Exp Corp.; APM Global Logistics complete the application and the claims to provide a search report during the (Shanghai) Co.; Baiste Trading Co., Ltd.;

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Cheng Du Wai Yuan Bee Products Co., the antidumping duty order on honey DEPARTMENT OF COMMERCE Ltd.; Chengdu Stone Dynasty Art Stone; from the PRC covering the period Dongtai Peak Honey Industry Co., Ltd.; December 1, 2008, through November International Trade Administration Eurasia Bee’s Products Co., Ltd.; Fresh 30, 2009, in accordance with 19 CFR [A–570–822] Honey Co., Ltd. (formerly Mgl. Yun 351.213(d)(1). Shen); Golden Tadco Int’l; Hangzhou Certain Helical Spring Lock Washers Golden Harvest Health Industry Co., Assessment From the People’s Republic of China: Ltd.; Haoliluck Co., Ltd.; Hengjide The Department will instruct U.S. Rescission of Antidumping Duty Healthy Products Co. Ltd.; Hubei Yusun ‘‘ ’’ Administrative Review Co., Ltd.; Inner Mongolia Altin Bee– Customs and Border Protection ( CBP ) Keeping; Inner Mongolia Youth Trade to assess antidumping duties on all AGENCY: Import Administration, Development Co., Ltd.; Jiangsu Cereals, appropriate entries. Antidumping duties International Trade Administration, Oils Foodstuffs Import Export (Group) shall be assessed at rates equal to the Department of Commerce. Corp.; Jiangsu Kanghong Natural cash deposit of estimated antidumping EFFECTIVE DATE: April 2, 2010. duties required at the time of entry, or Healthfoods Co., Ltd.; Jiangsu Light FOR FURTHER INFORMATION CONTACT: withdrawal from warehouse, for Industry Products Imp & Exp (Group) Patricia M. Tran, AD/CVD Operations, Corp.; Jilin Province Juhui Import; consumption, in accordance with 19 Office 1, Import Administration, Maersk Logistics (China) Company Ltd.; CFR 351.212(c)(1)(i). The Department International Trade Administration, Nefelon Limited Company; Ningbo intends to issue appropriate assessment U.S. Department of Commerce, 14th Shengye Electric Appliance; Ningbo instructions directly to CBP 15 days Street and Constitution Avenue, NW, Shunkang Health Food Co., Ltd.; after the publication of this notice in the Washington, DC 20230; telephone: (202) Ningxia Yuehai Trading Co., Ltd.; Federal Register. 482–1503. Product Source Marketing Ltd.; Qingdao Aolan Trade Co., Ltd.; QHD Sanhai Notification to Interested Parties SUPPLEMENTARY INFORMATION: Honey Co., Ltd.; Qinhuangdao This notice serves as a final reminder Background Municipal Dafeng Industrial Co., Ltd.; Renaissance India Mannite; Shaanxi to importers of their responsibility On October 1, 2009, the Department ‘‘ ’’ Youthsun Co. Ltd.; Shanghai Bloom under 19 CFR 351.402(f)(2) to file a of Commerce ( the Department ) International Trading Co., Ltd.; certificate regarding the reimbursement published a notice announcing the Shanghai Foreign Trade Co., Ltd.; of antidumping duties prior to opportunity to request an administrative Shanghai Hui Ai Mal Tose Co. Ltd.; liquidation of the relevant entries review of the antidumping duty order Shanghai Taiside Trading Co., Ltd.; during this review period. Pursuant to on certain helical spring lock washers Shine Bal Co., Ltd.; Sichuan– 19 CFR 351.402(f)(3), failure to comply from the People’s Republic of China for Dujiangyan Dubao Bee Industrial Co., with this requirement could result in the period October 1, 2008 through Ltd.; Silverstream International Co., the Secretary’s presumption that September 30, 2009. See Antidumping Ltd.; Suzhou Shanding Honey Product reimbursement of antidumping duties or Countervailing Duty Order, Finding, Co. Ltd.; Tianjin Eulia Honey Co., Ltd.; occurred and the subsequent assessment or Suspended Investigation; Opportunity To Request Administrative Wuhan Bee Healthy Co., Ltd.; Wuhan of doubled antidumping duties. Shino–Food Trade Co., Ltd.; Wuhu Review, 74 FR 50772 (October 1, 2009). This notice also serves as a reminder Fenglian Co., Ltd.; Wuhu Qinshi On November 2, 2009, in accordance to parties subject to administrative Tangye; Wuhu Qinshgi Tangye; Xinjiang with 19 CFR 351.213(b), the Department ‘‘ ’’ Jinhui Food Co., Ltd.; and, Zhejiang protective order ( APO ) of their received a timely request from Willing Foreign Trading Co. Pursuant to responsibility concerning the Shakeproof Assembly Components this request, the Department published disposition of proprietary information Division of Illinois Tool Works Inc., the a notice of the initiation of the disclosed under APO, in accordance petitioner, to conduct an administrative administrative review of the with 19 CFR 351.305 and as explained review of Hangzhou Spring Washer Co., antidumping duty order on honey from in the APO itself. Timely written Ltd., also known as Zheijang Wanxin the PRC. See Initiation of Antidumping notification of the return/destruction of Group Co., Ltd (‘‘Hangzhou’’). No other and Countervailing Duty Administrative APO materials or conversion to judicial party requested an administrative Reviews and Request for Revocation in protective order is hereby requested. review. Part, 75 FR 4770 (January 29, 2010). Failure to comply with the regulations On November 25, 2009, the Department published a notice of Rescission of Review and the terms of an APO is a sanctionable violation. initiation of an antidumping duty Pursuant to 19 CFR 351.213(d)(1), the administrative review of Hangzhou. See Department will rescind an This notice is in accordance with Initiation of Antidumping and administrative review, in whole or in section 777(i)(1) of the Tariff Act of Countervailing Duty Administrative part, if the parties that requested a 1930, as amended, and 19 CFR Reviews, 74 FR 61658 (November 25, review withdraw the requests within 90 351.213(d)(4). 2009). days of the date of publication of the Dated: March 29, 2010. Rescission of Administrative Review notice of initiation. On March 22, 2010, John M. Andersen, Petitioners timely withdrew their If a party that requested an request that the Department conduct an Acting Deputy Assistant Secretary for administrative review withdraws the Antidumping and Countervailing Duty administrative review of the entries of request within 90 days of the date of Operations. subject merchandise of the 51 publication of notice of initiation of the companies listed above, and no other [FR Doc. 2010–7506 Filed 4–1–10; 8:45 am] requested administrative review, the interested party requested a review of BILLING CODE 3510–DS–S Secretary will rescind the these or any other companies for this administrative review pursuant to 19 POR. Therefore, the Department is CFR 351.213(d)(1). On March 16, 2010, rescinding this administrative review of the petitioner withdrew its request with

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respect to Hangzhou. Although the 90- responsibility concerning the SUPPLEMENTARY INFORMATION: day deadline to withdraw an disposition of proprietary information Background administrative review request in the disclosed under APO in accordance instant administrative review was with 19 CFR 351.305(a)(3). Timely Section 101(a)(5)(A) of the MMPA (16 March 2, 2010, pursuant to 19 CFR written notification of the return/ U.S.C. 1361 et seq.) directs NMFS to 351.213(d)(1), the Secretary may extend destruction of APO materials or allow, upon request, the incidental, but the 90-day time limit if it is reasonable conversion to judicial protective order is not intentional, taking of small numbers to do so.1 The Department determines it hereby requested. Failure to comply of marine mammals by U.S. citizens is reasonable to do so in this case with the regulations and terms of an who engage in a specified activity (other because it has not expended significant APO is a sanctionable violation. than commercial fishing) within a resources conducting this This notice is issued and published in specified geographical region, if certain administrative review with respect to accordance with sections 751(a)(1) and findings are made by NMFS and Hangzhou. Specifically, the Department 777(i)(1) of the Act and 19 CFR regulations are issued. Under the has not completed its full analysis of 351.213(d)(4). MMPA, the term ‘‘taking’’ means to harass, hunt, capture, or kill or to Hangzhou’s sales or factors of Dated: March 26, 2010. production data for the period of review attempt to harass, hunt, capture or kill John M. Andersen, nor has it calculated a preliminary marine mammals. The National Defense margin for Hangzhou. Therefore, in Acting Deputy Assistant Secretary for Authorization Act of 2004 (Public Law accordance with 19 CFR 351.213(d)(1), Antidumping and Countervailing Duty 108–136) removed the ‘‘small numbers’’ Operations. and consistent with our practice, the and ‘‘specified geographical region’’ Department is rescinding this [FR Doc. 2010–7521 Filed 4–1–10; 8:45 am] limitations and amended the definition administrative review. BILLING CODE 3510–DS–S of ‘‘harassment’’ as it applies to a ‘‘military readiness activity’’ to read as Assessment follows (Section 3(18)(B) of the MMPA): The Department will instruct U.S. DEPARTMENT OF COMMERCE (i) any act that injures or has the significant Customs and Border Protection (‘‘CBP’’) potential to injure a marine mammal or National Oceanic and Atmospheric to assess antidumping duties at the cash marine mammal stock in the wild [Level A Administration deposit rate in effect on the date of Harassment]; or (ii) any act that disturbs or entry, for entries during the period RIN 0648–XV17 is likely to disturb a marine mammal or marine mammal stock in the wild by causing October 1, 2008 through September 30, Taking and Importing Marine disruption of natural behavioral patterns, 2009. The Department intends to issue including, but not limited to, migration, appropriate assessment instructions to Mammals; Taking of Marine Mammals surfacing, nursing, breeding, feeding, or CBP 15 days after publication of this Incidental to Conducting Precision sheltering, to a point where such behavioral notice of rescission of administrative Strike Weapons Testing and Training patterns are abandoned or significantly review. by Eglin Air Force Base in the Gulf of altered [Level B Harassment]. Mexico Authorization, in the form of annual Notification to Importers LOAs, may be granted for periods of up AGENCY: This notice serves as a final reminder National Marine Fisheries to 5 years if NMFS finds, after to importers of their responsibility Service (NMFS), National Oceanic and notification and opportunity for public under 19 CFR 351.402(f) to file a Atmospheric Administration (NOAA), comment, that the taking will have a certificate regarding the reimbursement Commerce. negligible impact on the species or of antidumping duties prior to ACTION: Notice of issuance of a Letter stock(s) of marine mammals and will liquidation of the relevant entries of Authorization. not have an unmitigable adverse impact during this review period. Failure to on the availability of the species or SUMMARY: In accordance with provisions comply with this requirement could stock(s) for subsistence uses (where of the Marine Mammal Protection Act result in the Secretary’s presumption relevant). In addition, NMFS must (MMPA), as amended, notification is that reimbursement of antidumping prescribe regulations that include hereby given that a letter of duties occurred and subsequent permissible methods of taking and other authorization (LOA) to take four species assessment of double antidumping means of effecting the least practicable of marine mammals incidental to testing duties. adverse impact on the species and its and training during Precision Strike habitat, and on the availability of the Notification Regarding Administrative Weapons (PSW) tests in the Gulf of species for subsistence uses, paying Protective Order Mexico (GOM), a military readiness particular attention to rookeries, mating activity, has been issued to Eglin Air This notice serves as a final reminder grounds, and areas of similar Force Base (AFB). to parties subject to administrative significance. The regulations must protective orders (‘‘APO’’) of their DATES: This authorization is effective include requirements pertaining to the from April 1, 2010, through March 31, monitoring and reporting of such taking. 1 As explained in the memorandum from the 2011. Regulations governing the taking of Deputy Assistant Secretary for Import ADDRESSES: The application and LOA Administration, the Department has exercised its marine mammals incidental to PSW discretion to toll deadlines for the duration of the are available for review in the Permits, testing and training within the Eglin closure of the Federal Government from February Conservation, and Education Division, Gulf Test and Training Range (EGTTR) 5, through February 12, 2010. Thus, all deadlines Office of Protected Resources, NMFS, in the GOM were published on in this segment of the proceeding have been 1315 East-West Highway, Silver Spring, extended by seven days. The revised deadline to November 24, 2006 (71 FR 67810), and withdraw an administrative review request is MD 20910 or by contacting the remain in effect from December 26, March 2, 2010. See Memorandum to the Record individuals listed in FOR FURTHER 2006, through December 27, 2011. The from Ronald Lorentzen, DAS for Import INFORMATION CONTACT. species that Eglin AFB may take during ‘‘ Administration, regarding Tolling of FOR FURTHER INFORMATION CONTACT: Administrative Deadlines As a Result of the PSW testing and training are Atlantic Government Closure During the Recent Candace Nachman or Michelle bottlenose (Tursiops truncatus) and Snowstorm,’’ dated February 12, 2010. Magliocca, NMFS, (301) 713–2289. Atlantic spotted dolphins (Stenella

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frontalis) and dwarf (Kogia simus) and exceed 1 year, take of marine mammals, COMMITTEE FOR PURCHASE FROM pygmy (Kogia breviceps) sperm whales. by harassment, incidental to PSW PEOPLE WHO ARE BLIND OR Issuance of the annual LOA to Eglin testing and training in the GOM. SEVERELY DISABLED AFB is based on findings made in the preamble to the final rule that the total Summary of Activity and Monitoring Procurement List Additions and takings by this project would result in Conducted During 2009 and 2010 Deletions no more than a negligible impact on the affected marine mammal stocks or No PSW tests were conducted during AGENCY: Committee for Purchase From habitats and would not have an calendar year 2009 or between January People Who Are Blind or Severely unmitigable adverse impact on and March of 2010. However, the PSW Disabled. subsistence uses of marine mammals. LOA was modified on April 16, 2009, to ACTION: Additions to and Deletions from NMFS also finds that the applicant will include Stand-Off Precision Guided Procurement List. meet the requirements contained in the Munition (SOPGM) testing. NMFS SUMMARY: implementing regulations and LOA, issued this modification because it was This action adds to the including monitoring and reporting determined that the impacts of SOPGM Procurement List a product and services requirements. Without any mitigation testing would be significantly smaller to be furnished by nonprofit agencies measures, a small possibility exists for than the impacts outlined in the PSW employing persons who are blind or have other severe disabilities, and one bottlenose dolphin and one spotted LOA. SOPGM testing utilized two out of deletes from the Procurement List dolphin to be exposed to blast levels the six live shots allowed for the Small products previously furnished by such from the PSW testing sufficient to cause Diameter Bomb (SDB) exercise under agencies. mortality. Additionally, less than two the PSW LOA. Three GriffinTM SOPGM cetaceans might be exposed to noise system missiles with a net explosive DATES: Effective Date: May 3, 2010. levels sufficient to induce Level A weight of 7.5 pounds (TNT equivalent) ADDRESSES: Committee for Purchase harassment (injury) annually, and as were fired against two target boats in the From People Who Are Blind or Severely few as 31 or as many as 53 cetaceans GOM on April 29, 2009, and May 5, Disabled, Jefferson Plaza 2, Suite 10800, (depending on the season and water 2009. No marine mammals were seen 1421 Jefferson Davis Highway, depth) could potentially be exposed during the boat sweep or at release. No Arlington, Virginia 22202–3259. (annually) to noise levels sufficient to FOR FURTHER INFORMATION CONTACT: induce Level B harassment in the form evidence of injury or death to marine Barry S. Lineback, Telephone: (703) of a temporary loss of hearing sensitivity mammals was noted after either 603–7740, Fax: (703) 603–0655, or e- (also referred to as a temporary mission. mail [email protected]. threshold shift). Authorization While none of these impact estimates SUPPLEMENTARY INFORMATION: consider the proposed mitigation The U.S. Air Force complied with the Additions measures that will be employed by Eglin requirements of the 2009 LOA, and On 1/15/2010 (75 FR 2510) and 2/5/ AFB to minimize potential impacts to NMFS has determined that there was no 2010 (75 FR 5970–5971), the Committee protected species, NMFS has authorized take of marine mammals by the U.S. Air for Purchase From People Who Are Eglin AFB a total of one mortality, two Force in 2009. Accordingly, NMFS has Blind or Severely Disabled published takes by Level A harassment, and 53 issued a LOA to Eglin AFB authorizing takes by Level B harassment (TTS) notices of proposed additions to the the take of marine mammals, by Procurement List. annually. However, the proposed harassment, incidental to PSW testing mitigation measures described in the The Committee for Purchase From and training in the EGTTR in the GOM. final rule (71 FR 67810, November 24, People Who Are Blind or Severely Issuance of this LOA is based on 2006) and the LOA are anticipated to Disabled (Committee) operates pursuant both reduce the number of marine findings described in the preamble to to statutory and regulatory mammal takes and lessen the severity of the final rule (71 FR 67810, November requirements. Committee decisions the effects of the takes. These measures 24, 2006) and supported by information regarding which items are suitable for include a conservative safety range for contained in Eglin’s March 2010 request addition to the Procurement List are marine mammal exclusion; for a new LOA that the activities specifically guided by 41 CFR Chapter incorporation of aerial and shipboard described under this LOA will not result 51. This regulation states that for a survey monitoring efforts in the program in more than the incidental harassment commodity or service to be suitable for both prior to and after detonation of of certain marine mammal species and addition to the Procurement List, each explosives; and a prohibition on will have a negligible impact on the of the following criteria must be detonations whenever marine mammals affected species or stocks. The provision satisfied: Employment potential, are detected within the safety zone, may requiring that the activities not have an nonprofit agency qualifications, enter the safety zone at the time of unmitigable adverse impact on the capability, and level of impact on the detonation, or if weather and sea availability of the affected species or current contractor for the commodity or conditions preclude adequate aerial stock for subsistence uses does not service. In response to its Notice of surveillance. This LOA may be renewed apply for this action. Proposed Procurement List Addition, annually based on a review of the the Committee received comments from activity, completion of monitoring Dated: March 29, 2010. five parties relating to the fourth requirements, and receipt of reports James H. Lecky, criterion, level of impact. required by the LOA. Director, Office of Protected Resources, Comments were received from the National Marine Fisheries Service. incumbent contractor for the facilities Summary of Request [FR Doc. 2010–7482 Filed 3–30–10; 4:15 pm] management requirement at Fort Lewis, On March 4, 2010, NMFS received a BILLING CODE 3510–22–S WA. The firm stated that addition of request for an LOA renewal pursuant to this service to the Procurement List is the aforementioned regulations that inconsistent with the Javits-Wagner- would authorize, for a period not to O’Day Act policy regarding contracts

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currently held within the SBA 8(a) practice, the requirement is eligible for Standard. Program. The firm stated that placing consideration to be added to the NPA: Mid-Valley Rehabilitation, Inc., this service on the Procurement List Procurement List at this juncture. The McMinnville, OR. would result in ‘‘severe adverse impact’’ Committee’s action will not affect the Contracting Activity: Defense Logistics Agency, Defense Supply Center and is thus not suitable for addition. McChord AFB contractor’s ability to Columbus, Columbus, OH. The incumbent contractor also asserted continue to perform the services until Coverage: C-List for the requirements for the that such an action would seem to be expiration of its contract. Defense Supply Center Columbus, contrary to the Regulatory Flexibility When passing the Javits-Wagner- Columbus, OH. Act as it relates to ‘‘small entities.’’ O’Day Act, Congress understood the Services The Committee has considered these importance of using the federal comments. The Committee has procurement process as a means of Service Type/Location: Base Supply Center, Defense Supply Center Columbus, 3990 documentation from the contracting providing employment opportunities for activity showing that the Fort Lewis E. Broad Street, Columbus, OH. people who are blind or with other NPA: Associated Industries for the Blind, requirement awarded to the incumbent severe disabilities. The proposed Milwaukee, WI. contractor was explicitly restricted to a addition of this project to the Contracting Activity: Defense Logistics one (1) year acquisition and was not Procurement List will guarantee the Agency, Defense Supply Center permanently placed into the 8(a) creation of jobs for people with severe Columbus, Columbus, OH. Program. Under Committee procedures, disabilities, a group whose Service Type/Location: Facilities this service is eligible for consideration unemployment rate has been estimated Management, First Sergeants Barracks, to be added to the Procurement List. Joint Base Lewis-McChord, WA. to be approaching 70%. Having NPA: Professional Contract Services, Inc., The financial information presented by reviewed all material information the contractor and calculated according Austin, TX. regarding the suitability of this project Contracting Activity: Dept. of the Army, XR to Committee practice during its impact for the AbilityOne Program, the W6BA ACA, Mission and Installation analysis did not indicate that it would Committee has determined that the Joint Contracting Command, Ft. Lewis, WA. result in ‘‘severe adverse impact’’ under Base Lewis-McChord facilities Deletions Committee regulations at 41 CFR 51– management service is suitable for 2.4(a)(4). The contractor was notified of addition to the Procurement List. On 2/5/2010 (75 FR 5970–5971), the the preliminary determination that After consideration of the material Committee for Purchase From People impact was not severe in April 2009. In presented to it concerning capability of Who Are Blind or Severely Disabled light of this notification, coupled with qualified nonprofit agencies to provide published notice of proposed deletions the contracting activity’s a product and services and impact of the from the Procurement List. communication that the requirement additions on the current or most recent After consideration of the relevant would be limited to one year, the contractors, the Committee has matter presented, the Committee has incumbent contractor could not have determined that the product and determined that the products listed had a reasonable expectation of further services listed below are suitable for below are no longer suitable for awards or contract option years. The procurement by the Federal Government procurement by the Federal Government Committee continues to find the under 41 U.S.C. 46–48c and 41 CFR 51– under 41 U.S.C. 46–48c and 41 CFR 51– proposed action to be consistent with 2.4. 2.4. the Regulatory Flexibility Act (RFA) because the particular service being Regulatory Flexibility Act Certification Regulatory Flexibility Act Certification considered for addition to the I certify that the following action will I certify that the following action will Procurement List will be provided by not have a significant impact on a not have a significant impact on a qualified nonprofit agencies (or ‘‘small substantial number of small entities. substantial number of small entities. entities’’ under the RFA) employing The major factors considered for this The major factors considered for this people who are blind or with other certification were: certification were: significant disabilities. 1. The action will not result in any 1. The action will not result in Comments were also received from additional reporting, recordkeeping or additional reporting, recordkeeping or the South Carolina District Office of the other compliance requirements for small other compliance requirements for small Small Business Administration, the entities other than the small entities. National Association of Small organizations that will furnish the 2. The action may result in Disadvantaged Businesses, and two product and services to the Government. authorizing small entities to furnish the contractors who perform similar work at 2. The action will result in products to the Government. 3. There are no known regulatory another Army installation. Their authorizing small entities to furnish the alternatives which would accomplish comments also raise the SBA 8(a) product and services to the Government. program issue and the negative impact 3. There are no known regulatory the objectives of the Javits-Wagner- of removing this project from the 8(a) alternatives which would accomplish O’Day Act (41 U.S.C. 46–48c) in Program. the objectives of the Javits-Wagner- connection with the products deleted The Committee has considered these O’Day Act (41 U.S.C. 46–48c) in from the Procurement List. comments. Information provided by the connection with the product and contracting activity states that the End of Certification services proposed for addition to the ongoing requirement at Fort Lewis was Accordingly, the following products Procurement List. not permanently placed under the SBA are deleted from the Procurement List: 8(a) program and is eligible for End of Certification Products consideration to be added to the Accordingly, the following product Inkjet Cartridge Procurement List. The requirement for and services are added to the NSN: 7510–01–544–0833 comparable services at McChord AFB is Procurement List: NSN: 7510–01–544–0819 currently performed by a contractor that NSN: 7510–01–539–9836 has graduated from the SBA 8(a) Product NSN: 7510–01–544–0836 program. In accordance with Committee NSN: 2090–00–372–6064—Repair Kit, NSN: 7510–01–544–0830

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NSN: 7510–01–539–9837 an opportunity to submit comments on DEPARTMENT OF DEFENSE NSN: 7510–01–544–0832 the proposed actions. NSN: 7510–01–544–0820 Office of the Secretary NSN: 7510–01–539–9842 Deletions NSN: 7510–01–544–0835 Regulatory Flexibility Act Certification Federal Advisory Committee; Military NSN: 7510–01–544–0826 Leadership Diversity Commission NSN: 7510–01–539–9838 I certify that the following action will (MLDC) NSN: 7510–01–544–0837 not have a significant impact on a NSN: 7510–01–544–0825 AGENCY: Office of the Under Secretary of substantial number of small entities. NSN: 7510–01–539–9834 Defense for Personnel and Readiness, The major factors considered for this NSN: 7510–01–544–0823 DoD. NSN: 7510–01–544–0831 certification were: ACTION: Meeting notice. NSN: 7510–01–544–1733 1. If approved, the action will not NSN: 7510–01–544–0829 result in additional reporting, NSN: 7510–01–544–0839 SUMMARY: Under the provisions of the NSN: 7510–01–544–0838 recordkeeping or other compliance Federal Advisory Committee Act of NSN: 7510–01–544–0827 requirements for small entities. 1972 (5 U.S.C., Appendix, as amended), NPA: Alabama Industries for the Blind, 2. If approved, the action may result the Government in the Sunshine Act of Talladega, AL. in authorizing small entities to provide 1976 (5 U.S.C. 552b, as amended), and Contracting Activity: GSA/FSS OFC SUP the services to the Government. 41 CFR 102–3.150, the Department of CTR—Paper Products, New York, NY Defense announces that the Military NSN: 6230–01–513–3265—Flashlight, 3. There are no known regulatory Leadership Diversity Commission Aluminum, 2D, Blue alternatives which would accomplish (MLDC) will meet April 21–23, 2010. NSN: 6230–01–513–3268—Flashlight, the objectives of the Javits-Wagner- Aluminum, 2D, Red Subject to the availability of space, the O’Day Act (41 U.S.C. 46–48c) in meeting is open to the public. NSN: 6230–01–513–3279—Flashlight, connection with the services proposed Aluminum, 4D, Red for deletion from the Procurement List. DATES: The meeting will be held: NPA: Central Association for the Blind & April 21, 2010 from 8 a.m. to 1:15 Visually Impaired, Utica, NY. End of Certification p.m. Contracting Activity: GSA/FSS OFC SUP April 22, 2010 from 8 a.m. to 5:45 CTR—Paper Products, New York, NY. The following services are proposed p.m. for deletion from the Procurement List: Barry S. Lineback, April 23, 2010 from 8 a.m. to 5:15 Director, Business Operations. Services p.m. [FR Doc. 2010–7480 Filed 4–1–10; 8:45 am] Service Type/Location: Food Service ADDRESSES: The meeting will be held at BILLING CODE 6353–01–P Attendant, Whiting Field Naval Air the Holiday Inn, Fishkill, 542 Route 9, Station, Milton, FL. Fishkill, NY 12524–2224. NPA: UNKNOWN. FOR FURTHER INFORMATION CONTACT: Contracting Activity: DEPT OF THE NAVY, COMMITTEE FOR PURCHASE FROM Master Chief Steven A. Hady, PEOPLE WHO ARE BLIND OR U S FLEET FORCES COMMAND, NORFOLK, VA. Designated Federal Officer, MLDC, at SEVERELY DISABLED Service Type/Location: Document Image (703) 602–0838, 1851 South Bell Street, Suite 532, Arlington, VA. E-mail: Procurement List; Proposed Deletions Conversion, U.S. Department of Housing & Urban Development, Richard B. [email protected]. Russell Federal Building, Atlanta, GA. AGENCY: Committee for Purchase From SUPPLEMENTARY INFORMATION: People Who Are Blind or Severely NPA: Tommy Nobis Enterprises, Inc., Disabled. Marietta, GA. Purpose of the Meeting Contracting Activity: DEPARTMENT OF ACTION: Proposed Deletions From the HOUSING AND URBAN The purpose of the meeting is for the Procurement List. DEVELOPMENT, OFFICE OF commissioners of the Military PROCUREMENT & CONTRACTS, Leadership Diversity Commission to SUMMARY: The Committee is proposing WASHINGTON, DC. continue their efforts to address to delete from the Procurement List Service Type/Location: Janitorial/Custodial, congressional concerns as outlined in services previously provided by Federal Aviation Administration, ATC the commission charter. nonprofit agencies employing persons Standiford Field, Airway Facilities who are blind or have other severe Sector Field Office, Louisville, KY. Agenda disabilities. NPA: C.G.M. Services, Inc., Louisville, KY. April 21, 2010 Comments Must Be Received on or Contracting Activity: DEPARTMENT OF Before: 5/3/2010. TRANSPORTATION, SAINT 8 a.m.–1:15 p.m. LAWRENCE SEAWAY DEVELOPMENT ADDRESSES: Committee for Purchase DFO opens meeting. CORP, MASSENA, NY. Commission Chairmen opening From People Who Are Blind or Severely Service Type/Location: Grounds Disabled, Jefferson Plaza 2, Suite 10800, remarks. Maintenance, Lexington Blue Grass Dr. Rohini Anand and Mr. Michael 1421 Jefferson Davis Highway, Army Depot: Blue Grass Activity, Arlington, Virginia 22202–3259. Montelongo brief MLDC on Richmond, KY, Lexington Activity, diversity efforts at Sodexo. Avon, KY. FOR FURTHER INFORMATION OR TO SUBMIT Dr. R. Roosevelt Thomas briefs the COMMENTS CONTACT: Barry S. Lineback, NPA: UNKNOWN. Contracting Activity: DEPT OF THE ARMY, MLDC on effective diversity Telephone: (703) 603–7740, Fax: (703) practices in the private sector. 603–0655, or e-mail XR W40M NATL REGION CONTRACT OFC, WASHINGTON, DC. Dr. Edward Hubbard briefs the MLDC [email protected]. on diversity metrics. SUPPLEMENTARY INFORMATION: This Barry S. Lineback, Mr. Luke Visconti briefs the MLDC on notice is published pursuant to 41 Director, Business Operations. effective diversity practices in the U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its [FR Doc. 2010–7481 Filed 4–1–10; 8:45 am] private sector. purpose is to provide interested persons BILLING CODE 6353–01–P Open discussion on implementation

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and accountability DFO adjourns meeting of the Military Leadership • Federal Rulemaking Portal: http:// the meeting. Diversity Commission. www.regulations.gov. Follow the All written statements shall be instructions for submitting comments. April 22, 2010 submitted to the Designated Federal • Mail: Federal Docket Management 8 a.m.–11:45 a.m. Officer for the Military Leadership System Office, 1160 Defense Pentagon, DFO opens the meeting. Diversity Commission, and this Washington, DC 20301–1160. Commission Chairman opening individual will ensure that the written Instructions: All submissions received remarks. statements are provided to the must include the agency name and Dr. Meg Harrell, RAND, briefs the membership for its consideration. docket number for this Federal Register MLDC on barriers to minority Contact information for the Designated document. The general policy for participation in the special forces Federal Officer can be obtained from the comments and other submissions from and the assignment policy for GSA’s FACA Database—https:// members of the public is to make these military women. www.fido.gov/facadatabase/public.asp. submissions available for public Decision Brief: Career Development: Statements being submitted in viewing on the Internet at http:// Branching and Assignments DFO response to the agenda mentioned in www.regulations.gov as they are recesses the meeting. this notice must be received by the received without change, including any 12:45 p.m.–5:45 p.m. Designated Federal Officer (see FOR personal identifiers or contact DFO opens the meeting. FURTHER INFORMATION CONTACT) at least information. Open discussion on legal implications five calendar days prior to the meeting FOR FURTHER INFORMATION CONTACT: Ms. of diversity management Decision that is the subject of this notice. Written Brenda Carter at (703) 767–1771. Brief: Definition of Diversity. statements received after this date may SUPPLEMENTARY INFORMATION: The Open discussion on promotion. not be provided to or considered by the Defense Threat Reduction Agency Open discussion on retention. Military Leadership Diversity notices for systems of records subject to Commission Chairman closing Commission until its next meeting. the Privacy Act of 1974 (5 U.S.C. 552a), remarks. The Designated Federal Officer will as amended, have been published in the DFO adjourns the meeting. review all timely submissions with the Federal Register and are available from April 23, 2010 Military Leadership Diversity the Freedom of Information and Privacy Commission Chairperson and ensure Office, Defense Threat Reduction 8 a.m.–11:30 a.m. they are provided to all members of the Agency, 8725 John J. Kingman Road, DFO opens the meeting. Military Leadership Diversity Fort Belvoir, VA 22060–6201. Commission Chairman opening Commission before the meeting that is The specific changes to the record remarks. the subject of this notice. systems being amended are set forth Open discussion on metrics. Dated: March 29, 2010. below followed by the notice, as Briefings from the Office of the amended, published in its entirety. The Mitchell S. Bryman, Secretary of Defense (OSD) and proposed amendments are not within Service representatives from Alternate OSD Federal Register Liaison the purview of subsection (r) of the Officer, Department of Defense. organizations responsible for Privacy Act of 1974, (5 U.S.C. 552a), as metrics. [FR Doc. 2010–7381 Filed 4–1–10; 8:45 am] amended, which requires the DFO recesses the meeting. BILLING CODE 5001–06–P submission of a new or altered system 12:30 p.m.–5:15 p.m. report. DFO opens meeting. Briefings from OSD and Service DEPARTMENT OF DEFENSE Dated: March 29, 2010. representatives from organizations Mitchell S. Bryman, responsible for metrics (continued). Office of the Secretary Alternate OSD Federal Register Liaison Public comments. Officer, Department of Defense. [Docket ID: DoD–2010–OS–0036] Commission Chairman closing HDTRA 017 remarks. Privacy Act of 1974; System of DFO adjourns the meeting. Voluntary Leave Sharing Program Records Records (August 3, 2005; 70 FR 44573). Public’s Accessibility to the Meeting AGENCY: Defense Threat Reduction CHANGES: Pursuant to 5 U.S.C. 552b and 41 CFR Agency, DoD. 102–3.140 through 102–3.165, and the SYSTEM NAME: ACTION: Notice to amend a system of Delete entry and replace with availability of space, the meetings on records. April 21 thru 23, 2010 will be open to ‘‘Voluntary Leave Transfer Program the public. Please note that the SUMMARY: The Defense Threat Reduction Records.’’ availability of seating is on a first-come Agency proposes to amend a system of SYSTEM LOCATION: basis. records notice in its existing inventory Delete entry and replace with Written Statements of record systems subject to the Privacy ‘‘Business Enterprise, Human Capital Act of 1974, (5 U.S.C. 552a), as Office, Defense Threat Reduction Pursuant to 41 CFR 102–3.105(j) and amended. Agency, 8725 John J. Kingman Road, 102–3.140, and section 10(a)(3) of the Fort Belvoir, VA 22060–6201.’’ Federal Advisory Committee Act of DATES: This proposed action will be effective without further notice on May 1972, the public or interested CATEGORIES OF INDIVIDUALS COVERED BY THE organizations may submit written 3, 2010 unless comments are received SYSTEM: statements to the Military Leadership which result in a contrary Delete entry and replace with Diversity Commission about its mission determination. ‘‘Individuals who have volunteered to and functions. Written statements may ADDRESSES: You may submit comments, participate in the leave transfer program be submitted at any time or in response identified by docket number and title, as either a donor or recipient of annual to the stated agenda of a planned by any of the following methods: leave.’’

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CATEGORIES OF RECORDS IN THE SYSTEM: compilation of systems of records HDTRA 017 Delete entry and replace with ‘‘Leave notices apply to this system.’’ SYSTEM NAME: recipient records contain the individual’s name, organization, office STORAGE: Voluntary Leave Transfer Program Records. telephone number, Social Security Delete entry and replace with Number (SSN), position title, grade, pay ‘‘Records are stored on paper and SYSTEM LOCATION: level, leave balances, brief description electronic storage media.’’ Business Enterprise, Human Capital of the medical or personal hardship * * * * * Office, Defense Threat Reduction which qualifies the individual for Agency, 8725 John J. Kingman Road, inclusion in the leave transfer program, RETENTION AND DISPOSAL: the status of the hardship, and a Fort Belvoir, VA 22060–6201. Delete entry and replace with statement that selected data elements CATEGORIES OF INDIVIDUALS COVERED BY THE ‘‘ may be used in soliciting donations. The Records are destroyed two years after SYSTEM: file may also contain medical or the end of the year in which the file is closed. Paper records are destroyed by Individuals who have volunteered to physician certifications and Defense participate in the leave transfer program Threat Reduction Agency (DTRA) burning or shredding; electronic records are deleted.’’ as either a donor or recipient of annual approvals or denials. leave. Donor records include the SYSTEM MANAGER(S) AND ADDRESS: individual’s name, organization, office, CATEGORIES OF RECORDS IN THE SYSTEM: telephone number, Social Security Delete entry and replace with ‘‘Chief, Leave recipient records contain the Number (SSN), position title, grade, pay Human Capital Office, Defense Threat individual’s name, organization, office level, leave balances, number of hours Reduction Agency, 8725 John J. telephone number, Social Security being transferred (or donated leave), and Kingman Road, Fort Belvoir, VA 22060– Number (SSN), position title, grade, pay in the case of the transfer program, the 6201.’’ level, leave balances, brief description designated leave recipient.’’ of the medical or personal hardship NOTIFICATION PROCEDURE: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: which qualifies the individual for Delete entry and replace with ‘‘5 Delete entry and replace with inclusion in the leave transfer program, U.S.C. 301, Departmental Regulations; 5 ‘‘Individuals seeking to determine the status of the hardship, and a U.S.C. 6331 et seq, Leave; 5 CFR part whether information about themselves statement that selected data elements 630, Administrative Personnel, Absence is contained in this system of records may be used in soliciting donations. The and Leave; and E.O. 9397 (SSN), as should address written inquiries to the file may also contain medical or amended.’’ Human Capital Office, Defense Threat physician certifications and DTRA Reduction Agency, 8725 John J. approvals or denials. PURPOSE(S): Kingman Road, Fort Belvoir, VA 22060– Donor records include the Delete entry and replace with ‘‘This 6201. individual’s name, organization, office, system is used in managing the Defense Written requests should contain the telephone number, Social Security Threat Reduction Agency (DTRA) full name and Social Security Number Number (SSN), position title, grade, pay Voluntary Leave Sharing Program. The (SSN).’’ level, leave balances, number of hours recipient’s name, and a brief description being transferred (or donated leave), and of the hardship, if authorized by the RECORD ACCESS PROCEDURES: in the case of the transfer program, the recipient, is published internally for Delete entry and replace with designated leave recipient. solicitation purposes. The Social ‘‘Individuals seeking access to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Security Number (SSN) is obtained to information about themselves contained ensure the transfer of leave from the 5 U.S.C. 301, Departmental in this system of records should address Regulations; 5 U.S.C. 6331 et seq., donor’s account to the recipient’s written inquiries to the Human Capital account.’’ Leave; 5 CFR part 630, Administrative Office, Defense Threat Reduction Personnel, Absence and Leave; and E.O. ROUTINE USES OF RECORDS MAINTAINED IN THE Agency, 8725 John J. Kingman Road, 9397 (SSN), as amended. SYSTEM, INCLUDING CATEGORIES OF USERS AND Fort Belvoir, VA 22060–6201. THE PURPOSES OF SUCH USES: Written requests for information PURPOSE(S): Delete entry and replace with ‘‘In should contain the full name and Social This system is used in managing the addition to those disclosures generally Security Number (SSN).’’ Defense Threat Reduction Agency permitted under 5 U.S.C. 552a(b) of the (DTRA) Voluntary Leave Sharing Privacy Act of 1974, these records CONTESTING RECORD PROCEDURES: Program. The recipient’s name, and a contained therein may specifically be Delete entry and replace with ‘‘The brief description of the hardship, if disclosed outside the DoD as a routine DTRA rules for accessing records and authorized by the recipient, is published use pursuant to 5 U.S.C. 552a(b)(3) as for contesting contents and appealing internally for solicitation purposes. The follows: initial agency determinations are Social Security Number (SSN) is To the Department of Labor in published in DTRA Instruction 5400.11, obtained to ensure the transfer of leave connection with a claim filed by an DTRA Privacy Program; 32 CFR part from the donor’s account to the employee for compensation due to a job- 318; or may be obtained from the system recipient’s account. related injury or illness; where the leave manager.’’ donor and leave recipient are employed ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND by different Federal agencies. RECORD SOURCE CATEGORIES: To personnel and finance offices of THE PURPOSES OF SUCH USES: Federal agencies involved to effectuate Delete entry and replace with ‘‘From In addition to those disclosures the leave transfer. the individual, personnel and leave generally permitted under 5 U.S.C. The DoD ‘Blanket Routine Uses’ set records.’’ 552a(b) of the Privacy Act of 1974, these forth at the beginning of DTRA’s * * * * * records contained therein may

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specifically be disclosed outside the Written requests for information SUPPLEMENTARY INFORMATION: The Office DoD as a routine use pursuant to 5 should contain the full name and Social of the Secretary of Defense systems of U.S.C. 552a(b)(3) as follows: Security Number (SSN). records notices subject to the Privacy To the Department of Labor in Act of 1974 (5 U.S.C. 552a), as amended, connection with a claim filed by an CONTESTING RECORD PROCEDURES: have been published in the Federal employee for compensation due to a job- The DTRA rules for accessing records Register and are available from the related injury or illness; where the leave and for contesting contents and Privacy Act Officer, Office of Freedom donor and leave recipient are employed appealing initial agency determinations of Information, Washington by different Federal agencies. are published in DTRA Instruction Headquarters Services, 1155 Defense To personnel and finance offices of 5400.11, DTRA Privacy Program; 32 Pentagon, Washington, DC 20301–1155. Federal agencies involved to effectuate CFR part 318; or may be obtained from The Office of the Secretary of Defense the leave transfer. the system manager. proposes to delete one system of records The DoD ‘Blanket Routine Uses’ set notice from its inventory of record RECORD SOURCE CATEGORIES: forth at the beginning of DTRA’s systems subject to the Privacy Act of compilation of systems of records From the individual, personnel and 1974 (5 U.S.C. 552a), as amended. The notices apply to this system. leave records. proposed deletion is not within the POLICIES AND PRACTICES FOR STORING, EXEMPTIONS CLAIMED FOR THE SYSTEM: purview of subsection (r) of the Privacy RETRIEVING, ACCESSING, RETAINING, AND None. Act of 1974 (5 U.S.C. 552a), as amended, DISPOSING OF RECORDS IN THE SYSTEM: which requires the submission of a new [FR Doc. 2010–7383 Filed 4–1–10; 8:45 am] STORAGE: or altered system report. BILLING CODE 5001–06–P Records are stored on paper and Dated: March 29, 2010. electronic storage media. Mitchell S. Bryman, DEPARTMENT OF DEFENSE Alternate OSD Federal Register Liaison RETRIEVABILITY: Officer, Department of Defense. Retrieved by name or Social Security Office of the Secretary Number (SSN). Deletion: [Docket ID: DOD–2010–OS–0037] WUSU 09 SAFEGUARDS: Records are accessed by custodian of Privacy Act of 1974; System of SYSTEM NAME: the records or by persons responsible for Records USUHS Grants Managements servicing the record system in the Information System (Protocols/Grants) AGENCY: performance of their official duties. Office of the Secretary, DoD. (February 22, 1993; 58 FR 10920) ACTION: Notice to delete a system of Records are stored in locked cabinets or REASON: rooms, and are controlled by personnel records. The Office of the Secretary of Defense screening and computer software. SUMMARY: The Office of the Secretary had determined that WUSU 09, is RETENTION AND DISPOSAL: proposes to delete a system of records covered by both DHA 08, Health Affairs Records are destroyed two years after notice from its existing inventory of Survey Data Base (April 28, 1999; 64 FR the end of the year in which the file is record systems subject to the Privacy 22837) for its coverage of research closed. Paper records are destroyed by Act of 1974 (5 U.S.C. 552a), as amended. participants and DHA 18, Human burning or shredding; electronic records DATES: This proposed action will be Research Protection Program (HRPP) are deleted. effective without further notice on May Records (September 11, 2008; 73 FR 3, 2010 unless comments are received 52838) for its coverage of grants and can SYSTEM MANAGER(S) AND ADDRESS: which result in a contrary therefore be deleted. Chief, Human Capital Office, Defense determination. [FR Doc. 2010–7384 Filed 4–1–10; 8:45 am] Threat Reduction Agency, 8725 John J. Kingman Road, Fort Belvoir, VA 22060– ADDRESSES: You may submit comments, BILLING CODE 5001–06–P 6201. identified by docket number and title, by any of the following methods: DEPARTMENT OF DEFENSE NOTIFICATION PROCEDURE: * Federal Rulemaking Portal: http:// Individuals seeking to determine www.regulations.gov. Follow the Department of the Navy whether information about themselves instructions for submitting comments. is contained in this system of records * Mail: Federal Docket Management [Docket ID: USN–2010–0006] should address written inquiries to the System Office, 1160 Defense Pentagon, Privacy Act of 1974; System of Human Capital Office, Defense Threat Washington, DC 20301–1160. Records Reduction Agency, 8725 John J. Instructions: All submissions received Kingman Road, Fort Belvoir, VA 22060– must include the agency name and AGENCY: U.S. Marine Corps; Department 6201. docket number for this Federal Register of the Navy; DoD. Written requests should contain the document. The general policy for ACTION: full name and Social Security Number Notice to add a system of comments and other submissions from records. (SSN). members of the public is to make these RECORD ACCESS PROCEDURES: submissions available for public SUMMARY: The U.S. Marine Corps is Individuals seeking access to viewing on the Internet at http:// proposing to add a new system of information about themselves contained www.regulations.gov as they are records notice to its existing inventory in this system of records should address received without change, including any of records systems subject to the Privacy written inquiries to the Human Capital personal identifiers or contact Act of 1974, (5 U.S.C. 552a), as Office, Defense Threat Reduction information. amended. Agency, 8725 John J. Kingman Road, FOR FURTHER INFORMATION CONTACT: Mrs. DATES: This proposed action will be Fort Belvoir, VA 22060–6201. Cindy Allard at (703) 588–6830. effective without further notice on May

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3, 2010 unless comments are received CATEGORIES OF INDIVIDUALS COVERED BY THE POLICIES AND PRACTICES FOR STORING, which result in a contrary SYSTEM: RETRIEVING, ACCESSING, RETAINING, AND determination. Marine Corps reservists and retirees, DISPOSING OF RECORDS IN THE SYSTEM: Navy personnel augmented to support ADDRESSES: You may submit comments, STORAGE: identified by docket number and title, the Marine Corps, medical officers, Electronic storage media. by any of the following methods: corpsmen, chaplains and pilots. RETRIEVABILITY: * Federal Rulemaking Portal: http:// CATEGORIES OF RECORDS IN THE SYSTEM: www.regulations.gov. Follow the Name and/or Social Security Number Personnel data includes full name, (SSN). instructions for submitting comments. Social Security Number (SSN), rank/ * Mail: Federal Docket Management grade, date of rank (DOR), Military SAFEGUARDS: System Office, 1160 Defense Pentagon, Occupational Specialty (MOS), Navy Access is restricted to personnel with Washington, DC 20301–1160. Enlisted Classifications (NEC) and Navy authorized access in the performance of Instructions: All submissions received Officer Designators (NOD), current duty their official duties. MCMPS is currently must include the agency name and station, Parent Organization or Navy encrypted to protect the transmission of docket number for this Federal Register Command, mailing address, and personal information. The system does document. The general policy for assignment history. not contain any classified information. comments and other submissions from members of the public is to make these AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RETENTION AND DISPOSAL: submissions available for public 5 U.S.C. 301, Departmental Disposition pending (treat records as viewing on the Internet at http:// Regulations; 32 CFR 64.6, Management permanent until the National Archives www.regulations.gov as they are and Mobilization; and Marine Corps and Records Administration has received without change, including any Order; P1300.8R, Marine Corps approved the retention and disposition personal identifiers or contact Personnel Assignment Policy; E.O. 9397 schedule. information. (SSN), as amended. SYSTEM MANAGER(S) AND ADDRESS: FOR FURTHER INFORMATION CONTACT: Ms. PURPOSE(S): Tracy Ross at (703) 614–4008. Headquarters Marine Corps (HQMC), To facilitate the recall, mobilization, Director, Manpower Information SUPPLEMENTARY INFORMATION: The U.S. tracking of Reserve and Retired Marines, Systems Division (MI), James Wesley Marine Corps system of records notices and Navy personnel that augment and Marsh Center, 3280 Russell Road, subject to the Privacy Act of 1974, (5 support the Marine Corps, Medical Marine Corps Base (MCB), Quantico, VA U.S.C. 552a), as amended, have been Officers, Corpsmen, chaplains and 22143–5103. published in the Federal Register and pilots. The Marine Corps Mobilization are available from: Headquarters, U.S. Processing System (MCMPS) Records NOTIFICATION PROCEDURES: Marine Corps, FOIA/PA Section (ARSF), primarily provides the capability to Individuals seeking to determine 2 Navy Annex, Room 3134, Washington, allow Initial Deployment Processing whether information about themselves DC 20380–1775. Centers (IDPCs), Deployment Processing is contained in this system should The proposed system report, as Centers (DPCs), Marine Corps Reserve address written inquiries to HQMC, required by 5 U.S.C. 552a(r), of the Support Command (MCRSC), Marine Manpower Information Systems Privacy Act of 1974, as amended, was Forces Reserves (MARFORRES), and Division (MI), James Wesley Marsh submitted on March 23, 2010, to the Manpower Management Force Center, 3280 Russell Road, MCB, House Committee on Oversight and Augmentation (MMFA), Manpower and Quantico, VA 22143–5103. Government Reform, the Senate Reserve Affairs (M&RA), HQMC The request must be signed and Committee on Homeland Security and personnel to process and monitor the include full name, complete mailing Governmental Affairs, and the Office of status of individual manpower address and Social Security Number Management and Budget (OMB) activation and mobilization. (SSN). pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, ‘‘Federal ROUTINE USES OF RECORDS MAINTAINED IN THE RECORD ACCESS PROCEDURES: Agency Responsibilities for Maintaining SYSTEM, INCLUDING CATEGORIES OF USERS AND Individuals seeking access to THE PURPOSES OF SUCH USES: Records About Individuals,’’ dated information about themselves contained February 8, 1996 (February 20, 1996; 61 In addition to those disclosures in this system should address written FR 6427). generally permitted under 5 U.S.C. inquiries to HQMC, Manpower 552a(b) of the Privacy Act of 1974, these Dated: March 29, 2010. Information Systems Division (MI), records contained therein may James Wesley Marsh Center, 3280 Mitchell S. Bryman, specifically be disclosed outside the Russell Road, MCB, Quantico, VA Alternate OSD Federal Register Liaison DoD as a routine use pursuant to 5 22143–5103. Officer, Department of Defense. U.S.C. 552a(b)(3) as follows: The request must be signed and M01070–7 To officials and employees of other include full name, complete mailing departments and agencies of the address and Social Security Number SYSTEM NAME: Executive Branch of government, upon (SSN). Marine Corps Mobilization Processing request, in the performance of their System (MCMPS) Records official duties related to the CONTESTING RECORD PROCEDURES: management of activating, recalling and The USMC rules for contesting SYSTEM LOCATION: mobilizing Marine Corps Reservists and contents and appealing initial agency Headquarters Marine Corps (HQMC) retired Marines. determinations are published in Manpower Information Systems The DoD ‘Blanket Routine Uses’ set Secretary of the Navy Instruction Division (MI), at the James Wesley forth at the beginning of the Marine 5211.5; Marine Corps Order P5211.2; 32 Marsh Center, 3280 Russell Rd., Marine Corps’ compilation of systems of records CFR part 701; or may be obtained from Corps Base, Quantico, VA 22134–5103. notices apply to this system. the system manager.

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RECORD SOURCE CATEGORIES: frequency of collection; and (6) DEPARTMENT OF EDUCATION MCMPS personnel data comes from Reporting and/or Recordkeeping the Operational Data Store Enterprise burden. OMB invites public comment. Submission for OMB Review; (ODSE), and the Navy-MCMPS Dated: March 29, 2010. Comment Request (NMCMPS) for Navy personnel. James Hyler, AGENCY: Department of Education. EXEMPTIONS CLAIMED FOR THE SYSTEM: Acting Director, Information Collection None. Clearance Division, Regulatory Information SUMMARY: The Acting Director, Management Services, Office of Management. Information Collection Clearance [FR Doc. 2010–7385 Filed 4–1–10; 8:45 am] Division, Regulatory Information BILLING CODE 5001–06–P Federal Student Aid Type of Review: Revision. Management Services, Office of Title: Federal Family Education Loan Management invites comments on the DEPARTMENT OF EDUCATION (FFEL) Program, Federal Perkins Loan submission for OMB review as required Program, and William D. Ford Federal by the Paperwork Reduction Act of Submission for OMB Review; Direct Loan (Direct Loan) Program 1995. Comment Request Military Service Deferment/Post-Active DATES: Duty Student Deferment Request. Interested persons are invited to AGENCY: Department of Education. Frequency: On Occasion. submit comments on or before May 3, SUMMARY: The Director, Information Affected Public: Individuals or 2010. Collection Clearance Division, households. Regulatory Information Management Reporting and Recordkeeping Hour ADDRESSES: Written comments should Services, Office of Management invites Burden: be addressed to the Office of comments on the submission for OMB Responses: 16,000. Information and Regulatory Affairs, review as required by the Paperwork Burden Hours: 8,000. Attention: Education Desk Officer, Reduction Act of 1995. Abstract: The Military Service/Post- Office of Management and Budget, 725 DATES: Interested persons are invited to Active Duty Student Deferment request 17th Street, NW., Room 10222, New submit comments on or before May 3, form serves as the means by which a Executive Office Building, Washington, 2010. FFEL, Perkins, or Direct Loan borrower DC 20503, be faxed to (202) 395–5806 or requests a military service deferment e-mailed to [email protected]. ADDRESSES: Written comments should and/or post-active duty student gov with a cc: to [email protected]. be addressed to the Office of deferment and provides his or her loan Information and Regulatory Affairs, holder with the information needed to SUPPLEMENTARY INFORMATION: Section Attention: Education Desk Officer, determine whether the borrower meets 3506 of the Paperwork Reduction Act of Office of Management and Budget, 725 the applicable deferment eligibility 1995 (44 U.S.C. Chapter 35) requires 17th Street, NW., Room 10222, New requirements. The form also serves as that the Office of Management and Executive Office Building, Washington, the means by which the U.S. Budget (OMB) provide interested DC 20503, be faxed to (202) 395–5806 or Department of Education identifies Federal agencies and the public an early _ e-mailed to oira [email protected]. Direct Loan borrowers who qualify for opportunity to comment on information gov with a cc: to [email protected]. the Direct Loan Program’s no accrual of collection requests. OMB may amend or SUPPLEMENTARY INFORMATION: Section interest benefit for active duty service waive the requirement for public 3506 of the Paperwork Reduction Act of members. consultation to the extent that public 1995 (44 U.S.C. Chapter 35) requires Requests for copies of the information participation in the approval process collection submission for OMB review that the Office of Management and would defeat the purpose of the may be accessed from http:// Budget (OMB) provide interested information collection, violate State or Federal agencies and the public an early edicsweb.ed.gov, by selecting the Federal law, or substantially interfere opportunity to comment on information ‘‘Browse Pending Collections’’ link and with any agency’s ability to perform its collection requests. OMB may amend or by clicking on link number 4203. When statutory obligations. The Acting waive the requirement for public you access the information collection, consultation to the extent that public click on ‘‘Download Attachments’’ to Director, Information Collection participation in the approval process view. Written requests for information Clearance Division, Regulatory would defeat the purpose of the should be addressed to U.S. Department Information Management Services, information collection, violate State or of Education, 400 Maryland Avenue, Office of Management, publishes that Federal law, or substantially interfere SW., LBJ, Washington, DC 20202–4537. notice containing proposed information with any agency’s ability to perform its Requests may also be electronically collection requests prior to submission statutory obligations. The IC Clearance mailed to the Internet address of these requests to OMB. Each Official, Regulatory Information [email protected] or faxed to 202– proposed information collection, Management Services, Office of 401–0920. Please specify the complete grouped by office, contains the Management, publishes that notice title of the information collection when following: (1) Type of review requested, containing proposed information making your request. e.g. new, revision, extension, existing or collection requests prior to submission Comments regarding burden and/or reinstatement; (2) Title; (3) Summary of of these requests to OMB. Each the collection activity requirements the collection; (4) Description of the proposed information collection, should be electronically mailed to need for, and proposed use of, the grouped by office, contains the [email protected]. Individuals who information; (5) Respondents and use a telecommunications device for the following: (1) Type of review requested, frequency of collection; and (6) deaf (TDD) may call the Federal e.g. new, revision, extension, existing or Reporting and/or Recordkeeping Information Relay Service (FIRS) at 1– reinstatement; (2) Title; (3) Summary of burden. OMB invites public comment. the collection; (4) Description of the 800–877–8339. need for, and proposed use of, the [FR Doc. 2010–7559 Filed 4–1–10; 8:45 am] information; (5) Respondents and BILLING CODE 4000–01–P

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Dated: March 30, 2010. Requests may also be electronically following site: http://www.ed.gov/news/ Stephanie Valentine, mailed to the Internet address fedregister. To use PDF you must have Acting Director, Information Collection [email protected] or faxed to 202– Adobe Acrobat Reader, which is Clearance Division, Regulatory Information 401–0920. Please specify the complete available free at this site. Management Services, Office of Management. title of the information collection when Note: The official version of this document making your request. Institute of Education Sciences is the document published in the Federal Comments regarding burden and/or Register. Free Internet access to the official Type of Review: Revision. the collection activity requirements Title: Conversion Magnet Schools edition of the Federal Register and the Code should be electronically mailed to of Federal Regulations is available on GPO Evaluation Revision. [email protected]. Individuals who Frequency: On Occasion. Access at: http://www.gpoaccess.gov/nara/ use a telecommunications device for the index.html. Affected Public: Not-for-profit deaf (TDD) may call the Federal institutions. Information Relay Service (FIRS) at 1– Dated: March 30, 2010. Reporting and Recordkeeping Hour 800–877–8339. Burden: James H. Shelton, III, [FR Doc. 2010–7560 Filed 4–1–10; 8:45 am] Assistant Deputy Secretary for Innovation and Responses: 50. BILLING CODE 4000–01–P Improvement. Burden Hours: 187. [FR Doc. 2010–7531 Filed 4–1–10; 8:45 am] Abstract: The Conversion Magnet Schools Evaluation is being conducted DEPARTMENT OF EDUCATION BILLING CODE 4000–01–P to determine if efforts to turn around [CFDA Number 84.295A] low-performing schools through converting to a Magnet Schools Ready-to-Learn Television Program ELECTION ASSISTANCE COMMISSION Assistance Program (MSAP) supported AGENCY: Office of Innovation and magnet school are associated with Sunshine Act Notice improved student achievement and the Improvement, Department of Education. reduction in minority group isolation. ACTION: Notice inviting applications for AGENCY: U.S. Election Assistance The Institute of Education Sciences, in new awards for fiscal year (FY) 2010; Commission. collaboration with the Office of correction. Innovation and Improvement, initiated ACTION: Notice of public meeting the study due to the popularity and SUMMARY: On March 22, 2010, we agenda. persistence of magnet programs and the published in the Federal Register (75 FR 13515) a notice inviting applications inconclusive research on the DATE AND TIME: Thursday, April 8, 2010, for new awards for FY 2010 for the relationship of these programs to 10 a.m.–12:15 p.m. EDT (Morning important student outcomes. The study Ready-to-Learn Television Program. There is an error in one of the dates in Session), 1:15 p.m.–3 p.m. EDT will use quasi-experimental designs to (Afternoon Session). explore the relationship between that notice. magnet programs and student SUPPLEMENTARY INFORMATION: This PLACE: U.S. Election Assistance achievement both for ‘‘resident’’ notice corrects the meeting date for Commission, 1225 New York Ave, NW., students who attend magnet schools as prospective applicants on two pages of Suite 150, Washington, DC 20005, their neighborhood schools and, if the notice as follows: (Metro Stop: Metro Center). possible, for non-resident students. Data Correction AGENDA: The Commission will hold a collection includes student records data, principal surveys, and project director (1) On page 13515, in the first public meeting to receive an update on interviews. The U.S. Department of column, after the words Date of Meeting a clearinghouse policy. Commissioners Education has commissioned American for Prospective Applicants:, replace the will hold a discussion on a public Institutes for Research to conduct this date ‘‘April 8, 2010’’ with the date ‘‘April comment version of a UOCAVA pilot study. An OMB clearance request that 15, 2010.’’ program testing and certification (1) described the study design and full (2) On page 13518, in the second manual. Commissioners will hold a data collection activities and (2) column, after the words Date of Meeting discussion on a UOCAVA pilot voting requested approval for the burden for Prospective Applicants:, replace the program and requirements document. associated with the first three years of date ‘‘April 8, 2010’’ with the date ‘‘April Commissioners will consider other data collection was approved in 2007 15, 2010.’’ administrative matters. Members of the (OMB Number 1850–0832 approval 7/ FOR FURTHER INFORMATION CONTACT: The public may observe but not participate 13/07; expiration 7/31/10). This revision Ready-to-Learn Television Program, in EAC meetings unless this notice requests approval for the last two years U.S. Department of Education, 400 provides otherwise. Members of the of data collection. Maryland Avenue, SW., Room 4W414, public may use small electronic audio Requests for copies of the information Washington, DC 20202 or by e-mail: recording devices to record the collection submission for OMB review [email protected]. proceedings. The use of other recording may be accessed from http:// If you use a telecommunications equipment and cameras requires edicsweb.ed.gov, by selecting the device for the deaf, call the Federal advance notice to and coordination with ‘‘Browse Pending Collections’’ link and Relay Service, toll free, at 1–800–877– the Commission’s Communications by clicking on link number 4205. When 8339. Office.1 you access the information collection, Electronic Access to This Document: click on ‘‘Download Attachments ’’ to You can view this document, as well as This Meeting and Hearing Will Be view. Written requests for information all other documents of this Department Open to the Public. should be addressed to U.S. Department published in the Federal Register, in of Education, 400 Maryland Avenue, text or Adobe Portable Document 1 View EAC Regulations Implementing SW., LBJ, Washington, DC 20202–4537. Format (PDF) on the Internet at the Government in the Sunshine Act.

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PERSON TO CONTACT FOR INFORMATION: should be made in writing to the chief provide information on how the Bryan Whitener, Telephone: (202) 566– election official of the individual State respective State succeeded in carrying 3100. at the address listed below. out its previous State plan. Nevada SUPPLEMENTARY INFORMATION: confirms that its amendments to the Alice Miller, On March 24, 2004, the U.S. Election Assistance State plan were developed and Chief Operating Officer, U.S. Election submitted to public comment in Assistance Commission. Commission published in the Federal Register the original HAVA State plans accordance with HAVA sections [FR Doc. 2010–7623 Filed 3–31–10; 4:15 pm] filed by the fifty States, the District of 254(a)(11), 255, and 256. BILLING CODE 6820-–KF–P Columbia and the Territories of Upon the expiration of thirty days American Samoa, Guam, Puerto Rico, from April 2, 2010, the State is eligible ELECTION ASSISTANCE COMMISSION and the U.S. Virgin Islands. 69 FR to implement the changes addressed in 14002. HAVA anticipated that States, the plan that is published herein, in Publication of State Plan Pursuant to Territories and the District of Columbia accordance with HAVA section the Help America Vote Act would change or update their plans 254(a)(11)(C). EAC wishes to from time to time pursuant to HAVA acknowledge the effort that went into AGENCY: U.S. Election Assistance section 254(a)(11) through (13). HAVA revising this State plan and encourages Commission (EAC). sections 254(a)(11)(A) and 255 require further public comment, in writing, to ACTION: Notice. EAC to publish such updates. This is the State election official listed below. the sixth revision to the State plan for SUMMARY: Pursuant to sections Nevada. Chief State Election Official 254(a)(11)(A) and 255(b) of the Help The amendment to Nevada’s State The Honorable Ross Miller, Secretary America Vote Act (HAVA), Public Law plan changes dollar amount spending to 107–252, the U.S. Election Assistance of State, 101 North Carson Street, Suite percentage amount spending on various 3, Carson City, Nevada 89701–3714, Commission (EAC) hereby causes to be activities; elaborates on the Command published in the Federal Register Phone: (775) 684–5708, Fax: (775) 684– Center and the Senate Bill 401 report of 5725. changes to the HAVA State plan the election process in Nevada; provides Thank you for your interest in previously submitted by Nevada. updated charts and tables to reflect improving the voting process in DATES: This notice is effective upon November 2009 funding levels and America. publication in the Federal Register. spending plans; incorporates updates to FOR FURTHER INFORMATION CONTACT: reflect minority language requirements; Dated: March 25, 2010. Bryan Whitener, Telephone 202–566– and removes the Temporary Statewide Thomas R. Wilkey, 3100 or 1–866–747–1471 (toll-free). Voter Registration List. In accordance Executive Director, U.S. Election Assistance Submit Comments: Any comments with HAVA section 254(a)(12), all the Commission. regarding the plans published herewith State plans submitted for publication BILLING CODE 6820–KF–P

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[FR Doc. 2010–7479 Filed 4–1–10; 8:45 am] BILLING CODE 6820–KF–C

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DEPARTMENT OF ENERGY (4) Purpose: To collect data on the status DEPARTMENT OF ENERGY of activities, project progress, jobs Proposed Agency Information created and retained, spend rates and Federal Energy Regulatory Collection performance metrics under the Commission AGENCY: U.S. Department of Energy. American Recovery and Reinvestment Act of 2009. This will ensure adequate Combined Notice of Filings #1 ACTION: Notice and Request for OMB Review and Comment. information is available to support March 26, 2010. sound project management and to meet Take notice that the Commission SUMMARY: Pursuant to the Paperwork the transparency and accountability received the following electric rate Reduction Act of 1995, the Department associated with the Recovery Act by filings: of Energy (DOE) invites public comment requesting approval for monthly Docket Numbers: ER10–479–001. on a proposed emergency collection of reporting. (5) Annual Estimated Number Applicants: California Independent information that DOE is developing to of Respondents: 2 (6) Annual Estimated System Operator Corporation. collect data on the status of activities, Number of Total Responses: 12 (7) Description: The California project progress, jobs created and Annual Estimated Number of Burden Independent System Operator retained, spend rates and performance Hours: 320. (8) Annual Estimated Corporation submits the instant filing in metrics under the American Recovery Reporting and Recordkeeping Cost compliance with FERC’s 3/3/10 Letter and Reinvestment Act of 2009. Burden: $1,300–$2,300. (9) Type of Order on Tariff Revisions. Comments are invited on: (a) Whether Respondents: Recipients of American Filed Date: 03/11/2010. the proposed collection of information Recovery and Reinvestment Act Accession Number: 20100311–0025. is necessary for the proper performance funding. Comment Date: 5 p.m. Eastern Time of the functions of the agency, including An agency head or the Senior Official, on Thursday, April 1, 2010. whether the information shall have or their designee, may request OMB to practical utility; (b) the accuracy of the Docket Numbers: ER10–911–000. authorize emergency processing of agency’s estimate of the burden of the Applicants: Wisconsin Electric Power proposed collection of information, submissions of collections of Company. including the validity of the information. Description: Wisconsin Electric Power methodology and assumptions used; (c) (a) Any such request shall be Co submits the Wholesale Distribution ways to enhance the quality, utility, and accompanied by a written determination Service Agreement. clarity of the information to be that: Filed Date: 03/19/2010. Accession Number: 20100319–0218. collected; and (d) ways to minimize the (1) The collection of information: burden of the collection of information Comment Date: 5 p.m. Eastern Time on respondents, including through the (i) Is needed prior to the expiration of on Friday, April 9, 2010. use of automated collection techniques time periods established under this Part; Docket Numbers: ER10–926–000. or other forms of information and Applicants: Niagara Mohawk Power technology. (ii) Is essential to the mission of the Corporation. Description: Niagara Mohawk Power DATES: agency; and Comments regarding this Corporation submits a Second Revised (2) The agency cannot reasonably collection must be received on or before Service Agreement 1154 with Project comply with the normal clearance April 16, 2010. If you anticipate Orange Associates, LLC, etc under procedures under this Part because: difficulty in submitting comments ER10–926. within that period, contact the person (i) Public harm is reasonably likely to Filed Date: 03/23/2010. listed in ADDRESSES as soon as possible. result if normal clearance procedures Accession Number: 20100324–0210. ADDRESSES: Please send all comments are followed; Comment Date: 5 p.m. Eastern Time electronically to: Raphael Tisch, (ii) An unanticipated event has on Tuesday, April 13, 2010. [email protected]. Written comments may be sent in occurred; or Any person desiring to intervene or to addition to electronic comments to: (iii) The use of normal clearance protest in any of the above proceedings procedures is reasonably likely to must file in accordance with Rules 211 Raphael Tisch, Department of Energy, and 214 of the Commission’s Rules of 1000 Independence Ave., SW., prevent or disrupt the collection of information or is reasonably likely to Practice and Procedure (18 CFR 385.211 Washington, DC 20585. and 385.214) on or before 5 p.m. Eastern DOE Desk Officer, Office of Information cause a statutory or court ordered time on the specified comment date. It and Regulatory Affairs, Office of deadline to be missed. is not necessary to separately intervene Management and Budget, New (b) The agency shall state the time again in a subdocket related to a Executive Office Building, Room period within which OMB should compliance filing if you have previously 10102, 725 17th Street, NW., approve or disapprove the collection of intervened in the same docket. Protests Washington, DC 20503. information. will be considered by the Commission FOR FURTHER INFORMATION CONTACT: Statutory Authority: Title IV of the in determining the appropriate action to Requests for additional information or American Recovery and Reinvestment Act of be taken, but will not serve to make copies of the information collection 2009, Pub. L. 111–5. protestants parties to the proceeding. instrument and instructions should be Anyone filing a motion to intervene or Issued in Washington, DC, on March 23, directed to Raphael Tisch at protest must serve a copy of that 2010. [email protected]. document on the Applicant. In reference SUPPLEMENTARY INFORMATION: This Megan McCluer, to filings initiating a new proceeding, emergency information collection Program Manager, Wind, Office of Energy interventions or protests submitted on request contains: (1) OMB No: New; (2) Efficiency and Renewable Energy. or before the comment deadline need Information Collection Request Title: [FR Doc. 2010–7454 Filed 4–1–10; 8:45 am] not be served on persons other than the Wind; (3) Type of Review: Emergency; BILLING CODE 6450–01–P Applicant.

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The Commission encourages Applicants: Cleco Power LLC; Acadia Filed Date: 03/24/2010. electronic submission of protests and Power Partners, LLC; Cleco Evangeline Accession Number: 20100325–0201. interventions in lieu of paper, using the LLC. Comment Date: 5 p.m. Eastern Time FERC Online links at http:// Description: Cleco Power, LLC et al on Wednesday, April 14, 2010. www.ferc.gov. To facilitate electronic submits a notice of non-material change Docket Numbers: ER10–933–000. service, persons with Internet access in status. Applicants: Southern Company who will eFile a document and/or be Filed Date: 03/25/2010. Services, Inc. listed as a contact for an intervenor Accession Number: 20100325–0208. Description: Alabama Power must create and validate an Comment Date: 5 p.m. Eastern Time Company et al submits for filing an eRegistration account using the on Thursday, April 15, 2010. amendment to the Network Integration eRegistration link. Select the eFiling Docket Numbers: ER10–549–000. Transmission Service Agreement with link to log on and submit the Applicants: PJM Interconnection, PowerSouth Energy Cooperative et al. intervention or protests. LLC. Filed Date: 03/25/2010. Persons unable to file electronically Description: PJM Interconnection, Accession Number: 20100325–0206. should submit an original and 14 copies LLC submits response to FERC 2/25/ Comment Date: 5 p.m. Eastern Time of the intervention or protest to the 2010 letter. on Thursday, April 15, 2010. Federal Energy Regulatory Commission, Filed Date: 03/22/2010. Docket Numbers: ER10–934–000. Accession Number: 20100324–0026. 888 First St., NE., Washington, DC Applicants: Cleco Power LLC. Comment Date: 5 p.m. Eastern Time 20426. Description: Cleco Power, LLC The filings in the above proceedings on Monday, April 12, 2010. submits Agreement Addressing are accessible in the Commission’s Docket Numbers: ER10–904–000. Balancing Authority Area Requirements eLibrary system by clicking on the Applicants: NFI Solar, LLC. and Reliability Standards with City of appropriate link in the above list. They Description: Amendment to Alexandria. are also available for review in the Application for market-based rate Filed Date: 03/25/2010. Commission’s Public Reference Room in authority, request for waivers and Accession Number: 20100325–0207. Washington, DC. There is an authorizations, and request for finding Comment Date: 5 p.m. Eastern Time eSubscription link on the Web site that of qualification as Category 1 Seller, and on Thursday, April 15, 2010. enables subscribers to receive e-mail for expedited consideration re NFI notification when a document is added Solar, LLC. Docket Numbers: ER10–935–000. to a subscribed dockets(s). For Filed Date: 03/22/2010. Applicants: Stony Creek Wind Farm, assistance with any FERC Online Accession Number: 20100324–0027. LLC. service, please e-mail Comment Date: 5 p.m. Eastern Time Description: Request by Stony Creek [email protected]. or call on Monday, April 5, 2010. Wind Farm, LLC for Expedited Consideration of waiver of NYISO Class (866) 208–3676 (toll free). For TTY, call Docket Numbers: ER10–930–000. Year eligibility requirement to provide (202) 502–8659. Applicants: Consolidated Edison notice by the study start date of the Nathaniel J. Davis, Sr., Company of New York. Description: Consolidated Edison Annual Transmission Reliability Deputy Secretary. Company of New York, Inc submits Assessment, accepted for filing. [FR Doc. 2010–7424 Filed 4–1–10; 8:45 am] amendments to their Delivery Service Filed Date: 03/25/2010. BILLING CODE 6717–01–P Rate Schedule, FERC Rate Schedule 96 Accession Number: 20100325–5058. et al. Comment Date: 5 p.m. Eastern Time Filed Date: 03/24/2010. on Monday, April 5, 2010. DEPARTMENT OF ENERGY Accession Number: 20100324–0218. Take notice that the Commission received the following open access Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time transmission tariff filings: Commission on Wednesday, April 14, 2010. Docket Numbers: ER10–931–000. Docket Numbers: OA07–36–006; Combined Notice of Filings #1 Applicants: Virginia Electric and OA08–46–005; OA08–93–003. Power Company. Applicants: South Carolina Electric & March 25, 2010. Description: Virginia Electric and Gas Company. Take notice that the Commission Power Company submits Sixth Revised Description: South Carolina Electric & received the following electric corporate Sheet 314G.01 et al to FERC Electric Gas Company submits a compliance filings: Tariff, Sixth Revised Volume 1 to PJM filing containing SCE&G’s revised Docket Numbers: EC10–51–000. Interconnection, LLC open-access Attachment K to SCE&G’s Order No. Applicants: T. Rowe Price Group, Inc. transmission tariff, to be effective 3/25/ 890–A OATT. Description: T. Rowe Price Group Inc 10. Filed Date: 03/24/2010. et al requests reauthorization and Filed Date: 03/24/2010. Accession Number: 20100324–5104. extension of Blanket Authorizations to Accession Number: 20100325–0202. Comment Date: 5 p.m. Eastern Time acquire and dispose of securities under Comment Date: 5 p.m. Eastern Time on Wednesday, April 14, 2010. Section 203 of the Federal Power Act. on Wednesday, April 14, 2010. Docket Numbers: OA08–97–003. Filed Date: 03/15/2010. Docket Numbers: ER10–932–000. Applicants: MidAmerican Energy Accession Number: 20100316–0205. Applicants: PacifiCorp. Company. Comment Date: 5 p.m. Eastern Time Description: PacifiCorp submits Description: Annual Informational on Monday, April 5, 2010. Network Integration Transmission Report on Penalty Assessments and Take notice that the Commission Service Agreement dated 3/16/10 with Distributions. received the following electric rate Basin Electric Power Cooperative to be Filed Date: 03/25/2010. filings: designated as First Revised Service Accession Number: 20100325–5052. Docket Numbers: ER01–1099–014; Agreement 505 to FERC Electric Tariff, Comment Date: 5 p.m. Eastern Time ER02–1406–015; ER99–2928–011. Seventh Revised Volume 11. on Thursday, April 15, 2010.

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Docket Numbers: OA10–8–000. call (866) 208–3676 (toll free). For TTY, Information (CBI) or other information Applicants: Idaho Power Company. call (202) 502–8659. for which disclosure is restricted by statute. Do not submit information that Nathaniel J. Davis, Sr., Description: Idaho Power Company you consider to be CBI or otherwise submits its annual compliance report on Deputy Secretary. protected through http:// operational penalty assessments and [FR Doc. 2010–7425 Filed 4–1–10; 8:45 am] www.regulations.gov or e-mail. The distributions. BILLING CODE 6717–01–P http://www.regulations.gov Web site is Filed Date: 03/25/2010. an ‘‘anonymous access’’ system, which Accession Number: 20100325–0209. means EPA will not know your identity ENVIRONMENTAL PROTECTION or contact information unless you Comment Date: 5 p.m. Eastern Time AGENCY provide it in the body of your comment. on Thursday, April 15, 2010. If you send an e-mail comment directly [FRL–9133–5] Any person desiring to intervene or to to EPA without going through protest in any of the above proceedings Agency Information Collection www.regulations.gov, your e-mail must file in accordance with Rules 211 Activities; Proposed Collection; address will be automatically captured and 214 of the Commission’s Rules of Comment Request for Sulfur Content and included as part of the comment Practice and Procedure (18 CFR 385.211 of Motor Vehicle Gasoline Under the that is placed in the public docket and and 385.214) on or before 5 p.m. Eastern Tier 2 Rule; EPA ICR No. 1907.05; OMB made available on the Internet. If you time on the specified comment date. It Control No. 2060–0437 submit an electronic comment, EPA is not necessary to separately intervene recommends that you include your again in a subdocket related to a AGENCY: Environmental Protection name and other contact information in compliance filing if you have previously Agency (EPA). the body of your comment and with any intervened in the same docket. Protests ACTION: Notice. disk or CD–ROM you submit. If EPA will be considered by the Commission cannot read your comment due to SUMMARY: in determining the appropriate action to In compliance with the technical difficulties and cannot contact be taken, but will not serve to make Paperwork Reduction Act (PRA) (44 you for clarification, EPA may not be protestants parties to the proceeding. U.S.C. 3501 et seq.), this document able to consider your comment. Anyone filing a motion to intervene or announces that EPA is planning to Electronic files should avoid the use of protest must serve a copy of that submit a request to renew an existing special characters, any form of document on the Applicant. In reference approved Information Collection encryption, and be free of any defects or to filings initiating a new proceeding, Request (ICR) to the Office of viruses. For additional information interventions or protests submitted on Management and Budget (OMB). This about EPA’s public docket visit the EPA or before the comment deadline need request is to renew an ICR that will Docket Center homepage at http:// not be served on persons other than the expire on July 31, 2010. www.epa.gov/epahome/dockets.htm. DATES: Comments must be submitted on Applicant. FOR FURTHER INFORMATION CONTACT: or before June 1, 2010. The Commission encourages Geanetta Heard, Office of Transportation electronic submission of protests and ADDRESSES: Submit your comments, and Air Quality, Transportation and interventions in lieu of paper, using the identified by Docket ID No. EPA–HQ– Regional Programs Division, Mail Code FERC Online links at http:// OAR–2010–0258, by one of the 6406J, Environmental Protection following methods: Agency, 1200 Pennsylvania Ave., NW., www.ferc.gov. To facilitate electronic • service, persons with Internet access http://www.regulations.gov: Follow Washington, DC 20460; telephone who will eFile a document and/or be the on-line instructions for submitting number: (202) 343–9017; fax number: comments. (202) 343–2801; e-mail address: listed as a contact for an intervenor • E-mail: [email protected]. [email protected]. must create and validate an • eRegistration account using the Mail: Air Docket, Environmental SUPPLEMENTARY INFORMATION: eRegistration link. Select the eFiling Protection Agency, Mail Code: 6102T, link to log on and submit the 1200 Pennsylvania Ave., NW., How Can I Access the Docket and/or intervention or protests. Washington, DC 20460. Submit Comments? • Fax or Hand Delivery: EPA’s Public Persons unable to file electronically Reading Room is located in Room 3334 EPA has established a public docket should submit an original and 14 copies of the EPA West Building, 1301 for this ICR under Docket ID No. EPA– of the intervention or protest to the Constitution Ave., NW., Washington, HQ–OAR–2010–0258. The docket is Federal Energy Regulatory Commission, DC. Docket hours are Monday through available for online viewing at http:// 888 First St., NE., Washington, DC Friday, 8 a.m. until 4:30 p.m., excluding www.regulations.gov, and for in-person 20426. legal holidays. In order to ensure to viewing at EPA’s Public Reading Room. The filings in the above proceedings arrange for proper fax or hand delivery The Public Reading Room was are accessible in the Commission’s of materials, please call the Air Docket temporarily closed due to flooding and eLibrary system by clicking on the at 202–566–1742. reopened in the EPA Headquarters appropriate link in the above list. They Instructions: Direct your comments to Library, Infoterra Room (Room 3334), in are also available for review in the Docket ID No. EPA–HQ–OAR- 2010– the EPA West Building, 1301 Commission’s Public Reference Room in 0258. EPA’s policy is that all comments Constitution Ave., NW., Washington, Washington, DC. There is an received will be included in the public DC. The Public Reading Room is open eSubscription link on the Web site that docket without change and may be from 8:30 a.m. to 4:30 p.m. Eastern enables subscribers to receive e-mail made available online at http:// Standard Time (EST) in its new notification when a document is added www.regulations.gov, including any location, Monday through Friday, to a subscribed docket(s). For assistance personal information provided, unless excluding legal holidays. The telephone with any FERC Online service, please e- the comment includes information number for the Air Docket is 202–566– mail [email protected] or claimed to be Confidential Business 1742.

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Use http://www.regulations.gov to assigned to this action in the subject information; to process and maintain obtain a copy of the draft collection of line on the first page of your response. information; to disclose and provide information, submit or view public You may also provide the name, date, information; to adjust the existing ways comments, access the index listing of and Federal Register citation. to comply with any previously the contents of the docket, and to access applicable instructions and What Information Collection Activity or those documents in the public docket ICR Does This Apply to? requirements which have subsequently that are available electronically. Once in changed; to train personnel to be able to the system, select ‘‘search,’’ then key in Affected entities: Entities potentially respond to a collection of information; the docket ID number identified in this affected by this action are refiner and to search data sources; to complete and document. importers, gasoline terminals, pipelines, review the collection of information; and users of research and development and to transmit or otherwise disclose What Information Is EPA Particularly (R& D) gasoline. the information. Interested in? Title: Sulfur Content of Motor Vehicle Pursuant to section 3506(c)(2)(A) of Gasoline under Tier 2 Rule. Are There Changes in the Estimates the Paperwork Reduction Act, EPA ICR numbers: EPA ICR No. 1907.05, From the Last Approval? specifically solicits comments and OMB Control No. 2060–0437. This submittal is a renewal of the ICR information to enable it to: ICR status: This ICR will expire on for the Tier 2 gasoline sulfur rule. (i) Evaluate whether the proposed July 31, 2010. An Agency may not We do not estimate a change in conduct or sponsor, and a person is not collection of information is necessary burden associated with renewal of this required to respond to, a collection of for the proper performance of the information collection request. information, unless it displays a functions of the Agency, including However, there is a change in the currently valid OMB control number. whether the information will have Agency burden which increased by The OMB control numbers for EPA’s practical utility; $1,070. (ii) evaluate the accuracy of the regulations in Title 40 of the CFR, after Agency’s estimate of the burden of the appearing in the Federal Register when What Is the Next Step in the Process for proposed collection of information, approved, are listed in 40 CFR part 9, This ICR? including the validity of the and are displayed either by publication EPA will consider the comments methodology and assumptions used; in the Federal Register or by other received and amend the ICR as (iii) enhance the quality, utility, and appropriate means, such as on the appropriate. The final ICR package will clarity of the information to be related collection instrument or form, if then be submitted to OMB for review collected; and applicable. The display of OMB control and approval pursuant to 5 CFR (iv) minimize the burden of the numbers in certain EPA regulations is 1320.12. At that time, EPA will issue collection of information on those who consolidated in 40 CFR part 9. another Federal Register notice Abstract: With this information are to respond, including through the pursuant to 5 CFR 1320.5(a)(1)(iv) to collection request (ICR) renewal, we are use of appropriate automated electronic, announce the submission of the ICR to seeking permission to continue to mechanical, or other technological OMB and the opportunity to submit accept notifications from refiners and collection techniques or other forms of additional comments to OMB. If you importers as they relate to gasoline information technology, e.g., permitting have any questions about this ICR or the sulfur content of motor vehicles under electronic submission of responses. In approval process, please contact the § 211(c)(1) of the Clean Air Act and EPA particular, EPA is requesting comments person listed under FOR FURTHER regulation of 2003 40 CFR part 80, from very small businesses (those that INFORMATION CONTACT. employ less than 25) on examples of subpart H; and to provide a compliance Dated: March 29, 2010. specific additional efforts that EPA option whereby a refiner or importer could make to reduce the paperwork may demonstrate compliance with the Lori Stewart, burden for very small businesses gasoline sulfur control requirement via Acting Director, Office of Transportation and affected by this collection. test results. These provisions, which Air Quality. have been in effect since 2003, are [FR Doc. 2010–7497 Filed 4–1–10; 8:45 am] What Should I Consider When I designed to grant compliance flexibility. BILLING CODE 6560–50–P Prepare My Comments for EPA? The current ICR approval expires July You may find the following 31, 2010. We are requesting that the suggestions helpful for preparing your Office of Management and Budget ENVIRONMENTAL PROTECTION comments: (OMB) renew this ICR and request that AGENCY 1. Explain your views as clearly as it be effective three years after approval. [ER–FRL–8989–5] possible and provide specific examples. Burden Statement: The annual hourly 2. Describe any assumptions that you reporting and recordkeeping burden and Environmental Impacts Statements; used. cost for this collection of information is Notice of Availability 3. Provide copies of any technical estimated to be 38,573 hours and information and/or data you used that $2,573,954, respectively. The total Responsible Agency: Office of Federal support your views. number of responses for this ICR is Activities, General Information (202) 4. If you estimate potential burden or estimated to be 37,665. Burden means 564–1399 or http://www.epa.gov/ costs, explain how you arrived at the the total time, effort, or financial compliance/nepa/. estimate that you provide. resources expended by a person to Weekly receipt of Environmental Impact 5. Offer alternative ways to improve generate, maintain, retain, or disclose or Statements. the collection activity. provide information to (or for) a Federal Filed 03/22/2010 through 03/26/2010. 6. Make sure to submit your agency. This includes the time needed Pursuant to 40 CFR 1506.9. comments by the deadline identified to review instructions; to develop, Notice under DATES. acquire, install, and utilize technology 7. To ensure proper receipt by EPA, and systems for the purposes of In accordance with Section 309(a) of be sure to identify the docket ID number collecting, validating, and verifying the Clean Air Act, EPA is required to

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make its comments on EISs issued by Construction, Operation and Revision to FR Notice Published 02/ other Federal agencies public. Decommission a Solar Thermal 26/2010: Correction to Comment Period Historically, EPA has met this mandate Facility on Public Lands, Approval for from 04/12/2010 to 04/19/2010. by publishing weekly notices of Right-of-Way Grant, Possible Dated: March 30, 2010. availability of EPA comments, which California Desert Conservation Area Robert W. Hargrove, includes a brief summary of EPA’s Plan Amendment, Riverside County, comment letters, in the Federal Director, NEPA Compliance Division, Office CA, Comment Period Ends: 07/01/ of Federal Activities. Register. Since February 2008, EPA has 2010, Contact: Holly Roberts 760– [FR Doc. 2010–7501 Filed 4–1–10; 8:45 am] been including its comment letters on 833–7149. EISs on its Web site at: http:// EIS No. 20100103, Draft EIS, FERC, 00, BILLING CODE 6560–50–P www.epa.gov/compliance/nepa/ Apex Expansion Project, Proposal to eisdata.html. Including the entire EIS Expand its Natural Gas Pipeline ENVIRONMENTAL PROTECTION comment letters on the Web site System, WY, UT and NV, Comment AGENCY satisfies the Section 309(a) requirement Period Ends: 05/17/2010, Contact: to make EPA’s comments on EISs Julia Bovey 1–866–208–3372. [ER–FRL–8989–6] available to the public. Accordingly, EIS No. 20100104, Draft EIS, USFS, NM, after March 31, 2010, EPA will McKinley County Easement—Forest Environmental Impact Statements and discontinue the publication of this Roads 191 and 191D, Implementation, Regulations; Availability of EPA notice of availability of EPA comments Cibola National Forest, McKinley Comments in the Federal Register. County, NM, Comment Period Ends: Availability of EPA comments EIS No. 20100097, Final EIS, USFS, OR, 05/17/2010, Contact: Keith Baker prepared pursuant to the Environmental EXF Thinning, Fuel Reduction, and 505–346–3820. Review Process (ERP), under section Research Project, Proposal for EIS No. 20100105, Draft EIS, USA, GA, 309 of the Clean Air Act and Section Vegetation Management and Fuel Fort Stewart Training Range and 102(2)(c) of the National Environmental Reduction within the Lookout Garrison Support Facilities Policy Act as amended. Requests for Mountain Unit of the Pringle Falls Construction and Operation, Liberty, copies of EPA comments can be directed Experimental Forest, Bend/Ft. Rock Long, Bryan, Evans and Tattnall to the Office of Federal Activities at Ranger District, Deschates National Counties, GA, Comment Period Ends: 202–564–7146 or http://www.epa.gov/ Forest, Deschutes County, OR, Wait 05/17/2010, Contact: Mike Ackerman compliance/nepa/. Period Ends: 05/03/2010, Contact: 410–436–2522. An explanation of the ratings assigned Beth Peer 541–383–4769. EIS No. 20100106, Draft EIS, BLM, CA, to draft environmental impact EIS No. 20100098, Final EIS, FHWA, Granite Mountain Wind Energy statements (EISs) was published in FR WA, WA–502 Corridor Widening Project, Proposed to Develop an up to dated July 17, 2009 (74 FR 35754). Project, Proposes Improvements to 84-megawatt Wind Energy Plant and Five Miles of WA–502 (NE.-219th Associated Facilities on Public Land Final Notice Street) between NE. 15th Avenue and and Private Land, California Desert In accordance with Section 309(a) of NE. 102nd Avenue, Funding, Clark Conservation Areas Plan, San the Clean Air Act, EPA is required to County, WA, Wait Period Ends: 05/ Bernardino County, CA, Comment make its comments on EISs issued by 03/2010, Contact: Chris Tams 360– Period Ends: 07/01/2010, Contact: other Federal agencies public. 759–1310. Edythe Seehafer 760–252–6021. Historically, EPA has met this mandate EIS No. 20100099, Final EIS, FHWA, FL, EIS No. 20100107, Draft EIS, BLM, CA, by publishing weekly notices of Interstate 395 (I–395) Development Calico Solar Project, Proposed Solar availability of EPA comments, which and Environment Study Project, From Thermal Electricity Generation I–95 to West Channel Bridges of the includes a brief summary of EPA’s Facility Located Public Lands, comment letters, in the Federal MacArthur Causeway at Biscayne Construction and Operation, Right-of- Bay, City of Miami, Miami-Dade Register. Since February 2008, EPA has Way Grant, San Bernardino County, been including its comment letters on County, FL, Wait Period Ends: 05/03/ CA, Comment Period Ends: 07/01/ 2010, Contact: Linda K. Anderson EISs on its Web site at: http:// 2010, Contact: Jim Stobaugh 775–861– www.epa.gov/compliance/nepa/ 850–942–9650 Ext. 3053. 6478. EIS No. 20100100, Draft EIS, BLM, OR, eisdata.html. Including the entire EIS West Butte Wind Power Project, Amended Notices comment letters on the Web site satisfies the Section 309(a) requirement Construction and Operation of Access EIS No. 20100018, Draft EIS, NPS, WV, Roads and a Transmission Line, to make EPA’s comments on EISs New River Gorge National River available to the public. Accordingly, Application for Right-of-Way (ROW) Project, General Management Plan, Grant, Deschutes and Crook Counties, this is the final publication of this Implementation, Fayette, Raleigh and notice of availability of EPA comments OR, Comment Period Ends: 05/17/ Summers Counties, WV, Comment 2010, Contact: Steve Storo 541–416– in the Federal Register. Period Ends: 04/02/2010, Contact: 6700. Deborah Darden 304–465–6509. Draft EISs EIS No. 20100101, Draft EIS, FTA, TX, D2 Downtown Dallas Transit Study, Revision to FR Notice Published 01/ EIS No. 20090378, ERP No. D–COE– To Support Increased Demand and 29/2010: Correction to Comment Period F09806–MN, NorthMet Project, Implementation of the 2030 Transit from 03/29/2010 to 04/02/2010. Proposes to Construct and Operate an System Plan (TSP), Dallas Area Rapid EIS No. 20100054, Draft EIS, NASA, VA, Open Pit Mine and Processing Transit (DART), in the City of Dallas, Wallops Flight Facility, Shoreline Facility, Located in Hoyt Lakes— Dallas County, TX, Comment Period Restoration and Infrastructure Babbitt Area of St. Louis County, MN Ends: 05/17/2010, Contact: Lynn Protection Program, Implementation, Summary: The project as proposed Hayes 817–978–0565. Wallops Island, VA, Comment Period will have unsatisfactory impacts to EIS No. 20100102, Draft EIS, BLM, CA, Ends: 04/19/2010, Contact: Joshua A. surface water and groundwater from Palen Solar Power Plant Project, Bundick 757–824–2319. acid mine drainage and mobilization of

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metals and sulfates. The project will EIS No. 20100036, ERP No. F–IBR– Summary: EPA’s previous issues have also have significant wetland impacts K65382–CA, New Melones Lakes Area been resolved; therefore, EPA does not that are not adequately mitigated. In Resource Management Plan, object to the proposed action. addition, the EIS does not adequately Implementation, Tuolumne and Dated: March 30, 2010. evaluate the fate and transport of Calaveras Counties, CA. Robert W. Hargrove, pollutants between groundwater, Summary: No comment letter was Director, NEPA Compliance Division, Office surface water and wetlands, nor does it sent to the preparing agency. of Federal Activities. discuss financial assurance for closure EIS No. 20100039, ERP No. F–WAP– [FR Doc. 2010–7504 Filed 4–1–10; 8:45 am] and post-closure care. Rating EU3. K08017–00, ADOPTION—Southwest BILLING CODE 6560–50–P EIS No. 20090411, ERP No. D–BLM– Intertie Project, Construction and K65383–CA, Clear Creek Management Operation, 500kV Transmission Line Area Resource Management Plan from the existing Midpoint substation ENVIRONMENTAL PROTECTION (RMP), Implementation, Portion of near Shoshone, ID to a new substation AGENCY San Benito County and Fresno site in the Dry Lake Valley of Las County, CA. Vegas, NV area to a point near Delta, [EPA–R03–OW–2009–0985; FRL–9133–4] Summary: EPA does not object to the UT, Permits Approval and C. Proposed Determination To Prohibit, proposed project because it will help Summary: No comment letter was Restrict, or Deny the Specification, or protect human health and safety and sent to the preparing agency. the Use for Specification (Including significantly improve environmental EIS No. 20100041, ERP No. F–FHW– Withdrawal of Specification), of an resources in the project area. Rating LO. F40379–MI, US–31 Holland to Grand Area as a Disposal Site; Spruce No. 1 EIS No. 20090451, ERP No. D–FHW– Haven Project, Transportation Surface Mine, Logan County, WV F40451–FL, St. Johns River Crossing Improvement to Reduce Traffic AGENCY: Environmental Protection Project, Improved Highway Corridor Congestion and Delay, Ottawa Agency (EPA). and Bridge Crossing the St. John River County, MI. between Clay and St. Johns Counties, ACTION: Notice. Summary: EPA’s previous issues have FL. been resolved; therefore, EPA does not SUMMARY: Pursuant to Section 404(c), Summary: EPA expressed object to the proposed action. environmental objections about the United States Environmental significant wetland and habitat resource EIS No. 20100042, ERP No. F–COE– Protection Agency Region III (EPA) is impacts. EPA also had concerns about K39121–CA, Natomas Levee requesting public comments on its air quality, noise, surface water and Improvement Program Phase 4a proposal to withdraw or restrict use of floodplain impacts. Rating EO2. Landside Improvement Project, Seng Camp Creek, Pigeonroost Branch, Issuing of 408 Permission and 404 Oldhouse Branch, and certain EIS No. 20100017, ERP No. D–NOA– Permits, California Department of tributaries to those waters in Logan L91035–00, Amendment 21 to the Water Resources (DWR) and the County, West Virginia to receive Pacific Coast Groundfish Fishery California Central Valley Flood dredged and/or fill material in Management Plan, (FMP), Allocation Protection Board, Sutter and connection with construction of the of Harvest Opportunity between Sacramento Counties, CA. Spruce No. 1 Surface Mine (Spruce No. Sectors, Implementation, WA, OR and 1 Mine or the project). CA. Summary: EPA continues to have environmental concerns about flood risk An important part of EPA’s mission is Summary: EPA does not object to the to ensure our environment and public proposed action. Rating LO. impacts and the need for a PM 2.5 modeling assessment and a general health are protected and restored for EIS No. 20100027, ERP No. D–AFS– conformity determination. current and future generations. Among K65384–CA, Big Grizzly Fuels ways that EPA carries out its mission is EIS No. 20100044, ERP No. F–AFS– Reduction and Forest Health Project, by ensuring appropriate implementation K65368–CA, Lower Trinity and Mad Proposes Vegetation Treatments, of the Clean Water Act. Section 404(c) River Motorized Travel Management, Eldorado National Forest, Georgetown of the Clean Water Act (CWA) Proposed to Prohibit Cross-County Ranger District, Georgetown, CA. authorizes the U.S. Environmental Motor Vehicle Travel Off Designated Summary: EPA expressed Protection Agency (EPA) to prohibit, National Forest Transportation environmental concerns about air restrict, or deny use of any defined area System (NFTS) Roads and Motorized quality impacts and requested a in waters of the United States for Trails, Six River National Forest, CA. commitment to implement BMPs. specification (including the withdrawal Rating EC2. Summary: EPA continues to have of specification) for the discharge of environmental concerns about the scope dredged and/or fill material whenever it Final EISs of the travel management planning determines, after notice and opportunity EIS No. 20100019, ERP No. F–DOE– process and routes proposed in for public hearing, that use of such sites C06012–NY, West Valley impaired watersheds. EPA to receive dredged and/or fill material Demonstration Project and Western recommended the action include would have an unacceptable adverse New York Nuclear Service Center current roads and trails with known impact on various resources, including Decommissioning and/or Long-Term impacts and a thorough evaluation of all fisheries, wildlife, municipal water Stewardship, (DOE/EIS–0226–D impacts to water resources. supplies, and recreational areas. This Revised) City of Buffalo, Eric and EIS No. 20100058, ERP No. F–FHW– authority is often referred to as EPA’s Cattaraugus Counties, NY. F40445–IN, I–69 Evansville to authority to ‘‘veto’’ a CWA Section 404 Summary: While EPA has no Indianapolis, Indiana Project, Section permit to discharge dredged and/or fill objection with the proposed action, EPA 2, Revised to Update the Stream material to waters of the United States. indicated that Phase 2 actions and Impacts, Oakland City to Washington, The Spruce No. 1 Mine is one of the NEPA documentation will be (IN–64 to US 50), Gibson, Pike and largest surface mining operations ever reevaluated at the end of Phase 1. Daviess Counties, IN. authorized in Appalachia. In connection

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with this project, Mingo Logan Coal unforeseen environmental Environmental Protection Agency, EPA Company (permittee) has been consequences. Docket Center Water Docket, Mail Code authorized by the U.S. Army Corps of Public health issues surrounding the 28221T, 1200 Pennsylvania Avenue, Engineers, Huntington District (Corps) types of impacts associated with the NW., Washington, DC 20460. (Department of the Army Permit No. Spruce No. 1 project are not well 4. Hand Delivery or Courier: Director, 199800436–3 (Section 10: Coal River)) understood. EPA has been presented Office of Environmental Programs; to construct six ‘‘valley fills’’ and with household-specific and anecdotal Environmental Assessment and numerous sedimentation ponds in Seng information that suggests individual and Innovation Division; U.S. Camp Branch (already partially possibly public surface water and Environmental Protection Agency, constructed), Pigeonroost Branch (not ground water supplies could be 3EA30 Region III; 1650 Arch Street, yet constructed), Oldhouse Branch (not adversely impacted by surface coal SW.; Philadelphia, Pennsylvania 19103. yet constructed), and certain tributaries mining activities. In addition, recent Such deliveries are accepted only to those waters by discharging excess published studies directly relate during the Regional Office’s normal overburden (or spoil) generated by intensity of surface mining activities hours of operation, which are Monday surface coal mining operations. The within Appalachia to degraded public through Friday, 8:30 a.m. to 4:30 p.m., project as authorized will directly health and mortality. EPA has been excluding Federal holidays. impact 2,278 acres, including more than presented with a petition from a variety 5. Submit at Public Hearing: See seven miles of stream, and indirectly of local stakeholders that outlines many Public Hearing section below. impact other waters. EPA Region III of these concerns and further relates Instructions: Direct your comments to acknowledges the project has undergone them to issues of environmental justice. Docket ID No. EPA–R03–OW–2009– extensive regulatory review and has Ultimately, EPA’s process will result 0985. been modified from the original in one of three outcomes: (1) EPA could EPA’s policy is that all comments proposal in order to reduce impacts. withdraw specification of the site as a received will be included in the public EPA Region III is taking this action disposal site and decide to use its docket without change and may be because it believes, despite all the discretion to prohibit any discharges made available online at http:// regulatory processes intended to protect from the project, including the www.regulations.gov, including any the environment, that construction of construction of valley fills; (2) EPA personal information provided, unless Spruce No. 1 Mine as authorized would could restrict specification of the site as the comment includes information destroy streams and habitat, cause a disposal site and decide the project claimed to be Confidential Business significant degradation of on-site and cannot go forward under the permit as Information (CBI) or other information downstream water quality, and could currently issued, but could go forward whose disclosure is restricted by statute. Do not submit through http:// therefore result in unacceptable adverse under a modified permit with more www.regulations.gov or e-mail, impacts to wildlife and fishery environmentally protective conditions; information that you consider to be CBI resources. These impacts are described or (3) EPA could decide the permit as or otherwise protected. The http:// in more detail in Section IV below. currently issued is sufficiently www.regulations.gov Web site is an The goal of protecting water quality, protective. ‘‘anonymous access’’ system, which plant and animal habitat, navigable EPA seeks comment on this proposed means EPA will not know your identity waterways, and other downstream Section 404(c) determination to or contact information unless you resources requires the careful protection withdraw, prohibit or restrict use of provide it in the body of your comment. of headwater streams and life they Seng Camp Creek, Pigeonroost Branch, If you send an e-mail comment directly support. These streams are like the Oldhouse Branch, and their tributaries to EPA without going through http:// capillaries within our circulatory in Logan County, West Virginia, to www.regulations.gov, your e-mail system. They are the largest network of receive dredged or fill material in waterbodies within our ecosystem and address will be automatically captured connection with construction of the and included as part of the comment provide the most basic and fundamental Spruce No. 1 Surface Mine as currently building blocks to the remainder of the placed in the public docket and made authorized by the January 22, 2007 available on the Internet. If you submit aquatic and human environment. Department of the Army (DA) Permit Applying the lessons of the past, we an electronic comment, EPA No. 199800436–3 (Section 10: Coal now know that failure to control mining recommends you include your name River). See Solicitation of Comments, at practices has resulted in persistent and other contact information in the the end of the public notice, for further environmental degradation in the form body of your comment and with any of acid mine drainage and other impacts details. disk or CD–ROM you submit. If EPA that cost billions to remedy. While the DATES: Comments must be received in cannot read your comment due to Surface Mining Control and writing by June 1, 2010. technical difficulties and cannot contact Reclamation Act (SMCRA), the CWA, ADDRESSES: Submit your comments, you for clarification, EPA may not be and other laws have put in place identified by Docket ID No EPA–R03– able to consider your comment. controls addressing some environmental OW–2009–0985, by one of the following Electronic files should avoid the use of impacts, including acid mine drainage, methods: special characters, any form of recent studies and experience point to 1. Federal eRulemaking Portal encryption, and be free of any defects or new environmental and health (recommended method of comment viruses. For additional information challenges that were largely submission): http:// about EPA’s public docket visit the EPA unconsidered until more recently. We www.regulations.gov. Follow the online Docket Center homepage at http:// know the regulatory controls currently instructions for submitting comments. www.epa.gov/epahome/dockets.htm. in place have not prevented adverse 2. E-mail: ow- Docket: All documents in the water quality and aquatic habitat [email protected]. Include the electronic docket are listed in the http:// impacts from other surface mining docket number, EPA–R03–OW–2009– www.regulations.gov index. Although operations. We also know the same 0985, in the subject line of the message. listed in the index, some information is types of impacts as those anticipated 3. Mail: ‘‘EPA–R03–OW–2009–0985, not publicly available, i.e., CBI or other from this project have had previously Spruce No. 1 Surface Mine,’’ U.S. information whose disclosure is

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restricted by statute. Certain other I. Section 404(C) Procedure for public hearing, that the discharge of material, such as copyrighted material, II. Project Description and Background such materials into any defined area is not placed on the Internet and will be A. Project History will have an unacceptable adverse effect publicly available only in hard copy B. Project Description on municipal water supplies, shellfish III. Characteristics and Functions of the form. Publicly available docket Impacted Resources beds and fishery areas (including materials are available either A. Watershed and Stream Conditions spawning and breeding areas), wildlife, electronically in 1. The Coal River Sub-basin or recreational areas. http://www.regulations.gov or in hard 2. The Spruce Fork Sub-watershed Procedures for implementing Section copy at the Office of Environmental B. Wildlife 404(c) are set forth in 40 CFR Part 231. Programs; Environmental Assessment 1. Invertebrates Under those procedures, if the Regional and Innovation Division; U.S. 2. Vertebrates Administrator has reason to believe that Environmental Protection Agency, a. Salamanders use of a site for discharge of dredged or Region III; 1650 Arch Street, b. Fish fill material may have an unacceptable c. Birds adverse effect on one or more of the Philadelphia, Pennsylvania 19103. EPA d. Bats requests that if at all possible, you IV. Basis for Proposed Determination aforementioned resources, he may contact the office listed in the FOR A. Section 404(c) Standards initiate the Section 404(c) process by FURTHER INFORMATION CONTACT section to B. Adverse Impacts of the Proposed Project notifying the Corps and applicant/ schedule your inspection. The EPA 1. Impacts to Wildlife permittee (and/or project proponent and Region III Office’s official hours of a. Freshwater Macroinvertebrates landowner(s)) that he intends to issue a business are Monday through Friday, b. Salamanders proposed determination. Each of those 8:30 a.m. to 4:30 p.m., excluding c. Fish parties then has 15 days to demonstrate Federal holidays. d. Birds to the satisfaction of the Regional e. Bats Administrator that no unacceptable Public Hearing: In accordance with 2. Impacts to Water Quality EPA regulations at 40 CFR 231.4, the a. Selenium adverse effects will occur, or that Regional Administrator may decide that b. Total Dissolved Solids/Conductivity corrective action to prevent an a public hearing on a proposed Section 3. Potential To Contribute to Conditions unacceptable adverse effect will be 404(c) determination would be in the That Support Growth of Toxic Golden taken. If no such information is public interest. A separate public notice Algae provided to the Regional Administrator, will be published in advance of any 4. Proposed Mitigation May Not Offset or if the Regional Administrator is not hearing in the Federal Register and Anticipated Impacts to an Acceptable satisfied that no unacceptable adverse local newspapers to announce the date, Level effect will occur, the Regional 5. Consistency With the 404(b)(1) time and location of the hearing and Administrator will publish a notice in Guidelines the Federal Register of his proposed describe hearing procedures. Written a. Alternatives comments may be presented at the b. Water Quality determination, soliciting public hearing. V. Proposed Determination comment, and offering opportunity for a public hearing. Today’s notice FOR FURTHER INFORMATION CONTACT: For VI. Other Considerations represents this step in the process. information regarding this notice of A. Environmental Justice B. Cumulative Effects Following the public hearing and proposed Section 404(c) determination, VII. Solicitation of Comments close of the comment period, the contact the Office of Environmental Regional Administrator will decide I. Section 404(C) Procedure Programs; Environmental Assessment whether to withdraw his proposed and Innovation Division; U.S. The Clean Water Act (CWA) 33 U.S.C. determination or prepare a Environmental Protection Agency, 1251, et seq., prohibits the discharge of recommended determination. A Region III; 1650 Arch Street, pollutants, including dredged or fill decision to withdraw a proposed Philadelphia, Pennsylvania 19103. The material, into waters of the United determination may be reviewed at the telephone number is 215–814–2760. States (including wetlands) except in discretion of the Assistant The Office can also be reached via compliance with, among other Administrator for Water at EPA electronic mail at provisions, Section 404 of the CWA, 33 Headquarters. If the Regional _ _ _ R3 Spruce Surface [email protected]. This U.S.C. 1344. Section 404 authorizes the Administrator prepares a recommended is for information on the notice only and Secretary of the Army, acting through determination, he then forwards it and is not the official comment submission the Chief of Engineers (Corps), to the complete administrative record forum. Please see the previous section authorize the discharge of dredged or compiled in the Regional Office to the for directions on submitting comments fill material at specified disposal sites. Assistant Administrator for Water. The on the Proposed Determination. This authorization is conducted, in part, Assistant Administrator makes the final SUPPLEMENTARY INFORMATION: through application of environmental determination affirming, modifying, or Throughout this document, references guidelines set forth in regulations rescinding the recommended to ‘‘EPA,’’ ‘‘we,’’ ‘‘us’’ or ‘‘our’’ are developed by EPA in conjunction with determination. references to the Environmental the Corps under Section 404(b) of the EPA Region III recognizes this action Protection Agency. References to the CWA, 33 U.S.C. 1344(b) (Section represents one of the few times EPA has ‘‘Corps’’ refer to the U.S. Army Corps of 404(b)(1) Guidelines). initiated a Section 404(c) action to Engineers. References to ‘‘WVDEP’’ refer Section 404(c) of the CWA authorizes withdraw specification after a permit to the West Virginia Department of EPA to prohibit specification (including has been issued by the Department of Environmental Protection. References to the withdrawal of specification) of any the Army. It is EPA’s preference to Seng Camp Creek, Pigeonroost Branch defined area as a disposal site, and EPA initiate procedures pursuant to Section and Oldhouse Branch also refer to is authorized to restrict or deny use of 404(c) prior to permit issuance. tributaries to those waters that would be any defined area for specification Nevertheless, Section 404(c) authorizes impacted by the project as authorized. (including withdrawal of specification) EPA to withdraw use of a defined area The supplementary information is as a disposal site, whenever it for specification, and therefore, EPA has arranged as follows: determines, after notice and opportunity the ability to initiate a Section 404(c)

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action after permit issuance. As set forth Corps of Engineers Huntington District No. 1 Mine, including potential adverse in the Preamble to EPA’s implementing pursuant to the National Environmental impacts to water quality (specifically, regulations, EPA recognizes the Policy Act, 42 U.S.C. 4332(C). The the potential to discharge selenium and seriousness of initiating a Section 404(c) original project application also the known correlation between similar action after the Corps has issued a launched events that led to the mining operations and degradation of permit and does so only when Interagency Mountaintop Mining/Valley downstream aquatic communities), unacceptable impacts from the project Fills in Appalachia Programmatic EIS uncertainties regarding the proposed are of commensurate seriousness. In which was finalized in October 2005 mitigation, need for additional analysis addition, EPA recognizes that a portion (PEIS). The PEIS is available at http:// of potential environmental justice of the project located in the Seng Camp www.epa.gov/Region3/mtntop/ issues, and lack of study related to the Creek subwatershed already has been eis2005.htm. cumulative impact of multiple mining constructed pursuant to the permit In accordance with Section 309 of the operations within the Little Coal River issued by the Department of the Army. Clean Air Act (CAA), EPA reviews all watershed. EPA continued to stress its This action is not intended to withdraw EISs and provides comments to the lead belief that corrective measures should or restrict specification to the extent that agency, in this case, the Corps’ be required to reduce environmental dredged or fill material already has been Huntington District, that identify and impacts and that other identified discharged as of the date of this notice recommend corrective actions for information, data, and analyses should pursuant to a Department of the Army significant environmental impacts be included in the final EIS. (DA) Permit No. 199800436–3 (Section associated with the proposal. EPA also Concerns regarding the Spruce No. 1 10: Coal River). reviews the adequacy of information project were also raised by the U.S. Fish and analyses contained in the EIS, as and Wildlife Service (FWS), Ecological II. Project Description and Background needed to support this objective. The Services West Virginia Field Office in a A. Project History initial 2002 Spruce No. 1 Draft EIS letter dated May 30, 2006 from the evaluated a project similar in scope and Department of Interior, Philadelphia to The Spruce No. 1 mining project is a size to the original project. EPA’s review the Huntington District Army Corps of proposed mountaintop mining of the Draft EIS found gaps in the Engineers. In that letter, the FWS operation with valley fills (MTM/VF). In analyses of the proposed mine and expressed concerns over the permittee’s this type of mining operation, forests on related adverse environmental impacts. compensatory mitigation plan. The FWS the mined site are cleared and stripped EPA was particularly concerned by the claimed there was inadequate of topsoil, and explosives are used to lack of information regarding the nature compensatory mitigation proposed for break up tops of mountains to expose and extent of impacts to the high quality the project because the assessment the coal seams. Excess overburden is streams that would be buried under methodology used by the permittee to pushed into adjacent valleys, where it valley fills, and recommended evaluate stream impacts considered buries streams. The Spruce No. 1 Mine additional evaluation to support the only the physical characteristics of the as currently authorized by DA Permit analysis of less environmentally impacted streams, without considering No. 199800436–3 (Section 10: Coal damaging alternatives. EPA Region III, the equally important biological or River), is one of the largest mountaintop in a letter dated August 12, 2002, chemical characteristics. The FWS mining projects ever authorized in West indicated the EIS contained inadequate expressed concern the project would Virginia and includes six valley fills. information for public review and impact healthy, biologically functional The proposed Spruce No. 1 Mine was decision-makers. streams and the proposed mitigation originally advertised as a Hobet Mining Partly as a result of EPA’s concerns, included erosion control structures Inc. project, a subsidiary of Arch Coal, a revised 2006 Spruce No. 1 Draft EIS designed to convey water that would Inc. Effective December 31, 2005, Arch was prepared and the project was not replace the streams’ lost ecological Coal, Inc. transferred Spruce No. 1 Mine reconfigured to reduce impacts. The services. holdings and responsibilities to its permittee, Mingo Logan, revised the The Corps issued the Spruce No. 1 Mingo Logan Coal Company (Mingo plan to avoid impacts to White Oak Final EIS on September 22, 2006. On Logan) subsidiary. The project as Branch, a very good quality stream and October 23, 2006, EPA commented on originally proposed in 1998, would have the project area was reduced from 3,113 the Final EIS, noting continuing directly impacted a total footprint area to 2,278 acres with direct stream concerns with the proposed project’s of 3,113 acres and 57,755 linear feet impacts reduced to 7.48 miles. contribution to cumulative impacts (more than ten miles) of stream (not According to the 2006 EIS, the proposed within the Little Coal River watershed, including indirect impacts to remaining project would include mining an and highlighting concerns over downstream waters). At that time, the average of 2.73 million tons of adequacy of mitigation proposals and Corps approved the project under a bituminous coal annually via limited analyses of potential impacts to nationwide permit, which was mountaintop mining methods. The low-income and minority communities. subsequently enjoined by a federal Spruce No. 1 Mine would result in a In a letter dated November 30, 2006, district court. As a consequence of that total surface disturbance of 2,278 acres EPA offered its assistance to the Corps action, the Corps retracted the of land and discharge of approximately in developing a stream functional previously proffered nationwide permit 110 million cubic yards of dredged and assessment protocol and willingness to for the project, and the permittee, Mingo fill material into waters of the United work with Mingo Logan through EPA’s Logan, advised the Corps it would States over a period of 15 years. Conflict Prevention and Resolution submit an individual permit In its June 16, 2006, letter of comment Center to develop a cumulative impact application. Because the decision on the 2006 Draft EIS, EPA recognized assessment and watershed restoration whether to issue the permit was a major that impacts from the proposed mine plan for the Little Coal River watershed. federal action with potential to had been reduced and the quality of EIS Despite concerns raised by EPA and significantly affect the quality of the information had improved. However, the FWS, on January 22, 2007, the Corps human environment, an Environmental the letter also noted that EPA had issued a Clean Water Act § 404 Permit Impact Statement (EIS) was prepared for remaining environmental concerns (DA Permit No. 199800436–3 (Section the Spruce No. 1 project by the Army associated with the proposed Spruce 10: Coal River)) to Mingo Logan for its

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Spruce No. 1 Mine. On January 30, the Coal River, a navigable (Section 10) is described in the Spruce No. 1 EIS as 2007, a number of environmental groups water of the United States. a fifteen-phase mining and reclamation filed a complaint against the Corps in The Spruce No. 1 project would result plan, which generally includes federal district court challenging its in a total surface disturbance of 2,278 ‘‘Construction’’ (Phases 1 and 2), decision to issue the permit. That acres of land with approximately 500 ‘‘Operations’’ (Phases 3–13), and litigation remains pending. acres actively mined at any one time, ‘‘Closure and Reclamation’’ (Phases 14– In addition to its DA Permit No. based on sequential backfilling and 15). As initially proposed, the phases 199800436–3 (Section 10: Coal River), concurrent reclamation of mined areas. are described in the Spruce No. 1 EIS. the project received authorizations from The mining process would remove 400 DA Permit No. 199800436–3 (Section the West Virginia Department of to 450 vertical feet or 501 million cubic 10: Coal River) which authorizes Environmental Protection (WVDEP), yards of overburden material. Nearly construction of six valley fills: Valley 391 million cubic yards would be including authorization pursuant to the Fills 1A and 1B in Seng Camp Creek; placed within the mined area and the State’s surface mining program Valley Fills 2A, 2B, and 3 in Pigeonroost remaining 110 million cubic yards approved under the Surface Mining Branch; and Valley Fill 4 in Oldhouse placed in 6 proposed valley fills. The Control and Reclamation Act of 1977 Branch, and numerous sedimentation proposed Spruce No. 1 Mine would (SMCRA), 30 U.S.C. 1201–1328 ponds, minethroughs and other fills. result in the discharge of approximately Additional components of the project (SMCRA permit), and a National 110 million cubic yards of dredged and include requirements for compensatory Pollutant Discharge Elimination System fill material into waters of the United mitigation to offset adverse project (NPDES) permit for discharges of States over a period of 15 years. A impacts. The November 2006 pollutants from 251 outfalls pursuant to detailed discussion of Spruce No. 1 Compensatory Mitigation Plan (CMP) Section 402 of the Clean Water Act, 33 project can be found in the 2006 Spruce submitted by Mingo Logan describes on- U.S.C. 1342. No. 1 Draft EIS on pages 2–35 through site, in-kind mitigation at a minimum In early 2007, Mingo Logan 2–61. 1:1 ratio on a linear footage basis to commenced limited operations on According to its Draft EIS, the Spruce compensate for permanent and Spruce No. 1 pursuant to DA Permit No. No. 1 project is a mountaintop mining temporary impacts to waters of the 199800436–3 (Section 10: Coal River) project targeting bituminous coal seams United States through stream channel subject to an agreement with the overlying and including the Middle reclamation and off-site mitigation. This environmental groups who are plaintiffs Coalburg coal seam in the western mitigation is intended to restore, in the litigation. Pursuant to that portion of the proposed project area. In reconstruct, or enhance segments of agreement, Mingo Logan has been the eastern portion of the project area, Spruce Fork and Rockhouse Creek. On- operating in a portion of the project in mountaintop mining would be limited site compensation would include the Seng Camp Creek drainage area, to those seams including and overlying restoration of 7,132 linear feet of stream including construction of one valley fill. the Upper Stockton seam, with contour segments temporarily impacted by Under the agreement, Mingo Logan mining in conjunction with auger and/ sedimentation ponds, and creation of must give plaintiffs 20 days’ notice or highwall/thin-seam mining utilized 43,565 linear feet of stream channel before expanding operations beyond the to recover the Middle Coalburg seam. within the project area. Off-site area subject to the agreement, and has The project would disturb a total of compensation includes stream done so once without objection from the 2,278 acres and recover seventy-five enhancements (11,272 linear feet) to plaintiffs. percent (75%) of the coal reserve Spruce Fork and Rockhouse Creek targeted for extraction within the project through a combination of physical, B. Project Description area during fifteen (15) phases. The aquatic habitat, and stream stabilization The project as authorized is located in applicant describes its proposal as improvements. The CMP proposes to the East District of Logan County, West placing dredged and fill material into direct surface water flow from the Virginia at Latitude 38°52′39″ and approximately 0.12 acre of emergent project area in existing drainage ways to Longitude 81°47′52″ depicted on the wetland, 10,630 linear feet (1.83 acres) promote the development of more United States Geological Survey 7.5- of ephemeral stream channels (all defined channels, thus creating 26,625 minute Clothier and Amberstdale permanent), and 28,698 linear feet (6.12 linear feet of streams (existing, non- Quadrangles. The mine site is located acres) of intermittent stream channels jurisdictional drainageways). approximately two miles northeast of (26,184 linear feet [5.77 acres] permanent and 2,514 linear feet [0.35 III. Characteristics and Functions of the Blair, in Logan County, West Virginia. Impacted Resources The project as authorized would result acre] temporary), and 165 linear feet The project will be located in Logan in discharge of dredged or fill material (0.034 acre) of perennial stream channel County, West Virginia. Logan County is into Right Fork of Seng Camp Creek, (all temporary), in conjunction with the located in the Cumberland Plateau and Pigeonroost Branch, Oldhouse Branch, construction, operation and reclamation the Mountains Major Land Resource and several of their unnamed tributaries of the Spruce No.1 Mine [Surface Area, which is dominated by very steep, (hereafter, references to Seng Camp Mining Control and Reclamation Act rugged side slopes, which are broken by Creek, Pigeonroost Branch, and (SMCRA) Permit S–5013–97, Incidental strongly sloping to steep ridgetops and Oldhouse Branch also include all Boundary Revision (IBR) 2]. As set forth very narrow bottoms along streams. The tributaries to those waters that would be more fully below, EPA does not agree project site is predominantly forested. impacted by the project as authorized). that the Spruce No. 1 EIS accurately The nearest town is Blair, located 2 Streams on-site exhibit surface water describes and quantifies stream miles away. The project would be connections to Spruce Fork of the Little resources that will be impacted. The located in the Coal River sub-basin. The Coal River, which ultimately flows into foregoing summary of impacts from the Spruce No. 1 EIS is set forth here for project as authorized would directly descriptive purposes. impact (by discharge of fill material) the 1 In the most recent NPDES permit (WV1017021) issued August 8, 2007, the outfalls number up to Including operations being conducted Right Fork of Seng Camp Creek, 28, but there are no outfalls numbered 11, 13, or in the Seng Camp Creek area (including Pigeonroost Branch, Oldhouse Branch 16. construction of Fill 1A), the mining plan and several of their unnamed

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tributaries. These on-site streams are the majority of the mineable coal in WV The 1997 WVDEP assessment tributaries of and exhibit surface water is located. The specific project area is reported that the Little Coal River connections to Spruce Fork of the Little located within the upper headwaters of watershed (including the Little Coal Coal River, which ultimately flows into the Spruce Fork of the Little Coal River River, Spruce Fork, and Pond Fork) had the Coal River. Watershed, which is a tributary of the a higher rate of impairment (defined as The following subsections describe Coal River. failure to achieve compliance with the characteristics and functions of the The Coal River sub-basin is a water quality standards, including the resources that could be impacted if the component of the larger Kanawha River aquatic life use and narrative criteria) Spruce No. 1 Mine is constructed as Basin and encompasses nearly 891 than areas elsewhere in the Coal River currently authorized. Section IV then square miles within West Virginia. sub-basin. will describe the impacts that could be Major tributaries include Marsh Fork, WVDEP collected additional caused if the Spruce No. 1 Mine is Clear Fork, Pond Fork, Spruce Fork, biological and chemical data throughout constructed as currently authorized. Little Coal River, and the Coal River. the Coal River sub-basin in 2002–2003 While the following subsections The Coal River sub-basin has in order to investigate causes and discuss watershed and stream approximately 283 miles of designated sources of impairments and to develop conditions and wildlife in separate ‘‘high quality’’ streams, which are Total Maximum Daily Loads (TMDLs). sections, it is important to remember designated as such because they have These assessments indicated numerous that the two are closely interrelated. five or more miles of desirable warm impairments caused by mining related Wildlife living in or depending upon water fish populations or have native or and other pollutants throughout the streams will be adversely impacted by stocked trout populations that are Coal River watershed and the Spruce adverse changes in water quality. utilized by the public. The Coal River Fork sub watershed. EPA derives its understanding of the Sub-basin has approximately 51 species potentially impacted resources and the 2. The Spruce Fork Sub-Watershed listed as endangered, threatened or state predicted impacts of the project from The Spruce No. 1 Mine is located in rare species. Many of these species rely several sources. The Draft (June 2003) the Spruce Fork sub-watershed. As and Final (October 2005) Interagency on the aquatic ecosystems for all or part authorized, the Spruce No. 1 Mine Mountaintop Mining/Valley Fills in of their life cycle. would impact substantially all of the Appalachia Programmatic EIS (PEIS) The Coal River sub-basin has been Right Fork of Seng Camp Branch, represent an important inter-agency impacted by present and past surface Pigeonroost Branch and Oldhouse effort designed to inform more mining. Based upon the National Land Branch, all of which are tributaries of environmentally sound decision-making Cover Database (NLCD) change product and flow to Spruce Fork. Spruce Fork is for future permitting of mountaintop for 1992–2001 and WVDEP’s GIS a fourth order tributary that combines mining/valley fills. It had a geographic mining files, more than 257 past and with Pond Fork to form the Little Coal focus of 12 million acres encompassing present surface mining permits have River. Spruce Fork is located in the most of eastern Kentucky, southern been issued in the Coal River sub-basin, southwestern portion of the Coal River West Virginia, western Virginia, and which collectively occupy more than watershed and drains approximately scattered areas of eastern Tennessee, 13% of the land area. Some sub- 126.4 square miles. The dominant and included the Spruce No. 1 project watersheds in the Coal River sub-basin landuse in the Spruce Fork watershed is area and the Coal River sub-basin. EPA have more than 55% of the land forest. Other important landuse types also consulted information gathered by occupied by surface mine permits. include urban/residential and barren/ the WVDEP, including an assessment of Trend analysis indicates mountaintop mining land. The Spruce Fork the Coal River sub-basin conducted in mining and valley fills as a percentage watershed lies entirely within the 1997, data collected to support the 2006 of the land cover will continue to Central Appalachian Ecoregion. This Coal River sub-basin total maximum increase in the Coal River sub-basin. ecoregion is more rugged and forested daily load (TMDL),2 and WVDEP and In 1997, the West Virginia Department and is cooler than the Western nationally available GIS data. EPA also of Environmental Protection (WVDEP) Allegheny Plateau Ecoregion to the reviewed the 2006 Spruce No.1 EIS, and performed its first comprehensive north. Extraction of coal, oil, and other sources of data including studies ecological assessment of the Coal River natural gas is common and has degraded conducted by EPA scientists and sub-basin. WVDEP assessed three major stream habitat in much of this discharge monitoring reports generated aspects of watershed health when it ecoregion. However, some small streams by Mingo Logan. In addition, EPA performs an ecological assessment: disturbed by past logging or ongoing oil/ consulted a wide range of peer-reviewed water quality, habitat condition, and gas extraction, such as those located in studies and literature. A Technical benthic macroinvertebrate community and around the Spruce No. 1 impact Support Document containing more status. The subsequent report, An area (including Oldhouse Branch), still specific data, maps of the watershed, Ecological Assessment of the Coal River function at a high level and are and an index of references is included Watershed (1997), indicated that currently of reference quality based on in the docket as supporting material. sediments, coal mining and inadequate WVDEP reference criteria. sewage treatment were the major The Spruce Fork sub-watershed has A. Watershed and Stream Conditions stressors on streams in this watershed. been impacted by past and present 1. The Coal River Sub-Basin As a result of that assessment WVDEP surface mining activity. According to identified as a priority the need to WVDEP Division of Mining and The Spruce No. 1 Mine project area is ‘‘[l]ocate and protect the few remaining Reclamation (DMR) permit maps, within located in the unglaciated portion of the high quality streams in the Coal River the Headwaters Spruce Fork Appalachian Plateau physiographic watershed. * * *’’ The assessment subwatershed there are more than 34 province of West Virginia. The indicates that because the watershed is past and present surface mine permits Appalachian Plateau province is where becoming increasingly impaired due to issued which collectively occupy more 2 A TMDL is a calculation of maximum amount stressors such as mining there is a great than 33% of the land area. Trend of a pollutant that a waterbody can receive and still need to protect the remaining quality analysis indicates mountaintop mining meet water quality standards resources. and valley fills as a percentage of the

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land cover will continue to increase in similar to the high quality communities stated need protecting within the Coal the Headwaters Spruce Fork sub- of White Oak Branch. River watershed. watershed and forest area will continue Pigeonroost Branch, which also B. Wildlife to decrease as a result. From 1992 to would be filled if the Spruce No. 1 Mine 2009 forest coverage has decreased from is constructed as currently authorized, The Central Appalachians ecoregion approximately 73% to 61% and can be also shares many macroinvertebrate where the Spruce No. 1 project will be expected to decrease to 53% of the sub- genera (many of them pollution located has some of the greatest aquatic watershed in the reasonably foreseeable intolerant) in common with the high animal diversity of any area in North future. quality community in White Oak America, especially for species of The EPA sampled several streams Branch, again indicating the comparable amphibians, fishes, mollusks, aquatic within the Spruce Fork sub-watershed health of the aquatic community in insects, and crayfishes. Salamanders in particular reach their highest North for the previously referenced Pigeonroost Branch. The WVSCI American diversity in the Central interagency PEIS. The results of the assessment of Pigeonroost indicates Appalachian ecoregion. The area PEIS studies indicate that the streams water quality is relatively good despite includes one of the most prominent within and near the project area are some minor historic mining in the biodiversity hot spots identified by the currently good quality streams based on watershed. Nature Conservancy. It has been the benthic macroinvertebrate and water The DA Permit also authorizes quality data. documented that other specialized placement of fill into Right Fork Seng wildlife such as some neotropical Focusing on the Spruce No. 1 project Camp Creek. While the WVSCI migrant birds and forest amphibians area, the streams that will be filled, assessment of the lower Seng Camp rely on the natural headwater stream particularly Oldhouse Branch and Creek does not indicate a high quality condition and adjacent forest types Pigeonroost Branch, are generally designation, benthic data available to exhibited by Pigeonroost Branch and healthy, functioning streams with good EPA show that many sensitive aquatic Oldhouse Branch for maintenance of water quality. A useful comparison is to insects occur in the forested headwater their populations. the nearby White Oak Branch. White reaches of the tributaries of Seng Camp Oak Branch, which flows into Spruce Creek (Valley Fill 1B). 1. Invertebrates Fork upstream of the Spruce No. 1 Mine In summary, the streams that would In a body of water, benthic site, was identified from the WVDEP be filled if the Spruce No. 1 Mine were macroinvertebrates are the bottom- 1997 surveys as a high quality stream. constructed as authorized by the DA dwelling (benthic) organisms that are White Oak Branch was part of the permit are high functioning streams large enough to be seen without the aid original Spruce No. 1 impact area but supporting healthy aquatic of microscopes (macro), and are not was subsequently avoided when the communities. By way of comparison, equipped with backbones (invertebrate). project was reconfigured because of it Oldhouse Branch and Pigeonroost Freshwater macroinvertebrates, such as high quality designation. WVDEP has, Branch are healthier than other streams mayflies and stoneflies, serve as in fact, adopted White Oak Branch as a in the Spruce Fork sub-watershed that indicators of ecosystem health, and play reference site and has stated that ‘‘It is have been impacted by mining a vital role in food webs and in the also important that the agency make a operations similar to the Spruce No. 1 transfer of energy in river systems. concerted effort to find the apparently Mine. The 2006 and 2008 WVDEP These organisms essentially convert few remaining streams within the 303(d) lists of impaired waters3 and the plant material into food sources (fats watershed that have not been 2006 TMDL report for the Coal River and proteins) essential for the significantly impacted by human sub-basin indicate that several streams maintenance of healthy fish and disturbances.’’ in the Spruce Fork watershed are amphibian populations, and for foraging Oldhouse Branch, which would be impaired and already have TMDLs terrestrial vertebrates such as birds, bats, filled if the Spruce No. 1 Mine is developed for mining related pollutants reptiles, and small mammals. Because of constructed as currently authorized, lies which include selenium, iron and their productivity and secondary adjacent to White Oak Branch and aluminum. Four of these impaired position in the aquatic food chain, exhibits similar healthy biological streams are directly northwest of the macroinvertebrates play a critical role in diversity and water quality (U.S. EPA Spruce No. 1 project, on the west side the delivery of energy and nutrients data). Using the West Virginia Stream of Spruce Fork, and in part, are along a stream continuum. They also are Condition Index (WVSCI), an impacted by the Mingo Logan Dal-Tex instrumental in cleaning excess living assessment method developed for use in Mining Operation. Spruce Fork itself, and nonliving organic material from West Virginia to help evaluate the which will receive discharges flowing freshwater systems, a service that health of benthic macroinvertebrate from the Spruce No. 1 project, is already contributes to the overall quality of the communities at the family level in listed as impaired by mining related resource. wadeable streams, both Oldhouse pollutants. Seng Camp Creek, a tributary Stream order typically dictates the Branch and White Oak Branch scored to Spruce Fork, which will be directly community structure of the resident comparably well, meaning that both impacted by and will drain the Spruce aquatic life. Headwater streams harbor were of similar quality and supporting No. 1 project, also has documented primarily benthic macroinvertebrate similar aquatic communities. The two water quality impairments. communities. In the southern streams also score comparably well Appalachian Mountains, The results of PEIS studies and other when the benthic macroinvertebrate macroinvertebrates of several orders data described above indicate that the community is considered at the genus including Ephemeroptera, Plecoptera streams within and near the project area (as opposed to family) level. For and Trichoptera (mayflies, stoneflies represent streams that WVDEP has instance, Oldhouse Branch shared 55 and caddiflies, all pollution sensitive total genera (many of them pollution groups), have been found to be rich in 3 According to WV water quality standards a intolerant) with White Oak Branch (EPA stream is designated as impaired by WVDEP if it species, including many endemic data) indicating a diverse and healthy does not fully support one or more of its designated species and species considered to be aquatic community in Oldhouse Branch uses. rare. This diversity and unique

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assemblage has been attributed to the WVDEP monitoring database indicate 2% of stream samples in all of Central unique geological, climatological and that macroinvertebrates are diverse in Appalachia had more stonefly genera hydrological features of this region. the Spruce No. 1 project area. This than Oldhouse within a single sampling Macroinvertebrates are good diversity suggests that the streams in the event. indicators of watershed health and are project area are healthy. Data collected Based on this information, the used by West Virginia, states in the Mid- in Oldhouse Branch indicates that the headwater streams draining the Atlantic and nationally to determine quality of the macroinvertebrate proposed Spruce No. 1 project area compliance with water quality community in Oldhouse Branch is in appear to contain high richness and standards. They are good indicators the top 5% of all streams in the Central abundance of sensitive because they live in the water for all or Appalachia ecoregion. In 1999–2000, macroinvertebrate wildlife and indicate most of their life. Macroinvertebrates EPA collected eighty-five (85) a healthy aquatic ecosystem that is vital can be found in all streams, are macroinvertebrate genera in riffle to downstream waters and the fish and relatively stationary and cannot escape complexes of Pigeonroost Branch and wildlife that depend on them. Moreover, pollution. They also differ in their Oldhouse Branch. Data from EPA and because of the high degree of taxonomic tolerance to the amount and types of the permittee’s consultants (Sturm Env. similarity between these streams and pollution. Macroinvertebrate Services, BMI, Inc.) from the Spruce No. White Oak Creek (a DEP-designated communities integrate the effects of 1 EIS show that collectively, high quality water), and the strong stressors over time and some taxa (i.e., Pigeonroost, Seng Camp, and Oldhouse evidence that many of the sensitive taxa taxonomic category or group such as Branch contain a high number of have been eliminated from the adjacent phylum, class, family, genus, or species) sensitive mayfly genera and individuals. Dal-Tex mine discharges, EPA believes are considered pollution-tolerant and A total of 21 genera have been identified that as proposed, the Spruce No. 1 Mine will survive in degraded conditions. from these three headwater streams, could cause or contribute to Some taxa are pollutant-intolerant and indicating that these systems offer high unacceptable degradation of this will die when exposed to certain levels water quality and habitat. Many of these sensitive aquatic life and the ecosystem of pollution. Thus, the composition of mayfly genera are not shared with the that depends on them. communities informs scientists about receiving Spruce Fork, making these 2. Vertebrates the quality of the water. headwater streams unique to the permit Different taxa are more sensitive to area (those few genera shared with Two important groups of vertebrates, pollution and other stressors than other Spruce Fork are moderately pollution- fish and salamanders, are the major taxa. In a healthy stream, one would tolerant genera such as Baetisca, Baetis, stream-dwelling vertebrates in the expect to find a high diversity of taxa and Isonychia). This count represents project area. and a large number of different taxa only an estimate of mayfly richness in a. Salamanders including species that are more these streams; several other genera have sensitive to (i.e., less tolerant of) Salamanders are a diverse and unique been found by WVDEP in other Spruce stressors. Using the mayfly as an form of Appalachian wildlife and are an Fork tributaries and are potentially example, some genera of mayfly are important ecological component in the present in the project area. As many as more sensitive than others. The mesic forests of the ecoregion. nine genera of mayflies have been presence of a large number of Ecologically, salamanders are intimately collected in Oldhouse Branch in any individuals from the more sensitive associated with forest ecosystems acting one season-specific sample, with an mayfly genera indicates good water as predators of small invertebrates and average of seven genera across multiple quality conditions. serving as prey to larger predators. They Mayflies (Insecta: Ephemeroptera) in samples. These data, cited above, are are often the most abundant group of particular have long been recognized as significant and indicate that less than vertebrates in both biomass and number. important indicators of stream 5% of all other streams in this ecoregion Some species of salamanders are ecosystem health. Mayflies are a very have more mayflies than Oldhouse aquatic; others are semi-aquatic, important part of the native organisms Branch. Previous government and splitting their lives between forests and in these streams. In Appalachian academic research on the effects of headwaters and depending upon intact headwater streams, they routinely make Appalachian coal mining on mayfly forest-headwater connections for up between 30%–50% of the insect communities indicate that the Spruce movement. Typically, salamanders assemblages in certain seasons. No. 1 Mine may eradicate most of the occupy small, high-gradient headwater Numerous studies demonstrate that species currently occupying the project streams while fish occur farther mayfly community structure reflects the area and in the immediate downstream downstream. chemical and physical environment of receiving waters. The PEIS identified thirty-one (31) watercourses. Stoneflies (Plecoptera) also represent species of salamanders in the West Not only do trout rely on mayflies and an important group of aquatic insects in Virginia portion of the study area. Of stoneflies, but a group of colorful the structure and functioning of stream these, 21 species are known to occupy benthic fishes known as Darters ecosystems. Stoneflies fill important cove hardwood forests while 25 species (Percidae) feed primarily on mayflies. A trophic roles in stream ecosystems, as are known to inhabit mixed mesophytic dietary study of small stream fishes in displayed by their detritivory hardwood forests like those present the Appalachian coalfields of Kentucky (decomposers) and predatory nature. within portions of the Spruce No. 1 showed that gut contents of several Stoneflies are primarily stenothermic, project area. Petranka (1993) presented darters contained mostly mayflies. meaning they require cool to cold water a conservative estimate that there are Darters are an important part of the fish and high oxygen concentration to about 4,050 salamanders per acre of assemblage and many are hosts for survive. Data compiled from EPA, mature forest floor in Eastern forests. mussel larvae. Several darter species WVDEP, and the permittee’s consulting Twice as many larval salamanders are inhabit Spruce Fork in the immediate firms show that Oldhouse, Pigeonroost, estimated to occur (∼8,000/acre) in these vicinity of the project area. and Seng Camp collectively yielded 16 same areas. Sampling data included in the PEIS, genera of stoneflies. Oldhouse and The southern Appalachians, where the Spruce No. 1 EIS and from the Pigeonroost both had 11 genera. Only the Spruce No. 1 project is located, have

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one of the richest salamander fauna in and the availability of emergent aquatic The Cerulean warbler in particular is the world. Nearly ten percent of global insects. considered an area-sensitive species; it salamander diversity is found within The Louisiana waterthrush (Seirus is thought to require large (730 sq miles) streams of the southern Appalachians. motacilla), another neotropical migrant tracts of mature interior forest habitat to Most of the species found in the project song bird, is considered an obligate support stable breeding populations. It area belong to the family headwater riparian songbird (an is a canopy-foraging insectivorous Plethodontidae, the lungless example of water-dependent wildlife) neotropical migrant songbird that breeds salamanders, which require high because its diet is comprised in mature deciduous forests with moisture retaining leaf-litter, dense predominantly of immature and adult broken, structurally-diverse canopies shade, and cool flowing streams to aquatic macroinvertebrates found in and across much of the eastern United States survive and reproduce. alongside these streams and it builds its and winters in middle elevations of the With respect to the Spruce No. 1 nest in the stream banks. Breeding Andes Mountains of northern South project area, salamanders have been waterthrushes nest and forage primarily America. Important among a number of surveyed in White Oak Branch. White on the ground along medium- to high- breeding season constraints are the loss Oak Branch had good numbers of gradient, first- to third-order, clear, of mature deciduous forest, particularly Northern Dusky (9 adult, 7 larvae), perennial headwater streams flowing along stream valleys, and fragmentation Appalachian Seal (15 adult, 12 larvae), through closed-canopy forest. Good and increasing isolation of remaining and Two Lined salamanders (1 adult water quality is a key component of the mature deciduous forest. The cerulean and 15 larvae). Although not species breeding habitat. Headwater warbler appears to be more sensitive specifically sampled, the salamander streams like those of Spruce Fork that than most other North American birds populations in Pigeonroost and support healthy macroinvertebrate to landscape-level changes in habitat. Oldhouse Branch are likely very similar communities would be important food The U.S. Fish and Wildlife Service has to those in White Oak Branch. Applying sources for species such as the designated the cerulean warbler a these numbers from White Oak Branch, Louisiana waterthrush. Species of Management Concern and a EPA would expect abundant and The Appalachian Mountain Bird Species of Conservation Concern diverse salamander populations (∼5 per Conservation Region (AMBCR), which throughout its range. It has also been square meter) in the project area. extends from southeastern New York preliminarily designated by the south to northern Alabama, is thought to Appalachian Mountains Joint Venture b. Fish support a substantial portion of the as a Species of Highest Conservation Priority within the Appalachian WVDNR fish assemblage data in the Louisiana waterthrush’s breeding Mountains Bird Conservation Region, mainstem of Spruce Fork indicate that population, perhaps as much as 45 which encompasses West Virginia. The the fishery is in relatively good percent. West Virginia, the only state AMBCR is thought to support about 80 condition, and that it is an important that lies entirely within the AMBCR, percent of the species’ entire breeding ecological and recreational resource that encompasses the largest contiguous area population, and the AMBCR breeding should be protected. Spruce Fork is a of high relative breeding abundance population likely functions as a source locally important rock bass and over the species’ entire breeding range, for populations elsewhere in the smallmouth bass fishery. Rock bass and based on North American Breeding Bird breeding range. smallmouth bass are moderately Survey (BBS) data from 1994–2003. The sensitive gamefish species. Although West Virginia population may serve as d. Bats impacted by mining, fish assemblage a source for populations elsewhere in Thirteen species of bats are found in data collected in 2007 in the mainstem the breeding range. The Louisiana West Virginia. Most North American of Spruce Fork indicate that the waterthrush is also an area-sensitive bats are insectivorous, which capture assemblage is still in relatively good species, requiring undisturbed forest their prey by foraging on the wing, condition. tracts of 865 acres to sustain a catching flying insects from a perch, or population. The most effective c. Birds collecting insects from plants. management protocol for the Louisiana Different species of bats often have Many terrestrial species depend on waterthrush would appear to be distinct life history traits and behaviors. the headwater streams like those of the protection of forest tracts and water Some bats are solitary and hang in tree Spruce Fork for their survival. The systems inhabited on both breeding and foliage, attics, barns, and other protected ecotone (transition area) between wintering areas particularly moderate- places during the day. Other bats are terrestrial and aquatic habitats results in to high-gradient headwater streams, colonial and cluster in caves and mine diverse flora and fauna. For example, which compose 75–80% of stream tunnels. Bats have one of the slowest unique avifauna assemblages can be length in a typical watershed reproductive rates for animals their size. found along the riparian zone of Bird species that rely on mature forest Most bats in northeastern North headwater streams. The Acadian habitats that are on the Audubon watch America have only one or two pups a flycatcher (Empidonax virescens) is list as declining species and are listed year and many females do not breed commonly encountered throughout the as probable in the area include the until their second year. This low region, but despite the large expanse of Swainson warbler (Limnothlypis reproductive rate is somewhat offset by existing forest habitat, it is primarily swainsonii), Kentucky warbler a long life span, often over 20 years. The restricted to forested tracts with (Oporornis formosus), and Cerulean little brown bat, common in North understory vegetation along small warbler (Dendroica cerulean). The America and in West Virginia, is the headwater streams, where it can feed on woodthrush was a confirmed breeder in world’s longest lived mammal for its emergent aquatic insects. Spruce Fork this area and is declining at 1.7% per size, with a maximum life span over 32 [appears to] meet[s] these habitat year, according to the Audubon Watch years. requirements. Neotropical migrant List. A primary cause of the decline is During the winter, some bats migrate songbirds are also often attracted to forest fragmentation, which leads to south in search of food, while others headwater streams for breeding areas increased nest parasitism by the brown hibernate through the cold weather because of the diversity of the habitat headed cowbird (Molothrus ater). when insects are scarce. Bats that do

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migrate usually travel less than 200 definition of ‘‘withdraw specification,’’ water body from the effects of pollutants miles, often following the same routes 40 CFR 231.2(a). that are not easily measured, or for as migratory birds. EPA’s regulations at 40 CFR 231.2(e) pollutants that do not yet have numeric Species that have potential to be define ‘‘unacceptable adverse effect’’ as: criteria, such as chemical mixtures, found in the area of south-central West Impact on an aquatic or wetland ecosystem suspended and bedded sediments and Virginia include the northern bat which is likely to result in significant floatable debris. Narrative criteria have (Myotis septentrionalis), big brown bat degradation of municipal water supplies or the same effect and importance as (Eptesicus fuscus), red bat (Lasiurus significant loss of or damage to fisheries, numeric criteria, and interpretation of borealis), eastern small-footed bat shellfishing, or wildlife habitat or recreation narrative criteria fills an important gap (Myotis leibii), Virginia big-eared bat areas. In evaluating the unacceptability of in Clean Water Act protection. See 54 (Corynorhinus townsendii virginianus) such impacts, consideration should be given FR 23868, 23875 (June 2, 1989). and the Indiana bat (Myotis sodalis). to the relevant portions of the Section 404(b)(1) Guidelines (40 CFR Part 230). B. Adverse Impacts of the Proposed Both the Indiana and Virginia big-eared Project bats are listed as endangered under the Among other things, the Section Endangered Species Act. 404(b)(1) Guidelines require The impacts from the Spruce No. 1 Indiana bats have been described as consideration of whether there are less project will occur through several once one of the most common mammals damaging practicable alternatives to different pathways. There will be direct in the eastern United States. Between meet the project purpose; whether the impacts caused by the discharge of fill 1960 and 2004, biologists have project would violate other (excess spoil and construction of valley documented a 56 percent population environmental standards, including fills) into headwater streams. Loss of decline in Indiana bats. Indiana bats applicable water quality standards; this habitat will impact wildlife that feed solely on emerged aquatic and whether the project would cause or depend on headwater streams for all or terrestrial flying insects. They are contribute to significant degradation of part of their lifecycles. The loss of habitat generalists and their selection of the Nation’s waters; and whether the streams and wildlife will have an effect prey reflects the environment in which project as authorized fails to adequately on other areas by the removal of they forage. In a study in the Allegheny minimize and compensate for impacts functions (such as contribution of flow Mountains, activity in non-riparian to aquatic resources. and nutrients) performed by these areas upland forest and forests in which Specifically, those portions of the and by discharges from the fill that may timber harvest had occurred was low Guidelines which are particularly contribute pollutants to downstream relative to forested riparian areas. This important in evaluating the waters. The project could contribute to evidence suggests that the forested unacceptability of environmental conditions that would support blooms riparian zones of the project area would impacts in this case are described below of golden algae that release toxins that be more suitable habitats for Indiana bat and further detailed in this proposed can kill fish and other aquatic life. In populations than active or restored determination: addition, impacts from the project could • mining sites. Less environmentally damaging contribute to cumulative impacts from practicable alternatives (230.10(a)); multiple surface mining activities in the IV. Basis for Proposed Determination • Water quality impacts (230.10(b)); Coal River sub-basin. • An understanding of the adverse A. Section 404(c) Standards Significant degradation of waters of the United States (230.10(c)); impacts of the proposed project requires The CWA requires that exercise of the • Minimization of adverse impacts to an understanding of the nature and final Section 404(c) authority be based aquatic ecosystems (230.10(d)); importance of headwater streams and on a determination of ‘‘unacceptable • Impacts on existing indigenous their contribution to the overall health adverse effect’’ to municipal water aquatic organisms or communities of the watershed and to wildlife living supplies, shellfish beds, fisheries, (230.10(e)); in the watershed. Headwater streams wildlife, or recreational areas. While • Cumulative effects (230.11(g)); and play a significant role in the ecology of EPA strongly prefers to initiate the • Secondary effects (230.11(h)). the Appalachian region. They are Section 404(c) process prior to issuance The purpose of the Clean Water Act sources of clean, abundant water for of a permit, Section 404(c) and EPA’s is to ‘‘restore and maintain the physical, larger streams and rivers and provide implementing regulations clearly chemical, and biological integrity of the active sites for biogeochemical authorize EPA to initiate the Section Nation’s waters.’’ 33 U.S.C. 1251(a). Part processes that support both aquatic and 404(c) process after a permit has been of the concept of protecting the terrestrial ecosystems. The benefits of issued. ‘‘biological integrity’’ of the Nation’s healthy headwaters are cumulative as Section 404(c) authorizes the waters is protection of the indigenous, the critical ecological functions of many Administrator ‘‘to prohibit the naturally occurring community. This small streams flowing into the same specification (including the withdrawal goes beyond protecting the function river system are necessary to maintain of specification) of any defined area as performed by various members of the ecological integrity of the larger stream a disposal site.’’ (emphasis added). aquatic community and extends to and river systems. Ecosystem functions Section 404(b) makes clear that disposal protection of the quality of the aquatic performed by headwaters are lost when sites are specified for each permit by the community itself. See Alameda Water & the headwater stream is buried or Secretary of the Army (and such Sanitation District v. EPA, 930 F. removed. These functions are lost not specification must be consistent with Supp.486 (D. Colo. 1996). only to the headwater stream itself, but the 404(b)(1) Guidelines). Thus, EPA’s West Virginia has defined an aquatic also to downstream ecosystems. Some of implementing regulations make clear life designated use for its waters, and the functions of Appalachian headwater that under Section 404(c) ‘‘the has adopted or developed numeric and streams include interfacing with the Administrator may exercise a veto over narrative water quality standards to terrestrial environment and the specification by the U.S. Army protect resident aquatic life. While transformation of organic matter from Corps of Engineers or by a state of a site numeric criteria help protect a water the surrounding landscape (such as leaf for the discharge of dredged or fill body from the effects of specific litter) into nutrients; storing and material.’’ 40 CFR 231.1(a); see also chemicals, narrative criteria protect a retaining nutrients, organic matter, and

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sediments; exporting water and of first- and second-order streams control ditches proposed for mitigating nutrients downstream; and moderating impact not only aquatic life within the the loss headwater streams because of flow rate and temperature. stream, but also the functions aquatic extreme chemical conditions, In addition, as set forth below, the life contributes to downstream aquatic temperature extremes, and the overall project has the potential of not only systems in the form of nutrient cycling, lack of a lotic (flowing) flow regime. removing the ecosystem functions food web dynamics, and species Some of the most sensitive genera will performed by the impacted areas, but diversity. likely be extirpated or drastically also turning the impacted areas into Additionally, the removal of reduced from the sites due to chemical sources discharging pollutants and Pigeonroost Branch and Oldhouse and habitat degradation. degradation into the downstream Branch as sources of freshwater dilution As previously noted, it is useful for ecosystem. combined with potential pollutant predictive purposes to consider the In order to predict the impacts of the discharges from the project could impact from similar, nearby mining proposed Spruce No. 1 project, EPA has adversely affect downstream water operations. EPA compared benthic examined impacts caused by similar chemistry, which in turn could have an collections from the Spruce No. 1 site to projects both in the Coal River sub-basin adverse impact on aquatic and water- Mingo Logan’s nearby Dal-Tex Mining and elsewhere, including but not dependent wildlife. Associated site. Both areas had equal numbers of limited to the similar and nearby Mingo disturbances caused by the project benthic samples collected. Eighty-five Logan Dal-Tex operation. The impacts (clearing, road construction, etc.) may (85) total genera were collected from from the Spruce No. 1 Mine as impact habitat and result in discharges Pigeonroost Branch and Oldhouse authorized are likely to be similar to that could adversely affect water Branch between 1999–2000, while only those caused by the Mingo Logan Dal- chemistry. 55 generally opportunistic genera were Tex operation. This was acknowledged Large-scale deforestation proposed at collected from Beech Fork and Left Fork in the Spruce No. 1 EIS, which stated: Spruce No. 1 Mine may adversely affect Beech Fork that drain now-idled Dal- ‘‘The past and present impacts to habitat and result in adverse effects on Tex operations. This represents a topography, geology, and mineral terrestrial wildlife. Approximately 2,278 significant loss of macroinvertebrate resources of the previous mining along acres of deciduous forests will be genera. In particular, the decrease in the the western side of Spruce Fork are destroyed by the Spruce No. 1 Mine. number of genera and individuals from similar to the anticipated impacts of the Appalachian forests support some of the more sensitive genera indicates Spruce No. 1 Mine, as mining is highest biodiversity in North America. degrading water quality conditions. proposed to occur in the same strata.’’ Additionally, these forested headwaters These conditions can be expected to EPA also has considered information are important components of the overall occur in the Spruce No. 1 Mine if the related to impacts from the portions of ecosystem and provide valuable project proceeds as authorized. the Spruce No. 1 Mine that have been services, such as contributing organic The EPA also sampled several streams constructed. Unless modified, the matter from coarse wood to dissolved within the Spruce Fork watershed for Spruce No. 1 project as currently organic matter, which provides the PEIS. Eight monitoring stations were authorized could cause impacts similar sustenance to stream biota and established within the watershed. Three to the impacts caused by the Mingo contributes to habitat structure. Loss of monitoring sites were located within or Logan Dal-Tex Operation and other this valuable input to downstream near the Spruce No. 1 project area mining activity in the watershed. waters could have an adverse impact on (White Oak Branch, Oldhouse Branch, Thus, EPA believes that the predicted aquatic organisms that depend on these and Pigeonroost Branch), and three were impacts from the Spruce No. 1 Mine if ecological processes for maintenance of located in areas that historically had constructed, as currently authorized, their populations. been impacted by mining (Rockhouse could have unacceptable effects on Creek, Beech Creek, and Left Fork of a. Freshwater Macroinvertebrates wildlife and fisheries. Consistent with Beech Creek). The remaining two the agency’s implementing regulations, As previously described, monitoring stations were located on the EPA has given consideration to the macroinvertebrates are diverse in the mainstem of Spruce Fork and other relevant portions of the Guidelines and Spruce No. 1 project area and because stressors such as residences may have we also believe that the project is of their productivity and secondary influenced the water quality and inconsistent with the 404(b)(1) position in the aquatic food chain; they biological communities. Guidelines. play a critical role in the delivery of The results of the PEIS studies energy and nutrients along a stream indicate that the streams within and 1. Impacts to Wildlife and Fisheries continuum. They also are instrumental near the project area currently support Impacts from the Spruce No. 1 project in cleaning excess living and nonliving high quality benthic macroinvertebrate will occur in several ways. First there organic material from freshwater communities and water quality, while will be discharge of excess spoil and systems, a service that contributes to the the streams located in historically construction of valley fills that will overall quality of the watershed. The MTM/VF mined areas are impaired result in the loss of headwater streams Spruce No. 1 project may adversely based on the WVSCI and presence/ of the Right Branch of Seng Camp impact most of the mayfly, stonefly, and absence of indicator macroinvertebrate Branch, Pigeonroost Branch, and caddisfly genera that currently inhabit taxa. One can predict from these data Oldhouse Branch, all tributaries to waters in or downstream of the project sets that the high quality streams in the Spruce Fork. Wildlife that live in those area through both burying their stream project area (i.e., Oldhouse Branch and streams or within the footprint of the habitats and increasing chemical Pigeonroost Branch) could be valley fills, including ecologically loading to receiving waters. unacceptably adversely impacted by the valuable aquatic organisms, will be Data from other MTM/VF related Spruce No. 1 Mine. buried. Loss of these types of headwater studies within this subecoregion show a streams by valley fills may cause correlation between MTM/VF activity b. Salamanders permanent loss of ecosystems that play and downstream patterns of extirpation The southern Appalachians, where a critical role in ecological processes. with many of these genera. Aquatic life the Spruce No. 1 project is located, have Disruptions in the biological processes is unlikely to survive in the erosion one of the richest salamander fauna in

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the world. Impacts from the activities These data indicate that salamanders Furthermore, due to the removal of authorized as part of the project could decline or disappear from surface mined freshwater dilution currently being have a significant adverse impact on areas and that certain mining mitigation provided by Pigeonroost Branch and this wildlife group located within the measures do not offset these impacts. Oldhouse Branch to Spruce Fork there project area. The Spruce No. 1 Mine will Because salamanders represent the main is the potential for pollutants such as have significant adverse impacts on the vertebrate predator in these headwater selenium to bioaccumulate and be toxic salamander community either through channels and will be eradicated under to fish and wildlife. Adverse impacts of direct burial, habitat degradation, or the proposed project, EPA believes that increased levels of selenium include discharges of toxic chemicals. a key component of the aquatic food birth defects in fish and other aquatic As previously stated, thirty-one (31) web will be lost from the aquatic life and can also result in toxic affects species of salamanders are known from ecosystem which may have to embryos, resulting in abnormal the West Virginia portion of the PEIS unacceptable adverse affects on wildlife development or death for those study area. Of these, 21 species are and fish resources in the project area. organisms. WVDEP is currently conducting several studies on the known to occupy cove hardwood forests c. Fish while 25 species are known to inhabit sublethal effects of selenium on fish. mixed mesophytic hardwood forests The fish assemblage in Spruce Fork is Other studies suggest a link between the like those present within portions of the currently considered healthy. While fish degradation of fish health and Spruce No. 1 project area. Petranka are less sensitive to water chemistry mountaintop mining activities. As a (1993) presented a conservative estimate changes with respect to TDS/ result of these studies, EPA believes that of about 4,050 salamanders per acre in conductivity, it is important to ensure Spruce No. 1 as authorized has the mature forest floors in Eastern forests. that the currently healthy fish potential to have unacceptable adverse Twice as many larval salamanders are assemblage is protected. Some studies affects on fish resources. estimated to occur (∼8,000/acre) in these have shown that mountaintop mining d. Birds same areas. for coal and creation of valley fills has Approximately 2,278 acres of Applying these conservative estimates had a harmful effect on the composition of stream fish communities. Comparison deciduous forests will be destroyed by to the Spruce No. 1 Mine project area the Spruce No. 1 Mine and 7.48 miles indicates that more than 20 million of streams without mining in the watershed and sites downstream of of headwater stream will be buried as a salamanders could be buried by the result of valley fills authorized by the valley fills in Kentucky and West authorized valley fills and adjacent project. Loss of headwater streams from Virginia indicate that streams affected mined uplands. In stark contrast, recent the project could impact water by mining had significantly fewer total data from Gingerich (2009) showed that dependent birds, such as the Louisiana fish species and fewer benthic fish coal mine erosion control ditches (like waterthrush, that require forested species than streams without mining in those proposed for mitigation in the headwater streams for foraging on the same areas. A similar pattern of Spruce No. 1 permit) between three and insects and nesting by elimination of the fewer taxa in streams affected by mining 20 years old had strikingly different headwater areas associated with was observed with respect to species amphibian communities than Pigeonroost and Oldhouse Branch. The richness. undisturbed sites. Specialist salamander West Virginia Breeding Bird Atlas species present in undisturbed sites Fulk et al. (2003) used the Mid- (1984–1989) lists the Louisiana were replaced with more generalist frog Atlantic Highlands Index of Biotic waterthrush as a probable breeder in the species on the reclaimed sites. Frogs are Integrity (IBI—a multi-metric index Spruce No. 1 project area. not ecological equivalents of headwater used to assess biotic health) to analyze As indicated previously, the salamander species. The loss of fish data from 27 streams in West Appalachian Mountain Bird specialist salamanders and the specific Virginia. In this study streams were Conservation Region (AMBCR) is functions they provide, therefore, may classified based on existing levels of thought to support a substantial portion result in significant adverse impacts to disturbance (e.g., no mining in the of the species’ breeding population, the aquatic ecosystem. watershed, sites downstream of valley perhaps as much as 45 percent. Due to Additional data from a USFWS study fills, sites with mountaintop mining in the large proportion of the population conducted in MTM/VF areas of the the watershed, sites downstream of that breeds there and the threats to Appalachian mountains found valley fills, and sites with residential habitat and water quality posed by a salamander assemblages in valley-filled development in the watershed) and variety of land and water uses that are streams had lower SPAR index scores (a compared fish health among stream predicted to intensify in coming years salamander index of biological integrity) classes. The study showed that (including large-scale loss of habitat and than non-filled streams. A 2004 study assessment scores from the sites water quality degradation associated by FWS compared the unmined White downstream of valley fills were with Appalachian surface mining), the Oak Branch to the mine-impacted significantly lower than scores from U.S. Fish and Wildlife Service has Rockhouse Creek. The salamander sites without mining in the watershed, designated the Louisiana waterthrush a assemblage in Rockhouse Creek scored indicating that fish communities were Species of Management Concern and a a 6.7 on the SPAR compared to a perfect degraded in sites downstream of valley Species of Conservation Concern within 10 of White Oak Branch. No larval fills. the AMBCR. Northern Dusky or Appalachian Seal EPA believes that the loss of 2,278 The Louisiana waterthrush’s diet is salamanders were found in Rockhouse acres of forest and healthy headwater comprised predominantly of immature Creek, which may indicate reproductive streams of Spruce Fork and the and adult aquatic macroinvertebrates effects on these sensitive species. permanent loss of their ecological found in and alongside headwater Moreover, salamanders in Rockhouse processes such as nutrient cycling and streams. Studies indicate that breeding Creek as well as in other valley filled production of organic matter for territory density and occupancy were streams had higher concentrations of downstream food webs may result in reduced along streams where benthic selenium than salamanders from non- adverse impacts to downstream fishery macroinvertebrate communities had filled streams. resources. been degraded due to anthropogenic

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land uses and acidification. Lower (BBS) data for the cerulean warbler other types of forest fragmentation breeding territory densities occurred indicate that the species declined because it removes these ridges. along streams impacted by acid mine sharply and steadily by 3–3.2% per year Investigators concluded that the species drainage than along circumneutral from 1966–2005, the steepest rate of was negatively affected by mining streams. Similarly, some indices of decline of any North American warbler activities from loss of forested habitat, benthic macroinvertebrate integrity monitored by the BBS. Geostatistical particularly ridge tops, and from the were higher where breeding Louisiana analysis of BBS data concluded that degradation of remaining forests, as waterthrushes were present than areas declines in the species’ abundance was indicated by lower territory density in from which they were absent. Stream concentrated in areas of formerly high fragmented forests and lower territory reaches where breeding birds were abundance within the breeding range. density closer to mine edges. detected had a greater proportion of The species is now absent or much Spatial analyses of the effect of pollution-sensitive benthic reduced in some portions of its range, Appalachian mountaintop mining on macroinvertebrates than reaches where and the overall population trend is one interior forest indicate that the loss of they were not detected supporting the of rapid range-wide decline. Today’s interior forest is 1.75–5.0 times greater concept that good water quality is a key population of Cerulean warblers is more than the direct loss of forest due to component of the species breeding than 75% lower than the population in mountaintop mining. Investigators habitat. 1966. concluded that the loss of Southern In addition to stream pollution from The decline of the cerulean warbler is Appalachian interior forest is of global anthropogenic land uses, elevated likely related to habitat loss and significance due to the rarity worldwide predator numbers from landscape-scale degradation on both the wintering and of large expanses of temperate forest fragmentation and the loss of breeding ranges. Up to 60 percent of the deciduous forest. riparian forest canopy could also species’ wintering habitat may have The Spruce No. 1 Mine will impact negatively impact future population already been converted from primary mature forested habitat, over a long levels of the Louisiana waterthrush. forest to other land uses, and loss, timeframe, replacing the impacted areas Ongoing impacts associated with fragmentation, and degradation of with reclaimed areas dominated by landscape disturbances, including eastern North American forests grasses and herbaceous species. Many defoliation, increased stream represent a threat to its reproductive reclaimed areas such as those expected temperatures, and compositional shifts success. at Spruce No. 1 show little or no in benthic macroinvertebrate Recent studies have documented poor regrowth of woody vegetation even after communities, also could reduce reproductive success for this species in 15 years. The PEIS found significant populations in the AMBCR. Therefore, areas with low overall forest cover and differences in bird populations between measures of Louisiana waterthrush high degrees of forest fragmentation. forested and reclaimed sites, namely the distribution and reproduction may be Recommended conservation strategies loss of the above mentioned species, useful indicators of both stream and focused on minimizing habitat loss in and subsequent replacement by more forest ecosystem integrity. more productive forested habitats. opportunistic grassland species. Also, Management for this species has Others studies found that cerulean the loss of the healthy headwater areas focused on protecting core wooded warbler abundance increased with of Spruce Fork will reduce the feeding riparian habitat, including distance from edges created by surface and foraging areas available to specialist establishment of undisturbed riparian mining in southwestern West Virginia, Central Appalachian bird species forest cover, and preservation and and that abundance was positively thereby potentially impacting their improvement of water quality to ensure correlated with large blocks of mature viability in the Spruce Fork watershed aquatic insect biomass and diversity. deciduous forest and low amounts of and the greater Central Appalachian Data from the PEIS showed that most of edge in the landscape. The authors ecoregion. these forest-specific bird species were concluded that mountaintop mining- Additional impacts to avian species eliminated from the adjacent Dal-Tex valley fills altered the spatial may be realized by elevated levels of mine area. For water-dependent configuration of forest habitats and selenium in the Spruce Fork waters that wildlife, like the Loiusiana waterthrush, created edge and area effects that are feeding areas for birds. In some preservation of large tracts of forest negatively impacted the abundance and freshwater food webs, selenium has containing headwater streams is needed occurrence of cerulean warblers in the bioaccumulated to four times the level for the conservation of this species in vicinity of reclaimed mines. considered toxic, which can expose the central Appalachians. Additional investigators found that birds to reproductive failure when they The project also could impact other the Cerulean warbler breeding eat fish or insects with high selenium bird species that rely on mature forest population in forested areas of southern levels. habitats. Bird species that rely on West Virginia, which constitutes a As a result of the potential for these mature forest habitats that are abundant substantial portion of the overall impacts to occur to avian species within in the Appalachian region are Kentucky population, may be threatened by loss the project area, EPA believes that the warblers in the understory; and wood and degradation of forested habitats Spruce No. 1 project as authorized has thrush, Swainson’s warbler, Acadian from mountaintop mining-valley fill the potential to cause or contribute to flycatcher, and ovenbirds in mesic activities. These investigators reported unacceptable adverse impacts to hardwoods. These and many other avian that territory density was about 6.5 wildlife. species are all impacted by forest times higher in intact forests (4.6 fragmentation and habitat loss caused territories per 10 ha) than in fragmented e. Bats by surface coal mining. forests (0.7 territories per 10 ha). They Large-scale mountaintop removal/ Most notable is the Cerulean warbler, also found that territories occurred more valley fill mining has been listed among a species that has declined rapidly over frequently on ridges than at mid-slope the threats to bat species in the region the last 40 years, which relies on mature or in valleys, and suggested that according to information supplied to forests, and whose core range mirrors mountaintop mining-valley fill may EPA by the FWS. Loss of the bat’s the Appalachian Coalfields. Analyses of have a greater impact on breeding habitat, foraging areas, and food North American Breeding Bird Survey populations of cerulean warblers than sources—in conjunction with recently

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indentified concerns related to white- in toxic effects to embryos, resulting in that exceed the chronic numeric water nose syndrome—may result in abnormal development or death for quality criterion of 5 μg/l. The data from unacceptable adverse impacts to those organisms. For aquatic animals, the Dal-Tex mine do not indicate any wildlife resources. the concentration range between decrease in Se concentrations over time In the time since the Spruce Fork No. essential and toxic is very narrow, being (from 2000–2007). These data strongly 1 EIS was produced and the SMCRA only a few micrograms per liter in suggest that the Spruce No. 1 Mine is and CWA Section 404 permits were water. As described above, selenium likely to cause exceedances of the Se issued, white-nose syndrome (WNS), a toxicity is primarily manifested as water quality criterion and lead to fungal infection, was first reported reproductive impairment due to significant degradation of water quality. among hibernating bats in West maternal transfer, resulting in In addition, as noted above, portions Virginia. In the winter of 2008–2009, embryotoxicity (embryonic death) and of the Spruce No. 1 project have been WNS was found in 4 caves in West teratogenicity (birth defects) in constructed in the Seng Camp Creek Virginia, including known hibernation egglaying vertebrates. The most sub-watershed. The NPDES permit locations for Indiana bats (Myotis sensitive toxicity endpoints in fish issued for the Spruce No. 1 project sodalis) and Virginia big-eared bats larvae are teratogenic deformities such imposes effluent limitations for (Corynorhinus townsendii virginianus). as skeletal, craniofacial, and fin selenium in only four of 25 outfalls and Both the Indiana and Virginia big-eared deformities, and various forms of requires only monitoring (no bats are listed as endangered under the edema. Embryo mortality and severe limitations) for selenium at the Endangered Species Act. development abnormalities can result in remaining outfalls. Recent NPDES If WNS affects West Virginia bats as impaired recruitment of individuals into discharge monitoring reports show that it has bats in other states, and if large populations. WVDEP has also studied the constructed portion of the Spruce die-offs occur, it will further complicate fish larval deformity rates and selenium No. 1 project is discharging selenium at the already complex challenge of concentrations within fish eggs, levels that exceed West Virginia’s conserving bat species. Previous mining although not in the vicinity of the numeric water quality standard. and logging activities and forest loss Spruce No. 1 project area. This draft This project-specific data from both have also been identified as having study indicates that elevated selenium Dal-Tex and the current operational adverse affects on bat populations. concentrations in fish eggs, increased portions of Spruce No. 1 confirms EPA’s Commonly used reclamation larval deformity rates and increased concern based on data from nearby techniques, many of which are designed deformity rates in mature fish were all projects and other water quality data for to minimize erosion and provide associated with elevated water column the Sub-basin that the project may backfill stability, are incompatible with selenium, indicating unacceptable discharge high levels of selenium to re-establishment of trees necessary for adverse effects on fisheries. The downstream receiving waters. WVDEP successful roosting by bats. Such sedimentation ponds traditionally used data from several years of sampling in reclamation techniques have the to treat drainage from mining operations the Beech Creek watershed where the potential to further stress bat generally are not effective in removing majority of the mining has occurred, has populations. selenium from the discharge. revealed Se levels that range from 5.6 West Virginia has established a μg/l to 22 μg/l, exceeding the chronic 2. Impacts to Water Quality numeric chronic water quality criterion water quality criterion for selenium of 5 In considering water quality, it is for selenium of 5 ug/l to protect ug/l to protect instream aquatic life. important to recognize that adverse instream aquatic life. Current EPA has reason to believe, based on changes in water chemistry frequently exceedances of West Virginia’s numeric existing and adjacent mine data that have a corresponding impact on wildlife water quality criterion for selenium Spruce No. 1 has the potential to cause and fisheries that live in or depend within the Coal River sub-basin or contribute to discharges of selenium upon the water. Potential adverse generally and the Spruce Fork sub- that could cause unacceptable adverse impacts to water chemistry are watershed have been identified by impacts to fish and wildlife resources. considered because they may affect the WVDEP. These confirmed exceedances In some freshwater food webs, Se has native aquatic and water-dependent of the numeric water quality criterion bioaccumulated to four times the toxic communities in the Spruce Fork for selenium demonstrate that the level; this can cause teratogenic watershed. Additionally, the 404(c) geology in the area of the Spruce No. 1 deformities in larval fish, leave fish with regulations require consideration of Mine is likely to release selenium Se concentrations above the threshold whether the project would violate other during mining. In West Virginia, coals for reproductive failure (4 ppm), and environmental standards, including that contain the highest selenium expose birds to reproductive failure applicable water quality standards and concentrations are found in a region of when they eat fish with selenium as such EPA has considered the south central West Virginia where the concentrations greater than 7 ppm. An potential adverse impacts of the project Allegheny and Upper Kanawha important aspect of selenium residues on water quality of Spruce Fork and its Formations of the Middle in aquatic food chains is not direct contributing watershed. Pennsylvanian are mined. WVDEP toxicity to the organisms themselves, reports that some of the highest coal but rather the dietary source of selenium a. Selenium (Se) selenium concentrations are found in they provide to fish and wildlife species Discharges from the Spruce No. 1 the central portion of the Coal River that feed on them. project are likely to increase selenium watershed where significant active loading to downstream waters. mining and selenium impaired streams b. Total Dissolved Solids/Conductivity Selenium is a naturally occurring are located, in the immediate vicinity of Discharges from the Spruce No. 1 chemical element that is an essential the Spruce No. 1 project. project are likely to include high levels micronutrient, but excessive amounts of Water quality monitoring data from of total dissolved solids (TDS), which selenium can also have toxic effects. streams draining the nearby Dal-Tex will increase instream specific Adverse impacts of increased levels of mine and from the outfalls draining the conductivity downstream of the project selenium include birth defects in fish currently operational portions of the and adversely affect the naturally and other aquatic life and can also result Spruce No. 1 Mine indicate levels of Se occurring aquatic communities. Several

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studies have documented significant organic substances contained in a concentrations in alkaline mine and strong correlations between solution in molecular, ionized or micro- drainage in the Central Appalachians degraded instream resident biota and granular (colloidal) suspended form and (such as those likely to be discharged by high specific conductivity or TDS is normally reported in the units mg/l. the Spruce No. 1 Mine) commonly reach concentrations downstream of mining Specific Conductivity (hereafter referred levels that could cause acute toxicity in operations. The scientific literature to as conductivity) is the ability of a native aquatic organisms. indicates that several ions can be toxic, solution to carry an electric current at a Neither WVDEP nor EPA has numeric and they have varying relative toxicity specific temperature (normally 25°C) water quality criteria designed to protect to aquatic life. Furthermore, mixtures of and is normally reported in the units aquatic life from elevated TDS (which ions can have ameliorative, synergistic μS/cm. Conductivity and TDS both or additive effects, depending on the increase as the concentration of ions in can be measured by conductivity). mix of ions. Typical Central a solution increase and are very strongly However, there is strong scientific Appalachian alkaline mine drainage correlated. Normally, conductivity is evidence that indicates what levels of includes several component ions reported by state and federal monitoring conductivity would likely protect (magnesium, sulfate, bicarbonate, agencies because it is an instantaneous aquatic life. These data and science can potassium) that can be toxic to aquatic measurement that can be collected in be used to assess current conductivity life individually or as a mixture. situ with a meter, does not require a levels in nearby mines and to predict Conductivity is an excellent indicator of laboratory analysis, and is precise and the effects from the proposed Spruce the mixture of ions and is also a good accurate. No. 1 Mine. As described below, current predictor of aquatic life use impairment. Natural waters in the Spruce No. 1 instream water quality in the proposed Increases in conductivity impair aquatic project area have very low conductivity project area is in excellent/good life use, are persistent over time, and (50–100 uS/cm) and TDS and are condition, and conductivity levels are cannot be easily mitigated or removed considered fresh water. However, water less than the most protective level from streams. impacted by alkaline mine drainage suggested by the data. In contrast, To understand the impacts, it is such as those exhibited at Dal-Tex and conductivity levels in the previously helpful to understand the relationship anticipated for Spruce No. 1 has been mined streams adjacent to the project among salinity, TDS, and specific shown to have elevated conductivity. area exceed the highest of the levels conductivity. Salinity reflects the Several component ions of alkaline suggested by the data, which means amount of TDS in water. The majority mine drainage (magnesium, sulfate, there is potential for degradation of of TDS in many waters are simply salts. bicarbonate) are known to be toxic to water quality and a high likelihood of Salinity is the mass of salt in a given aquatic life and models have been harm to aquatic life. The table below, mass of water, and is normally reported developed to predict the acute toxicity summarized from WVDEP data and in parts per thousand (ppt) or parts per of mixtures of ions to aquatic organisms. scientific literature, identifies million (ppm). TDS is a measure of the EPA Region III research based on ion conductivity levels at which adverse combined content of all inorganic and toxicity models indicates that ion impacts may occur.

CONDUCTIVITY LEVELS FOR EVALUATING THE POTENTIAL FOR ADVERSE IMPACTS

Level at which conductivity ruled out as a possible stressor in WV TMDL analysis ...... <327 uS/cm. High probability of impairment to native biota ...... >500 uS/cm. Corresponds to levels of TDS identified as likely to support growth of toxic golden algae ...... >714 uS/cm. Level at which conductivity may be a ‘‘moderate’’ stressor in recent TMDL studies ...... >767 uS/cm.

Data from WVDEP indicates the the relatively small amount of historical Spruce Fork exceeded 500 uS/cm. Only average conductivity values for the mining landuse in these watersheds. one site had an average conductivity of unmined streams on the Spruce No. 1 By contrast, the average conductivity < 500 uS/cm, which was located project area are very low. Oldhouse and sulfate levels are elevated in other upstream of the project area, upstream Branch had an average conductivity tributaries to Spruce Fork where of Adkins Fork, and southeast of Blair, level of 90 uS/cm; White Oak Branch historical mining is similar to what WV. had an average conductivity level of 118 would occur if Spruce No. 1 Mine was Conductivity values for several uS/cm. Both of these conductivity constructed as authorized. For example, tributaries draining the Spruce No. 1 the streams draining mined areas to the project currently indicate excellent values indicate excellent water quality. west of Spruce Fork have the following water quality. These waters with lower Sulfate concentrations in these streams average conductivity and sulfate values: conductivity, such as Pigeonroost are also low (28 mg/l in Oldhouse and Rockhouse Creek, 1012 uS/cm Branch and Oldhouse Branch, may be 24 mg/l in White Oak Branch). Two of conductivity, 407 mg/l sulfate; Left Fork providing freshwater dilution to Spruce the streams draining the project area of Beech Creek, 2426 uS/cm Fork thereby preventing conductivity (Pigeonroost Branch and Seng Camp conductivity, 1019 mg/l sulfate; Beech levels in Spruce Fork from becoming Creek) contain small amounts of Creek, 1432 uS/cm conductivity, 557 even more elevated. Discharges from historical mining in their watersheds. mg/l sulfate; and Trace Branch, 971 uS/ valley fills into Pigeonroost Branch and WVDEP data indicate the average cm conductivity, 569 mg/l sulfate. Oldhouse Branch would both remove conductivity for Piegeonroost Branch The average conductivity and sulfate sources of freshwater dilution to Spruce was 199 uS/cm and sulfate was 99 mg/ concentrations in the mainstem of Fork and create new sources of TDS/ l, and in Seng Camp Creek conductivity Spruce Fork are also strongly elevated to conductivity. was 189 uS/cm and sulfate was 61 mg/ as much as ten times above the natural Additionally, WVDEP data from l. The slightly elevated average background levels in Oldhouse Branch. 2002–2003 strongly indicate that any conductivity and sulfate values reflect The average conductivity at almost assimilative capacity for TDS or every monitoring site on the mainstem conductivity and component ions on the

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main stem of Spruce Fork has already species in the Mid-Atlantic States. The adverse impacts, EPA believes that the been used by other mining discharges in factors that are most closely associated quality and function of the impacted the watershed. In light of the known with this risk are believed to be: resources were not appropriately relationship between elevated levels of • Proximity to a known source of assessed and accounted for in the TDS/conductivity and extirpation of Prymnesium parvum; mitigation plan. EPA is therefore portions of the native assemblages, any • TDS in high enough amounts to concerned that the mitigation proposed additional TDS or conductivity added to support P. parvum (estimated to be for the Spruce No. 1 project may not the mainstem of Spruce Fork by the between 500 and 1,000 mg/l offset the anticipated impacts to an project could cause unacceptable (conductivity 714–1428 uS/cm); acceptable level. adverse impacts to the receiving streams • Nutrients of great enough amount to In order to develop an effective and to Spruce Fork. initiate a bloom of P. parvum; compensatory mitigation plan the Increases in conductivity associated • pH greater than 6.5. Risk increases following steps are required: with the Spruce No.1 project could also with increasing pH; • Fully assess the range of physical, increase the likelihood of an outbreak of • Areas of habitat that are pooled chemical and biological features that toxic golden algae. This is supported by (large beaver dams, natural residual contribute to the pre-project level of evidence of a recent algal bloom of an pools, or manmade ponds). function of targeted ecological systems. invasive, brackish-water golden algae WVDEP has identified Spruce Fork as This would include areas both directly species (linked to increased a ‘‘water of concern’’ because of its affected (e.g., filled streams and valleys), conductivity) in the northern coalfields potential (due to already high levels of and indirectly affected (e.g., of WV, which caused a devastating TDS/conductivity) to support golden downstream receiving waters, stream aquatic life kill (fishes, mussels, algae blooms. Other waters of concern reaches targeted for enhancement). salamanders). near the Spruce No. 1 project include • Develop a range of mitigation the Little Coal River and West Fork/ practices that fully compensate for all 3. Potential to Contribute to Conditions Pond Fork. lost or modified features (physical, That Support Growth of Toxic Golden Golden algae was identified (in very chemical, biological) and the Algae high numbers) in Cabin Creek of the concomitant loss of both function and The Spruce No. 1 project is likely to Kanawha drainage, only 25 miles over areal extent. contribute to instream conditions the ridge to the East. Because this alga • Develop a protocol for monitoring (including increased instream total can easily move with waterfowl, the risk the extent (over space) and rate (over dissolved solids/conductivity and of introducing P. parvum in the Spruce time) of compensatory practices. This construction of sedimentation ponds) in drainage is high. As described above, should include remedial practices to or near Spruce Fork that may support the Spruce No. 1 project is likely to offset any unplanned failure in the golden algae Prymnesium parvum that increase levels of TDS/conductivity in compensatory mitigation plan. releases toxins that kill fish and other Spruce Fork, thus creating conditions An adequate compensatory mitigation gill-breathing aquatic organisms. more favorable to golden algae. In plan should be based upon a delineation P. parvum is associated with an addition, numerous sedimentation of on-site impacts to ephemeral, extensive and severe aquatic life kill ponds will be constructed, which could intermittent, and perennial stream-types that killed thousands of fish, mussels, create areas of pooled habitat more in the Spruce Fork watershed. EPA is and other aquatic organisms in Dunkard favorable to golden algae. concerned that the proposed mitigation Creek, West Virginia and Pennsylvania Because of the likelihood that the underestimates the impacts to perennial in September 2009. At the time of the Spruce No. 1 project as authorized will and intermittent streams by Dunkard Creek aquatic life kill, create pooled water in the form of misclassifying them, thereby resulting biologists reported observations of not sedimentation ponds and discharge high in an insufficient baseline to begin only dead organisms, but also fish and levels of TDS to the remainder of designing adequate stream other aquatic life behaving aberrantly in Pigeonroost Branch, Oldhouse Branch compensation. These determinations an effort to escape the toxin. Biologists and Spruce Fork, the project could made by consultants for the project do reported mud puppies (an aquatic contribute to conditions, especially in not correspond with current scientific salamander that lives its entire life Spruce Fork, that could support P. information concerning the designation underwater) crawling out of the water parvum with the resultant possibility of of these stream types. and onto rocks and the shoreline in an aquatic life kills including fish. Based EPA is concerned that the approved apparent attempt to escape from the on this information EPA believes that delineation of streams-types in the toxic water. These organisms, which are Spruce No. 1 as authorized could result project area may not accurately reflect obligate aquatic organisms with no in unacceptable adverse impacts to fish the stream-types exhibited on-site. The functioning lung system, also died from and wildlife resources. delineations are now nine years old and effects of golden algae. Field biologists EPA believes new field studies using observed numerous individuals as 4. Proposed Mitigation May Not Offset more up-to-date assessment tools would dried-up carcasses on rocks and along Anticipated Impacts to an Acceptable provide a better representation of the shoreline. Fish were observed Level proposed impacted water resources. avoiding the mainstem of Dunkard Compensatory mitigation involves EPA compared lengths of stream Creek by practically ‘‘stacking up’’ in the actions taken to offset unavoidable channel in Pigeonroost, Seng Camp, and mouths of tributaries, subjecting adverse impacts to wetlands, streams Oldhouse from USGS estimates to themselves to feeding by blue heron and other aquatic resources authorized estimates made by the permittee. The rather than escaping to the mainstem of by Clean Water Act Section 404 permits median drainage areas for ephemeral/ Dunkard Creek. and other Department of the Army (DA) intermittent (14.5 acres) and The identification of P. parvum in permits. intermittent/perennial (40.1 acres) have 2009 in Dunkard Creek, on the While we recognize that the project been documented by USGS. Further Pennsylvania and West Virginia border includes mitigation (including stream studies by US EPA Office of Research near Morgantown, WV, was the first creation and enhancement of existing and Development, US EPA Region III identification of this invasive aquatic streams) to compensate for unavoidable and University of Kentucky show that

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these USGS drainage area estimates are that have been eliminated by mining determine when the mitigation is accurate. Using this information and on- activity. successful. the-ground field observations in the The project’s compensatory mitigation In summary, the current proposal is Spruce No. 1 project area, EPA believes plan is unlikely to sustain the problematic for several reasons: First, it that the proposed valley fills will likely biological, chemical, and physical fails to recognize the true functioning of impact a greater quantity (by thousands characteristics of the affected streams healthy headwater streams and so of feet) of intermittent and perennial for two primary reasons. First, it is therefore fails to replace the streams’ stream channels than is proposed to be difficult to replace the stream functions lost ecological services; and second, the compensated by the project’s when they have not been adequately planned control structures are waste Compensatory Mitigation Plan (CMP). assessed in the first place. Second, treatment systems designed to control In addition, the CMP utilized an creating streams using on-site drainage poor quality waters and then convey assessment referred to as the Stream ditches, employing enhancement those waters offsite. These systems have Habitat Unit (SHU) method to calculate measures that include channel or the potential to export poor-quality debits and credits. This assessment is a habitat improvement and changing the water to downstream waters, in direct combination of linear footage of impact, classification of a stream from contrast to current headwater streams habitat assessment scores, and stream intermittent to perennial are not that provide fresh water to downstream hydrological status. EPA believes that sufficient to replace the quality of the reaches and to Spruce Fork. EPA also believes that other proposed such a calculation of debits and credits streams impacted. Although the permittee considers on- stream channels located at the project inadequately quantifies the mitigation site erosion control structures impact area also have the potential to needed for this project. The SHU as equivalent to existing streams, drainage export poor water quality to presented in the CMP only accounts for ditches are designed strictly with a downstream waters. If water quality in the physical aspects of stream condition physical component and lack a these created channels and the erosion and completely ignores the replacement of stream function. The control channels are taken into account, interrelationship of water chemistry and resources that are being lost are healthy, they not only fail to replace true stream biological resources in stream biologically functional streams. The function, but they could cause functioning, in contravention of the erosion control structures are designed additional adverse impacts downstream. multiple factor assessment approach to convey water and, thus, cannot Although more recent efforts have noted above. In addition, while the replace the streams’ lost ecological been made to more fully assess some current DA permit refers to biological services. Erosion control structures lack physical and biological attributes of success criteria, it is not clear that it groundwater-derived and nutrient-rich regional headwater stream systems, the requires replacement of lost biological base flow, temperature regimes, habitat instream biota and chemistry function and comparable stream diversity, gradient, floodplains, component continue to be effectively chemistry in order to meet adequate connectivity to downstream ecosystems, ignored. In effect, the baseline starting compensatory mitigation success and other critical features of natural point for developing an adequate criteria. streams. compensatory mitigation plan has not The FWS also expressed concern The permittee indicates that the been developed. regarding the proposed CMP in a letter streams will be enhanced by additional Studies have demonstrated, moreover, dated May 30, 2006 from the flow, changing them from intermittent that replacement of streams is among Department of Interior, Philadelphia to to perennial. However, many species the most difficult and frequently the Huntington District Army Corps of rely on intermittent streams as part of unsuccessful forms of mitigation. Even Engineers. Determinations made by the their life history strategy. if stream structure and hydrology can be FWS at that time concluded that The permittee also proposes to replaced, it is not clear that replacing (partially excerpted here): improve channel or habitat on nearby structure and hydrology will result in The Stream Habitat Unit (SHU) assessment streams. Streams are complex systems true replacement of functions, methodology selected by the applicant only whose hydrogeomorphic behavior and especially the native aquatic community considers the physical characteristics of the biotic recovery are not easily predicted. and headwater functions. Moreover, the stream. It does not include biological or Extensive, long-term monitoring is mitigation does not account or chemical characteristics of the stream. required to demonstrate enough compensate for many of the downstream Without those attributes, the assessment does ecological benefit to already-functioning impacts caused by the project. Finally, not meet the requirements of a ‘‘functional’’ streams to offset the proposed losses. there is no evidence in the peer- assessment. The Service recommends that Such actions would have to be taken at reviewed literature that the type of the applicant use an assessment method that a ratio substantially greater than 1:1 to incorporates biological and chemical, as well stream creation proposed in the CMP as habitat, characteristics to determine the raise the mitigation areas’ functions will successfully replace lost biological true function of the stream. enough to compensate for the loss of function and comparable stream stream functions. chemistry. Since the permittee applied the SHU The permittee has not indicated that As a result of these concerns, EPA methodology to describe the streams, water quality and biological diversity believes that the adverse impacts the compensatory mitigation also only monitoring will be conducted after associated with the Spruce No. 1 project addresses the physical component of the completion of the proposed project. as authorized, are not adequately offset streams. Compensatory mitigation must Water chemistry and biological diversity by the CMP and as such we believe the replace the aquatic resource function should be used as indicators of project project may have unacceptable adverse lost or adversely affected by authorized success. The project will be successful impacts to fish and wildlife resources as activities. Therefore, to conclude that when the function of the restored described throughout this notice. the functions are being replaced, the streams (chemistry and biological compensatory mitigation must create diversity), is equivalent to that of the 5. Consistency With the 404(b)(1) streams that are capable of sustaining impacted streams. Without a thorough Guidelines the same biological, chemical, and functional assessment prior to initiation The CWA requires that exercise of physical characteristics of the streams of the project, it is impossible to final Section 404 (c) authority be based

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on a determination of ‘‘unacceptable mining operations is an important to contribute to conditions that could adverse effect’’ on municipal water source of information for predicting the potentially support golden algae blooms supplies, shellfish beds and fishery impacts from the Spruce No. 1 project. as described in this proposed areas (including spawning and breeding The Spruce No. 1 EIS recognizes that determination. areas), wildlife, or recreational areas at discharges from the Spruce No. 1 Mine V. Proposed Determination 40 CFR 231.2(e) including taking into are likely to be similar to those from the account: Dal-Tex mine: ‘‘The past and present The Regional Administrator proposes * * * all information available to him (the impacts to topography, geology, and to recommend that the discharge of Administrator), including any written mineral resources of the previous dredged or fill material to Pigeonroost determination of compliance with the mining along the western side of Spruce Branch and Oldhouse Branch for the Section 404(b)(1) Guidelines made in 40 CFR Fork are similar to the anticipated purpose of constructing the Spruce No. Part 230. impacts of the Spruce No. 1 Mine, as 1 Surface Mine as currently authorized The Guidelines prohibit the discharge mining is proposed to occur in the same by DA Permit No. 199800436–3 (Section of dredged or fill material into waters of strata.’’ While the EIS notes that the 10: Coal River) be prohibited or the United States if there is a less water quality draining the Dal-Tex restricted. Based on current information, environmentally damaging practicable complex is alkaline, it does not consider the Regional Administrator has reason alternative, if it would cause or the water quality impairments to believe that the Spruce No. 1 Surface contribute to a violation of a state water (including violations of the iron and Mine as currently authorized could quality standard, or if it would cause or selenium numeric criteria and adverse result in unacceptable adverse impacts contribute to significant degradation of biological impacts) identified by and that these adverse impacts can be waters of the United States. As WVDEP in the streams draining the Dal- reduced or avoided through appropriate described above, those portions of the Tex operation. modification of the project. The Corps and WVDEP also failed to Guidelines which are particularly This proposed determination is based consider adequately the potential for important in evaluating the on unacceptable adverse impacts to discharges of TDS from Spruce No. 1 to unacceptability of environmental wildlife pursuant to Section 404(c). EPA raise instream conductivity levels impacts in this case are: has reason to believe the project as downstream from the project, resulting • Less environmentally damaging currently authorized would cause or in impairment to the naturally occurring practicable alternatives (230.10(a)); contribute to significant degradation of • Water quality impacts (230.10(b)); aquatic community. The Spruce No. 1 waters of the United States and violate • Significant degradation of waters of EIS states: ‘‘Total dissolved solids may the Section 404(b)(1) Guidelines. There the United States (230.10(c)); increase in mine area discharges, will be discharge of excess spoil and • Minimization of adverse impacts to depending on the nature and timing of construction of valley fills that will bury aquatic ecosystems (230.10(d)); groundwater contributions to sediment headwater streams. Wildlife that live in • Impacts on existing indigenous pond/storm water management system. those streams or within the footprint of aquatic organisms or communities However, discharges during the life of the valley fills will be buried. Other (230.10(e)); the mine would be anticipated to meet wildlife will lose important habitat on • Cumulative effects (230.11(g)); and the requirements of the CWA Section which they depend for all or part of • Secondary effects (230.11(h)). 401 and 402 water quality standards. If their lifecycles. The streams and discharges would exhibit concentrations a. Alternatives wildlife that will be buried cannot be out of compliance with effluent limits, viewed in a vacuum. When those As indicated in EPA’s letter dated the discharges would be treated as streams and wildlife are buried, there October 16, 2009, EPA believes that this necessary to meet WVNPDES and state will be effects to downstream waters project may be modified in a way that water quality standards.’’ The EIS does and downstream wildlife caused by the will address the environmental impacts not consider that the 402 permit does removal of functions performed by the described herein. EPA believes that not include an analysis pursuant to 40 buried resources and by transformation additional avoidance and minimization CFR 122.4(d)(1), an analysis of the of the buried areas into sources that may of anticipated impacts may be achieved project’s reasonable potential to cause or contribute pollutants to downstream by constructing the project sequentially contribute to an impairment of the waters. In addition, the project could and allowing monitoring data from each aquatic life use as described in West contribute to conditions that would Virginia’s narrative water quality portion of the project to inform support blooms of golden algae that criteria and does not include controls decisions regarding the remainder of the release toxins that can kill fish and (or even monitoring) for TDS/ project. These monitoring data would other aquatic life. There also will be an conductivity. The Corps also did not then be used as a basis for specific effect from deforestation of the project consider whether the Section 401 actions in response to adverse changes site on terrestrial wildlife. In addition, certification for Spruce No. 1 considered in water quality. impacts from the project could TDS nor did the Corps consider data b. Water Quality contribute to cumulative impacts from showing increased levels of multiple surface mining activities in the With respect to water quality and conductivity downstream of the Dal-Tex Coal River sub-basin. significant degradation, neither the operation and other mines. Corps nor WVDEP considered Data from operations at the project VI. Other Considerations information demonstrating that surface site show that the project is likely to A. Environmental Justice mining with valley fills in Central discharge selenium at levels above West Appalachia is strongly related to Virginia’s chronic exposure water Environmental Justice is the fair downstream water quality degradation. quality criterion. That information was treatment and meaningful involvement Specifically, the Corps apparently did not available to and therefore was not of all people regardless of race, color, not consider the relevance of considered by the Corps or WVDEP. national origin, or income with respect impairment to waters draining the In addition, the Corps and WVDEP to the development, implementation, nearby Dal-Tex operation. The water did not consider the potential for and enforcement of environmental laws, quality degradation caused by nearby discharges from the Spruce No. 1 project regulations, and policies. EPA has this

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goal for all communities and persons fruition. Having this information readily Pigeonroost Branch and Oldhouse across this Nation. In this case these available will help engage the affected Branch. goals are promoted through the communities during public outreach Spruce No. 1 project lies within the requirement that all agencies of the and ensure that they can be Little Coal River watershed within the Federal government shall include an meaningfully involved. Coal River sub-basin. The Little Coal analysis of environmental justice issues watershed contains 98 miles of impaired B. Cumulative Effects when considering the impacts related to streams, representing 33% of the the Spruce No. 1 project. Although the The Clean Water Act Section 404(b)(1) streams in the watershed, and the Coal Spruce No. 1 Draft EIS contained some Guidelines require that ‘‘no discharge of River sub-basin has 743 miles of information regarding environmental dredged or fill material shall be impaired streams, representing 30% of justice, EPA remains concerned that permitted if it causes or contributes, the streams in the sub-basin. Stream these issues were not adequately after consideration of disposal site segments are listed for selenium and addressed in the Final EIS. dilution and dispersion, to violation of biological impairment by WVDEP, Spruce No. 1 is located in a Census any applicable State water quality indicating that the relationship between block group where the per capita standard.’’ In addition, the Guidelines mining and watershed quality is strong. income is roughly half that of the prohibit any discharge of dredged or fill In addition to impacts from national average and $6,000 less than material that would cause or contribute discharges and removal of riparian the West Virginia state average. to significant degradation of the aquatic habitat and sources of freshwater Moreover, 24% of the residents of Logan ecosystem, with special emphasis dilution, there also will be an adverse County live below the poverty line placed on the persistence and effect from deforestation of the project which also exceeds state and national permanence of effects, both individually site on terrestrial wildlife. averages. Accordingly, additional and cumulatively. Cumulative impacts Approximately 2,278 acres of deciduous analysis of the potential for are ‘‘the impact on the environment forest will be destroyed by the Spruce disproportionately high and adverse which results from the incremental No. 1 Mine. Forests like these in effects on these low-income populations impact of the action when added to Appalachia support some of the highest needs to be conducted. other past, present and reasonably biodiversity in North America and are Specifically, a characterization of the foreseeable future actions, regardless of unique in its expansiveness. In its economic status of residents near the what agency or person undertakes such natural condition, the Appalachian site and the conditions they face other actions.’’ (40 CFR 1508.7) landscape is dominated by interior including any effects relating to the Individual adverse impacts from an forest. A decrease in forest cover by proximity of the blasting zone, locations action may be insignificant mining followed by conversion to of discharges of fill material, truck individually, but may accumulate over grasslands or other less valuable land traffic, noise, fugitive dust, and habitat time from one or more origins and cover has the potential to shift the fauna loss needs to be conducted. Additional collectively result in significant adverse of the region from that found in intact, consideration must also be given to impacts that degrade important natural high elevation forests to one dominated these activities’ potential impacts on resources. The cumulative impacts of a by grassland and edge dwelling species. subsistence fishing, hunting, foraging particular action can be viewed as the Numerous studies have demonstrated and gardening in the area. Additional total effects on natural resources that the region is losing forest, information is needed concerning (including wildlife), socioeconomic especially ecologically valuable interior sources of drinking water for the resources, human health, recreation, forest, at a significant pace due largely affected populations (including quality of life aspects, and cultural and to surface mining operations. Studies municipal water supplies and private historical resources of that action and conducted in connection with the PEIS sources of drinking water including all other activities affecting those concluded that surface mining had streams and/or wells). resources, compounding the effects of deforested 1,540 km2 or 380,542 ac Furthermore, the cultural all actions over time. Surface mining of (3.4%) of the study area during the 10 implications of mountaintop mining coal has the potential to cumulatively years between 1992 and 2002. An must not be ignored. The mountains impact natural resources, both aquatic estimated 5,700 km2 or 1,408,500 ac being affected by Spruce No. 1 are and terrestrial. In the West Virginia (11.5%) of the PEIS study area was considered a cultural resource by many portion of the PEIS study area, the projected to be deforested by 2012, an residents. The mountains influence projected loss of riparian habitat from area 1.4 times the size of the state of residents’ daily lives and in many cases MTM/VF is 30.72 km2, 3.2% of the Rhode Island. A 3-fold increase has have helped define Appalachian baseline. Approximately 42% of these been shown in acres classified as society. Removing them may have projected losses occur in headwater ‘‘surface mining/quarries/gravel pits profound cultural changes on area (first and second-order) streams. indicating a degrading land-use change residents, so it is important that cultural As currently authorized, the Spruce at the expense of the natural condition impacts be considered as well. No. 1 project is one of the largest of the area. It is important that consideration be mountaintop mining projects authorized Because of fragmentation of forests by given as to whether these impacts will in West Virginia. The project would mountaintop mining activities, the area range over a broad area or will be directly impact nearly seven and one- of interior forest lost was 1.75–5.0 times concentrated in particular areas. half miles of valuable headwater greater than the direct forest lost Detailed maps outlining the residential streams, and would indirectly impact between 1992 and 2001. Such an areas in relation to these activities may Spruce Fork and potentially other increase in habitat fragmentation has the help in conducting this evaluation. It is downstream waters in the Coal River potential to isolate natural populations, also important that the effects be Sub-basin. These indirect impacts can reduce population sizes, reduce gene considered both independently and include but are not limited to discharges flow, increase the risk of extirpation or cumulatively. Considering the effects of pollutants from the valley fills, such extinction of rare species, and increase cumulatively provides the most realistic as total dissolved solids (TDS) and the rate of invasion by exotic species, ‘‘snapshot’’ of what the community will selenium and removal of freshwater especially plants. Fragmentation of the be facing when the project reaches dilution currently being provided by terrestrial environment due to mining,

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projected from land cover data in the resources. The Coal River sub-basin is VII. Solicitation of Comments West Virginia Gap Analysis Program already heavily mined and substantially EPA today is soliciting comments on (GAP) and the permit rates observed impaired. Landscape and site specific all issues discussed in this notice. In during the 10 years preceding the assessments reveal that past and current particular, we request: publication of the PEIS, indicates: mountaintop mining has caused • (1) Additional information on the 40% increase in the number of substantial, irreplaceable loss of likely adverse impacts to fish and values isolated forest habitat fragments • resources and an irreversible effect on of the receiving waters that will be 41% decrease in the average size of these resources within the Coal River directly (Right Fork of Seng Camp habitat fragments from 24.64 to 14.3 sub-basin. Creek, Pigeonroost Branch, Oldhouse acres Branch) or indirectly affected (Spruce • 2.7% increase in the amount of At the sub-basin level, surface mining Fork, Little Coal River, Coal River) by edge habitat, caused by fragmentation of of coal has the potential to cumulatively the Spruce No. 1 Surface Mine as interior forests impact natural resources, both aquatic currently authorized in DA Permit No. The Spruce No. 1 project will destroy and terrestrial, and the number of 199800436–3 (Section 10: Coal River). approximately 2,278 acres of functional mining operations, permitted or (2) Additional information pertaining deciduous forests replacing it with proposed, in the Coal River watershed to the water quality, flora, fauna and grasslands or other land cover. have the potential to have significant hydrology of the waters identified in no. According to WVDEP Division of cumulative effects on the aquatic 1 above, and information on the fish and Mining and Reclamation (DMR) permit ecosystem as described above. The wildlife species which would be maps, within the Headwaters Spruce cumulative effects of these operations in affected by changes in the aquatic Fork sub-watershed, where Spruce No. the Coal River sub-basin and its ecosystem if the project is constructed. 1 is to be located, there are more than contributing watersheds have resulted (3) Additional information about 34 past and present surface mine in many miles of headwater stream drinking water (including municipal permits issued which collectively destruction, downstream water quality water supplies and private sources of occupy more than 33% of the land area. degradation, and the destruction and drinking water including streams and/or From 1992 to 2009 forest coverage fragmentation of many acres of wells). decreased from approximately 73% to productive and functional forests. EPA (4) Additional information about 61% and can be expected to decrease to believes these impacts have not been recreational uses of the project area and 53% of the sub-watershed in the sufficiently acknowledged or analyzed how they would be impacted if the reasonably foreseeable future. by the permittee or the Corps of project were constructed. Additionally, other sub-watersheds in Engineers for this project. (5) Additional information on the the Coal River sub-basin have more than potential for mitigation to reduce the Additional data from the PEIS’s 55% of the land occupied by surface impacts of the project. mine permits. Landscape-Scale Cumulative Impact (6) Additional information describing Within the Coal River sub-basin there Study modeled terrestrial impacts based the known or potential cumulative are more than 257 past and present on past surface mine permit data. These impacts to human health and the surface mining permits issued which data suggest that for the entire 22-year environment within the Coal River sub- collectively occupy more than 13% of period from 1992 to 2013, the estimated basin and the Spruce Fork sub- the land area. Furthermore, EPA is forest clearing in the study area would watershed. aware of at least 11 additional mining be 1,189 square miles (761,000 acres). (7) Consistent with Executive Order operations either proposed or Should these forests not be adequately 12898, information about low-income authorized but not constructed in restored, invaluable water quality and and minority populations likely to be addition to Spruce No. 1 in the Coal ecological services will be permanently affected by the Spruce No. 1 Surface River sub-basin. The Spruce No. 1 lost. Mine and the disproportionately high proposal along with these 11 additional Forest losses of this magnitude, adverse human health or environmental projects in the Coal River Sub-basin, if although largely temporary (on the scale effects, if any, on these populations if constructed as proposed, would impact of decades), are not inconsequential. In EPA makes a final determination to approximately 29.4 miles of stream addition to the popularly appreciated rescind the proposed determination or channels resulting in potential to prohibit or restrict the use of Seng wildlife, recreational, and timber impairment to more streams in the Coal Camp Creek, Pigeonroost Branch and resources associated with forest River sub-basin. Oldhouse Branch as disposal sites for systems, many ecological services can Trend analysis indicates mountaintop dredged or fill material in connection mining and valley fills as a percentage be attributed to forest systems. We are with the project. of the land cover will continue to just beginning to understand and assign (8) During the course of the past year, increase in the Coal River sub-basin and value to these ecological services. For various techniques have been identified forest area will continue to decrease as example, forests are known to be natural to or by EPA as means by which impacts a result. These 11 additional projects, if areas of carbon sequestration. The from this project or other similar constructed, have not been assessed and cumulative loss of 1,189 square miles of projects may be reduced to an factored in the regulatory decision- forest would conservatively equate to acceptable level. As indicated in EPA’s making for Spruce No. 1 in terms of the loss of 1.7M tons of carbon dioxide letter dated October 16, 2009, EPA has their cumulative affects on water sequestration potential per year or the not ruled out the possibility that this quality, aquatic, and forest resources of equivalent of taking 300,000 cars off the project may be modified in a way that the region. EPA believes that the Spruce road. Additionally, forests dampen will address the environmental impacts No. 1 project, in conjunction with the flooding potential and act as natural described herein. Accordingly, in numerous other mining operations nutrient sinks. One study estimates that addition to the information sought in either under construction or proposed forest cover of 1,189 square miles items 1–7 above, EPA is seeking for the Coal River sub-basin, will cumulatively provides approximately comment on potential techniques to contribute to the cumulative loss of $138 million in aquatic nutrient-cycling reduce or mitigate the environmental water quality, aquatic and forest and waste treatment services. impacts described herein.

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(9) Whether the discharge should be before or after the meeting. If any person 1. Veritex Holdings, Inc., Dallas, permanently prohibited, allowed as wishes auxiliary aids (such as a sign Texas; to become a bank holding authorized by the Corps, or restricted in language interpreter) or other special company by acquiring 100 percent of time, size or other manner. accommodations, please contact, prior Professional Capital, Inc., Dallas, Texas, All relevant data, studies, knowledge to April 21, 2010, Richard Thelen, 811 and indirectly acquire Professional of studies, or informal observations are Vermont Avenue, NW., Washington, DC Bank, N.A., Dallas, Texas. appropriate. 20571, Voice: (202) 565–3515 or TDD B. Federal Reserve Bank of San The record will remain open for (202) 565–3377. Francisco (Kenneth Binning, Vice comment until June 1, 2010. All FOR FURTHER INFORMATION CONTACT: For President, Applications and comments will be fully considered in further information, contact Richard Enforcement) 101 Market Street, San reaching a decision to either rescind the Thelen, 811 Vermont Avenue, NW., Francisco, California 94105-1579: proposed determination or forward to Washington, DC 20571, (202) 565–3515. 1. SKBHC Holdings, LLC, Corona del EPA Headquarters a recommended Mar, California; to become a bank determination to prohibit or restrict the Jonathan Cordone, holding company by acquiring 100 discharge of dredged or fill material into Senior Vice President and General Counsel. percent of Starbuck Bancshares, Inc. and Pigeonroost Branch and Oldhouse [FR Doc. 2010–7434 Filed 4–1–10; 8:45 am] thereby indirectly acquire The First Branch in connection with construction BILLING CODE 6690–01–M National Bank of Starbuck, both of and operation of Spruce No. 1 Surface Starbuck, Minnesota. Mine. Board of Governors of the Federal Reserve Dated: March 26, 2010. FEDERAL RESERVE SYSTEM System, March 30, 2010. Robert deV. Frierson, Shawn M. Garvin, Formations of, Acquisitions by, and Deputy Secretary of the Board. Regional Administrator, Region III. Mergers of Bank Holding Companies [FR Doc. 2010–7532 Filed 4–1–10; 8:45 am] [FR Doc. 2010–7443 Filed 4–1–10; 8:45 am] BILLING CODE 6560–50–P The companies listed in this notice BILLING CODE 6210–01–S have applied to the Board for approval, pursuant to the Bank Holding Company EXPORT-IMPORT BANK OF THE Act of 1956 (12 U.S.C. 1841 et seq.) FEDERAL MARITIME COMMISSION UNITED STATES (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes [Docket No. 10–02] Notice of Open Special Meeting of the and regulations to become a bank BDP International, Inc. v. United Sub-Saharan Africa Advisory holding company and/or to acquire the Transport Tankcontainers, Inc.; Notice Committee (SAAC) of the Export- assets or the ownership of, control of, or of Filing of Complaint and Assignment Import Bank of the United States the power to vote shares of a bank or (Export-Import Bank) bank holding company and all of the Notice is given that a complaint has banks and nonbanking companies been filed with the Federal Maritime SUMMARY: The Sub-Saharan Africa owned by the bank holding company, Commission (‘‘Commission’’) by BPD Advisory Committee was established by including the companies listed below. International, Inc. (‘‘BPD’’), hereinafter Public Law 105–121, November 26, The applications listed below, as well ‘‘Complainant,’’ against United 1997, to advise the Board of Directors on as other related filings required by the Transport Tankcontainers, Inc. the development and implementation of Board, are available for immediate (‘‘United’’), hereinafter ‘‘Respondent.’’ policies and programs designed to inspection at the Federal Reserve Bank Complainant asserts that it is a support the expansion of the Bank’s indicated. The applications also will be corporation organized and existing financial commitments in Sub-Saharan available for inspection at the offices of pursuant to the laws of Pennsylvania Africa under the loan, guarantee, and the Board of Governors. Interested and an FMC licensed freight forwarder. insurance programs of the Bank. persons may express their views in Complainant asserts that Respondent is Further, the committee shall make writing on the standards enumerated in a corporation organized and existing recommendations on how the Bank can the BHC Act (12 U.S.C. 1842(c)). If the pursuant to the laws of Delaware and is facilitate greater support by U.S. proposal also involves the acquisition of a licensed and bonded non-vessel- commercial banks for trade with Sub- a nonbanking company, the review also operating common carrier. Saharan Africa. includes whether the acquisition of the Complainant asserts that by failing to Time and Place: April 21, 2010, at nonbanking company complies with the pay freight forwarder compensation to 9:30 a.m. to 12:30 p.m. The meeting will standards in section 4 of the BHC Act Complainant pursuant to Respondent’s be held at the Export-Import Bank in (12 U.S.C. 1843). Unless otherwise published tariff, Respondent violated Room 1143, 811 Vermont Avenue, NW., noted, nonbanking activities will be Section 10(b)(2)(a) of the Shipping Act Washington, DC 20571. conducted throughout the United States. of 1984, 46 U.S.C. 41104(2), which Agenda: Presentation on recent Additional information on all bank prohibits provision of service that is not developments in Sub-Saharan Africa holding companies may be obtained in accordance with the rates, charges, markets by Export-Import Bank staff; an from the National Information Center classifications, rules, and practices update on the Bank’s on-going business website at www.ffiec.gov/nic/. contained in a tariff. Complainant development initiatives in the region; Unless otherwise noted, comments asserts that as a direct consequence of and Committee discussion of current regarding each of these applications Respondent’s unlawful conduct, challenges and opportunities for U.S. must be received at the Reserve Bank Complainant has suffered damages in exporters. indicated or the offices of the Board of the amount of $143,765.63. Public Participation: The meeting will Governors not later than April 27, 2010. Complainant requests that the be open to public participation, and the A. Federal Reserve Bank of Dallas (E. Commission compel Respondent to last 10 minutes will be set aside for oral Ann Worthy, Vice President) 2200 answer the charges made by questions or comments. Members of the North Pearl Street, Dallas, Texas 75201- Complainant; that the Commission hold public may also file written statement(s) 2272: that Respondent’s actions were in

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violation of the Act; that the ADDRESSES: Comments may be 25, 2010 (see 75 FR 3905). OGE received Commission award reparations to submitted, identified by the title of the no responses to that notice. Agency and Complainant of $143,765.63, in addition information collection activity, to the public comment is again invited to interest, costs and attorney’s fees; and Office of Information and Regulatory specifically on the need for and order any such other and further relief Affairs, Attn: Ms. Sharon Mar, OMB practical utility of this information as the Commission deems just and Desk Officer for the Office of collection, the accuracy of OGE’s proper. Government Ethics, by either of the burden estimate, the enhancement of This proceeding has been assigned to following methods within 30 days from quality, utility and clarity of the the Office of Administrative Law Judges. the date of publication in this Federal information collected, and the Hearing in this matter, if any is held, Register. minimization of burden (including the shall commence within the time Fax: 202–395–6974, Attn: Ms. Sharon use of information technology). limitations prescribed in 46 CFR. Mar, OMB Desk Officer for the Office of Comments received in response to this 502.61, and only after consideration has Government Ethics; notice will be summarized for, and may been given by the parties and the E-mail: [email protected]. be included with, the OGE request for presiding officer to the use of alternative FOR FURTHER INFORMATION CONTACT: Paul extension of OMB paperwork approval. forms of dispute resolution. The hearing Ledvina at the Office of Government The comments will also become a shall include oral testimony and cross- Ethics; telephone: 202–482–9247; TTY: matter of public record. examination in the discretion of the 800–877–8339; FAX: 202–482–9237; E- Approved: March 29, 2010. presiding officer only upon proper mail: [email protected]. An Robert I. Cusick, showing that there are genuine issues of electronic copy of the OGE Form 450 is Director, Office of Government Ethics. material fact that cannot be resolved on available in the Forms Library section of [FR Doc. 2010–7471 Filed 4–1–10; 8:45 am] the basis of sworn statements, affidavits, OGE’s Web site at http://www.usoge.gov. BILLING CODE 6345–03–P depositions, or other documents or that A paper copy may also be obtained, the nature of the matter in issue is such without charge, by contacting Mr. that an oral hearing and cross- Ledvina. DEPARTMENT OF HEALTH AND examination are necessary for the SUPPLEMENTARY INFORMATION: HUMAN SERVICES development of an adequate record. Title: Executive Branch Confidential Pursuant to the further terms of 46 [Document Identifier: OS–0990–0001] Financial Disclosure Report. CFR. 502.61, the initial decision of the Agency Form Number: OGE Form presiding officer in this proceeding shall Agency Information Collection 450. be issued by March 28, 2011 and the Request, 60-Day Public Comment OMB Control Number: 3209–0006. Request final decision of the Commission shall Type of Information Collection: be issued by July 26, 2011. Extension without change of a currently AGENCY: Office of the Secretary, HHS. Karen V. Gregory, approved collection. In compliance with the requirement Secretary. Type of Review Request: Regular. of section 3506(c)(2)(A) of the [FR Doc. 2010–7274 Filed 4–1–10; 8:45 am] Respondents: Private citizens who are Paperwork Reduction Act of 1995, the potential (incoming) regular Federal BILLING CODE P Office of the Secretary (OS), Department employees whose positions are of Health and Human Services, is designated for confidential disclosure publishing the following summary of a filing, and special Government proposed information collection request OFFICE OF GOVERNMENT ETHICS employees whose agencies require that for public comment. Interested persons Agency Information Collection they file new entrant disclosure reports are invited to send comments regarding Activities; Submission for OMB prior to assuming Government this burden estimate or any other aspect Review; Proposed Collection; responsibilities. of this collection of information, Comment Request for an Unmodified Estimated Annual Number of including any of the following subjects: OGE Form 450 Executive Branch Respondents: 20,174. (1) The necessity and utility of the Confidential Financial Disclosure Estimated Time per Response: 1 hour. proposed information collection for the Report Estimated Total Annual Burden: proper performance of the agency’s 20,174 hours. functions; (2) the accuracy of the AGENCY: Office of Government Ethics Abstract: The OGE Form 450 collects estimated burden; (3) ways to enhance (OGE). information from covered department the quality, utility, and clarity of the ACTION: Notice of request for agency and and agency employees as required information to be collected; and (4) the public comments. under OGE’s executive branchwide use of automated collection techniques regulatory provisions in subpart I of 5 or other forms of information SUMMARY: After publication of this CFR part 2634. The basis for the OGE technology to minimize the information second round notice, OGE intends to reporting regulation is section 201 (d) of collection burden. submit an unmodified OGE Form 450 Executive Order 12674 of April 12, 1989 To obtain copies of the supporting Executive Branch Confidential Financial (as modified by Executive Order 12731 statement and any related forms for the Disclosure Report to the Office of of October 17, 1990, 3 CFR, 1990 Comp., proposed paperwork collections Management and Budget (OMB) for pp. 306–311, at p. 308) and section referenced above, e-mail your request, review and approval of a three-year 107(a) of the Ethics Act, 5 U.S.C. app., including your address, phone number, extension under the Paperwork sec. 107(a). OMB number, and OS document Reduction Act of 1995 (44 U.S.C. Request for Comments: OGE identifier, to chapter 35). published a first round notice of its [email protected], or call DATES: Written comments by the public intent to request paperwork clearance the Reports Clearance Office on (202) and the agencies on this proposed for the proposed unmodified OGE Form 690–6162. Written comments and extension are invited and must be 450 Executive Branch Confidential recommendations for the proposed received by May 3, 2010. Financial Disclosure Report on January information collections must be directed

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to the OS Paperwork Clearance Officer Abstract: The Office of Global Health published regulations, as to whether or at the above e-mail address within 60 Affairs is requesting an extension on a not to request from the Department of days. previous approved collection OMB State, a waiver of the two-year foreign Proposed Project: Application for #0990–0001—Application for Waiver of residence requirement for applicants in Waiver of the 2-Year Foreign Residence the 2-Year Foreign Residence the United States on a J–1 visa. The type Requirement of the Exchange Visitor Requirement of the Exchange Visitor of respondent is voluntary; the affected Waiver Program. This form and Waiver Program, OMB No. 0990–0001— public is business for profit, not-for supplementary information sheets is Extension, Office of the Secretary, Office profit institutions, Federal Government, used by this Department to make a State, Local or Tribal Government of Global Health Affairs. determination, in accordance with its

ESTIMATED ANNUALIZED BURDEN TABLE

Number of Average Forms Type of Number of responses per burden hours Total burden respondent respondents respondent per response hours

HHS–426 ...... Research Applications ...... 150 1 10 1500 HHS–426 ...... Clinical Care Research ...... 50 1 10 500

Total ...... 2000

Seleda Perryman, 360bbb–3(a). The then Acting Secretary FOR FURTHER INFORMATION CONTACT: Office of the Secretary, Paperwork Reduction also specified that these declarations are Nicole Lurie, M.D., MSPH, Assistant Act Reports Clearance Officer. declarations of emergency as defined by Secretary for Preparedness and [FR Doc. 2010–7445 Filed 4–1–10; 8:45 am] former Secretary Michael O. Leavitt in Response, Office of the Secretary, BILLING CODE 4150–38–P the October 10, 2008 Declaration under Department of Health and Human the Public Readiness and Emergency Services, 200 Independence Avenue, Preparedness (PREP) Act for Influenza SW., Washington, DC 20201, Telephone DEPARTMENT OF HEALTH AND Antivirals Oseltamivir Phosphate and (202) 205–2882 (this is not a toll free HUMAN SERVICES Zanamavir, as amended, and the number). December 17, 2008 Declaration under Office of the Secretary SUPPLEMENTARY INFORMATION: the PREP Act for Pandemic Influenza I. Background Determination and Declarations Diagnostics, Personal Respiratory Regarding Emergency Use of Certain Protection Devices, and Respiratory Under Section 564 of the FFDCA, the In vitro Diagnostic, Antiviral, and Support Devices. The Secretary renewed Commissioner, acting under delegated Personal Respiratory Products the then Acting Secretary’s authority from the Secretary of HHS, Accompanied by Emergency Use determination that a public health may issue an Emergency Use Information emergency exists nationwide involving Authorization (EUA) authorizing the Swine Influenza A (now known as 2009 emergency use of an unapproved drug, AGENCY: Office of the Secretary (OS), H1N1 Influenza) on July 24, October 1, an unapproved or uncleared device, or HHS. and December 28, 2009, and March 26, an unlicensed biological product, or an ACTION: Notice. 2010. Also on March 26, 2010, the unapproved use of an approved drug, Secretary renewed the then Acting approved or cleared device, or licensed SUMMARY: The Secretary of Health and Secretary’s declarations of emergency biological product. Before an EUA may Human Services (HHS) is issuing this justifying the authorization of be issued, the Secretary of HHS must notice pursuant to section 564(b) of the emergency use of certain in vitro declare an emergency justifying the Federal Food, Drug, and Cosmetic Act diagnostic, antiviral, and personal authorization based on one of three (FFDCA), 21 U.S.C. 360bbb–3(b)(4). On respiratory protection products determinations: A determination of a April 26, 2009, the then Acting accompanied by emergency use domestic emergency, or a significant Secretary of HHS determined that a information subject to the terms of any potential for a domestic emergency, by public health emergency exists authorization issued by the the Secretary of Homeland Security; a nationwide involving Swine Influenza Commissioner of Food and Drugs determination of a military emergency, A (now known as 2009 H1N1 Influenza (Commissioner) under 21 U.S.C. or a significant potential for a military A, or 2009 H1N1 Influenza) that affects 360bbb–3(a). emergency, by the Secretary of Defense; or has significant potential to affect or a determination of a public health national security. On the basis of this DATES: The declaration of an emergency emergency by the Secretary of HHS. See determination, on April 26 and April justifying the authorization of 21 U.S.C. 360bbb–3(b)(1). In the case of 27, 2009, the then Acting Secretary emergency use of certain in vitro a determination by the Secretary of HHS declared emergencies justifying the diagnostic products is renewed effective (as was made here), the Secretary must authorization of emergency use of March 26, 2010. The declaration of an determine that a public health certain in vitro diagnostic, antiviral, and emergency justifying the authorization emergency exists under section 319 of personal respiratory protection products of certain antiviral products is renewed the Public Health Service (PHS) Act that accompanied by emergency use effective March 26, 2010. The affects, or has a significant potential to information subject to the terms of any declaration of an emergency justifying affect, national security, and that authorization issued by the the authorization of emergency use of involves a specified biological, Commissioner of Food and Drugs certain respiratory protection products chemical, radiological, or nuclear agent (Commissioner) under 21 U.S.C. is renewed effective March 26, 2010. or agents, or a specified disease or

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condition that may be attributable to detected. By dispensing certain personal to affect national security, a such agent or agents. Based on such a respiratory products accompanied by determination which was renewed on determination, the Secretary of HHS emergency use information, the July 24, 2009, October 1, 2009, may then declare an emergency that appropriate State and/or public health December 28, 2009 and March 26, 2010 justifies the EUA, at which point the authority(ies) can ensure that the because 2009 H1N1 flu outbreak Commissioner may issue an EUA if the products are provided quickly, as remains a public health threat and the criteria for issuance of an authorization appropriate, to help reduce wearer Department should use all available under section 564 of the FFDCA are exposure to airborne germs. By tools to ensure that the nation is met. dispensing certain antiviral products prepared. The renewal of this April 26, The Centers for Disease Control and accompanied by emergency use 2009 declaration was made pursuant to Prevention (CDC), HHS, requested that information, public health and medical section 564(b) of the Federal Food, Drug the Food and Drug Administration professionals and the authorities having and Cosmetic Act, 21 U.S.C. 360bbb– (FDA) issue EUAs for certain in vitro jurisdiction to respond to the emergency 3(b). In renewing the declaration, the diagnostic, antiviral, and personal in each locality can ensure that the Secretary further specified that the respiratory protection products products are provided quickly, as declaration is a declaration of accompanied by emergency use appropriate, to treat those who may emergency, as defined in the December information. The determination of a have been exposed or are ill. 17, 2008 Declaration under the Public public health emergency by the then This is one part of the Federal Readiness and Emergency Preparedness Acting Secretary and declarations of an Government’s strategy to encourage Act for Influenza Diagnostics, Personal emergency by the then Acting Secretary continued preparedness at all levels of Respiratory Protection Devices, and based on that determination, published government to enable the nation to Respiratory Support Devices, 73 FR at 74 FR 38628 (August 4, 2009), respond effectively in response to this 78362 (December 22, 2008). enabled the then Acting Commissioner public health emergency. Also on March 26, 2010, the Secretary to issue EUAs for certain in vitro renewed the April 26, 2010 declaration II. Determination of the Secretary of diagnostic, antiviral, and personal by then Acting Secretary Charles E. Health and Human Services respiratory protection products, Johnson of an emergency justifying the published at 74 FR 38636 (August 4, On March 26, 2010, the Secretary authorization of the emergency use of 2009), 71 FR 38641 (August 4, 2009) and renewed the April 26, 2009 certain products from the 71 FR 38645 (August 4, 2009). The CDC determination by then Acting Secretary neuraminidase class of Antivirals has requested that the FDA continue Charles E. Johnson that a public health Oseltamivir Phosphate and Zanamivir these EUAs to support continued emergency exists nationwide involving accompanied by emergency use surveillance of 2009 H1N1 influenza Swine Influenza A (now called 2009 information subject to the terms of any through use of certain in vitro H1N1 Influenza) that affects or has authorization issued under 21 U.S.C. diagnostic products. Continuation of the significant potential to affect national 360bbb–3(a). This renewal was made on EUAs is also important to support security. The Secretary renewed the the basis of the April 26, 2009 continued availability and disposition Acting Secretary’s determination, after determination by then Acting Secretary of certain antiviral products to treat consultation with public health officials Charles E. Johnson, pursuant to section individuals who are ill following as necessary and pursuant to authority 319 of the Public Health Service Act, 42 exposure to 2009 H1N1 influenza and to under section 319 of the Public Health U.S.C. 247d, that a public health support continued availability and Service Act 42 U.S.C. 247d, because the emergency exists nationwide involving disposition of certain personal 2009 H1N1 Influenza outbreak remains Swine Influenza A (now called 2009 respiratory products to help reduce a worldwide public health threat. The H1N1 Influenza) that affects or has wearer exposure to airborne viruses Secretary previously renewed the significant potential to affect national during the 2009 H1N1 influenza Acting Secretary’s determination on July security, a determination which was emergency. The renewed determination 24, 2009, October 1, 2009, and renewed on July 24, 2009, October 1, of a public health emergency by the December 28, 2009. 2009, December 28, 2009, and March 26, Secretary of HHS and the renewed III. Declarations of the Secretary of 2010 because 2009 H1N1 flu outbreak declarations of an emergency by the Health and Human Services remains a public health threat and the Secretary of HHS based on that Department should use all available determination justify the authorization On March 26, 2010, the Secretary tools to ensure the nation is prepared. of the emergency use of the above renewed the April 26, 2009 declaration The renewal of this April 26, 2009 products. by then Acting Secretary Charles E. declaration was made pursuant to In this public health emergency Johnson of an emergency justifying the section 564(b) of the Federal Food, Drug involving 2009 H1N1 influenza, time authorization of the emergency use of and Cosmetic Act, 21 U.S.C. 360bbb– continues to be of the essence in certain in vitro diagnostics for detection 3(b). In renewing the declaration, the detecting, preventing, and treating of Swine Influenza A (now called 2009 Secretary further specified that the illness and death by getting in vitro H1N1 Influenza) accompanied by declaration is a declaration of diagnostic, antiviral, and personal emergency use information subject to emergency, as defined in the October respiratory protection products, the terms of any authorization issued 10, 2008 Declaration under the Public accompanied by emergency use under 21 U.S.C. 360bbb–3(a). This Readiness and Emergency Preparedness information, to the general public, renewal was made on the basis of the Act for Influenza Antivirals Oseltamivir laboratories, and public health and April 26, 2009 determination by then Phosphate and Zanamivir, 73 FR 61861 health care professionals. By continuing Acting Secretary Charles E. Johnson, (October 17, 2008), as amended at 74 FR to distribute certain in vitro diagnostic pursuant to section 319 of the Public 2913 (April 26, 2009). products accompanied by emergency Health Service Act, 42 U.S.C. 247d, that Also on March 26, 2010, the Secretary use information, public health and a public health emergency exists renewed the April 27, 2009 declaration health care professionals can ensure that nationwide involving Swine Influenza by then Acting Secretary Charles E. any continued spread of the 2009 H1N1 A (now called 2009 H1N1 Influenza) Johnson of an emergency justifying the influenza is quickly and accurately that affects or has significant potential authorization of the emergency use of

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certain personal respiratory protection DEPARTMENT OF HEALTH AND effectiveness, there has been little devices, accompanied by emergency use HUMAN SERVICES systematic investigation of the long- information subject to the terms of any range impact of different categories of authorization issued under 21 U.S.C Substance Abuse and Mental Health discretionary programs. The Multiplier 360bbb–3(a). This renewal was made on Services Administration Surveys will inform SAMHSA policy and budget development by determining the basis of the April 26, 2009 Agency Information Collection determination by then Acting Secretary which types of investments are most Activities: Proposed Collection; appropriate for achieving different Charles E. Johnson, pursuant to section Comment Request 319 of the Public Health Service Act, 42 policy objectives, including U.S.C. 247d, that a public health In compliance with section sustainability of the program or its emergency exists nationwide involving 3506(c)(2)(A) of the Paperwork intended outcomes after Federal Swine Influenza A (now called 2009 Reduction Act of 1995 concerning funding ends. It also seeks to determine which program types or factors are best H1N1 Influenza) that affects or has opportunity for public comment on at achieving certain objectives after the significant potential to affect national proposed collections of information, the Substance Abuse and Mental Health conclusion of Federal funding, such as security, a determination which was Services Administration (SAMHSA) capacity improvement, system change, renewed on July 24, 2009, October 1, will publish periodic summaries of sustainability and influence on other 2009, December 28, 2009 and March 26, proposed projects. To request more programs. Findings will be used to make 2010 because 2009 H1N1 flu outbreak information on the proposed projects or recommendations to SAMHSA remains a public health threat and the to obtain a copy of the information management to better inform policy and Department should use all available collection plans, call the SAMHSA budget development and to determine tools to ensure that the nation is Reports Clearance Officer on (240) 276– which types of investments are most prepared. The renewal of this April 27, 1243. appropriate for achieving different 2009 declaration was made pursuant to Comments are invited on: (a) Whether policy objectives. section 564(b) of the Federal Food, Drug the proposed collections of information To achieve the goals of the Multiplier and Cosmetic Act, 21 U.S.C. 360bbb– are necessary for the proper Surveys four programs have been 3(b). In renewing this declaration, the performance of the functions of the chosen from each of SAMHSA’s three Secretary further specified that the agency, including whether the Centers. Four Project Directors from declaration is a declaration of information shall have practical utility; each of the 12 programs (48 respondents emergency, as defined in the December (b) the accuracy of the agency’s estimate in all), whose Federal funding ended no 17, 2008 Declaration under the Public of the burden of the proposed collection later than September 30, 2008 will be Readiness and Emergency Preparedness of information; (c) ways to enhance the interviewed by telephone to determine Act for Influenza Diagnostics, Personal quality, utility, and clarity of the how the project was sustained after information to be collected; and (d) Respiratory Protection Devices, and Federal funding ended and what factors ways to minimize the burden of the Respiratory Support Devices, 73 FR contributed to its sustainability. collection of information on 78362 (December 22, 2008). respondents, including through the use In addition, all grantees from each of Dated: March 26, 2010. of automated collection techniques or the 12 selected programs meeting other forms of information technology. inclusion criteria will be invited via e- Kathleen Sebelius, mail to complete a short on-line survey Secretary. Proposed Project: Multiplier Surveys— about their project and how/if it was [FR Doc. 2010–7529 Filed 4–1–10; 8:45 am] NEW sustained after Federal funding ended. BILLING CODE 4150–37–P While all SAMHSA programming is A 20 percent response rate or about 100 intended to support the SAMHSA respondents to the on-line survey is vision of a life in the community for expected. everyone, and its strategic goals of The estimated response burden is as accountability, capacity, and follows:

Responses Information source Number of per Total Hours per Total hours respondents respondent responses response

Project Director ...... 48 1 48 1.25 60 Web-based Survey ...... 100 1 100 .75 75

Total ...... 148 ...... 148 ...... 135

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Send comments to Summer King, sharing, impacts on access to and Dated: March 26, 2010. SAMHSA Reports Clearance Officer, quality of affected goods and services, Michelle Shortt, Room 7–1044, One Choke Cherry Road, and beneficiary satisfaction. This Director, Regulations Development Group, Rockville, MD 20857 and e-mail her a project’s purpose is to provide Office of Strategic Operations and Regulatory copy at [email protected]. information for this Report to Congress. Affairs. Written comments should be received Due to substantial legislative and [FR Doc. 2010–7469 Filed 4–1–10; 8:45 am] within 60 days of this notice. regulatory delays in program BILLING CODE 4120–01–P Dated: March 23, 2010. implementation, the Report to Congress Elaine Parry, in 2011 will be released just as the DEPARTMENT OF HEALTH AND program is being implemented, and Director, Office of Program Services. HUMAN SERVICES [FR Doc. 2010–7432 Filed 4–1–10; 8:45 am] before the evaluation is complete. This BILLING CODE 4162–20–P project will continue after the Report to Substance Abuse and Mental Health Congress, to evaluate the impact of the Services Administration program on beneficiaries, on Medicare DEPARTMENT OF HEALTH AND costs, and on changes in the Medicare Current List of Laboratories Which HUMAN SERVICES Durable Medical Equipment, Meet Minimum Standards To Engage in Prosthetics, Orthotics and Supplies Urine Drug Testing for Federal Centers for Medicare & Medicaid (DMEPOS) market. Agencies Services In response to public comments AGENCY: Substance Abuse and Mental [Document Identifier: CMS–10197] received on the 60-day notice that Health Services Administration, HHS. Agency Information Collection published on December 18, 2009 (74 FR ACTION: Notice. 67227), we have made several revisions Activities: Submission for OMB SUMMARY: The Department of Health and Review; Comment Request to this information collection request. Most notably, the revisions include but Human Services (HHS) notifies Federal AGENCY: Centers for Medicare & are not limited to revised burden agencies of the laboratories currently Medicaid Services. calculations due to an increase in the certified to meet the standards of In compliance with the requirement number of respondents and the addition Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing of section 3506(c)(2)(A) of the of another data collection wave. Form Programs (Mandatory Guidelines). The Paperwork Reduction Act of 1995, the Number: CMS–10197 (OMB#: 0938– Mandatory Guidelines were first Centers for Medicare & Medicaid 1015); Frequency: Occasionally; Services (CMS), Department of Health published in the Federal Register on Affected Public: Individuals or April 11, 1988 (53 FR 11970), and and Human Services, is publishing the households, Private Sector, Business or following summary of proposed subsequently revised in the Federal other for-profits, not-for-profit Register on June 9, 1994 (59 FR 29908), collections for public comment. institutions, and Federal Government; Interested persons are invited to send on September 30, 1997 (62 FR 51118), Number of Respondents: 8,470; Total and on April 13, 2004 (69 FR 19644). comments regarding this burden Annual Responses: 8,470; Total Annual estimate or any other aspect of this A notice listing all currently certified Hours: 4,342. (For policy questions collection of information, including any laboratories is published in the Federal regarding this collection contact Ann of the following subjects: (1) The Register during the first week of each necessity and utility of the proposed Meadow at 410–786–6602. For all other month. If any laboratory’s certification information collection for the proper issues call 410–786–1326.) is suspended or revoked, the laboratory performance of the Agency’s function; To obtain copies of the supporting will be omitted from subsequent lists (2) the accuracy of the estimated statement and any related forms for the until such time as it is restored to full burden; (3) ways to enhance the quality, proposed paperwork collections certification under the Mandatory Guidelines. utility, and clarity of the information to referenced above, access CMS Web Site If any laboratory has withdrawn from be collected; and (4) the use of address at http://www.cms.hhs.gov/ the HHS National Laboratory automated collection techniques or PaperworkReductionActof1995, or E- Certification Program (NLCP) during the other forms of information technology to mail your request, including your past month, it will be listed at the end, minimize the information collection address, phone number, OMB number, and will be omitted from the monthly burden. and CMS document identifier, to 1. Type of Information Collection listing thereafter. [email protected], or call the This notice is also available on the Request: Revision of a currently Reports Clearance Office on (410) 786– Internet at http:// approved collection; Title of 1326. www.workplace.samhsa.gov and http:// Information Collection: Evaluation of www.drugfreeworkplace.gov. the Medicare National Competitive To be assured consideration, Bidding Program for DME; Use: Data comments and recommendations for the FOR FURTHER INFORMATION CONTACT: Mrs. collection materials consisting of proposed information collections must Giselle Hersh, Division of Workplace beneficiary surveys and interview/ be received by the OMB desk officer at Programs, SAMHSA/CSAP, Room 2– discussion group guides are necessary to the address below, no later than 5 p.m. 1042, One Choke Cherry Road, conduct the congressionally mandated on May 3, 2010. Rockville, Maryland 20857; 240–276– 2600 (voice), 240–276–2610 (fax). evaluation of the Medicare National OMB, Office of Information and Competitive Bidding Program. Section SUPPLEMENTARY INFORMATION: The Regulatory Affairs, Attention: CMS 303(d) of the Medicare Prescription Mandatory Guidelines were developed Desk Officer, Fax Number: (202) 395– Drug, Improvement, and Modernization in accordance with Executive Order 6974, E-mail: Act of 2003 (MMA) requires a Report to _ 12564 and section 503 of Public Law Congress on the program, covering OIRA [email protected]. 100–71. Subpart C of the Mandatory program savings, reductions in cost Guidelines, ‘‘Certification of

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Laboratories Engaged in Urine Drug DynaLIFE Dx,* 10150–102 St., Suite 77504, 888–747–3774, (Formerly: Testing for Federal Agencies,’’ sets strict 200, Edmonton, Alberta, Canada T5J University of Texas Medical Branch, standards that laboratories must meet in 5E2, 780–451–3702/800–661–9876, Clinical Chemistry Division; UTMB order to conduct drug and specimen (Formerly: Dynacare Kasper Medical Pathology-Toxicology Laboratory); validity tests on urine specimens for Laboratories); Pacific Toxicology Laboratories, 9348 Federal agencies. To become certified, ElSohly Laboratories, Inc., 5 Industrial DeSoto Ave., Chatsworth, CA 91311, an applicant laboratory must undergo Park Drive, Oxford, MS 38655, 662– 800–328–6942, (Formerly: Centinela three rounds of performance testing plus 236–2609; Hospital Airport Toxicology an on-site inspection. To maintain that Gamma-Dynacare Medical Laboratory); certification, a laboratory must Laboratories,* A Division of the Pathology Associates Medical participate in a quarterly performance Gamma-Dynacare Laboratory Laboratories, 110 West Cliff Dr., testing program plus undergo periodic, Partnership, 245 Pall Mall Street, Spokane, WA 99204, 509–755–8991/ on-site inspections. London, ONT, Canada N6A 1P4, 519– 800–541–7891x7; Laboratories which claim to be in the 679–1630; Phamatech, Inc., 10151 Barnes Canyon applicant stage of certification are not to Laboratory Corporation of America Road, San Diego, CA 92121, 858–643– be considered as meeting the minimum Holdings, 7207 N. Gessner Road, 5555; requirements described in the HHS Houston, TX 77040, 713–856–8288/ Quest Diagnostics Incorporated, 3175 Mandatory Guidelines. A laboratory 800–800–2387; Presidential Dr., Atlanta, GA 30340, must have its letter of certification from Laboratory Corporation of America 770–452–1590/800–729–6432, HHS/SAMHSA (formerly: HHS/NIDA) Holdings, 69 First Ave., Raritan, NJ (Formerly: SmithKline Beecham which attests that it has met minimum 08869, 908–526–2400/800–437–4986, Clinical Laboratories; SmithKline Bio- standards. (Formerly: Roche Biomedical Science Laboratories); In accordance with Subpart C of the Laboratories, Inc.); Quest Diagnostics Incorporated, 400 Mandatory Guidelines dated April 13, Laboratory Corporation of America Egypt Road, Norristown, PA 19403, 2004 (69 FR 19644), the following Holdings, 1904 Alexander Drive, 610–631–4600/877–642–2216, laboratories meet the minimum Research Triangle Park, NC 27709, (Formerly: SmithKline Beecham standards to conduct drug and specimen 919–572–6900/800–833–3984, Clinical Laboratories; SmithKline Bio- validity tests on urine specimens: (Formerly: LabCorp Occupational Science Laboratories); ACL Laboratories, 8901 W. Lincoln Testing Services, Inc., CompuChem Quest Diagnostics Incorporated, 7600 Ave., West Allis, WI 53227, 414–328– Laboratories, Inc.; CompuChem Tyrone Ave., Van Nuys, CA 91405, 7840/800–877–7016, (Formerly: Laboratories, Inc., A Subsidiary of 866–370–6699/818–989–2521, Bayshore Clinical Laboratory); Roche Biomedical Laboratory; Roche (Formerly: SmithKline Beecham ACM Medical Laboratory, Inc., 160 CompuChem Laboratories, Inc., A Clinical Laboratories); Elmgrove Park, Rochester, NY 14624, Member of the Roche Group); S.E.D. Medical Laboratories, 5601 Office 585–429–2264; Advanced Toxicology Laboratory Corporation of America Blvd., Albuquerque, NM 87109, 505– Network, 3560 Air Center Cove, Suite Holdings, 1120 Main Street, 727–6300/800–999–5227; 101, Memphis, TN 38118, 901–794– Southaven, MS 38671, 866–827–8042/ South Bend Medical Foundation, Inc., 5770/888–290–1150; 800–233–6339, (Formerly: LabCorp 530 N. Lafayette Blvd., South Bend, Aegis Analytical Laboratories, 345 Hill Occupational Testing Services, Inc.; IN 46601, 574–234–4176 x1276; Ave., Nashville, TN 37210, 615–255– MedExpress/National Laboratory Southwest Laboratories, 4625 E. Cotton 2400, (Formerly: Aegis Sciences Center); Center Boulevard, Suite 177, Phoenix, Corporation, Aegis Analytical LabOne, Inc. d/b/a Quest Diagnostics, AZ 85040, 602–438–8507/800–279– Laboratories, Inc.); 10101 Renner Blvd., Lenexa, KS 0027; Alere Toxicology Services, 1111 Newton 66219, 913–888–3927/800–873–8845, St. Anthony Hospital Toxicology St., Gretna, LA 70053, 504–361–8989/ (Formerly: Quest Diagnostics Laboratory, 1000 N. Lee St., 800–433–3823, (Formerly: Kroll Incorporated; LabOne, Inc.; Center for Oklahoma City, OK 73101, 405–272– Laboratory Specialists, Inc., Laboratory Services, a Division of 7052; Laboratory Specialists, Inc.); LabOne, Inc.,); STERLING Reference Laboratories, 2617 Alere Toxicology Services, 450 Maxxam Analytics,* 6740 Campobello East L Street, Tacoma, Washington Southlake Blvd., Richmond, VA Road, Mississauga, ON, Canada L5N 98421, 800–442–0438; 23236, 804–378–9130, (Formerly: 2L8, 905–817–5700, (Formerly: Toxicology & Drug Monitoring Kroll Laboratory Specialists, Inc., Maxxam Analytics Inc., NOVAMANN Laboratory, University of Missouri Scientific Testing Laboratories, Inc.; (Ontario), Inc.); Hospital & Clinics, 301 Business Loop Kroll Scientific Testing Laboratories, MedTox Laboratories, Inc., 402 W. 70 West, Suite 208, Columbia, MO Inc.); County Road D, St. Paul, MN 55112, 65203, 573–882–1273; Baptist Medical Center-Toxicology 651–636–7466/800–832–3244; Toxicology Testing Service, Inc., 5426 Laboratory, 9601 I–630, Exit 7, Little MetroLab-Legacy Laboratory Services, N.W. 79th Ave., Miami, FL 33166, Rock, AR 72205–7299, 501–202–2783, 1225 NE 2nd Ave., Portland, OR 305–593–2260; (Formerly: Forensic Toxicology 97232, 503–413–5295/800–950–5295; U.S. Army Forensic Toxicology Drug Laboratory Baptist Medical Center); Minneapolis Veterans Affairs Medical Testing Laboratory, 2490 Wilson St., Clinical Reference Lab, 8433 Quivira Center, Forensic Toxicology Fort George G. Meade, MD 20755– Road, Lenexa, KS 66215–2802, 800– Laboratory, 1 Veterans Drive, 5235, 301–677–7085. 445–6917; Minneapolis, MN 55417, 612–725– * The Standards Council of Canada (SCC) Doctors Laboratory, Inc., 2906 Julia 2088; voted to end its Laboratory Accreditation Drive, Valdosta, GA 31602, 229–671– National Toxicology Laboratories, Inc., Program for Substance Abuse (LAPSA) 2281; 1100 California Ave., Bakersfield, CA effective May 12, 1998. Laboratories certified DrugScan, Inc., P.O. Box 2969, 1119 93304, 661–322–4250/800–350–3515; through that program were accredited to Mearns Road, Warminster, PA 18974, One Source Toxicology Laboratory, Inc., conduct forensic urine drug testing as 215–674–9310; 1213 Genoa-Red Bluff, Pasadena, TX required by U.S. Department of

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Transportation (DOT) regulations. As of that MSC 7804 (For courier delivery, use MD Drug Abuse, National Institutes of Health, date, the certification of those accredited 20817), Bethesda, MD 20892, 301–435–1715, DHHS, 6101 Executive Blvd., Suite 220, MSC Canadian laboratories will continue under [email protected]. 8401, Bethesda, MD 20892, 301–402–7964, DOT authority. The responsibility for Name of Committee: Center for Scientific [email protected]. conducting quarterly performance testing Review Special Emphasis Panel; Member This notice is being published less than 15 plus periodic on-site inspections of those Conflict: Addiction, Learning and Stress. days prior to the meeting due to the timing LAPSA-accredited laboratories was Date: May 4–5, 2010. limitations imposed by the review and transferred to the U.S. HHS, with the HHS’ Time: 8 a.m. to 5 p.m. funding cycle. NLCP contractor continuing to have an active Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance role in the performance testing and applications. Program Nos. 93.279, Drug Abuse and laboratory inspection processes. Other Place: National Institutes of Health, 6701 Addiction Research Programs, National Canadian laboratories wishing to be Rockledge Drive, Bethesda, MD 20892 Institutes of Health, HHS) considered for the NLCP may apply directly (Virtual Meeting). to the NLCP contractor just as U.S. Contact Person: Brian Hoshaw, PhD, Dated: March 29, 2010. laboratories do. Scientific Review Officer, Center for Anna Snouffer, Upon finding a Canadian laboratory to be Scientific Review, National Institutes of Acting Director, Office of Federal Advisory qualified, HHS will recommend that DOT Health, 6701 Rockledge Drive, Room 5181, Committee Policy. certify the laboratory (Federal Register, July MSC 7844, Bethesda, MD 20892, 301–435– [FR Doc. 2010–7509 Filed 4–1–10; 8:45 am] 16, 1996) as meeting the minimum standards 1033, [email protected]. of the Mandatory Guidelines published in the BILLING CODE 4140–01–P Federal Register on April 13, 2004 (69 FR (Catalogue of Federal Domestic Assistance 19644). After receiving DOT certification, the Program Nos. 93.306, Comparative Medicine; laboratory will be included in the monthly 93.333, Clinical Research, 93.306, 93.333, DEPARTMENT OF HEALTH AND list of HHS-certified laboratories and 93.337, 93.393–93.396, 93.837–93.844, HUMAN SERVICES participate in the NLCP certification 93.846–93.878, 93.892, 93.893, National maintenance program. Institutes of Health, HHS) National Institutes of Health March 24, 2010. Dated: March 29, 2010. Elaine Parry, Anna Snouffer, National Institute on Drug Abuse; Director, Office of Program Services, Deputy Director, Office of Federal Advisory Notice of Closed Meeting SAMHSA. Committee Policy. Pursuant to section 10(d) of the [FR Doc. 2010–7170 Filed 4–1–10; 8:45 am] [FR Doc. 2010–7510 Filed 4–1–10; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4140–01–P BILLING CODE 4160–20–P amended (5 U.S.C. App.), notice is hereby given of the following meeting. DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND The meeting will be closed to the HUMAN SERVICES HUMAN SERVICES public in accordance with the provisions set forth in sections National Institutes of Health National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and National Institute on Drug Abuse; Center for Scientific Review; Notice of the discussions could disclose Notice of Closed Meeting Closed Meetings confidential trade secrets or commercial Pursuant to section 10(d) of the Pursuant to section 10(d) of the property such as patentable material, Federal Advisory Committee Act, as Federal Advisory Committee Act, as and personal information concerning amended (5 U.S.C. App.), notice is amended (5 U.S.C. App), notice is individuals associated with the contract hereby given of the following meetings. hereby given of the following meeting. proposals, the disclosure of which The meetings will be closed to the The meeting will be closed to the would constitute a clearly unwarranted public in accordance with the public in accordance with the invasion of per personal privacy. provisions set forth in sections provisions set forth in sections Name of Committee: National Institute on 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C. Drug Abuse Special Emphasis Panel; as amended. The grant applications and as amended. The grant applications and N44DA–10–5541: The Computerized the discussions could disclose the discussions could disclose Screening of Dual Diagnosed Adolescents. confidential trade secrets or commercial confidential trade secrets or commercial Date: April 9, 2010. property such as patentable material, property such as patentable materials, Time: 1 p.m. to 2:30 p.m. and personal information concerning and personal information concerning Agenda: To review and evaluate contract individuals associated with the grant proposals. individuals associated with the grant Place: National Institutes of Health, 6101 applications, the disclosure of which applications, the disclosure of which Executive Boulevard, Rockville, MD 20852 would constitute a clearly unwarranted would constitute a clearly unwarranted (Telephone Conference Call). invasion of personal privacy. invasion of personal privacy. Contact Person: Minna Liang, PhD, Name of Committee: Center for Scientific Name of Committee: National Institute on Scientific Review Officer, Training and Review Special Emphasis Panel; OBT Drug Abuse Special Emphasis Panel; Special Projects Review Branch, Office of Member Conflict—Cancer Biology. Mechanism for Time-Sensitive Drug Abuse Extramural Affairs, National Institute on Date: April 21, 2010. Research. Drug Abuse, NIH, 6101 Executive Blvd., Time: 10:30 a.m. to 12 p.m. Date: April 8, 2010. Room 220, MSC 8401, Bethesda, MD 20852, Agenda: To review and evaluate grant Time: 12 p.m. to 3 p.m. 301–435–1432, [email protected]. applications. Agenda: To review and evaluate grant This notice is being published less than 15 Place: National Institutes of Health, 6701 applications. days prior to the meeting due to the timing Rockledge Drive, Bethesda, MD 20892 Place: National Institutes of Health, 6101 limitations imposed by the review and (Telephone Conference Call). Executive Boulevard, Rockville, MD 20852 funding cycle. Contact Person: Angela Y. Ng, MBA, PhD, (Telephone Conference Call). (Catalogue of Federal Domestic Assistance Scientific Review Officer, Center for Contact Person: Meenaxi Hiremath, PhD, Program Nos. 93.279, Drug Abuse and Scientific Review, National Institutes of Health Scientist Administrator, Office of Addiction Research Programs, National Health, 6701 Rockledge Drive, Room 6200, Extramural Affairs, National Institute on Institutes of Health, HHS)

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Dated: March 24, 2010. DEPARTMENT OF HEALTH AND amended (5 U.S.C. App.), notice is Jennifer Spaeth, HUMAN SERVICES hereby given of the following meetings. Director, Office of Federal Advisory The meetings will be closed to the National Institutes of Health Committee Policy. public in accordance with the [FR Doc. 2010–7076 Filed 4–1–10; 8:45 am] National Cancer Institute; Notice of provisions set forth in sections BILLING CODE 4140–01–M Closed Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and Pursuant to section 10(d) of the the discussions could disclose DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as confidential trade secrets or commercial HUMAN SERVICES amended (5 U.S.C. App.), notice is property such as patentable material, hereby given of the following meeting. and personal information concerning National Institutes of Health The meeting will be closed to the individuals associated with the grant public in accordance with the applications, the disclosure of which National Center for Research provisions set forth in sections Resources; Notice of Closed Meeting would constitute a clearly unwarranted 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. as amended. The grant applications and Pursuant to section 10(d) of the the discussions could disclose Name of Committee: National Institute of Federal Advisory Committee Act, as confidential trade secrets or commercial Allergy and Infectious Diseases Special amended (5 U.S.C. App.), notice is property such as patentable material, Emphasis Panel, External Quality Assurance hereby given of the following meeting. and personal information concerning Program. The meeting will be closed to the individuals associated with the grant Date: April 20, 2010. Time: 11 a.m. to 4 p.m. public in accordance with the applications, the disclosure of which Agenda: To review and evaluate contract provisions set forth in sections would constitute a clearly unwarranted invasion of personal privacy. proposals. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: National Institutes of Health, 6700A as amended. The grant applications and Name of Committee: National Cancer Rockledge Drive, Room 105, Bethesda, MD the discussions could disclose Institute Special Emphasis Panel, NCI SPORE 20817. (Telephone Conference Call) confidential trade secrets or commercial in Skin and Prostate Cancers. Contact Person: Eric Lorenzo, PhD, Date: June 15–16, 2010. property such as patentable material, Scientific Review Officer, Scientific Review and personal information concerning Time: 4 p.m. to 5 p.m. Agenda: To review and evaluate grant Program, DEA/NIAID/NIH/DHHS, Room individuals associated with the grant applications. 3134, 6700B Rockledge Drive, MSC–7616, applications, the disclosure of which Place: Hyatt Regency Bethesda, One Bethesda, MD 20892–7616, 301–496–2550, would constitute a clearly unwarranted Bethesda Metro Center, 7400 Wisconsin [email protected]. invasion of personal privacy. Avenue, Bethesda, MD 20814. Name of Committee: National Institute of Contact Person: Caron A Lyman, PhD, Allergy and Infectious Diseases Special Name of Committee: National Center for Scientific Review Officer, Research Programs Research Resources Special Emphasis Panel; Emphasis Panel, Loan Repayment Program. Review Branch, Division of Extramural Date: April 29–30, 2010. Loan Repayment. Activities, National Cancer Institute, 6116 Time: 8 a.m. to 6 p.m. Date: April 29, 2010. Executive Blvd, Room 8119, Bethesda, MD Time: 8 a.m. to 5 p.m. 20892–8328, 301–451–4761, Agenda: To review and evaluate grant Agenda: To review and evaluate grant [email protected]. applications. Place: National Institutes of Health, 6700B applications. (Catalogue of Federal Domestic Assistance Place: National Institutes of Health, One Program Nos. 93.392, Cancer Construction; Rockledge Drive, Room 3245, Bethesda, MD Democracy Plaza, 6701 Democracy 93.393, Cancer Cause and Prevention 20817. (Telephone Conference Call) Boulevard, Bethesda, MD 20892. (Telephone Research; 93.394, Cancer Detection and Contact Person: Edward W. Schroder, PhD, Conference Call) Diagnosis Research; 93.395, Cancer Scientific Review Officer, Scientific Review Contact Person: Carol Lambert, PhD, Treatment Research; 93.396, Cancer Biology Program, Division of Extramural Activities, Research; 93.397, Cancer Centers Support; Scientific Review Officer, Office of Review, National Institutes of Health/NIAID, 6700B 93.398, Cancer Research Manpower; 93.399, NCRR, National Institutes of Health, 6701 Rockledge Drive, MSC 7616, Bethesda, MD Cancer Control, National Institutes of Health, 20892, 301–435–8537, Democracy Blvd., One Democracy Plaza, HHS) Room 1076, MSC 4874, Bethesda, MD 20892– [email protected]. 4874, 301–435–0814, [email protected]. Dated: March 26, 2010. (Catalogue of Federal Domestic Assistance Jennifer Spaeth, (Catalogue of Federal Domestic Assistance Program Nos. 93.855, Allergy, Immunology, Program Nos. 93.306, Comparative Medicine; Director, Office of Federal Advisory and Transplantation Research; 93.856, Committee Policy. 93.333, Clinical Research; 93.371, Biomedical Microbiology and Infectious Diseases Technology; 93.389, Research Infrastructure; [FR Doc. 2010–7561 Filed 4–1–10; 8:45 am] Research, National Institutes of Health, HHS) 93.306, 93.333; 93.702, ARRA Related BILLING CODE 4140–01–P Dated: March 29, 2010. Construction Awards, National Institutes of Anna Snouffer, Health, HHS) DEPARTMENT OF HEALTH AND Acting Director, Office of Federal Advisory Dated: March 29, 2010. HUMAN SERVICES Committee Policy. Jennifer Spaeth, [FR Doc. 2010–7556 Filed 4–1–10; 8:45 am] Director, Office of Federal Advisory National Institutes of Health BILLING CODE 4140–01–P Committee Policy. National Institute of Allergy and [FR Doc. 2010–7562 Filed 4–1–10; 8:45 am] Infectious Diseases; Notice of Closed BILLING CODE 4140–01–P Meetings Pursuant to section 10(d) of the Federal Advisory Committee Act, as

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DEPARTMENT OF HEALTH AND approximately 4 p.m. and 5 p.m. on July Dated: March 30, 2010. HUMAN SERVICES 16, 2010. Those desiring to make oral Leslie Kux, presentations should notify the contact Acting Assistant Commissioner for Policy. Food and Drug Administration person by July 1, 2010, and submit a [FR Doc. 2010–7496 Filed 4–1–10; 8:45 am] [Docket No. 2010–N–0001] brief statement of the general nature of BILLING CODE 4160–01–S information they wish to present and an 2010 Scientific Meeting of the National indication of the approximate time Antimicrobial Resistance Monitoring requested to make their presentation. DEPARTMENT OF HEALTH AND System; Public Meeting; Request for Time allotted for each presentation may HUMAN SERVICES Comments be limited. The contact person will inform each speaker of their schedule Agency for Healthcare Research and AGENCY: Food and Drug Administration, prior to the meeting. Quality HHS. ACTION: Notice of public meeting; Comments: Regardless of attendance Meeting for Software Developers on request for comments. at the public meeting, interested persons the Technical Specifications for may submit written comments to the Common Formats for Patient Safety The Food and Drug Administration Division of Dockets Management (HFA– Data Collection and Event Reporting (FDA) is announcing a public meeting 305), Food and Drug Administration, entitled ‘‘2010 Scientific Meeting of the 5630 Fishers Lane, rm. 1061, Rockville, AGENCY: Agency for Healthcare Research National Antimicrobial Resistance MD 20852. Submit electronic comments and Quality (AHRQ), HHS. Monitoring System.’’ The topic to be to http://www.regulations.gov. Submit a ACTION: Notice of public meeting. discussed is the results from the single copy of electronic comments or National Antimicrobial Resistance two paper copies of any mailed SUMMARY: This notice announces a Monitoring System (NARMS) and comments, except that individuals may meeting to discuss the technical related antimicrobial resistance submit one paper copy. Comments are specifications for AHRQ’s common monitoring and research, including to be identified with the docket number definitions and reporting formats activities in other national programs. found in brackets in the heading of this (Common Formats) Version 1.1 that Date and Time: The public meeting document. Received comments may be allow for reporting of patient safety will be held on July 15 and 16, 2010, seen in the Division of Dockets information to Patient Safety from 8 a.m. to 5 p.m. Management between 9 a.m. and 4 p.m., Location: The public meeting will be Organizations (PSOs). The Patient Monday through Friday. The docket held at Hyatt Regency-Atlanta hotel, 265 Safety and Quality Improvement Act of will remain open for written or Peachtree St. NE, Atlanta, GA 30303, 2005, 42 U.S.C. 299b–21 to b–26, electronic comments for 30 days 404–577–1234, FAX: 404–588–4137. (Patient Safety Act) provides for the Contact Person: Joanne Kla, Center for following the meeting. formation of PSOs, which collect, Veterinary Medicine (HFV–12), Food Agenda: The meeting will address aggregate, and analyze confidential and Drug Administration, 7519 Standish goals and challenges of monitoring information regarding the quality and Pl., Rockville, MD 20857, 240–276– antimicrobial susceptibility in safety of healthcare delivery. The 9129, e-mail: NARMSinternational foodborne bacteria, and present research Patient Safety Act (at 42 U.S.C. 299b– [email protected], FAX: 240–276– on the microbiology and epidemiology 23) authorizes the collection of this 9115. of resistance. The agenda for the public information in a standardized manner, Registration and Requests for Oral meeting will be made available on the as explained in the related Patient Presentations: Send registration agency’s Web site at http:// Safety and Quality Improvement Final information (including name, title, firm www.fda.gov/AnimalVeterinary/ Rule, 42 CFR part 3 (Patient Safety Rule), published in the Federal Register name, address, telephone and fax SafetyHealth/AntimicrobialResistance/ on November 21, 2008: 73 FR 70731– number, and e-mail address), and NationalAntimicrobialResistance 70814. As authorized by the Secretary of written material and requests to make MonitoringSystem/ucm059135.htm. oral presentations, to the contact person HHS, AHRQ coordinates the Transcripts: FDA will prepare a (see Contact Person) on or before July 7, development of the Common Formats meeting transcript and make it available 2010. There is no registration fee for the that allow healthcare providers to on the agency’s Web site (see Agenda) public meeting. Early registration is voluntarily collect and submit recommended because seating is after the meeting. FDA anticipates that standardized information regarding limited. Registration on the day of the transcripts will be available patient safety events. More information public meeting will be provided on a approximately 30 business days after on the Common Formats Version 1.1, space available basis beginning at 8 a.m. the meeting. The transcript will be including the technical specifications, on the day of the meeting. available for public examination at the can be obtained through AHRQ’s PSO If you need special accommodations Division of Dockets Management (HFA– Web site: http://www.PSO.AHRQ.gov/ due to a disability, please contact the 305), 5630 Fishers Lane, rm. 1061, index.html. Hyatt Regency-Atlanta hotel, (see Rockville, MD 20852, between 9 a.m. Technical specifications promote Location) at least 7 days in advance. and 4 p.m., Monday through Friday. A standardization by ensuring that data Interested persons may present data, transcript will also be available in either collected by PSOs and other entities are information, or views, orally or in hardcopy or on CD–ROM, after clinically and electronically writing, on the topic of the discussion submission of a Freedom of Information comparable. This meeting is designed as of the meeting. Written submissions request. Written requests are to be sent an interactive forum where PSOs and may be made to the contact person on to Division of Freedom of Information software developers can provide input or before July 1, 2010, for distribution at (HFI–35), Office of Management on these technical specifications for the the meeting. Oral presentations from the Programs, Food and Drug Common Formats Version 1.1. AHRQ public during the open public comment Administration, 5600 Fishers Lane, rm. especially requests input from those period will be scheduled between 6–30, Rockville, MD 20857. entities which have implemented, or

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plan to implement, the formats The technical specifications consist of register as soon as possible for the electronically. the following: meeting. Non-registered individuals will Æ Data dictionary—defines data be able to attend the meeting in person DATES: The meeting will be held from 10 elements and their attributes (data a.m. to 5 p.m. on May 5, 2010. if space is available. element name, answer values, field We invite review of the technical ADDRESSES: The meeting will be held at length, guide for use, etc.) included in specifications for Common Formats the Hyatt Regency Baltimore, 300 Light Common Formats Version 1.1; Version 1.1 prior to the meeting. The Street, Baltimore, Maryland 21202. Æ Clinical document architecture formats can be accessed through FOR FURTHER INFORMATION CONTACT: (CDA) implementation guide—provides AHRQ’s PSO Web site at http:// Susan Grinder, Center for Quality instructions for developing a Health www.pso.AHRQ.gov/formats/ Improvement and Patient Safety, AHRQ, Level Seven (HL7) CDA Extensible commonfmt.htm. AHRQ is committed to 540 Gaither Road, Rockville, MD 20850; Markup Language (XML) file to transmit continuing refinement of the Common Telephone (toll free): (866) 403–3697; the Common Formats Patient Safety Formats. AHRQ welcomes questions Telephone (local): (301) 427–1111; TTY data from the PSO to the PPC using the from prospective meeting participants (toll free): (866) 438–7231; TTY (local): Common Formats; and interested individuals on the (301) 427–1130; E-mail: Æ Validation rules and errors technical specifications for Common [email protected]. document-specifies and defines the Formats Version 1.1. These questions If sign language interpretation or other validation rules that will be applied to should be e-mailed to reasonable accommodation for a the Common Formats data elements [email protected] no later than April disability is needed, please contact the submitted to the PPC; 28, 2010. AHRQ will use the input Æ Food and Drug Administration (FDA) Common Formats flow charts— received at this meeting as we continue Office of Equal Employment diagrams the valid paths to complete to update and refine the Common Opportunity and Disability Management generic and event specific formats (a Formats. complete event report); A summary of the meeting will be on (301) 827–4840, no later than April Æ 21, 2010. Local specifications—provides provided to all meeting participants. If specifications for processing, linking SUPPLEMENTARY INFORMATION: you are unable to participate in the and reporting on events and details meeting and would like a copy of the Background specifications for reports; and Æ summary, please send an e-mail to Metadata registry—includes [email protected] and it will be sent The Patient Safety Act and Patient descriptive facts about information Safety Rule establish a framework by as soon as it is available after the contained in the data dictionary to meeting. which doctors, hospitals, and other illustrate how such data corresponds healthcare providers may voluntarily with similar data elements used by Dated: March 24, 2010. report information regarding patient other Federal agencies and standards Carolyn M. Clancy, safety events and quality of care. AHRQ development organizations [e.g., HL–7, Director. develops and maintains the Common International Standards Organization [FR Doc. 2010–7049 Filed 4–1–10; 8:45 am] Formats to improve the safety and (ISO)]. BILLING CODE 4160–90–M quality of healthcare delivery. AHRQ’s Common Formats Version 1.1 includes: Agenda, Registration and Other Æ Descriptions of patient safety Information About the Meeting DEPARTMENT OF HEALTH AND events and unsafe conditions to be On Wednesday, May 5, 2010, the HUMAN SERVICES reported (event descriptions), meeting will convene at 10 a.m. with an Æ Specifications for patient safety overview of the Common Formats National Institutes of Health aggregate reports and individual event Version 1.1, including the technical summaries, specifications. Next, AHRQ staff and National Eye Institute; Notice of Closed Æ Delineation of data elements to be contractors who developed the formats Meeting collected for specific types of events, will review the different components of Pursuant to section 10(d) of the Æ A user’s guide and quick guide, and the technical specifications. Throughout Federal Advisory Committee Act, as Æ Technical specifications for the meeting there will be interactive amended (5 U.S.C. App.), notice is electronic data collection and reporting. discussion to allow meeting participants hereby given of the following meeting. This meeting will focus on not only to provide input, but also to The meeting will be closed to the presentation and discussion of these respond to the input provided by others. public in accordance with the new technical specifications, which A more specific proposed agenda will provisions set forth in sections provide direction to software developers be posted before the meeting at https: 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., that plan to implement the Common //www.psoppc.org/web/patientsafety. as amended. The grant applications and Formats electronically. The technical AHRQ requests that interested the discussions could disclose specifications are a critical component persons register with the PSO Privacy confidential trade secrets or commercial that will allow for the aggregation of Protection Center (PSO PPC) on the property such as patentable material, patient safety event data by Internet at https://www.psoppc.org/web/ and personal information concerning standardizing the patient safety event patientsafety to participate in the individuals associated with the grant information collected and specifying meeting. The contact at the PSO PPC is applications, the disclosure of which standard rules for data collection, as Lauren Richie who can be reached by would constitute a clearly unwarranted well as providing guidance for how and telephone at (630) 792–5977 and by e- invasion of personal privacy. when to create data elements, their valid mail at [email protected]. Additional Name of Committee: National Eye Institute values, and conditional and go-to logic logistical information for the meeting is Special Emphasis Panel; NEI Training Grants. for the data elements. In addition to also available from the PSO PPC. The Date: April 21–22, 2010. standardizing the information collected, meeting space will accommodate Time: 8 a.m. to 5 p.m. they specify the data submission file approximately 130 participants. Agenda: To review and evaluate grant format. Interested persons are encouraged to applications.

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Place: National Eye Institute, 5635 Fishers avert the threat of a catastrophe in the DEPARTMENT OF HOUSING AND Lane, Suite 1300, Bethesda, MD 20892. designated areas. Specifically, you are URBAN DEVELOPMENT (Virtual Meeting) authorized to provide assistance for Contact Person: Daniel R. Kenshalo, PhD, emergency protective measures (Category B), [Docket No. FR–5383–N–06] Scientific Review Officer, National Eye limited to direct Federal assistance, under Institute, National Institutes of Health, 5635 the Public Assistance program. This Notice of Proposed Information Fishers Lane, Suite 1300, MSC 9300, assistance excludes regular time costs for Collection for Public Comment Civil Bethesda, MD 20892, 301–451–2020, subgrantees’ regular employees. Rights Front End and Limited [email protected]. Consistent with the requirement that Monitoring Review (Catalogue of Federal Domestic Assistance Federal assistance is supplemental, any Program Nos. 93867, Vision Research, Federal funds provided under the Stafford AGENCY: Office of the Assistant National Institutes of Health, HHS) Act for Public Assistance will be limited to Secretary for Public and Indian Housing, HUD. Dated: March 26, 2010. 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby ACTION: Notice of proposed information Jennifer Spaeth, authorized to allocate from funds available collection. Director, Office of Federal Advisory for these purposes such amounts as you find Committee Policy. necessary for Federal emergency assistance SUMMARY: The proposed information [FR Doc. 2010–7435 Filed 4–1–10; 8:45 am] and administrative expenses. collection requirement described below BILLING CODE 4140–01–M Further, you are authorized to make will be submitted to the Office of changes to this declaration for the approved Management and Budget (OMB) for assistance to the extent allowable under the review, as required by the Paperwork DEPARTMENT OF HOMELAND Stafford Act. Reduction Act. The Department is SECURITY The Federal Emergency Management soliciting public comments on the Agency (FEMA) hereby gives notice that subject proposal. Federal Emergency Management pursuant to the authority vested in the DATES: Comments Due Date: June 1, Agency Administrator, Department of Homeland 2010. [Internal Agency Docket No. FEMA–3310– Security, under Executive Order 12148, ADDRESSES: Interested persons are EM; Docket ID FEMA–2010–0002] as amended, Lawrence Sommers, of invited to submit comments regarding FEMA is appointed to act as the Federal this proposal. Comments should refer to Minnesota; Emergency and Related Coordinating Officer for this declared the proposal by name/or OMB Control Determinations emergency. number and should be sent to: Leroy AGENCY: Federal Emergency The following areas of the State of McKinney, Jr., Departmental Reports Management Agency, DHS. Minnesota have been designated as Management Officer, QDAM, ACTION: Notice. adversely affected by this declared Department of Housing and Urban emergency: Development, 451 7th Street, SW., SUMMARY: This is a notice of the Room 4178, Washington, DC 20410– Presidential declaration of an The counties of Big Stone, Blue Earth, 5000; telephone 202–402–8048, (this is Brown, Carver, Chippewa, Clay, Dakota, emergency for the State of Minnesota not a toll-free number) or e-mail Mr. Goodhue, Hennepin, Kittson, Lac Qui Parle, (FEMA–3310–EM), dated March 19, Le Sueur, Lyon, Marshall, Nicollet, Norman, McKinney at 2010, and related determinations. Polk, Ramsey, Redwood, Renville, Scott, [email protected] for a copy of DATES: Effective Date: March 19, 2010. Sibley, Swift, Traverse, Washington, Wilkin, the proposed forms, or other available FOR FURTHER INFORMATION CONTACT: Wright, and Yellow Medicine and the Tribal information. Persons with hearing or Peggy Miller, Recovery Directorate, Nation of the Upper Sioux Community for speech impairments may access this Federal Emergency Management emergency protective measures (Category B), number through TTY by calling the toll- Agency, 500 C Street, SW., Washington, limited to direct Federal assistance, under free Federal Information Relay Service the Public Assistance program. DC 20472, (202) 646–3886. at 800–877–8339. (Other than the HUD The following Catalog of Federal Domestic USER information line and TTY SUPPLEMENTARY INFORMATION: Notice is Assistance Numbers (CFDA) are to be used hereby given that, in a letter dated numbers, telephone numbers are not for reporting and drawing funds: 97.030, toll-free.) March 19, 2010, the President issued an Community Disaster Loans; 97.031, Cora FOR FURTHER INFORMATION CONTACT: emergency declaration under the Brown Fund; 97.032, Crisis Counseling; authority of the Robert T. Stafford 97.033, Disaster Legal Services; 97.034, Dacia Rogers, Office of Policy, Programs Disaster Relief and Emergency Disaster Unemployment Assistance (DUA); and Legislative Initiatives, PIH, Assistance Act, 42 U.S.C. 5121–5207 97.046, Fire Management Assistance Grant; Department of Housing and Urban (the Stafford Act), as follows: 97.048, Disaster Housing Assistance to Development, 451 7th Street, SW., Individuals and Households In Presidentially Room 4116, Washington, DC 20410; I have determined that the emergency Declared Disaster Areas; 97.049, telephone 202–402–3374, (this is not a conditions in certain areas of the State of Presidentially Declared Disaster Assistance— Minnesota resulting from flooding beginning toll-free number). Disaster Housing Operations for Individuals on March 1, 2010, and continuing, are of SUPPLEMENTARY INFORMATION: The and Households; 97.050, Presidentially sufficient severity and magnitude to warrant Department will submit the proposed Declared Disaster Assistance to Individuals an emergency declaration under the Robert T. information collection to OMB for and Households—Other Needs; 97.036, Stafford Disaster Relief and Emergency Disaster Grants—Public Assistance review, as required by the Paperwork Assistance Act, 42 U.S.C. 5121 et seq. (‘‘the Reduction Act of 1995 (44 U.S.C. Stafford Act’’). Therefore, I declare that such (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. Chapter 35, as amended). This Notice is an emergency exists in the State of soliciting comments from members of Minnesota. W. Craig Fugate, You are authorized to provide appropriate the public and affected agencies Administrator, Federal Emergency assistance for required emergency measures, concerning the proposed collection of Management Agency. authorized under Title V of the Stafford Act, information to: (1) Evaluate whether the to save lives and to protect property and [FR Doc. 2010–7450 Filed 4–1–10; 8:45 am] proposed collection of information is public health and safety, and to lessen or BILLING CODE 9111–23–P necessary for the proper performance of

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the functions of the agency, including Dated: March 25, 2010. (202) 402–5564. This is not a toll-free whether the information will have Merrie Nichols-Dixon, number. Copies of available documents practical utility; (2) evaluate the Acting Deputy Assistant Secretary for Policy, submitted to OMB may be obtained accuracy of the agency’s estimate of the Programs, and Legislative Initiatives, PP. from Mr. McKinney. burden of the proposed collection of [FR Doc. 2010–7484 Filed 4–1–10; 8:45 am] SUPPLEMENTARY INFORMATION: This information; (3) enhance the quality, BILLING CODE 4210–67–P notice informs the public that the utility, and clarity of the information to Department of Housing and Urban be collected; and (4) minimize the Development has submitted to OMB a burden of the collection of information DEPARTMENT OF HOUSING AND request for approval of the Information on those who are to respond, including URBAN DEVELOPMENT collection described below. This notice through the use of appropriate [Docket No. FR–5376–N–22] is soliciting comments from members of automated collection techniques or the public and affecting agencies other forms of information technology; Delegated Processing for Certain 202 concerning the proposed collection of e.g., permitting electronic submission of Supportive Housing for the Elderly information to: (1) Evaluate whether the responses. Projects proposed collection of information is This notice also lists the following AGENCY: Office of the Chief Information necessary for the proper performance of information: Officer, HUD. the functions of the agency, including whether the information will have ACTION: Notice. Title of Proposal: Civil Rights Front practical utility; (2) Evaluate the End and Limited Monitoring Review. SUMMARY: The proposed information accuracy of the agency’s estimate of the OMB Control Number: 2577–0251. collection requirement described below burden of the proposed collection of Description of the Need for the has been submitted to the Office of information; (3) Enhance the quality, Information and Proposed Use: In Management and Budget (OMB) for utility, and clarity of the information to support of the HUD Office of Public and review, as required by the Paperwork be collected; and (4) Minimize the Indian Housing (PIH) and the Office of Reduction Act. The Department is burden of the collection of information Fair Housing and Equal Opportunity soliciting public comments on the on those who are to respond; including (FHEO), the effort will address civil subject proposal. through the use of appropriate Under the Delegated Processing rights related program requirements. automated collection techniques or Procedure, a Delegated Processing Civil rights Front-End Limited other forms of information technology, Agency (DPA) is vested with the e.g., permitting electronic submission of Monitoring reviews shall be conducted processing authority provided by responses. for twenty (20) Tier 1 PHAs. The section 2835(b) of the Housing and purpose of the review is to alert PIH and Economic Recovery Act of 2008, Public This Notice Also Lists the Following FHEO of a PHA’s Failure to comply Law 110–289. The DPA must act under Information with civil rights requirements that this authority in accordance with Title of Proposal: Delegated pertain to Low-Rent Public Housing applicable NOFA and program Processing for certain 202 Supportive Programs, The Housing Choice Voucher regulations, notices, handbooks, forms Housing for the Elderly projects. Program and Section 504 of the and other directives. These forms OMB Approval Number: 2502–New. Rehabilitation Act of 1973 as amended. formally establish this relationship Form Numbers: Schedule of Projects Agency Form Numbers, if Applicable: between HUD and the DPA. HUD–90000, Delegated Processing HUD–52510–A; 52510–B. DATES: Comments Due Date: May 3, Agreement HUD–90001, and Delegated Members of Affected Public: State, 2010. Processing Certifications HUD–90002. Local, or Tribal Government; Public ADDRESSES: Interested persons are Description of the Need for the Housing Agencies (PHAs). invited to submit comments regarding Information and Its Proposed Use: Estimation of the Total number of this proposal. Comments should refer to Under the Delegated Processing hours needed to prepare the information the proposal by name and/or OMB Procedure, a Delegated Processing collection including number of approval Number (2502–New) and Agency (DPA) is vested with the respondents, frequency of response, and should be sent to: HUD Desk Officer, processing authority provided by hours of response: 20 respondents; Office of Management and Budget, New section 2835(b) of the Housing and requiring annually of 20 responses; 40 Executive Office Building, Washington, Economic Recovery Act of 2008, Public total burden hours; average of 2 burden DC 20503; fax: 202–395–5806. Law 110–289. The DPA must act under hours per respondent. FOR FURTHER INFORMATION CONTACT: this authority in accordance with Leroy McKinney, Jr., Reports applicable NOFA and program Status of the Proposed Information Management Officer, QDAM, regulations, notices, handbooks, forms Collection: Extension of a currently Department of Housing and Urban and other directives. These forms approved collection. Development, 451 Seventh Street, SW., formally establish this relationship Authority: Section 3506 of the Paperwork Washington, DC 20410; e-mail Leroy between HUD and the DPA. Reduction Act of 1995, 44 U.S.C. Chapter 35, McKinney, Jr. at Frequency of Submission: On as amended. [email protected] or telephone occasion.

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

Reporting Burden ...... 15 2.333 1.428 50

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Total Estimated Burden Hours: 50. suitability of improvements; extent, practical utility; (2) Evaluate the Status: New Collection. quality, and duration of earning accuracy of the agency’s estimate of the Authority: Section 3507 of the Paperwork capacity; the value of real estate burden of the proposed collection of Reduction Act of 1995, 44 U.S.C. 35, as proposed or existing as security for a information; (3) Enhance the quality, amended. long-term mortgages; and several other utility, and clarity of the information to Dated: March 25, 2010. factors which have a bearing on the be collected; and (4) Minimize the economic soundness of the subject burden of the collection of information Leroy McKinney, Jr., property. on those who are to respond; including Departmental Reports Management Officer, through the use of appropriate Office of the Chief Information Officer. DATES: Comments Due Date: May 3, 2010. automated collection techniques or [FR Doc. 2010–7487 Filed 4–1–10; 8:45 am] other forms of information technology, BILLING CODE 4210–67–P ADDRESSES: Interested persons are e.g., permitting electronic submission of invited to submit comments regarding responses. this proposal. Comments should refer to This notice also lists the following DEPARTMENT OF HOUSING AND the proposal by name and/or OMB URBAN DEVELOPMENT information: approval Number (2502–New) and Title of Proposal: Insured Healthcare [Docket No. FR–5376–N–23] should be sent to: HUD Desk Officer, Facilities 232 Loan Application. Office of Management and Budget, New OMB Approval Number: 2502–New. Insured Healthcare Facilities 232 Loan Executive Office Building, Washington, Form Numbers: HUD–92013–NHICF, Application DC 20503; fax: 202–395–5806. HUD–92264–HCF, HUD–92264–T. AGENCY: Office of the Chief Information FOR FURTHER INFORMATION CONTACT: Description of the Need for the Officer, HUD. Leroy McKinney, Jr., Reports Information and its Proposed Use: Management Officer, QDAM, ACTION: Notice. Information provided is the application Department of Housing and Urban for HUD/FHA multifamily mortgage SUMMARY: The proposed information Development, 451 Seventh Street, SW., insurance. The information form collection requirement described below Washington, DC 20410; e-mail Leroy sponsors and general contractors, and has been submitted to the Office of McKinney, Jr. at submitted by a HUD-approved Management and Budget (OMB) for [email protected] or telephone mortgages, is needed to determine review, as required by the Paperwork (202) 402–5564. This is not a toll-free project feasibility, mortgagor/contractor Reduction Act. The Department is number. Copies of available documents acceptability, and construction cost. soliciting public comments on the submitted to OMB may be obtained Documentation form operators/ subject proposal. from Mr. McKinney. managers of health care facilities is also Information provided is the SUPPLEMENTARY INFORMATION: This required as part of the application from application for HUD/FHA multifamily notice informs the public that the firm commitment for mortgage mortgage insurance. The information Department of Housing and Urban insurance. Other information requested form sponsors and general contractors, Development has submitted to OMB a enables HUD to determine the and submitted by a HUD-approved request for approval of the Information suitability of improvements; extent, mortgages, is needed to determine collection described below. This notice quality, and duration of earning project feasibility, mortgagor/contractor is soliciting comments from members of capacity; the value of real estate acceptability, and construction cost. the public and affecting agencies proposed or existing as security for a Documentation form operators/ concerning the proposed collection of long-term mortgages; and several other managers of health care facilities is also information to: (1) Evaluate whether the factors which have a bearing on the required as part of the application from proposed collection of information is economic soundness of the subject firm commitment for mortgage necessary for the proper performance of property. insurance. Other information requested the functions of the agency, including Frequency of Submission: Annually, enables HUD to determine the whether the information will have Required with each project application.

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

Reporting Burden ...... 300 1 178 53,410

Total Estimated Burden Hours: DEPARTMENT OF HOUSING AND review, as required by the Paperwork 53,410. URBAN DEVELOPMENT Reduction Act. The Department is Status: New Collection. soliciting public comments on the [Docket No. FR–5376–N–21] subject proposal. Authority: Section 3507 of the Paperwork Section 542(c) of the Risk Sharing Reduction Act of 1995, 44 U.S.C. 35, as Housing Finance Agency Risk-Sharing Program authorizes qualified Housing amended. Program Finance Agencies (HFAs) to underwrite Dated: March 26, 2010. AGENCY: Office of the Chief Information and process loans. HUD provides full Stephen A. Hill, Officer, HUD. mortgage insurance on affordable Director, Office of Investments Strategies, ACTION: Notice. multifamily housing project processed Policy Management. by HFAs under this program. Qualified [FR Doc. 2010–7483 Filed 4–1–10; 8:45 am] SUMMARY: The proposed information HFAs are vested with the maximum BILLING CODE 4210–67–P collection requirement described below amount of processing responsibilities. has been submitted to the Office of By entering into Risk-Sharing Management and Budget (OMB) for Agreement with HUD, HFAs contract to

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reimburse HUD for a portion of the loss Department of Housing and Urban Title of Proposal: Housing Finance from any defaults that occur while HUD Development has submitted to OMB a Agency Risk-Sharing Program. insurance is in force. request for approval of the Information OMB Approval Number: 2502–0500. DATES: Comments Due Date: May 3, collection described below. This notice Form Numbers: HUD–2703B, HUD– 2010. is soliciting comments from members of 92080, HUD–92426, HUD–94193, HUD– the public and affected agencies ADDRESSES: Interested persons are 94196, HUD–2744–A, HUD–2744–B, invited to submit comments regarding concerning the proposed collection of HUD–2744–C, HUD–2744–D, HUD– this proposal. Comments should refer to information to: (1) Evaluate whether the 2744–E, HUD–94194, HUD–94192, SF– the proposal by name and/or OMB proposed collection of information is LLL, HUD–7015.15, HUD–7015.16. approval Number (2502–0500) and necessary for the proper performance of should be sent to: HUD Desk Officer, the functions of the agency, including Description of the Need for the Office of Management and Budget, New whether the information will have Information and its Proposed Use: Executive Office Building, Washington, practical utility; (2) Evaluate the Section 542(c) of the Risk Sharing Program authorizes qualified Housing DC 20503; fax: 202–395–5806. accuracy of the agency’s estimate of the Finance Agencies (HFAs) to underwrite FOR FURTHER INFORMATION CONTACT: burden of the proposed collection of and process loans. HUD provides full Leroy McKinney, Jr., Reports information; (3) Enhance the quality, mortgage insurance on affordable Management Officer, QDAM, utility, and clarity of the information to Department of Housing and Urban multifamily housing project processed be collected; and (4) Minimize the by HFAs under this program. Qualified Development, 451 Seventh Street, SW., burden of the collection of information Washington, DC 20410; e-mail Leroy HFAs are vested with the maximum on those who are to respond; including amount of processing responsibilities. McKinney, Jr. at through the use of appropriate [email protected] or telephone By entering into Risk-Sharing automated collection techniques or (202) 402–5564. This is not a toll-free Agreement with HUD, HFAs contract to other forms of information technology, number. Copies of available documents reimburse HUD for a portion of the loss e.g., permitting electronic submission of submitted to OMB may be obtained from any defaults that occur while HUD from Mr. McKinney. responses. insurance is in force. SUPPLEMENTARY INFORMATION: This This notice also lists the following Frequency of Submission: On notice informs the public that the information: occasion.

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

Reporting Burden ...... 915 16.1836 1.9529 28,919

Total Estimated Burden Hours: FOR FURTHER INFORMATION CONTACT: categories: Suitable/available, suitable/ 28,919. Kathy Ezzell, Department of Housing unavailable, suitable/to be excess, and Status: Revision, with change, of and Urban Development, 451 Seventh unsuitable. The properties listed in the previously approved collection for Street, SW., Room 7266, Washington, three suitable categories have been which approval has expired. DC 20410; telephone (202) 708–1234; reviewed by the landholding agencies, Authority: Section 3507 of the Paperwork TTY number for the hearing- and and each agency has transmitted to Reduction Act of 1995, 44 U.S.C. 35, as speech-impaired (202) 708–2565 (these HUD: (1) Its intention to make the amended. telephone numbers are not toll-free), or property available for use to assist the Dated: March 25, 2010. call the toll-free Title V information line homeless, (2) its intention to declare the at 800–927–7588. Leroy McKinney, Jr., property excess to the agency’s needs, or SUPPLEMENTARY INFORMATION: In (3) a statement of the reasons that the Departmental Reports Management Officer, Office of the Chief Information Officer. accordance with 24 CFR part 581 and property cannot be declared excess or section 501 of the Stewart B. McKinney made available for use as facilities to [FR Doc. 2010–7488 Filed 4–1–10; 8:45 am] Homeless Assistance Act (42 U.S.C. assist the homeless. BILLING CODE 4210–67–P 11411), as amended, HUD is publishing Properties listed as suitable/available this Notice to identify Federal buildings will be available exclusively for DEPARTMENT OF HOUSING AND and other real property that HUD has homeless use for a period of 60 days URBAN DEVELOPMENT reviewed for suitability for use to assist from the date of this Notice. Where the homeless. The properties were property is described as for ‘‘off-site use [Docket No. FR–5375–N–12] reviewed using information provided to only’’ recipients of the property will be HUD by Federal landholding agencies required to relocate the building to their Federal Property Suitable as Facilities regarding unutilized and underutilized own site at their own expense. To Assist the Homeless buildings and real property controlled Homeless assistance providers AGENCY: Office of the Assistant by such agencies or by GSA regarding interested in any such property should Secretary for Community Planning and its inventory of excess or surplus send a written expression of interest to Development, HUD. Federal property. This Notice is also HHS, addressed to Theresa Rita, ACTION: Notice. published in order to comply with the Division of Property Management, December 12, 1988 Court Order in Program Support Center, HHS, room SUMMARY: This Notice identifies National Coalition for the Homeless v. 5B–17, 5600 Fishers Lane, Rockville, unutilized, underutilized, excess, and Veterans Administration, No. 88–2503– MD 20857; (301) 443–2265. (This is not surplus Federal property reviewed by OG (D.D.C.). a toll-free number.) HHS will mail to the HUD for suitability for possible use to Properties reviewed are listed in this interested provider an application assist the homeless. Notice according to the following packet, which will include instructions

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for completing the application. In order (202) 685–9305; (These are not toll-free Landholding Agency: Navy to maximize the opportunity to utilize a numbers). Property Number: 77201010036 suitable property, providers should Status: Underutilized Dated: March 25, 2010. Reasons: Secured Area submit their written expressions of Mark R. Johnston, interest as soon as possible. For 5 Facilities Deputy Assistant Secretary for Special Needs. complete details concerning the Naval Recreation Center Solomons MD Title V, Federal Surplus Property Program processing of applications, the reader is Landholding Agency: Navy encouraged to refer to the interim rule Federal Register Report for 04/02/2010 Property Number: 77201010037 governing this program, 24 CFR part Status: Underutilized 581. SUITABLE/AVAILABLE PROPERTIES Directions: 408, 404, 426, 452, 487 For properties listed as suitable/to be BUILDING Reasons: Secured Area excess, that property may, if ALASKA 12 Bldgs. subsequently accepted as excess by Naval Recreation Center Dalton-Cache Border Station Solomons MD GSA, be made available for use by the Mile 42 Haines Highway homeless in accordance with applicable Landholding Agency: Navy Haines AK 99827 Property Number: 77201010038 law, subject to screening for other Landholding Agency: GSA Status: Underutilized Federal use. At the appropriate time, Property Number: 54201010019 Directions: 9, 14, 20, 418, 458, 459, 460, 35, HUD will publish the property in a Status: Excess 41, 261, 262, 82 Notice showing it as either suitable/ GSA Number: 9–G–AK–0833 Reasons: Secured Area available or suitable/unavailable. Directions: Bldgs. 1 and 2 Comments: 1,940 sq. ft., most recent use- 13 Bldgs. For properties listed as suitable/ residential, and off-site removal only Naval Recreation Center unavailable, the landholding agency has Solomons MD TENNESSEE decided that the property cannot be Landholding Agency: Navy declared excess or made available for 2 Bldgs. Property Number: 77201010039 use to assist the homeless, and the National Military Park Status: Underutilized Shiloh TN 38376 Directions: 99A, 99B, 126, 126A, 457, 135, property will not be available. Landholding Agency: Interior 380, 147, 412, 453, 465, 466, 468 Properties listed as unsuitable will Property Number: 61201010015 Reasons: Secured Area not be made available for any other Status: Unutilized 14 Bldgs. purpose for 20 days from the date of this Directions: Tracts 01–173 and 01–180 Naval Recreation Center Notice. Homeless assistance providers Comments: 928 sq. ft and 2,000 sq. ft, most Solomons MD interested in a review by HUD of the recent use-residential, and off-site removal Landholding Agency: Navy determination of unsuitability should UNSUITABLE PROPERTIES Property Number: 77201010040 call the toll free information line at 1– Status: Underutilized 800–927–7588 for detailed instructions BUILDING Directions: 472, 486, 494, B2, B2A, 10, 463, or write a letter to Mark Johnston at the MARYLAND 442, 11A, 26, 86, 132, 27, 85 address listed at the beginning of this 7 Bldgs. Reasons: Secured Area Notice. Included in the request for Naval Recreation Center 7 Bldgs. review should be the property address Solmons MD Naval Recreation Center Solomons MD (including zip code), the date of Landholding Agency: Navy Property Number: 77201010032 Landholding Agency: Navy publication in the Federal Register, the Status: Underutilized Property Number: 77201010041 landholding agency, and the property Directions: 301, 303, 305, 307, 309, 411, Status: Underutilized number. 411A Directions: 103, 105, 105B, 10B, 103B, 116, For more information regarding Reasons: Secured Area 130 particular properties identified in this 34 Bldgs. Reasons: Secured Area Notice (i.e., acreage, floor plan, existing Naval Recreation Center 14 Bldgs. sanitary facilities, exact street address), Solomons MD Naval Recreation Center providers should contact the Landholding Agency: Navy Solomons MD appropriate landholding agencies at the Property Number: 77201010033 Landholding Agency: Navy Property Number: 77201010042 following addresses: COAST GUARD: Status: Underutilized Directions: 217 thru 237, C2, C4, C5, C6, C8, Status: Underutilized Commandant, United States Coast C9, C10, C12, C13, C15, C17, C18, C19 Directions: 238, 240, 254, 313, 397, 403, 433, Guard, Attn: Jennifer Stomber, 2100 Reasons: Secured Area 443, 444, 471, 503, 445, 446, 454 Second St., SW., Stop 7901, Bldgs. 370, 371, 381 Reasons: Secured Area Washington, DC 20593–0001; (202) 475– Naval Recreation Center Bldgs. 462, 432, 464 5609; GSA: Mr. Gordon Creed, Acting Solomons MD Naval Recreation Center Deputy Assistant Commissioner, Landholding Agency: Navy Solomons MD General Services Administration, Office Property Number: 77201010034 Landholding Agency: Navy of Property Disposal, 18th & F Streets, Status: Underutilized Property Number: 77201010043 NW., Washington, DC 20405; (202) 501– Reasons: Secured Area Status: Underutilized 0084; INTERIOR: Mr. Michael Wright, 5 Facilities Reasons: Secured Area Acquisition & Property Management, Naval Recreation Center 5 Facilities Department of the Interior, 1849 C Solomons MD Naval Recreation Center Landholding Agency: Navy Solomons MD Street, NW., Washington, DC 20240: Property Number: 77201010035 Landholding Agency: Navy (202) 208–5399; NAVY: Mr. Albert Status: Underutilized Property Number: 77201010044 Johnson, Director of Real Estate, Directions: 399, 400, 401, 402, 456 Status: Underutilized Department of the Navy, Naval Facilities Reasons: Secured Area Directions: 470, 469, 467, 405, 330 Engineering Command, Washington Bldgs. 255, 423, 455/Site 1 Reasons: Secured Area Navy Yard, 1330 Patterson Ave., SW., Naval Recreation Center 4 Facilities/Site 2 Suite 1000, Washington, DC 20374; Solomons MD Naval Recreation Center

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Solomons MD Extensive deterioration $7,804,000 for construction services Landholding Agency: Navy MISSISSIPPI through September 30, 2011. Property Number: 77201010045 FOR FURTHER INFORMATION CONTACT: For Status: Underutilized Tract 02–167 Directions: 392, 193, 386, 387 Natl Military Park CDBG–R: Stanley Gimont, Director, Reasons: Secured Area Vickburg MS 39180 Office of Block Grant Assistance, Landholding Agency: Interior Facility 451/Site 3 Department of Housing and Urban Property Number: 61201010014 Naval Recreation Center Development, 451 Seventh Street, SW., Status: Unutilized Solomons MD Room 7286, Washington, DC 20410, Reasons: Extensive deterioration Landholding Agency: Navy telephone number 202–708–3587. Property Number: 77201010046 TEXAS Persons with hearing or speech Status: Underutilized 2 Bldgs. impairments may access this number Reasons: Secured Area Amistad National Rec Area via TTY by calling the Federal 8 Facilities Del Rio TX 78840 Information Relay Service at 800–877– Naval Recreation Center Landholding Agency: Interior 8339. FAX inquiries may be sent to Mr. Solomons MD Property Number: 61201010016 Gimont at 202–401–2044. Except for the Landholding Agency: Navy Status: Unutilized Property Number: 77201010047 Directions: Bldg. Nos. 4 and 5 ‘‘800’’ number, these telephone numbers Status: Underutilized Reasons: Extensive deterioration are not toll-free. Directions: 369, 407, 473, 474, 311, 731P2, Bldgs. H–A thru H–J SUPPLEMENTARY INFORMATION: The 361, 420 Naval Air Station Recovery Act appropriated $980 million Reasons:Secured Area Corpus Christi TX 78419 out of the $1 billion in CDBG–R funds 3 Facilities/Site 4 Landholding Agency: Navy to state and local governments to carry Naval Recreation Center Property Number: 77201010052 out eligible activities on an expedited Solomons MD Status: Unutilized basis. Section 1605(a) of the Recovery Landholding Agency: Navy Reasons: Extensive deterioration Property Number: 77201010048 Act, the ‘‘Buy American’’ provision, Status: Underutilized LAND states that for Recovery Act funds used Directions: 243, 396, S379A COLORADO for a project for the construction, alteration, maintenance, or repair of a Reasons: Secured Area 0.12 Acres 5 Bldgs. Highway 348 public building or public work, all of Naval Recreation Center Olathe CO 81425 the iron, steel, and manufactured goods Solomons MD Landholding Agency: Interior used in the project must be produced in Landholding Agency: Navy Property Number: 61201010012 the United States. Interim final guidance Property Number: 77201010049 Status: Unutilized (2 CFR Part 176) for implementing the Status: Underutilized Reasons: Other—Legal Constraints Buy American provision was issued by Directions: B1, 376, 376A 385, 312 [FR Doc. 2010–7272 Filed 4–1–10; 8:45 am] Reasons: Secured Area the Office of Management and Budget BILLING CODE 4210–67–P (OMB) on April 23, 2009 at 74 Federal 9 Bldgs. Naval Recreation Center Register 18449, and applies to CDBG–R Solomons MD grants. HUD issued Buy American Landholding Agency: Navy DEPARTMENT OF HOUSING AND guidance in CPD Notice 2009–5, issued Property Number: 77201010050 URBAN DEVELOPMENT October 7, 2009, see http:// Status: Underutilized [Docket No. FR–5401–N–01] portal.hud.gov/portal/page/portal/HUD/ Directions: 389, 390, 391, 373, 372, 377, 378, program_offices/administration/ 388, 328 Notice of Modifications to U.S. hudclips/notices/cpd. OMB is issuing Reasons: Secured Area Commitments Under the World Trade Amendments of Interim Final Guidance Bldgs. & approx. 41.68 acres Organization Government to reflect changes with respect to U.S. Naval Air Station Procurement Agreement To Implement international obligations. Patuxent River MD Section 1605(d) of the Recovery Act Landholding Agency: Navy Agreement With Canada Regarding Property Number: 77201010051 Section 1605 of the Recovery Act (Buy provides that the Buy American Status: Underutilized American Requirement) Applicable to requirement in section 1605 shall be Directions: 416, 419, 433–438, 462, 1597, Community Development Block Grant applied in a manner consistent with 1598, 1598B, 2494 Recovery Funds U.S. obligations under international Reasons: Secured Area agreements. The OMB guidance 4 Bldg. AGENCY: Office of the Assistant provides that the Buy American Coast Guard Secretary for Community Planning and requirement shall not be applied where Annapolis MD 21403 Development, HUD. the iron, steel, or manufactured goods Landholding Agency: Coast Guard ACTION: Notice. used in the project are from a Party to Property Number: 88201010006 an international agreement, listed in 2 Status: Excess DATES: Effective Date: February 16, 2010 CFR 176.90(b) and the recipient is Directions: Qtrs. A–OJ1 and Qtrs. B–OJ2 Qtrs. A–OV4 and Qtrs. B–OV5 through September 30, 2011. required under an international Reasons: Secured Area SUMMARY: The domestic purchasing agreement, described in the Appendix requirement of section 1605(a) of the to subpart B of 2 CFR 176, to treat the MINNESOTA American Reinvestment and Recovery goods and services of that Party the 2 Bldgs. Act of 2009 (Recovery Act) will not be same as domestic goods and services. As Voyagers national Park applied as a condition of Recovery Act of January 1, 2010, this obligation shall Crain Lake MN 55725 Landholding Agency: Interior financing in the Community only apply to projects with an estimated Property Number: 61201010013 Development Block Grants Recovery value of $7,804,000 or more and projects Status: Unutilized (CDBG–R) Program with respect to that are not specifically excluded from Directions: Tract 37101 and Tract 70–143 Canadian iron, steel, and manufactured the application of those agreements. Reasons: Not accessible by road products in procurement above Based on the recently concluded

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Agreement between the Government of ACTION: Notice. provides that the Buy American the United States of America and the requirement shall not be applied where Government of Canada on Government DATES: Effective Date: February 16, 2010 the iron, steel, or manufactured goods Procurement (Canada-U.S. Agreement), through September 30, 2011. used in the project are from a Party to the Buy American requirement in SUMMARY: The domestic purchasing an international agreement, listed in 2 section 1605(a) of the Recovery Act will requirement of section 1605(a) of the CFR 176.90(b) and the recipient is not be applied as a condition of American Reinvestment and Recovery required under an international Recovery Act financing in the CDBG–R Act of 2009 (Recovery Act) will not be agreement, described in the Appendix Program with respect to Canadian iron, applied as a condition of Recovery Act to Subpart B of 2 CFR 176, to treat the steel, or manufactured goods in projects financing in Public Housing Capital goods and services of that Party the above $7,804,000. This is effective Fund Recovery Formula and same as domestic goods and services. As February 16, 2010 through September Competitive Grant Programs (Capital of January 1, 2010, this obligation shall 30, 2011. This means that with respect Fund Recovery Program) with respect to only apply to projects with an estimated to CDBG–R grantees, Canadian iron, Canadian iron, steel, and manufactured value of $7,804,000 or more and projects steel, or manufactured goods in products in procurement above that are not specifically excluded from procurement above the $7,804,000 $7,804,000 for construction services the application of those agreements. threshold for construction projects shall through September 30, 2011. Based on the recently concluded be treated the same as U.S. iron, steel, FOR FURTHER INFORMATION CONTACT: For Agreement between the Government of or manufactured goods for purposes of Public Housing Capital Fund Recovery the United States of America and the the Buy American requirement of Formula and Competitive Grants: Government of Canada on Government section 1605 of the Recovery Act. Dominique G. Blom, Deputy Assistant Procurement (Canada-U.S. Agreement), The United States is not undertaking Secretary for Public Housing the Buy American requirement in any other commitments with respect to Investments, Office of Public Housing section 1605(a) of the Recovery Act will the CDBG–R grants, which means that Investments, Office of Public and Indian not be applied as a condition of the CDBG–R grantees can continue to Housing, Department of Housing and Recovery Act financing in the Capital apply their own procurement Urban Development, 451 7th Street, Fund Recovery Program with respect to procedures that are consistent with SW., Room 4210, Washington, DC Canadian iron, steel, or manufactured HUD requirements. State and local 20410–4000, telephone 202–402–8500 goods in projects above $7,804,000. This governments receiving CDBG–R (this is not a toll-free number). Persons is effective February 16, 2010 through assistance must continue to follow all with hearing- or speech-impairments September 30, 2011. This means that other requirements including obligation may access this number through TTY by with respect to PHAs in the Capital and expenditure requirements. In calling the toll-free Federal Information Fund Recovery Program, Canadian iron, summary, if a CDBG–R grantee has a Relay Service at 800–877–8339. steel, or manufactured goods in construction project involving a public SUPPLEMENTARY INFORMATION: procurement above the $7,804,000 work/building, and is using CDBG–R as The Recovery Act appropriated threshold for construction projects shall a source of funding for this construction $4,000,000,000 for Capital Fund be treated the same as U.S. iron, steel, project, and the total construction Recovery Program grants to public or manufactured goods for purposes of project has an estimated value of more housing authorities (PHAs) to carry out the Buy American requirement of than $7,804,000, Canadian-sourced iron, eligible activities on an expedited basis. section 1605 of the Recovery Act. steel and manufactured goods may be Section 1605(a) of the Recovery Act, the The United States is not undertaking used and no additional HUD exception ‘‘Buy American’’ provision, states that any other commitments with respect to will be required. for Recovery Act funds used for a Capital Fund Recovery Program grants, Dated: March 29, 2010. project for the construction, alteration, which means that the PHAs can Mercedes M. Ma´rquez, maintenance, or repair of a public continue to apply their procurement Assistant Secretary for Community Planning building or public work, all of the iron, procedures that are consistent with and Development. steel, and manufactured goods used in HUD’s Recovery Act. PHAs receiving [FR Doc. 2010–7485 Filed 4–1–10; 8:45 am] the project must be produced in the Capital Fund Recovery Program grant BILLING CODE 4210–67–P United States. Interim final guidance (2 assistance must continue to follow all CFR Part 176) for implementing the Buy other requirements including obligation American provision was issued by the and expenditure requirements. In DEPARTMENT OF HOUSING AND Office of Management and Budget summary, if a PHA has a construction URBAN DEVELOPMENT (OMB) on April 23, 2009 at 74 Federal project involving a public work/ Register 18449, and applies to the building, and is using Capital Fund [Docket No. FR–5400–N–01] Capital Fund Recovery Program. HUD Recovery Program grant assistance as a Notice of Modifications to U.S. issued Buy American guidance in source of funding for this construction Commitments Under the World Trade Public Housing Notice 2009–31, issued project, and the total construction Organization Government August 21, 2009, see http:// project has an estimated value of more Procurement Agreement To Implement www.hud.gov/offices/adm/hudclips/ than $7,804,000, Canadian-sourced iron, Agreement With Canada Regarding notices/pih/09pihnotices.cfm. OMB is steel and manufactured goods may be Section 1605 of the Recovery Act (Buy issuing Amendments of Interim Final used and no additional HUD exception American Requirement) Applicable to Guidance to reflect changes with respect will be required. to U.S. international obligations. Public Housing Capital Fund Recovery Dated: March 5, 2010. Section 1605(d) of the Recovery Act Formula and Competitive Grant Sandra B. Henriquez, Programs provides that the Buy American requirement in section 1605 shall be Assistant Secretary for Public and Indian AGENCY: Office of the Assistant applied in a manner consistent with Housing. Secretary for Public and Indian U.S. obligations under international [FR Doc. 2010–7490 Filed 4–1–10; 8:45 am] Housing, HUD. agreements. The OMB guidance BILLING CODE 4210–67–P

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DEPARTMENT OF THE INTERIOR Government employees under specified (3) Description of the need and use of circumstances. In compliance with the information: This information Office of the Secretary OMB Circular A–45 (Revised), Rental collection provides the data that enables and Construction of Government DOI to determine open market rental Notice of Proposed Information Quarters, a review of private rental costs for GFH. These rates, in turn, Collection market housing rates is required at least enable DOI and other Federal agencies AGENCY: Office of the Secretary, Office once every 5 years to ensure that the to set GFH rental rates in accordance of Acquisition and Property rental, utility charges, and charges for with the requirements of OMB Circular Management. related services to occupants of A–45 (Revised). ACTION: Notice and request for Government Furnished Housing (GFH) III. Request for Comments comments. are comparable to corresponding charges in the private sector. To avoid The Department of the Interior invites SUMMARY: In compliance with section unnecessary duplication and comments on: 3506(c)(2)(A) of the Paperwork inconsistent rental rates, the Department (a) Whether the collection of Reduction Act of 1995, the Office of the of the Interior, Office of the Secretary, information is necessary for the proper Secretary of the Department of the National Business Center, conducts performance of the functions of the Interior announces the proposed housing surveys in support of employee agency, including whether the extension of an information collection housing management programs for the information will have practical utility; required by Office of Management and Departments of the Interior (DOI), (b) The accuracy of the agency’s Budget (OMB) Circular A–45 (Revised): Agriculture, Commerce, Homeland estimate of the burden of the collection ‘‘Private Rental Survey,’’ OMB Control Security, Justice, Transportation, Health and the validity of the methodology and No. 1084–0033, and that it is seeking and Human Services, and Veterans assumptions used; (c) Ways to enhance the quality, comments on its provisions. After Affairs. In this survey, two collection utility, and clarity of the information to public review, the Office of the forms are used: OS–2000, covering Secretary will submit the information ‘‘ ’’ be collected; and Houses—Apartments—Mobile Homes (d) Ways to minimize the burden of collection to OMB for review and and OS–2001, covering ‘‘Trailer Spaces.’’ approval. the collection of information on those This collection of information who are to respond, including through DATES: Consideration will be given to all provides data that helps DOI and the the use of appropriate automated, comments received by June 1, 2010. other Federal agencies to manage GFH electronic, mechanical, or other ADDRESSES: Written comments and in accordance with the requirements of collection techniques or other forms of recommendations on the proposed OMB Circular A–45 (Revised). If this information technology. information collection should be sent to information were not collected from the Burden means the total time, effort, or the Office of the Secretary Information public, DOI and the other Federal financial resources expended by persons Collection Budget Officer, Rachel agencies required to provide GFH would to generate, maintain, retain, disclose or Drucker, 1951 Constitution Avenue, be required to use professional provide information to or for a Federal NW., MS 116 SIB, Washington, DC appraisals of open market rental costs agency. This includes the time needed 20240, or by e-mail to for GFH, again, in accordance with OMB to review instructions; to develop, _ Rachel [email protected]. Individuals Circular A–45. acquire, install and utilize technology providing comments should reference II. Data and systems for the purpose of OMB control number 1084–0033, collecting, validating and verifying ‘‘Private Rental Survey.’’ (1) Title: Private Rental Survey. information, processing and FOR FURTHER INFORMATION CONTACT: To OMB Control Number: 1084–0033. maintaining information, and disclosing request more information on this Current Expiration Date: 07/31/2010. and providing information; to train proposed information collection or to Type of Review: Information personnel and to be able to respond to obtain a copy of the proposal and Collection: Renewal. a collection of information, to search associated collection instrument, please Affected Entities: Individuals or data sources, to complete and review write or e-mail Lavera Hamidi, Mail households, Businesses and other for- the collection of information; and to Stop 2607, 1849 C Street, NW., profit institutions. transmit or otherwise disclose the Washington, DC 20240, Estimated annual number of information. [email protected]. respondents: OS–2000: 3,841; OS–2001: An agency may not conduct or SUPPLEMENTARY INFORMATION: 200; Total: 4,041. sponsor, and a person is not required to Frequency of response: Ranges from 1 respond to, a collection of information I. Abstract to 2.1 per respondent every fourth year. unless it displays a currently valid Office of Management and Budget Note: Three or four of 15 total survey Office of Management and Budget (OMB) regulations at 5 CFR 1320, which regions are surveyed every year. Therefore control number. implement the Paperwork Reduction each respondent may be potentially be All written comments will be Act of 1995 (Pub. L. 104–13), require surveyed every fourth year, if an individual available for public inspection in the that interested members of the public respondent lives in the same unit, or if an Main Interior Building, 1849 C Street, and affected agencies have an individual business is a significant rental NW., Washington, DC, during normal opportunity to comment on information property owner or rental property manager in business hours, excluding legal the community. collection and recordkeeping activities holidays. For an appointment to inspect (see 5 CFR 1320.8 (d)). This notice (2) Annual reporting and comments, please contact Rachel identifies an information collection recordkeeping burden. Drucker by telephone on (202) 208– activity that the Office of the Secretary Estimated burden per response: OS– 3568, or by e-mail at will submit to OMB for extension or re- 2000: 12 minutes; OS–2001: 10 minutes. [email protected], to make an approval. Total annual reporting: OS–2000: 768 appointment. A valid picture Public Law 88–459 authorizes Federal hours; OS–2001: 33 hours, Total: 801 identification is required for entry into agencies to provide housing for hours. the Department of the Interior.

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Dated: March 29, 2010. Copies of the Draft CDCA Plan anticipated to produce approximately Debra E. Sonderman, Amendment and Draft EIS/EIR for the 185,000 MW-hours per year. Director, Office of Acquisition and Property proposed Granite Mountain Wind Alternatives include: Management. Energy Generation Project are available • A no action (no project) alternative [FR Doc. 2010–7436 Filed 4–1–10; 8:45 am] in the Barstow Field Office at the above with a plan amendment making the BILLING CODE 4310–RK–P address; copies are also available at the project area unavailable to wind energy following Web site: http://www.blm.gov/ projects; ca/st/en/fo/barstow.html; the BLM • A no action (no project) alternative DEPARTMENT OF THE INTERIOR California State Office, 2800 Cottage with a plan amendment making the Way, Sacramento, California 95825; project area available to other wind Bureau of Land Management County of San Bernardino Land Use energy projects; • Services Department, 385 N. Arrowhead The proposed action, including a [CACA 48254, LLCAD08000L5101 Avenue, San Bernardino, California plan amendment making the project FX0000LVRWB09B2410] 92415 and County of San Bernardino area available for wind energy Land Use Services Department, 15456 generation and providing for a portion Notice of Availability of the Draft of a new 230-kilovolt (kV) transmission Granite Mountain Wind, LLC Wind West Sage Street, Victorville, California 92392. Electronic (CD–ROM) or paper line to occur outside of a utility Energy Generation Project corridor; Environmental Impact Statement/ copies may also be obtained by • contacting Edythe Seehafer at (760) A modified proposed action to Environmental Impact Report, access the site from the east instead of California, and the Draft California 252–6021 or by e-mailing your request to [email protected] and the west to minimize visual impacts Desert Conservation Area Plan from the project and to mitigate Amendment including your name and mailing address. biological impacts to Bendire’s Thrasher, a BLM sensitive bird species; AGENCY: Bureau of Land Management, FOR FURTHER INFORMATION CONTACT: Interior. and Edythe Seehafer, telephone (760) 252– • A modified proposed action that ACTION: Notice of Availability. 6021; address BLM Barstow Field would interconnect to the transmission Office, 2601 Barstow Road, California grid at an alternative location further SUMMARY: In accordance with the 92311; e-mail east that would minimize impacts to an National Environmental Policy Act of [email protected]. 1969, as amended, and the Federal Land active golden eagle nest. SUPPLEMENTARY INFORMATION: The proposed towers would be up to Policy and Management Act of 1976 Granite 262 feet tall. The turbine blades would (FLPMA), as amended, the Bureau of Wind LLC has applied to the BLM extend an additional 166 feet for a total Land Management (BLM), in under Title V of the FLPMA (43 U.S.C. 1761) for authorization of a right-of-way height of up to 428 feet above the cooperation with the County of San (ROW) on BLM managed lands to ground. Twenty of the wind turbines Bernardino, has prepared a Draft construct, operate, and decommission a would be located on Federal lands California Desert Conservation Area wind energy facility and associated administered by the BLM, and eight (CDCA) Plan Amendment and a Draft infrastructure in compliance with would be on adjacent private land Environmental Impact Statement (EIS)/ FLPMA, BLM ROW regulations, and within unincorporated San Bernardino Environmental Impact Report (EIR) for other applicable Federal laws. The BLM County. The proposed project would the proposed Granite Mountain Wind will decide whether to approve, approve require the construction of a new access Energy Generation Project and by this with modification, or deny issuance of road; an on-site electrical switchyard; an notice is announcing the opening of the a ROW authorization to Granite Wind overhead transmission line; a small comment period. LLC for the proposed Granite Mountain operations and maintenance building; a DATES: To ensure that comments will be Wind Energy Project. Pursuant to the temporary construction office; considered, the BLM must receive BLM’s CDCA Plan (1980, as amended), temporary facilities including a cement written comments on the CDCA Plan sites associated with power generation mixing facility, asphalt batch plant, and Amendment and Draft EIS/EIR within or transmission not identified in the construction staging areas; and an 90 days following the date the CDCA Plan will be considered through electrical substation for interconnection Environmental Protection Agency the plan amendment process; the BLM to the Southern California Edison 230 publishes its Notice of Availability in will also decide whether the project site kV transmission system. Each wind the Federal Register. The BLM will itself is suitable or unsuitable for wind turbine would have a pad-mounted announce future meetings or hearings energy generation. transformer located beside the wind and any other public involvement The Project is proposed on turbine tower, a maintenance road, and activities at least 15 days in advance approximately 2,086 acres of public underground electrical and through public notices, media releases, lands administered by the BLM’s communication lines. Two permanent or mailings. Barstow Field Office and 670 acres of meteorological towers would be ADDRESSES: You may submit comments private lands under the jurisdiction of installed to measure wind speed and related to the proposed Granite the County of San Bernardino. Total direction across the site and control the Mountain Wind Energy Generation disturbance for the project and ancillary turbines. The proposed project is Project by any of the following methods: facilities would be approximately 200 expected to have an operating lifetime • Web site: http://www.blm.gov/ca/st/ acres, of which approximately 90 acres of 25–30 years. en/fo/barstow.html. would be long-term disturbance (for the A Notice of Intent for this project was • E-mail: life of operations). The Project would published in the Federal Register on [email protected]. include the installation of up to twenty- December 6, 2007 (72 FR 68894). This • Fax: (760) 252–6099. eight 2.3-megawatt (MW) Siemens wind was followed by a 30-day public • Mail: Edythe Seehafer, BLM turbines (or a similar model of wind scoping period, which was extended Barstow Field Office, 2601 Barstow turbine with a 2.1 to 3 MW capacity). At upon the request of San Bernardino Road, Barstow, California 92311. full capacity, the proposed project is County. This extension ended on May 5,

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2008. Public workshops and scoping this Draft EIS in the Federal Register. street addresses, and e-mail addresses of meetings were held in Apple Valley, The BLM will announce future meetings persons who submit comments will be California in March and April 2008. or hearings and any other public available for public review and Predominant issues identified during involvement activities at least 15 days disclosure at the above address during scoping included visual, biological, in advance through public notices, regular business hours (8 a.m. to 4 p.m.), noise, recreation, transportation, media releases, and/or mailings. Monday through Friday, except economic, and cumulative impacts. ADDRESSES: You may submit comments holidays. The issues and concerns identified related to the West Butte Wind Power Before including your address, phone during scoping are addressed in the Right-of-Way by any of the following number, e-mail address, or other Draft EIS/EIR. Please note that public methods: personal identifying information in your comments and information submitted • Web site: http://www.blm.gov/or/ comment, you should be aware that including names, street addresses, and districts/prineville/plans/ your entire comment—including your e-mail addresses of persons who submit wbw_power_row/request.php. personal identifying information—may comments will be available for public • E-mail: [email protected]. be made publicly available at any time. review and disclosure at the above • Fax: (541) 416–6798. While you can ask us in your comment • address during regular business hours (8 Mail: West Butte Wind Power Right to withhold your personal identifying a.m. to 4 p.m.), Monday through Friday, of Way, BLM Prineville District Office, information from public review, we except holidays. 3050 N.E. 3rd Street, Prineville, Oregon cannot guarantee that we will be able to Before including your address, phone 97754. do so. number, e-mail address, or other Copies of the West Butte Wind Power Authority: 40 CFR 1506.6 and 1506.10. Right-of-Way Draft EIS are available at personal identifying information in your February 23, 2010. comment, you should be aware that the Prineville District Office at the Stephen Robertson, your entire comment—including your above address. personal identifying information—may FOR FURTHER INFORMATION CONTACT: The Prineville Associate District Manager. be made publicly available at any time. West Butte Wind Power Right-of-Way [FR Doc. 2010–7352 Filed 4–1–10; 8:45 am] While you can ask us in your comment Project Lead, telephone (541) 416–6885; BILLING CODE 4310–33–P to withhold your personal identifying address 3050 N.E. 3rd Street, Prineville, information from public review, we Oregon 97754; e-mail DEPARTMENT OF THE INTERIOR cannot guarantee that we will be able to [email protected]. do so. SUPPLEMENTARY INFORMATION: The Minerals Management Service Authority: 40 CFR 1506.6, 1506.10 and 43 applicant, West Butte Wind Power, LLC, CFR 1610.2. has requested a right-of-way Notice of Intent To Prepare and Scope authorization to construct 3.9 miles of an Environmental Impact Statement Thomas Pogacnik, road and an adjacent power (EIS) for the Outer Continental Shelf Deputy State Director. transmission line on public land to (OCS) Oil and Gas Leasing Program [FR Doc. 2010–7474 Filed 4–1–10; 8:45 am] support renewable energy production for 2012–2017 BILLING CODE 4310–40–P on private land, including the AGENCY: Minerals Management Service, construction of up to 52 wind turbines Interior. and ancillary facilities. The project is 25 ACTION: Notice of intent and request for DEPARTMENT OF THE INTERIOR miles southeast of Bend, Oregon on the comments. Bureau of Land Management north side of U.S. Highway 20. The Draft EIS analyzes impacts of the SUMMARY: Pursuant to the National [LLOPRP0600 L51010000.ER0000 Proposed Action, the Proposed Action Environmental Policy Act (NEPA), the LVRWH09H0600; HAG 10–0137] with mitigation, and the No Action Minerals Management Service (MMS) is alternatives, and identifies measures to Notice of Availability of the Draft providing notice of its intent to prepare mitigate adverse impacts. Major issues Environmental Impact Statement for an EIS with respect to the OCS Oil and brought forward during the public the Proposed West Butte Wind Power Gas Leasing Program for 2012–2017 and scoping process and addressed in the requests comments for the purposes of Right-of-Way, Crook and Deschutes Draft EIS include: determining the scope of the EIS we Counties, OR (1) Vegetation; plan to prepare. AGENCY: Bureau of Land Management, (2) Wildlife Habitat; DATES: Please submit comments and Interior. (3) Sensitive Species; information to the MMS on scoping no (4) Visual Resources; ACTION: Notice of Availability. (5) Cultural and Tribal Resources; later than June 30, 2010. (6) Noise; ADDRESSES: Interested parties may SUMMARY: In accordance with the (7) Socioeconomic Impacts; and submit their written scoping comments National Environmental Policy Act of (8) Public Safety. until June 30, 2010, to Mr. J. F. Bennett, 1969, as amended, the Bureau of Land The agency’s preferred alternative is Chief, Branch of Environmental Management (BLM) has prepared a Draft the Proposed Action with mitigation. Assessment, Minerals Management Environmental Impact Statement (EIS) A Notice of Intent to Prepare an EIS Service, 381 Elden Street, MS 4042, for the West Butte Wind Power Right-of- for the West Butte Wind Power Right-of- Herndon, Virginia 20170, or online at: Way and by this notice is announcing Way Project was published in the ocs5yeareis.anl.gov. the opening of the comment period. Federal Register on January 19, 2010 Before including your address, phone DATES: To ensure comments will be (75 FR 2886). Public participation was number, e-mail address, or other considered, the BLM must receive solicited through the media, mailings, personal identifying information in your written comments on the Draft EIS and the BLM Website. The formal comment, you should be aware that within 45 days following the date the scoping period ended February 5, 2010. your entire comment, including your Environmental Protection Agency Please note that public comments and personal identifying information, may publishes its Notice of Availability of information submitted including names, be made publicly available at any time.

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FOR FURTHER INFORMATION CONTACT: Mr. • Mobile, Alabama; Cooperating Agency J. F. Bennett, Chief, Branch of • Tallahassee, Florida; Environmental Assessment, Minerals • Tampa/St. Petersburg, Florida; The Department of the Interior invites • Management Service, 703–787–1660. Savannah, Georgia and/or other Federal agencies, state, tribal, and Wilmington, North Carolina local governments to consider becoming SUPPLEMENTARY INFORMATION: Pursuant • to section 102(2)(C) of NEPA, the MMS Norfolk, Virginia; cooperating agencies in the preparation • Trenton, New Jersey and/or intends to prepare an EIS for the new 5- of the EIS. We invite qualified Wilmington, Delaware; and year OCS oil and gas leasing program for • government entities to inquire about Washington, DC. cooperating agency status for the EIS for 2012–2017. This notice starts the formal Specific times and venues will be scoping process for the EIS under 40 posted on the MMS website and the proposed 5-year program. Using the CFR 1501.7, and solicits information published in the Federal Register per 40 guidelines from the Council on regarding issues and alternatives that CFR 1506.6. Environmental Quality (CEQ), qualified should be evaluated in the EIS. The EIS The comments that MMS has received agencies and governments are those will analyze the potential impacts of the in response to the January 21, 2009 with ‘‘jurisdiction by law or special adoption of the proposed 5-year Notice of Intent to prepare an EIS (74 FR expertise.’’ Potential cooperating program. 3631) and the August 2008 Request for agencies should consider their authority Background Comments on the preparation of a new and capacity to assume the 5-year program (73 FR 45065), and the responsibilities of a cooperating agency In January 2009, the previous comments received during scoping for and to remember that an agency’s role Administration published a Draft the 2007–2012 Five Year EIS, have in the environmental analysis neither Proposed Program (DPP) and a Notice of identified environmental issues and enlarges nor diminishes the final Intent to Prepare an EIS that set out a concerns that MMS will consider in the decision making authority of any agency schedule for scoping meetings in the EIS. In summary, these include climate areas of the DPP. In February 2009, the involved in the NEPA process. Agencies change as an impact factor in should also consider the ‘‘Factors for Secretary of the Interior extended the cumulative analyses, the effects of the comment period on the DPP and Determining Cooperating Agency OCS program on climate change, Status’’ in Attachment 1 to CEQ’s postponed the scoping meetings to potential impacts from accidental oil allow time to consider further public January 30, 2002, Memorandum for the spills, potential impacts to tourism and Heads of Federal Agencies: Cooperating comment before determining which recreation activities, and ecological areas in the DPP should be scoped for Agencies in Implementing the impacts from potential degradation of Procedural Requirements of the the EIS and thus be analyzed for marine and coastal habitats. National Environmental Policy Act. The consideration in the subsequent Additionally, alternatives will be appropriate pages can be found at: program proposals under section 18 of developed and analyzed during the EIS http://ceq.hss.doe.gov/nepa/regs/ the OCS Lands Act, 43 U.S.C 1344. The process based on scoping comments and fact that an area is analyzed in a 5-year governmental communications. cooperating/ EIS does not mean that it will be Alternatives may include increasing or cooperatingagenciesmemorandum.html included in a final leasing program. decreasing the number or frequency of and http://ceq.hss.doe.gov/nepa/regs/ However, an area must be analyzed sales, coastal buffers, limiting areas cooperating/ pursuant to NEPA to be included in a available for leasing, and excluding cooperatingagencymemofactors.html. 5-year program. parts of or entire planning areas. The MMS, as the lead agency, will not Areas To Be Scoped for the EIS Written Scoping Comments for the EIS provide financial assistance to The draft EIS for the OCS Oil and Gas cooperating agencies. Even if an The MMS will consider comments for organization is not a cooperating Program for 2012–2017 will evaluate the purposes of determining the scope offering all or portions of eight OCS agency, opportunities will exist to of the EIS we plan to prepare. provide information and comments to planning areas for oil and gas leasing: Comments on the relationship between MMS during the normal public input Beaufort Sea, Chukchi Sea, and Cook the Oil and Gas Program and the phases of the NEPA/EIS process. The Inlet, which are offshore Alaska; Alternative Energy Program are also Western, Central, and Eastern Gulf of welcome. Interested parties may submit MMS will also consult with tribal Mexico, the latter focusing on the their written scoping comments until governments on a government-to- southwestern third of the planning area June 30, 2010, to Mr. J. F. Bennett, government basis. If further information rather than the entire area contemplated Chief, Branch of Environmental about cooperating agencies is needed, in the DPP; and South and Mid-Atlantic. Assessment, Minerals Management please contact Mr. James F. Bennett, at These areas also will be the focus of the Service, 381 Elden Street, MS 4042, (703) 787–1660. proposed program analyses. Herndon, Virginia 20170, or online at: Dated: March 30, 2010. Scoping Meetings ocs5yeareis.anl.gov. Before including S. Elizabeth Birnbaum, your address, phone number, e-mail Public meetings will be held in Director, Minerals Management Service. coastal locations near these areas in address, or other personal identifying information in your comment, you [FR Doc. 2010–7580 Filed 4–1–10; 8:45 am] June and early July 2010, to help BILLING CODE 4310–MR–P determine the appropriate scope of the should be aware that your entire EIS in terms of geographical areas and comment, including your personal issues. The meetings are being planned identifying information, may be made for, but not necessarily limited to: publicly available at any time. While • Kaktovik, Alaska you can ask us in your comment to • Nuiqsut, Alaska withhold your personal identifying • Barrow, Alaska information from public review, we • Anchorage, Alaska cannot guarantee that we will be able to • New Orleans, Louisiana; do so.

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DEPARTMENT OF THE INTERIOR projects, oil and gas exploration, and FOR FURTHER INFORMATION CONTACT: For marine minerals extraction; these information on the public scoping Minerals Management Service activities could take place over a period meetings, the submission of comments, of several years. The purpose of the or MMS’s policies associated with this Geological and Geophysical scoping meetings will be to receive notice, please contact Mr. Gary Goeke, Exploration (G&G) on the Mid- and comments on the scope of the PEIS, Section Chief, Environmental South Atlantic Outer Continental Shelf identify significant resources and issues Assessment Section, Leasing and (OCS) to be analyzed in the PEIS, and identify Environment (MS 5410), Minerals AGENCY: Minerals Management Service, possible alternatives to the proposed Management Service, Gulf of Mexico Interior. action. OCS Region, 1201 Elmwood Park ACTION: Reopening of Comment Period DATES: Comments should be submitted Boulevard, New Orleans, Louisiana and Notice of Public Scoping Meetings no later than May 17, 2010. The MMS 70123–2394, telephone (504) 736–3233. for the Programmatic Environmental estimates completion of the PEIS by SUPPLEMENTARY INFORMATION: An initial Impact Statement (PEIS) for Future mid-2012. comment period was commenced by the Industry G&G Activity on the Mid- and ADDRESSES: Comments may be Notice of Intent (NOI) to prepare the South Atlantic OCS. submitted in one of the following two PEIS, which was published in the ways: Federal Register on January 21, 2009, SUMMARY: Pursuant to the regulations • In written form enclosed in an (74 FR 3636). The comment period on implementing the procedural provisions ‘‘ envelope labeled Comments on the the earlier NOI closed on March 23, of the National Environmental Policy ’’ PEIS Scope and mailed (or hand 2009. MMS did not move forward on Act of 1969, as amended (42 U.S.C. 4321 carried) to the Regional Supervisor, et seq. (1988)) (NEPA), MMS will the PEIS at that time. Comments made Leasing and Environment (MS 5410), during this 2009 scoping period will reopen the comment period for a period Minerals Management Service, Gulf of of 45 days from the date of this Federal still be considered and need not be Mexico OCS Region, 1201 Elmwood resubmitted. Register notice. Public scoping meetings Park Boulevard, New Orleans, Louisiana will be held during this 45-day period 70123–2394; or The Atlantic OCS area that will be to solicit information that will be used • Electronically to the MMS e-mail analyzed within the Mid- and South to prepare a PEIS to evaluate potential address: [email protected]. Atlantic G&G PEIS is illustrated in environmental effects of multiple G&G For further information regarding the Figure 1 as the Mid-Atlantic Planning activities on the Atlantic OCS. These Atlantic OCS G&G PEIS, please visit our Area and the South Atlantic Planning activities are associated with Atlantic Web site at http://www.gomr.mms.gov/ Area. OCS siting for renewable energy homepg/offshore/atlocs/gandg.html. BILLING CODE 4310–MR–P

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Statements, both oral and written, analyzed within the PEIS that are cooperating/ will be received at the venues listed received within the foreseeable future. cooperatingagencymemofactors.html. below. All persons wishing to speak Possible alternatives for analysis may The MMS, as the lead agency, will not will have an opportunity to do so. Time represent a range of levels of activities provide financial assistance to limits may be set on speakers to allow from unrestricted to no seismic and cooperating agencies. Even if an time for all speakers to participate. could address the following, although organization is not an official The following public scoping this list is not exhaustive: cooperating agency, opportunities exist meetings are planned for the PEIS: to provide information and comments to Levels of Activity • April 20, 2010—Marriott Houston MMS during the normal public input Intercontinental Hotel, George Bush Number, scale/size, location, and phases of the NEPA/PEIS process. If Intercontinental Airport, 18700 John F. duration of seismic activities; further information about cooperating Kennedy Boulevard, Houston, Texas Number, scale/size, location, and agencies is needed, please contact Mr. 77032; one meeting beginning at 1 p.m. duration of associated support activities Gary Goeke at (504) 736–3233. CST; (vessel, aircraft, shore); and • April 21, 2010—Jacksonville Authority: The MMS has the authority The degree to which those activities under the Outer Continental Shelf Lands Act Marriott, 4760 Salisbury Road, can overlap in space and time. (OCSLA, as amended; 43 U.S.C. 1331–1356, Jacksonville, Florida 32256; two (2007)) and its implementing regulations at meetings, the first beginning at 1 p.m. Mitigation 30 CFR 251 to issue prelease permits for the EST and the second beginning at 7 p.m. Exclusion zones based on received collection of G&G data. These regulations EST; levels of sounds; discuss the types of G&G activities that • April 23, 2010—Coastal Georgia require a permit, the instructions for filing a Exclusion zones based on presence of Center, 305 Fahm Street, Savannah, permit, and the obligations and rights under specific biological factors in Georgia 31401; two meetings, the first a permit. This notice is published pursuant combination with received levels of beginning at 1 p.m. EST and the second to the regulations (40 CFR 1501.7) sound; and beginning at 7 p.m. EST; implementing the provisions of NEPA. • April 27, 2010—Sheraton Newark Limitations on certain combinations Background: Scoping is the initial Airport Hotel, 128 Frontage Road, of activities in specific temporal/spatial step in the NEPA process. The MMS Newark, New Jersey 07114; two circumstances. The MMS invites other plans to fully comply with all pertinent meetings, the first beginning at 1 p.m. Federal agencies and State, Tribal, and laws, rules, and regulations and will EST and the second beginning at 7 p.m. local governments to consider becoming allow the public an adequate EST; cooperating agencies in the preparation opportunity to participate in the NEPA • April 27, 2010—Embassy Suites of the PEIS. Following the guidelines process, including scoping meetings and North Charleston, 5055 International from the Council on Environmental public comment periods. Boulevard, North Charleston, South Quality (CEQ), qualified agencies and The PEIS will evaluate environmental Carolina 29418; two meetings, the first governments are those with ‘‘jurisdiction impacts of G&G activities in the area beginning at 1 p.m. EST and the second by law or special expertise.’’ Potential analyzed by the PEIS on the Mid- and beginning at 7 p.m. EST; cooperating agencies should consider South Atlantic OCS subject to MMS • April 29, 2010—Hilton Wilmington their authority and capacity to assume regulatory authority that may be Riverside, 301 North Water Street, the responsibilities of a cooperating proposed over several years. MMS has Wilmington, North Carolina 28401; two agency and note that an agency’s role in decided at this time not to move meetings, the first beginning at 1 p.m. the environmental analysis neither forward with scoping and a PEIS for the EST and the second beginning at 7 p.m. enlarges nor diminishes the final Northern Atlantic and Straits of Florida EST; and decisionmaking authority of any other planning areas. In addition, the PEIS • April 29, 2010—Hilton Norfolk agency involved in the NEPA process. would serve as a reference document to Airport, 1500 N. Military Highway, Upon request, MMS will provide implement the ‘‘tiering’’ objective Norfolk, Virginia 23502; two meetings, potential cooperating agencies with a detailed in NEPA’s implementing the first beginning at 1 p.m. EST and the written summary of ground rules for regulations (40 CFR 1502.20), allowing second beginning at 7 p.m. EST. cooperating agencies, including time that future site-specific environmental Through the scoping process, Federal, schedules and critical action dates, assessments (SEA’s) may reference State, and local government agencies milestones, responsibilities, scope and appropriate sections of this PEIS to and other interested parties have the detail of cooperating agencies’ reduce reiteration of issues and effects, opportunity to help MMS determine the contributions, and the availability of allowing analyses to focus on specific significant resources, issues, and pre-decisional information. The MMS issues and effects related to a particular alternatives for analysis in the PEIS. anticipates this summary will form the G&G activity. The proposed G&G Comments received in response to this basis for a Memorandum of Agreement activities include, but are not limited to, notice and at the public scoping between MMS and each cooperating seismic surveys, sidescan-sonar surveys, meetings will assist MMS in developing agency. Agencies should also consider electromagnetic surveys, geological and the content and scope of the PEIS. This the ‘‘Factors for Determining geochemical sampling, and remote early planning and consultation step is Cooperating Agency Status’’ in sensing. These activities could support important to ensure that all interests Attachment 1 to CEQ’s January 30, 2002, siting needs for renewable energy and concerns are communicated to Memorandum for the Heads of Federal projects, oil and gas operations, and MMS as it develops this PEIS and Agencies: Cooperating Agencies in research for sand deposits. The MMS, to ultimately for future decisions regarding Implementing the Procedural date, has received approximately 11 G&G operations under MMS regulatory Requirements of the National proposed applications for various types authority. It is envisioned that this PEIS Environmental Policy Act. A copy of of G&G activity on the Atlantic OCS. would cover G&G activity for renewable this document is available at http:// Information on the details of these energy projects, minerals extraction, and ceq.hss.doe.gov/nepa/regs/cooperating/ proposals and their scope can be found oil and gas activities for any Atlantic cooperatingagenciesmemorandum.html at http://www.gomr.mms.gov/homepg/ OCS applications within the area and http://ceq.hss.doe.gov/nepa/regs/ offshore/atlocs/gandg.html. The PEIS

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will be completed prior to authorizing Cir. No. 07–1247, 07–1344, for lease approved the Proposed Final OCS Oil any new, large-scale G&G activities on sales covering the 2007–2012 time and Gas Leasing Program for 2007–2012 the Atlantic OCS. In the interim, MMS frame. (PFP) that became effective on July 1, may still consider small-scale, limited DATES: Please submit comments and 2007. permit requests, but only if a NEPA information to the MMS no later than On July 2, 2007, the Center for environmental assessment is conducted May 3, 2010. Biological Diversity filed suit against the and finds there is no potential for Department of the Interior (DOI) alleging significant impacts from that specific Public Comment Procedure agency failures under various laws in proposed activity or that the cumulative The MMS will accept comments in relation to the OCS 2007–2012 leasing nature of a collection of smaller, limited one of three formats: By our Internet program. On August 28, 2007, the surveys would not result in significant commenting system, e-mail, or regular Native Village of Point Hope, Alaska impacts under NEPA. mail. Please submit your comments Wilderness League, and Pacific More information on G&G activities using only one of these formats, and Environment filed a similar suit. The can be found on pages 13–15 of MMS’s include full names and addresses. cases were consolidated. Leasing Oil and Natural Gas Resources: Comments submitted by other means On April 17, 2009, the U.S. Court of Outer Continental Shelf (see http:// may not be considered. Before including Appeals for the District of Columbia www.mms.gov/ld/PDFs/GreenBook- your address, phone number, e-mail Circuit vacated and remanded DOI’s OCS 2007–2012 leasing program. The LeasingDocument.pdf) and MMS’s address, or other personal identifying Court found that DOI’s determination of Geological and Geophysical Exploration information in your comment, you when and where to offer areas for for Mineral Resources on the Gulf of should be aware that your entire leasing of oil and gas resources was Mexico Outer Continental Shelf: Final comment, including your personal based on a flawed analysis that failed to Programmatic Environmental identifying information, may be made assess fully the relative environmental Assessment (see http:// publicly available at any time. While sensitivity and marine productivity of www.gomr.mms.gov/PDFs/2004/2004- you can ask us in your comment to the OCS because it looked only at the 054.pdf). withhold your personal identifying effects of spills on the shoreline. The Comments: In lieu of participation in information from public review, we Court specified that on remand the the scoping meetings listed above, all cannot guarantee that we will be able to Secretary must first conduct a more interested parties, including Federal, do so. See further information about State, and local government agencies complete comparative analysis of the commenting below. environmental sensitivity of different and the general public, may submit The MMS encourages commenters to areas of the OCS, as required under written comments on the scope of the focus on the expanded relative section 18(a)(2)(g) of the OCSLA, and PEIS, significant issues that should be environmental sensitivity analysis and must at least attempt to identify those addressed, alternatives that should be the Secretary’s revisions to the leasing areas most and least sensitive to OCS considered, and the types of G&G schedule that reflect his balancing of the activity. The Court directed the activities and geographical areas of potential for discovery of petroleum interest on the Mid- and South Atlantic Secretary to rebalance the program with the potential for harm to the under the factors set forth in section OCS. Comments made during the initial environment or coastal zone. The 2009 scoping period will still be 18(a)(3) of the OCSLA once this new balance of the PRP document consists of analysis is complete. considered and need not be analyses that were already subject to resubmitted. Pursuant to the Government’s petition public comment prior to July 2007. for amendment and/or clarification of Dated: March 30, 2010. ADDRESSES: You may submit comments the Court’s order, on July 28, 2009, the S. Elizabeth Birnbaum, on the PRP by any of the following Court issued an order staying its Director, Minerals Management Service. methods. mandate until DOI completed its • [FR Doc. 2010–7581 Filed 4–1–10; 8:45 am] Federal eRulemaking Portal: http:// analysis and rebalancing under the BILLING CODE 4310–MR–P www.regulations.gov. In the entry titled OCSLA. The Court also clarified that the ‘‘Enter Keyword or ID,’’ enter docket ID relief granted in its April 17th decision MMS–2009–OMM–0016 then click applied only to the Beaufort, Chukchi, DEPARTMENT OF THE INTERIOR search. Under the tab ‘‘View By Docket and Bering Seas off Alaska. The Bering Folder’’, you can submit public Sea includes the North Aleutian Basin Minerals Management Service comments and view supporting and OCS Planning Area, the only planning related materials available for this area in the Bering Sea with lease sales Preliminary Revised 5-Year Outer Notice. The MMS will post all scheduled in the 2007–2012 PFP. Continental Shelf (OCS) Oil and Gas comments. At the direction of the Secretary, Leasing Program for 2007–2012 • E-mail: [email protected]. MMS re-analyzed all 26 OCS planning • Mail or hand-carry comments on AGENCY: Minerals Management Service, areas to better determine the relative the PRP to the Department of the Interior. environmental sensitivity of several Interior; Attention: Leasing Division ecological components to multiple ACTION: Notice of availability and (LD); 381 Elden Street, MS–4010; request for comments. impacts of offshore oil and gas Herndon, Virginia 20170–4817. Please development. The original SUMMARY: The Minerals Management reference ‘‘Remand of the 2007–2012 environmental sensitivity analysis Service (MMS) requests comments on OCS Oil and Gas Leasing Program’’ in relied on only two studies conducted by the Preliminary Revised 5-Year OCS Oil your comments and include your name Continental Shelf Associates in 1990 and Gas Leasing Program for 2007–2012. and address. and 1991, and one dataset, the National This is the Preliminary Revised Program FOR FURTHER INFORMATION CONTACT: Oceanic and Atmospheric (PRP), required by the order of the U.S. Renee Orr, 5–Year Program Manager, at Administration’s Environmental Court of Appeals for the District of (703) 787–1215. Sensitivity Index (ESI) (http:// Columbia in Center for Biological SUPPLEMENTARY INFORMATION: On June response.restoration.noaa.gov). The Diversity v. U.S. Dept. of Interior, DC 29, 2007, the previous Secretary expanded analysis continues to rely on

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those sources to analyze the sensitivity identified the OCS planning areas Following the end of the comment of shoreline/coastal habitats, but also ‘‘most’’ sensitive to OCS oil and gas period, the Secretary will consider any analyzes the sensitivity of offshore/ activities as the South Atlantic, Eastern comments received in making his final marine resources to oil and gas Gulf of Mexico, Mid-Atlantic, and decision on a final revised leasing activities. Central Gulf of Mexico, and the ‘‘least’’ program for 2007–2012. Pursuant to the The expanded environmental sensitive as the Aleutian Arc, Navarin Court’s July 28, 2009 order, DOI will file sensitivity analysis is divided into the Basin, Bowers Basin, and Aleutian an appropriate motion regarding three components of the marine Basin, all in the OCS southwest of disposition of the litigation. environment that may be affected by oil Alaska. and gas activities: marine habitats, In support of his PRP decisions, the The PRP document may be marine productivity, and marine fauna Secretary relied on the expanded downloaded off the MMS Web site at (i.e., birds, fish, marine, and sea turtles). environmental sensitivity analysis http://www.mms.gov. The document The expanded analysis considers the described above; the PFP for 2007–2012 also is available as part of our electronic relative sensitivity of the marine and the supporting administrative commenting system noted above. Hard environment of all 26 planning areas to record, including the April 2007 copies will be made available to persons oil spills and other potential factors, analysis of the other OCSLA section 18 who contact the 5-Year Program Office such as sound, physical disturbance, factors; and the 2007 Final at 703–787–1215. climate change, and ocean acidification. Environmental Impact Statement (EIS) Much of the text of the document is The expanded analysis relies on and all comments, reports, and studies repetitive of the April 2007 PFP approximately 50 reports and studies, incorporated therein. The decision is document, as approved on June 29, including many that were not based on the Secretary’s independent 2007. New text is shown in a larger font considered when the original 2007– review of the record and fulfills his to distinguish it from the text retained 2012 relative environmental sensitivity statutory obligation under section from the 2007 PFP document and some analysis was prepared. 18(a)(3) to obtain a proper balance text from the PFP has been rewritten or Distribution, abundance, and/or between the potential for environmental not included as appropriate to reflect environmental sensitivities of four damage, the potential for the discovery the revised decision. Please refer to the ecological components within and/or on of oil and gas, and the potential for PFP for historical information. the adjacent coast of each OCS planning adverse impact on the coastal zone, in area are evaluated based on their accordance with the Court’s remand Summary of the Preliminary Revised present condition. Because relatively order. Thus, while the environmental Program small differences suggest a level of sensitivity analysis is expanded, it is precision that is not possible for this important to remember that the The PRP includes 16 sales in 6 areas analysis, the revised analysis presents Secretary’s decisions are not based on (2 areas off Alaska, 1 area off the the OCS planning areas grouped into just one factor, but require consideration Atlantic coast, and 3 areas in the Gulf four categories of relative sensitivity of all section 18 factors and the other of Mexico. Maps A and B show the areas ranging from ‘‘most’’ to ‘‘least’’ sensitive supporting information and subsequent scheduled for leasing (Preliminary to OCS oil and gas activities. balancing as described below. For Revised Program areas). Table A lists Categorization of an OCS planning area example, the Secretary’s decision to the location and timing of the proposed as ‘‘less’’ or ‘‘least’’ sensitive does not remove the Beaufort and Chukchi Seas lease sales in areas that are offered for mean that environmental resources of sales, other than Chukchi Sea Sale 193, leasing consideration, including Sale that OCS planning area are not recognizes the importance of gathering 224 in the Eastern Gulf of Mexico sensitive, but that they are found to be additional information from activities Planning Area, a sale mandated by the relatively less sensitive than other OCS on existing leases and ongoing research Gulf of Mexico Energy Security Act planning areas to the types of impacts into oil-spill cleanup in icy waters to (GOMESA) of 2006 (Pub. L. 109–432, anticipated from OCS oil and gas help MMS and industry plan for future December 20, 2006) and exempted from activities. The revised analysis leasing. section 18 analysis.

TABLE A—PRELIMINARY REVISED PROGRAM FOR 2007–2012—LEASE SALE SCHEDULE

Sale No. Area Year*

204 ...... Western Gulf of Mexico ...... 2007 205 ...... Central Gulf of Mexico ...... 2007 193 ...... Chukchi Sea ...... 2008 206 ...... Central Gulf of Mexico ...... 2008 224 ...... Eastern Gulf of Mexico** ...... 2008 207 ...... Western Gulf of Mexico ...... 2008 208 ...... Central Gulf of Mexico ...... 2009 210 ...... Western Gulf of Mexico ...... 2009 211 ...... Cook Inlet ...... 2009 213 ...... Central Gulf of Mexico ...... 2010 215 ...... Western Gulf of Mexico ...... 2010 216 ...... Central Gulf of Mexico ...... 2011 218 ...... Western Gulf of Mexico ...... 2011 219 ...... Cook Inlet ...... 2011 220 ...... Mid-Atlantic ...... 2011 222 ...... Central Gulf of Mexico ...... 2012 * All of the sales scheduled for 2007–2009 listed above were conducted prior to the preparation of this PRP, with the exception of Cook Inlet Sale 211 that was not held due to lack of expressed industry interest. Sale 193 in the Chukchi Sea is the only sale conducted in an area subject to the Court’s remand. ** Sale 224 is not a section 18 sale, but mandated by GOMESA.

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Alaska Region There is research underway that along Atlantic Region with new information will provide the In the Alaska Region, the PRP retains As in the PFP, the PRP retains Mid- one lease sale in the Chukchi Sea opportunity to make more informed decisions regarding Arctic sales in the Atlantic Sale 220 offshore Virginia as a Planning Area and two special interest special interest sale. The MMS estimates sales in the Cook Inlet Planning Area. next 5-year program. Secretary Salazar has also requested that the United States that the area comprising Sale 220 could The Chukchi Sea sale is a carryover contain 130 million barrels of oil and from the 2002–2007 program because Geological Survey (USGS) conduct an initial, independent evaluation of 1.14 trillion cubic feet of natural gas. there was insufficient time to complete science needs to understand the This area had been subject to the necessary pre-lease steps and resilience of Arctic coastal and marine Presidential withdrawal under section environmental documentation during ecosystems to OCS resource extraction 12 of the OCSLA as well as the program period. Chukchi Sea Sale activities. The study will summarize Congressional moratorium. As the 193 was held in 2008. what information is available, where withdrawal was lifted and the The Cook Inlet Planning Area is knowledge gaps exist, and what moratorium discontinued in 2008, a retained on the schedule with two research is needed to mitigate risks. request for nominations and comments special interest sales. However, there This type of information will help target was issued in November 2008. No other was no industry interest expressed in areas for future lease sales and allow pre-lease steps have occurred. The next the 2008 Request for Interest and Sale better prevention and mitigation of step in this process would be scoping 211 was not held. environmental impacts. Industry holds for the Draft EIS. Consistent with the Secretary’s many existing leases that have yet to be approach of developing frontier areas explored. In the Beaufort Sea, there are Assurance of Fair Market Value based on the best available science and 181 leases (approximately 0.96 million other data, the PRP removes Beaufort Section 18 of the OCSLA requires acres) issued under the 2002–2007 receipt of fair market value for OCS oil Sea Sales 209 and 217 and Chukchi Sea program and in the Chukchi Sea, there Sales 212 and 221 from the 2007–2012 and gas leases and the rights they are 487 leases (approximately 2.75 convey. The PRP retains the provisions program. million acres) issued in Chukchi Sea Sale 214 in the North Aleutian Basin of the PFP: Setting minimum bid levels Lease Sale 193 in the current program. by individual lease sale based on market also is removed due to the area’s unique The removal of these areas from further value to Alaska and the Nation. The conditions and continuing use of a two- leasing in the PRP should not be phase bid evaluation process. North Aleutian Basin contains construed to suggest that the exploration nationally significant fishery resources of existing leases cannot be conducted Information Requested as compared to other Alaska planning safely. areas, supporting the greatest diversity Section 18(g) of the OCSLA authorizes of fish species for all Alaska areas. It Gulf of Mexico Region confidential treatment of privileged or also is adjacent to more national The Central and Western Gulf of proprietary information. In order to monuments and wildlife reserves than Mexico Planning Areas provide a large protect the confidentiality of such any other Alaska OCS area. Therefore, share of domestic oil and gas production information, respondents should submit the Secretary concluded that the area and are a major source of employment it separately from other comments should not be leased. for nearby States. Although vigilance is submitted and mark it prominently as For the Beaufort Sea and Chukchi Sea still necessary in protecting confidential. On request, MMS will treat Planning Areas, the Secretary environmental resources and local such information as confidential from determined that, on balance, lease sales communities, the areas are supported by the time of its receipt until 5 years after in the Arctic under the 2007–2012 a vast system of infrastructure. Gulf of approval of the revised leasing program, program, other than Chukchi Sea Sale Mexico oil and gas activities provide an subject to the standards of the Freedom 193, are not justified at this time. Before important spur to technological of Information Act. The MMS will not additional lease sales are offered, it is innovation and industry has a track treat as confidential any aggregate important to gather additional scientific record of safe activity. In addition, OCS summaries of such information, the information and data from exploration activity in the Gulf draws significant names of respondents, and comments on existing leases. This decision reflects support from adjacent State and local not containing such information. the potential difficulty of removing oil governments as well as from local Dated: March 30, 2010. spilled in icy waters, limited citizens. Therefore, the PRP retains the infrastructure available to respond to annual, area wide lease sales on the S. Elizabeth Birnbaum, spills, and environmental schedule for 2007–2012 in the Central Director, Minerals Management Service. considerations such as climate change. and Western Gulf of Mexico. BILLING CODE 4310–MR–P

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[FR Doc. 2010–7579 Filed 4–1–10; 8:45 am] BILLING CODE 4310–MR–C

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DEPARTMENT OF THE INTERIOR or postal mail. After formal Address Data Standard places no endorsement of the standard by the requirement on internal organization of U.S. Geological Survey FGDC, the standard and a summary use or structure of address data: analysis of the changes will be made however, its principles can be extended Public Review of Draft United States available to the public on the FGDC to all addresses. Thoroughfare, Landmark, and Postal Web site. Address Data Standard Dated: March 18, 2010. DATES: Comments on the draft United Ivan DeLoatch, AGENCY: Department of the Interior, U.S. States Thoroughfare, Landmark, and FGDC Executive Director. Postal Address Data Standard must be Geological Survey. [FR Doc. 2010–7438 Filed 4–1–10; 8:45 am] received by the FGDC on or before ACTION: Notice; request for comments on BILLING CODE 4311–MM–P draft United States Thoroughfare, Wednesday, June 16, 2010. Landmark, and Postal Address Data FOR FURTHER INFORMATION CONTACT: Ms. Standard through June 16, 2010. Julie Binder Maitra, U.S. Geological Survey, Federal Geographic Data INTERNATIONAL TRADE SUMMARY: The Federal Geographic Data Committee, [email protected], 703–648– COMMISSION Committee (FGDC) is conducting a 4627. [Inv. No. 337–TA–709] public review of the draft United States SUPPLEMENTARY INFORMATION: The FGDC Thoroughfare, Landmark, and Postal coordinates the development of the In the Matter of Certain Integrated Address Data Standard. The United National Spatial Data Infrastructure Circuits, Chipsets, and Products States Thoroughfare, Landmark, and (NSDI), which encompasses the Containing Same Including Postal Address Data Standard covers policies, standards, and procedures for Televisions, Media Players, and data content, data classification, data organizations to cooperatively produce Cameras; Notice of Investigation exchange, and data quality. The Urban and share geospatial data. Federal AGENCY: U.S. International Trade and Regional Information Systems agencies that make up the FGDC Commission. Association (URISA), in conjunction develop the NSDI in cooperation with with the FGDC Subcommittee on organizations from State, local and tribal ACTION: Institution of investigation Cultural and Demographic Statistics governments, the academic community, pursuant to 19 U.S.C. 1337. chaired by the U.S. Census Bureau, and the private sector. Authority for the SUMMARY: Notice is hereby given that a developed this draft standard. The FGDC is OMB Circular No. A–16 FGDC Coordination Group, comprised complaint was filed with the U.S. Revised on Coordination of Geographic International Trade Commission on of representatives of Federal agencies, Information and Related Spatial Data approved releasing this draft standard March 1, 2010, under section 337 of the Activities (Revised August 19, 2002). Tariff Act of 1930, as amended, 19 for public review at its March 16, 2010 More information on the FGDC and the meeting. The FGDC invites both public U.S.C. 1337, on behalf of Freescale NSDI is available at http:// Semiconductor, Inc. of Austin, Texas. A and private sector data users, producers www.fgdc.gov. Standards are a and software vendors to comment on letter supplementing the complaint was foundational component of the NSDI. filed on March 18, 2010. The complaint this standard to ensure that the standard Organizations often have detailed alleges violations of section 337 based meets their needs. specifications about the structure of upon the importation into the United The draft United States Thoroughfare, their address information but have not States, the sale for importation, and the Landmark, and Postal Address Data defined the elements that constitute an sale within the United States after Standard may be downloaded at: ftp:// address. Knowledge of structure, importation of certain integrated ftpext.usgs.gov/pub/er/va/reston/FGDC/ content, and quality is required to circuits, chipsets, and products AddressStandardJanuary_22_2010_ successfully share information in a containing same including televisions, formatted.doc (No user name or digital environment. The United States media players, and cameras by reason of password required). Reviewer’s Thoroughfare, Landmark, and Postal infringement of certain claims of U.S. comments shall be sent to Julie Binder Address Data Standard codifies discrete Patent Nos. 5,467,455; 5,715,014; and Maitra, of the FGDC Secretariat via elements of address information and 7,199,306. The complaint further alleges electronic mail, [email protected] by provides standardized terminology and that an industry in the United States June 16, 2010. Reviewers should follow definitions to alleviate inconsistencies exists as required by subsection (a)(2) of Directive #2d, Standards Working in the use of these elements and to section 337. Group Review Guidelines: Review simplify documentation. Comment Template, http://www. The United States Thoroughfare, The complainant requests that the fgdc.gov/standards/process/standards- Landmark, and Postal Address Data Commission institute an investigation directives/directive-2d-standards- Standard applies to addresses of entities and, after the investigation, issue an working-group-review-guidelines- having a spatial component. It does not exclusion order and cease and desist review-comment-template, when apply to addresses of entities lacking a orders. preparing their comments. The review spatial component and specifically ADDRESSES: The complaint, except for comment template is available at excludes electronic addresses such as e- any confidential information contained http://www.fgdc.gov/standards/process/ mail addresses. It recognizes that some therein, is available for inspection standards-directives/template.doc. organizations are prohibited by statute during official business hours (8:45 a.m. Comments that concern specific from sharing addresses or other address to 5:15 p.m.) in the Office of the issues/changes/additions may result in information, due to requirements for Secretary, U.S. International Trade revisions to the draft United States confidentiality and security: Therefore, Commission, 500 E Street, SW., Room Thoroughfare, Landmark, and Postal it does not require that addresses be 112, Washington, DC 20436, telephone Address Data Standard. After evaluation shared and does not provide guidelines 202–205–2000. Hearing-impaired of comments, participants will receive for determining whether addresses can individuals are advised that information written notification of how their be shared. The United States on this matter can be obtained by comments were addressed by electronic Thoroughfare, Landmark, and Postal contacting the Commission’s TDD

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terminal on 202–205–1810. Persons Panasonic Corporation of North deemed to constitute a waiver of the with mobility impairments who will America, 1 Panasonic Way, Secaucus, right to appear and contest the need special assistance in gaining access New Jersey 07094; allegations of the complaint and this to the Commission should contact the Funai Electric Co., Ltd., 7–7–1 notice, and to authorize the Office of the Secretary at 202–205–2000. Nakagaito, Daito, Osaka 574–0013, administrative law judge and the General information concerning the Japan; Commission, without further notice to Commission may also be obtained by Funai Corporation, Inc., 201 Route 17, the respondent, to find the facts to be as accessing its Internet server at http:// Ste. 903, Rutherford, New Jersey alleged in the complaint and this notice www.usitc.gov. The public record for 07070; and to enter an initial determination this investigation may be viewed on the JVC Kenwood Holding, Inc., 3–12, and a final determination containing Commission’s electronic docket (EDIS) Moriyacho, Kanagawa-ku, Yokohama- such findings, and may result in the at http://edis.usitc.gov. shi, Kanagawa 221–8528, Japan; issuance of an exclusion order or a cease FOR FURTHER INFORMATION CONTACT: Victor Company of Japan Limited, 12, and desist order or both directed against Benjamin Levi, Esq., Office of Unfair Moriya-cho, 3-chome, Kanagawa-ku, the respondent. Import Investigations, U.S. International Yokohama, 221–8528, Japan; By order of the Commission. JVC Americas Corp., 1700 Valley Rd. Trade Commission, telephone (202) Issued: March 29, 2010. 205–2781. Ste. 1, Wayne, New Jersey 07470; Best Buy Co., Inc., 7601 Penn Ave. S., Marilyn R. Abbott, Authority: The authority for institution of Richfield, Minnesota 55423; Secretary to the Commission. this investigation is contained in section 337 [FR Doc. 2010–7442 Filed 4–1–10; 8:45 am] of the Tariff Act of 1930, as amended, and B & H Foto & Electronics Corp., 420 9th in section 210.10 of the Commission’s Rules Ave., New York, New York 10001; BILLING CODE 7020–02–P of Practice and Procedure, 19 CFR 210.10 Huppin’s Hi-Fi Photo & Video, Inc., 421 (2009). W. Main Ave., Spokane, Washington 99201; INTERNATIONAL TRADE Scope of Investigation: Having Buy.com Inc., 85 Enterprise, Aliso Viejo, COMMISSION considered the complaint, the U.S. California 92656; [Inv. No. 337–TA–708] International Trade Commission, on Liberty Media Corporation, 12300 March 25, 2010, ordered that— Liberty Blvd., Englewood, Colorado In the Matter of Certain Stringed (1) Pursuant to subsection (b) of 80112; Musical Instruments and Components section 337 of the Tariff Act of 1930, as QVC, Inc., 1200 Wilson Dr., West Thereof (II); Notice of Investigation amended, an investigation be instituted Chester, Pennsylvania 19380; AGENCY: U.S. International Trade to determine whether there is a Crutchfield Corporation, 1 Crutchfield Commission. violation of subsection (a)(1)(B) of Pk., Charlottesville, Virginia 22911; section 337 in the importation into the Wal-Mart Stores, Inc., 708 SW 8th St., ACTION: Institution of investigation United States, the sale for importation, Bentonville, Arkansas 72716; pursuant to 19 U.S.C. 1337. or the sale within the United States after Computer Nerds International, Inc., SUMMARY: Notice is hereby given that a importation of certain integrated 2680 NE 188th St., Miami, Florida complaint was filed with the U.S. circuits, chipsets, or products 33180. International Trade Commission on containing same including televisions, (c) The Commission investigative February 26, 2010, under section 337 of media players, or cameras that infringe attorney, party to this investigation, is the Tariff Act of 1930, as amended, 19 one or more of claims 1, 8–10, 22, and Benjamin Levi, Esq., Office of Unfair U.S.C. 1337, on behalf of Geoffrey Lee 26 of U.S. Patent No. 5,467,455; claims Import Investigations, U.S. International McCabe of Hollywood, California. A 1 and 10 of U.S. Patent No. 5,715,014; Trade Commission, 500 E Street, SW., letter supplementing the complaint was and claims 1, 6, 11, and 13–16 of U.S. Suite 401, Washington, DC 20436; and filed on March 18, 2010. The complaint, Patent No. 7,199,306, and whether an (3) For the investigation so instituted, as supplemented, alleges violations of industry in the United States exists as Paul J. Luckern, Chief Administrative section 337 in the importation into the required by subsection (a)(2) of section Law Judge, U.S. International Trade United States, the sale for importation, 337; Commission, shall designate the and the sale within the United States (2) For the purpose of the presiding administrative law judge. after importation of certain stringed investigation so instituted, the following Responses to the complaint and the musical instruments and components are hereby named as parties upon which notice of investigation must be thereof by reason of infringement of this notice of investigation shall be submitted by the named respondents in certain claims of U.S. Patent Nos. served: accordance with section 210.13 of the 5,965,831, 5,986,191, 6,175,066, (a) The complainant is: Commission’s Rules of Practice and 6,891,094, and 7,470,841. The Freescale Semiconductor, Inc., 6501 Procedure, 19 CFR 210.13. Pursuant to complaint, as supplemented, further William Cannon Dr., West, Austin, TX 19 CFR 201.16(d)–(e) and 210.13(a), alleges that an industry in the United 78735. such responses will be considered by States exists as required by subsection (b) The respondents are the following the Commission if received not later (a)(2) of section 337. entities alleged to be in violation of than 20 days after the date of service by The complainant requests that the section 337, and are the parties upon the Commission of the complaint and Commission institute an investigation which the complaint is to be served: the notice of investigation. Extensions of and, after the investigation, issue a Panasonic Corporation, 1006 Oaza time for submitting responses to the permanent exclusion order and Kadoma, Kadoma, Osaka 571–8501, complaint and the notice of permanent cease and desist orders. Japan; investigation will not be granted unless ADDRESSES: The complaint and Panasonic Semiconductor Discrete good cause therefor is shown. supplement, except for any confidential Devices Co., Ltd., 8–1, Failure of a respondent to file a timely information contained therein, are Minamihirocho, Umezu, Ukyo-Ku, response to each allegation in the available for inspection during official 615–0901 Kyoto, Kyoto, Japan; complaint and in this notice may be business hours (8:45 a.m. to 5:15 p.m.)

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in the Office of the Secretary, U.S. section 337, and are the parties upon Issued: March 29, 2010. International Trade Commission, 500 E which the complaint is to be served: Marilyn R. Abbott, Street, SW., Room 112, Washington, DC Floyd Rose Guitars, 6855 176th Avenue, Secretary to the Commission. 20436, telephone 202–205–2000. NE., Redmond, WA 98052. [FR Doc. 2010–7441 Filed 4–1–10; 8:45 am] Hearing-impaired individuals are BILLING CODE 7020–02–P advised that information on this matter Floyd Rose Marketing, Inc., 3301 State can be obtained by contacting the Route 66, Neptune, NJ 07753–2705. Commission’s TDD terminal on 202– Davitt & Hanser Music Co., d/b/a HHI, INTERNATIONAL TRADE 205–1810. Persons with mobility 2395 Arbor Tech Drive, Hebron, KY COMMISSION impairments who will need special 41048. assistance in gaining access to the [Investigation No. 731–TA–44 (Third Ping Well Industrial Co., Ltd., 51, Sho Review)] Commission should contact the Office Yi 5 Lane, Taichung, Taiwan. of the Secretary at 202–205–2000. Sorbitol From France General information concerning the Ibanez, Inc. (Hoshino) US, 1726 Commission may also be obtained by Westchester Road, Bensalem, PA AGENCY: United States International accessing its Internet server at http:// 19020. Trade Commission. www.usitc.gov. The public record for Ibanez, Inc. (Hoshino) Japan, Fuji Gakki ACTION: Revised schedule for the subject this investigation may be viewed on the Co., LTD, No. 22, 3-Chome, Shumoku- review. Commission’s electronic docket (EDIS) cho, Higashi-Ku, Nagoya, Japan 461– at http://www.usitc.gov/secretary/ 8717. DATES: Effective Date: Date of edis.htm. Commission approval. (c) The Commission investigative FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: attorney, party to this investigation, is Dana Lofgren (202–708–4721), Office of Jeffrey T. Hsu, Esq., Office of Unfair Jeffrey T. Hsu, Esq., Office of Unfair Import Investigations, U.S. International Investigations, U.S. International Trade Import Investigations, U.S. International Commission, 500 E Street SW., Trade Commission, telephone (202) Trade Commission, 500 E Street, SW., 205–2579. Washington, DC 20436. Hearing- Suite 401, Washington, DC 20436; and impaired persons can obtain Authority: The authority for institution of information on this matter by contacting this investigation is contained in section 337 (3) For the investigation so instituted, of the Tariff Act of 1930, as amended, and Paul J. Luckern, Chief Administrative the Commission’s TDD terminal on 202– in section 210.10 of the Commission’s Rules Law Judge, U.S. International Trade 205–1810. Persons with mobility of Practice and Procedure, 19 CFR 210.10 Commission, shall designate the impairments who will need special (2009). presiding Administrative Law Judge. assistance in gaining access to the Scope of Investigation: Having Responses to the complaint, as Commission should contact the Office considered the amended complaint, the supplemented, and the notice of of the Secretary at 202–205–2000. U.S. International Trade Commission, investigation must be submitted by the General information concerning the on March 25, 2010, ordered that— named respondents in accordance with Commission may also be obtained by (1) Pursuant to subsection (b) of section 210.13 of the Commission’s accessing its internet server (http:// section 337 of the Tariff Act of 1930, as Rules of Practice and Procedure, 19 CFR www.usitc.gov). The public record for amended, an investigation be instituted 210.13. Pursuant to 19 CFR 201.16 this review may be viewed on the to determine whether there is a (d)–(e) and 210.13(a), such responses Commission’s electronic docket (EDIS) violation of subsection (a)(1)(B) of will be considered by the Commission at http://edis.usitc.gov. section 337 in the importation into the if received not later than 20 days after SUPPLEMENTARY INFORMATION: On United States, the sale for importation, the date of service by the Commission December 10, 2009, the Commission or the sale within the United States after of the complaint and the notice of established a schedule for the conduct importation of certain stringed musical investigation. Extensions of time for of the review (74 FR 66992, December instruments or components thereof by submitting responses to the complaint 17, 2009). Due to a scheduling conflict reason of infringement of one or more of and the notice of investigation will not the Commission is issuing a revised claims 1–3, 5, and 6 of U.S. Patent No. be granted unless good cause therefor is schedule. The Commission’s new 5,965,831; claims 1–3, 6, and 14 of U.S. shown. schedule for the review is as follows: Patent No. 5,986,191; claims 1–5, 8, 9, Staff report.—The prehearing staff and 11 of U.S. Patent No. 6,175,066; Failure of a respondent to file a timely report in the review will be placed in claims 1, 14–18, 20–22, and 24 of U.S. response to each allegation in the the nonpublic record on April 21, 2010, Patent No. 6,891,094; and claims 6, 8– complaint, as supplemented, and in this and a public version will be issued 11, 27, 29, and 31 of U.S. Patent No. notice may be deemed to constitute a thereafter, pursuant to section 207.64 of 7,470,841; and whether an industry in waiver of the right to appear and contest the Commission’s rules. the United States exists or is in the the allegations of the complaint and this Hearing.—The Commission will hold process of being established as required notice, and to authorize the a hearing in connection with the review by subsection (a)(2) of section 337; administrative law judge and the beginning at 9:30 a.m. on May 11, 2010, (2) For the purpose of the Commission, without further notice to at the U.S. International Trade investigation so instituted, the following the respondent, to find the facts to be as Commission Building. Requests to are hereby named as parties upon which alleged in the complaint and this notice appear at the hearing should be filed in this notice of investigation shall be and to enter an initial determination writing with the Secretary to the served: and a final determination containing Commission on or before May 5, 2010. (a) The complainant is— such findings, and may result in the All parties and nonparties desiring to Geoffrey Lee McCabe, 6104 Glen Oak, issuance of a limited exclusion order or appear at the hearing and make oral Hollywood, CA 90068. cease and desist order or both directed presentations should attend a (b) The respondents are the following against a respondent. prehearing conference to be held at 9:30 entities alleged to be in violation of By order of the Commission. a.m. on May 7, 2010, at the U.S.

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International Trade Commission date of this publication comments Signed at Washington, DC, this 26th day of Building. relating to the Consent Decree. March 2010. Written submissions.—Each party to Comments should be addressed to the Hilda L. Solis, the review may submit a prehearing Assistant Attorney General, Secretary of Labor. brief to the Commission. Prehearing Environment and Natural Resources U.S. Department of Labor briefs must conform with the provisions Division, P.O. Box 7611, U.S. of section 207.65 of the Commission’s Department of Justice, Washington, DC Office of the Secretary rules; the deadline for filing is April 30, 20044–7611, and should refer to United February 24, 2010 2010. The deadline for filing States v. City of Ottawa, D.J. Ref. 90–11– MEMORANDUM FOR JANE OATES posthearing briefs is May 19, 2010; 3–06883/2. Assistant Secretary for Employment witness testimony must be filed no later The Consent Decree may be examined and Training than three days before the hearing. In at the Office of the United States addition, any person who has not Attorney, 219 S. Dearborn St., Fifth FROM: HILDA L. SOLIS entered an appearance as a party to the Floor, Chicago, IL 60604, and at U.S. Secretary of Labor review may submit a written statement EPA Region 5, 77 West Jackson Blvd., SUBJECT: Delegation of Authority of information pertinent to the subject of Chicago, IL 60604–3590. During the I am delegating to you, effective March the review on or before May 19, 2010. public comment period, the Consent 1, 2010, the authority to supervise, For further information concerning Decree, may also be examined on the direct and perform all responsibilities the review see the Commission’s notice following Department of Justice Web relating to the administration of the cited above and the Commission’s Rules site, http://www.usdoj.gov/enrd/ Office of Job Corps within the Office of of Practice and Procedure, part 201, Consent_Decrees.html. A copy of the the Secretary for an interim period subparts A through E (19 CFR part 201), Consent Decree may also be obtained by while preparatory work is completed for and part 207, subparts A and C (19 CFR mail from the Consent Decree Library, the transfer of the Office of Job Corps part 207). P.O. Box 7611, U.S. Department of from the Office of the Secretary to the Authority: This review is being conducted Justice, Washington, DC 20044–7611 or Employment and Training under authority of title VII of the Tariff Act by faxing or e-mailing a request to Tonia Administration. The Acting Director of of 1930; this notice is published pursuant to Fleetwood ([email protected]), the Office of Job Corps will report section 207.21 of the Commission’s rules. fax no. (202) 514–0097, phone directly to you while this delegation of By order of the Commission. confirmation number (202) 514–1547. In authority remains in effect. Issued: March 29, 2010. requesting a copy from the Consent This delegation shall be considered William R. Bishop, Decree Library, please enclose a check revoked upon the effective date of a in the amount of $18.75 (25 cents per Acting Secretary to the Commission. Secretary’s Order that completes the page reproduction cost) payable to the transfer of the Office of Job Corps to the [FR Doc. 2010–7428 Filed 4–1–10; 8:45 am] U.S. Treasury or, if by e-mail or fax, Employment and Training BILLING CODE P forward a check in that amount to the Administration. Consent Decree Library at the stated [FR Doc. 2010–7456 Filed 4–1–10; 8:45 am] address. DEPARTMENT OF JUSTICE BILLING CODE 4510–23–P Maureen Katz, Notice of Lodging of Consent Decree Assistant Chief, Environmental Enforcement Under the Comprehensive Section, Environment and Natural Resources DEPARTMENT OF LABOR Division. Environmental Response, Employee Benefits Security [FR Doc. 2010–7420 Filed 4–1–10; 8:45 am] Compensation, and Liability Act Administration BILLING CODE 4410–15–P Notice is hereby given that on March 25, 2010, a proposed consent decree Proposed Extension of Information Collection Request Submitted for with the City of Ottawa, Illinois DEPARTMENT OF LABOR (‘‘Consent Decree’’) in United States vs. Public Comment; Model Employer CHIP Notice City of Ottawa, Civil Action No. 10–1887 Office of the Secretary was lodged with the United States AGENCY: Employee Benefits Security District Court for the Northern District Delegation of Authority Administration, Department of Labor. of Illinois. ACTION: Notice. In this action the United States sought On February 24, 2010, the Department injunctive relief and recovery of of Labor issued a memorandum SUMMARY: The Department of Labor (the unreimbursed costs incurred for delegating to the Assistant Secretary for Department), in accordance with the response activities undertaken in Employment and Training the authority Paperwork Reduction Act of 1995 (PRA response to the release and threatened to supervise, direct and perform all 95) (44 U.S.C. 3506(c)(2)(A)), provides release of hazardous substances from responsibilities relating to the the general public and Federal agencies facilities at the Ottawa Radiation Areas administration of the Office of Job Corps with an opportunity to comment on Superfund Site in Ottawa, Illinois. The for an interim period. A copy of that proposed and continuing collections of Consent Decree provides for the City of memorandum is annexed hereto as an information. This helps the Department Ottawa to pay $150,000, a figure Appendix. assess the impact of its information determined in accordance with an FOR FURTHER INFORMATION CONTACT: Jane collection requirements and minimize ability to pay analysis, and also provide Oates, Assistant Secretary for the reporting burden on the public and approximately $4.35 million in in-kind Employment and Training, Department helps the public understand the services, primarily through the of Labor, 200 Constitution Avenue, Department’s information collection provision of clean fill and top soil. NW., Washington, DC 20210. requirements and provide the requested The Department of Justice will receive Telephone: 202–693–2700. This is not a data in the desired format. Currently, for a period of thirty (30) days from the toll-free number. the Employee Benefits Security

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Administration is soliciting comments and Health and Human Services shall III. Desired Focus of Comments on the Model CHIP Employer Notice. A develop the initial Model Employer The Department of Labor copy of the information collection CHIP Notice under ERISA section (Department) is particularly interested request (ICR) may be obtained by 701(f)(3)(B)(i)(II), and the Department of in comments that: contacting the office listed in the Labor shall provide such notices to • Evaluate whether the proposed ADDRESSES section of this notice. employers, by February 4, 2010. collection of information is necessary DATES: Written comments must be Moreover, each employer is required to for the proper performance of the submitted to the office shown in the provide the initial annual notices to functions of the agency, including ADDRESSES section on or before June 1, such employer’s employees beginning whether the information will have 2010. with the first plan year that begins after practical utility; ADDRESSES: Direct all written comments the date on which the initial model • Evaluate the accuracy of the regarding the information collection notices are first issued. The ICR relates agency’s estimate of the burden of the request and burden estimates to G. to the Model Employer CHIP Notice. proposed collection of information, Christopher Cosby, Office of Policy and On January 26, 2010, the Office of including the validity of the Research, Employee Benefits Security Management and Budget (OMB) methodology and assumptions used; Administration, U.S. Department of approved the Model Employer CHIP • Enhance the quality, utility, and Labor, 200 Constitution Avenue, NW., Notice under OMB Control Number clarity of the information to be Room N–5647, Washington, DC 20210. 1210–0137 pursuant to the emergency collected; and • Telephone: (202) 693–8410; Fax: (202) procedures for review and clearance in Minimize the burden of the 219–4745. These are not toll-free accordance with the Paperwork collection of information on those who numbers. Comments may also be Reduction Act of 1995 (P.L. 104–13, 44 are to respond, including through the submitted electronically to the U.S.C. Chapter 35) and 5 CFR 1320.13. use of appropriate automated, following Internet e-mail address: On February 4, 2010, the Department electronic, mechanical, or other [email protected]. published a Federal Register notice (75 technological collection techniques or FR 5808) announcing the availability of other forms of information technology, SUPPLEMENTARY INFORMATION: the Model Employer CHIP Notice on its e.g., by permitting electronic I. Background Web site. OMB’s approval of the notice submissions of responses. On February 4, 2009, President currently is schedule to expire on July Comments submitted in response to Obama signed the Children’s Health 31, 2010. this notice will be summarized and/or included in the ICR for OMB approval Insurance Program Reauthorization Act II. Current Actions of 2009 (CHIPRA, Pub. L. 111–3). Under of the extension of the information ERISA section 701(f)(3)(B)(i)(I), PHS Act This notice requests public comment collection; they will also become a section 2701(f)(3)(B)(i)(I), and section pertaining to the Department’s request matter of public record. 9801(f)(3)(B)(i)(I) of the Internal for extension of OMB’s approval of the Dated: March 29, 2010. Revenue Code, as added by CHIPRA, an Model CHIP Employer Notice (OMB Joseph S. Piacentini, employer that maintains a group health Control Number 1210–0137). After Director, Office of Policy and Research, plan in a State that provides medical considering comments received in Employee Benefits Security Administration. assistance under a State Medicaid plan response to this notice, the Department [FR Doc. 2010–7500 Filed 4–1–10; 8:45 am] under title XIX of the Social Security intends to submit an ICR to OMB for BILLING CODE 4510–29–P Act (SSA), or child health assistance continuing approval. No change to the under a State child health plan under existing ICR is proposed or made at this title XXI of the SSA, in the form of time. The Department notes that an DEPARTMENT OF LABOR premium assistance for the purchase of agency may not conduct or sponsor, and coverage under a group health plan, is a person is not required to respond to, Employee Benefits Security required to make certain disclosures. an information collection unless it Administration Specifically, the employer is required to displays a valid OMB control number. A Proposed Extension of Information notify each employee of potential summary of the ICR and the current Collection Request Submitted for opportunities currently available in the burden estimates follows: Public Comment; COBRA Notification State in which the employee resides for Agency: Employee Benefits Security Requirements—American Recovery premium assistance under Medicaid Administration. and Reinvestment Act of 2009 as and CHIP for health coverage of the Title of Collection: Model Employer Amended employee or the employee’s CHIP Notice. dependents. Type of Collection: New. AGENCY: Employee Benefits Security ERISA section 701(f)(3)(B)(i)(II) OMB Control Number: 1210–0137. Administration, Department of Labor. requires the Department of Labor to Frequency of Collection: On occasion. ACTION: Notice. provide employers with model language Affected Public: Individuals or for the Employer CHIP Notices to enable SUMMARY: The Department of Labor (the households; Business or other for-profit; them to timely comply with this Department), in accordance with the Not-for-profit institutions. requirement. The Model Employer CHIP Paperwork Reduction Act of 1995 (PRA Notice is required to include Total Estimated Number of 95) (44 U.S.C. 3506(c)(2)(A)), provides information on how an employee may Respondents: 7,056,000. the general public and Federal agencies contact the State in which the employee Total Estimated Number of with an opportunity to comment on resides for additional information Responses: 203,794,701. proposed and continuing collections of regarding potential opportunities for Total Estimated Annual Burden information. This helps the Department premium assistance, including how to Hours: 1,053,000. assess the impact of its information apply for such assistance. Total Net Estimated Annual Costs collection requirements and minimize Section 311(b)(1)(D) of CHIPRA Burden (other than hourly costs): the reporting burden on the public and provides that the Departments of Labor $25,271,000. helps the public understand the

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Department’s information collection Secretary has the authority to issue summary of the ICR and the current requirements and provide the requested regulations implementing the notice and burden estimates follows: data in the desired format. Currently, disclosure requirements of COBRA, Agency: Employee Benefits Security the Employee Benefits Security while the Treasury is authorized to Administration, Department of Labor. Administration is soliciting comments issue regulations defining the required on the revision of the information continuation coverage. Title: COBRA Notification collection provisions of its final rule at On February 17, 2009, President Requirements—American Recovery and 29 CFR part 2590, Health Care Obama signed the American Recovery Reinvestment Act of 2009 as amended. Continuation Coverage to reflect the and Reinvestment Act (ARRA) of 2009 Type of Review: Revision of a hour and cost burden associated with (Pub. L. 111–5). ARRA includes a currently approved collection of the COBRA notification requirements requirement that the Secretary of Labor information. under the American Recovery and (the Secretary), in consultation with the Reinvestment Act of 2009 as amended Secretaries of the Treasury and Health OMB Number: 1210–0123. by the Department of Defense and Human Services, develop model Affected Public: Individuals or Appropriations Act of 2010 (Pub. L. notices for use by group health plans households; Business or other for-profit; 111–118). A copy of the information and other entities that, pursuant to Not-for-profit institutions. ARRA, must provide notices of the collection request (ICR) may be obtained Respondents: 593,000. by contacting the office listed in the availability of premium reductions and ADDRESSES section of this notice. additional election periods for health Frequency of Responses: On occasion. DATES: Written comments must be care continuation coverage. On Responses: 38,115,000. December 19, 2009, President Obama submitted to the office shown in the Estimated Total Burden Hours: None. ADDRESSES section on or before June 1, signed the Department of Defense Estimated Total Burden Cost 2010. Appropriations Act of 2010 (Pub. L. 111–118), which amended the ARRA (Operating and Maintenance): ADDRESSES: Direct all written comments COBRA provisions by extending the $34,500,000. regarding the information collection availability of the health care request and burden estimates to G. III. Desired Focus of Comments continuation coverage premium Christopher Cosby, Office of Policy and reduction provided for COBRA and Research, Employee Benefits Security The Department of Labor other health care continuation coverage, Administration, U.S. Department of (Department) is particularly interested and the Department revised its model Labor, 200 Constitution Avenue, NW., in comments that: notices to reflect these amendments.. • Room N–5647, Washington, DC 20210. On January 12, 2010, the Office of Evaluate whether the proposed Telephone: (202) 693–8410; Fax: (202) Management and Budget (OMB) collection of information is necessary 219–4745. These are not toll-free approved the revised model notices as for the proper performance of the numbers. Comments may also be a revision to OMB Control Number functions of the agency, including submitted electronically to the 1210–0123 under the emergency whether the information will have following Internet e-mail address: procedures for review and clearance in practical utility; [email protected]. accordance with the Paperwork • Evaluate the accuracy of the SUPPLEMENTARY INFORMATION: Reduction Act of 1995 (Pub. L. 104–13, agency’s estimate of the burden of the 44 U.S.C. Chapter 35) and 5 CFR I. Background proposed collection of information, 1320.13. On January 15, 2010, the including the validity of the The continuation coverage provisions Department published a Federal methodology and assumptions used; of section 601 through 608 of ERISA Register notice (75 FR 2562) • (and parallel provisions of the Internal announcing the availability of the Enhance the quality, utility, and Revenue Code (Code)) generally require revised model health care continuation clarity of the information to be group health plans to offer qualified coverage notices required by ARRA as collected; and beneficiaries’ the opportunity to elect amended on its Web site at http:// • Minimize the burden of the continuation coverage following certain www.dol.gov/ebsa/ collection of information on those who events that would otherwise result in COBRAmodelnotice.html. OMB’s are to respond, including through the the loss of coverage. Continuation approval of the revision currently is use of appropriate automated, coverage is a temporary extension of the schedule to expire on July 31, 2010. electronic, mechanical, or other qualified beneficiary’s previous group II. Current Actions technological collection techniques or health coverage. The right to elect other forms of information technology, continuation coverage allows This notice requests public comment e.g., by permitting electronic individuals to maintain group health pertaining to the Department’s request submissions of responses. coverage under adverse circumstances for extension of OMB’s approval of its and to bridge gaps in health coverage revision to OMB Control Number 1210– Comments submitted in response to that otherwise could limit their access 0123 relating to the revised ARRA this notice will be summarized and/or to health care. model notices. After considering included in the ICR for OMB approval COBRA provides the Secretary of comments received in response to this of the extension of the information Labor (the Secretary) with authority notice, the Department intends to collection; they will also become a under section 608 of ERISA to carry out submit an ICR to OMB for continuing matter of public record. the continuation coverage provisions. approval. No change to the existing ICR Dated: March 29, 2010. The Conference Report that is proposed or made at this time. The accompanied COBRA divided Department notes that an agency may Joseph S. Piacentini, interpretive authority over the COBRA not conduct or sponsor, and a person is Director, Office of Policy and Research, provisions between the Secretary and not required to respond to, an Employee Benefits Security Administration. the Secretary of the Treasury (the information collection unless it displays [FR Doc. 2010–7499 Filed 4–1–10; 8:45 am] Treasury) by providing that the a valid OMB control number. A BILLING CODE 4510–29–P

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DEPARTMENT OF LABOR DEPARTMENT OF LABOR (a) The exemption is administratively feasible; Employment and Training Employee Benefits Security (b) The exemption is in the interests Administration Administration of the plan and its participants and beneficiaries; and Prohibited Transaction Exemptions [TA–W–70,457; TA–W–70,457a] (c) The exemption is protective of the Grant of Individual Exemptions rights of the participants and Core Manufacturing, Multi-Plastics, Involving: 2010–09, Ivy Asset beneficiaries of the plan. Inc., Division, Sipco, Inc., Division, Management Corporation, D–11492; Ivy Asset Management Corporation Including Leased Workers of M–Ploy 2010–10, Deutsche Bank AG and Its Located in Jericho, NY Temporaries, Inc., Saegertown, PA; Affiliates, D–11518; 2010–11, The [Prohibited Transaction Exemption No. Sipco Molding Technologies, Coca-Cola Company (TCCC), D–11555 2010–09; Exemption Application No: Meadville, PA; Amended Certification AGENCY: Employee Benefits Security D–11492] Regarding Eligibility To Apply for Administration, Labor. Exemption Worker Adjustment Assistance ACTION: Grant of individual exemptions. Section I: Transactions In accordance with section 223 of the SUMMARY: This document contains The restrictions of sections Trade Act of 1974, as amended (‘‘Act’’), exemptions issued by the Department of 406(a)(1)(A) through (D), 406(b)(1) and 19 U.S.C. 2273, the Department of Labor Labor (the Department) from certain of 406(b)(2) of the Act and the sanctions issued a Certification of Eligibility to the prohibited transaction restrictions of resulting from the application of section Apply for Worker Adjustment the Employee Retirement Income 4975 of the Code, by reason of section Assistance on November 13, 2009, Security Act of 1974 (ERISA or the Act) 4975(c)(1)(A) through (E) of the Code,1 applicable to workers of Core and/or the Internal Revenue Code of shall not apply, effective December 31, Manufacturing, Multi-Plastics, Inc., 1986 (the Code). 2008, to: Division and Sipco, Inc., Division, A notice was published in the Federal (a) The sale for cash of certain equity including leased workers of M–Ploy Register of the pendency before the interests (the Shares) in hedge funds Temporaries, Inc., Saegertown, Department of a proposal to grant such organized outside the United States,2 Pennsylvania. The Department’s Notice exemption. The notice set forth a which Shares are held in the Ivy was published in the Federal Register summary of facts and representations Enhanced Income Fund (the Fund), a contained in the application for on January 25, 2010 (75 FR 3935). sub-fund established under the exemption and referred interested After the certification was issued, the Alternative Investment-Master Group persons to the application for a Department received new information Trust (the Group Trust), to Ivy Asset complete statement of the facts and that revealed that the worker group Management Corporation (Ivy), a party representations. The application has includes workers at an auxiliary facility in interest with respect to certain been available for public inspection at operating in conjunction with the employee benefit plans, including a the Department in Washington, DC. The Saegertown, Pennsylvania facility. defined benefit plan (the Retirement notice also invited interested persons to Plan) sponsored by Ivy’s parent Accordingly, the Department is submit comments on the requested amending this certification to property corporation, The Bank of New York exemption to the Department. In 3 reflect this matter. addition the notice stated that any Mellon Corporation, (collectively, the The intent of the Department’s interested person might submit a Plan(s)), and certain individual amended certification is to include all written request that a public hearing be retirement accounts (the IRA(s)), where workers of the subject firm who are held (where appropriate). The applicant such Plans and IRAs have interests in adversely-impacted secondary workers. has represented that it has complied the Fund; provided that at the time the Shares were sold, the conditions set The amended notice applicable to with the requirements of the notification to interested persons. No requests for a forth, below, in section I(b)(1)-(6) of this TA–W–70,457 is hereby issued as exemption, and the general conditions, follows: hearing were received by the Department. Public comments were set forth below, in section II, of this ‘‘All workers of Core Manufacturing, Multi- received by the Department as described exemption, were satisfied; Plastics, Inc., Division and Sipco, Inc., (b) The sale for cash of certain Division, including leased workers of M–Ploy in the granted exemption. The notice of proposed exemption restricted shares (the Restricted Shares) Temporaries, Inc., Saegertown, Pennsylvania of the D. E. Shaw Composite (TA–W–70,457) and Sipco Molding was issued and the exemption is being granted solely by the Department International Fund, Ltd. (the DE Shaw Technologies, Meadville, Pennsylvania (TA– Fund), a hedge fund organized outside W–70,457A), who became totally or partially because, effective December 31, 1978, separated from employment on or after May section 102 of Reorganization Plan No. the United States, to Ivy Holding 20, 2008, through November 13, 2011, and all 4 of 1978, 5 U.S.C. App. 1 (1996), workers in the group threatened with total or 1 For purposes of this exemption, references to transferred the authority of the Secretary specific provisions of Title I of the Act, unless partial separation from employment on of the Treasury to issue exemptions of November 13, 2009 through November 13, otherwise specified, refer also to the corresponding the type proposed to the Secretary of provisions of the Code. 2011, are eligible to apply for adjustment Labor. 2 It is represented that to the extent that, prior to assistance under Chapter 2 of Title II of the the effective date of the final exemption, the Fund Trade Act of 1974, as amended.’’ Statutory Findings had received distributions from the hedge funds in connection with interests in such hedge funds held Signed in Washington, DC, this 16th day of In accordance with section 408(a) of March, 2010. by the Fund, those proceeds would have been the Act and/or section 4975(c)(2) of the distributed by the Fund to each holder of units in Del Min Amy Chen, Code and the procedures set forth in 29 the Fund in proportion to each such holder’s Certifying Officer, Division of Trade CFR Part 2570, Subpart B (55 FR 32836, interest in the Fund; and accordingly, would not Adjustment Assistance. have been purchased by Ivy or by any affiliate of 32847, August 10, 1990) and based upon Ivy, pursuant to this exemption. [FR Doc. 2010–7498 Filed 4–1–10; 8:45 am] the entire record, the Department makes 3 The Bank of New York Mellon Corporation is BILLING CODE P the following findings: hereinafter referred to as BNYMC.

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Cayman, LTS, an affiliate of Ivy (the Section II: General Conditions beyond the control of Ivy, such records Affiliate) which is also organized (a) Ivy, as investment manager of the are lost or destroyed prior to the end of outside of the United States, and which Fund, represents that the subject the six-year period. is a party in interest with respect to the transactions are appropriate for and in (f)(1) Except as provided, below, in Plans and the IRAs, where such Plans the interest of the Fund, and each of the section II(f)(2) of this exemption, and and IRAs have interests in the Fund; Unit Holders which have an interest in notwithstanding any provisions of provided that at the time the Restricted the Fund. subsections (a)(2) and (b) of section 504 Shares were sold to the Affiliate, the (b) Ivy takes all appropriate actions of the Act, the records referred to, conditions set forth below, in section necessary to safeguard the interests of above, in section II(e) of this exemption, I(b)(1)–(6) of this exemption, and the the Fund, and the interests of the Unit are unconditionally available at their general conditions, set forth below, in Holders in the Fund, in connection with customary location for examination section II of this exemption, were the subject transactions; during normal business hours by— satisfied: (c) The decision by a Unit Holder as (A) Any duly authorized employee or (1) The sale of the Shares to Ivy and to whether to engage in the subject representative of the Department, the the sale of the Restricted Shares to the transactions was made, in the case of a Internal Revenue Service, or the Affiliate were each one-time Plan by the trustee of each such Plan, in Securities and Exchange Commission; transactions for cash; the case of an IRA, by the IRA holder, or (2) The purchase price paid by Ivy for and in the case of the Retirement Plan (B) Any fiduciary of any Plan or any the Shares and the purchase price paid by the Benefits Investment Committee IRA that engaged in the subject by the Affiliate for the Restricted Shares (the Committee), which serves as the transactions, or any duly authorized was equal to the value of such shares, named fiduciary of the Retirement Plan. employee or representative of such as reported to the Fund by investment (d) Notwithstanding affirmative fiduciary; or managers of the hedge funds (the consent given by each of the Unit (C) Any employer of participants and Manager(s)), who are independent of Holders to the sale by the Fund of the beneficiaries and any employee and unrelated to Ivy and any of its Shares and of the Restricted Shares, and organization whose members are affiliates, as set forth on the most recent notwithstanding the entry into the covered by a Plan or an IRA that statement issued to the Fund Promissory Notes between Ivy and each engaged in the subject transactions, or immediately prior to the effective date Unit Holder: any authorized employee or of this exemption; (i) The Plans and IRAs have not representative of these entities; or (3) The Fund did not incur any waived or released and do not waive or (D) Any participant or beneficiary of commissions or transaction costs with release any claims, demands, and/or a Plan or an IRA that engaged in the respect to the sale of the Shares to Ivy causes of action which such Plans and subject transactions, or duly authorized and with respect to the sale of the IRAs may have against BNYMC and/or employee or representative of such Restricted Shares to the Affiliate; Ivy in connection with the acquisition participant or beneficiary; (4) On January 29, 2008, Ivy solicited and retention of the Shares and the (2) None of the persons described, and received from each of the Plans and acquisition and retention of the above, in section II(f)(1)(B)–(D) of this IRAs which have an interest in the Fund Restricted Shares; and exemption, shall be authorized to (the Unit Holder(s)) an affirmative (ii) The Plans and IRAs have not examine trade secrets of Ivy, or consent to the sale by the Fund of the waived or released and do not waive or commercial or financial information Shares and of the Restricted Shares; release any claims, demands, and/or which is privileged or confidential; and (5) On January 29, 2008, Ivy solicited causes of action which such Plans and (3) Should Ivy refuse to disclose and received from each Unit Holder in IRAs may have against BNYMC and/or information on the basis that such the Fund an affirmative consent to the Ivy in connection with the sale of the information is exempt from disclosure, entry into a promissory note (the Shares to Ivy and the sale of the Ivy shall, by the close of the thirtieth Promissory Note(s)), and as of the Restricted Shares to the Affiliate; (30th) day following the request, effective date of this exemption Ivy (e) Ivy will maintain, or cause to be provide a written notice advising that entered into such Promissory Notes; and maintained, for a period of six (6) years person of the reasons for the refusal and (6) Pursuant to the terms of each of from the date of any of the subject that the Department may request such the Promissory Notes entered into transactions such records as are information. between Ivy and each Unit Holder, in necessary to enable the persons DATES: Effective Date: This exemption is the event that Ivy receives redemption described, below, in section II(f)(1) of effective, December 31, 2008. proceeds in excess of the purchase price this exemption, to determine whether paid by Ivy to the Fund for the Shares, the conditions of this exemption have Written Comments and/or in the event the Affiliate receives been met, except that— In the Notice of Proposed Exemption redemption proceeds in excess of the (1) No party in interest with respect (the Notice), the Department invited all purchase price paid by the Affiliate to to a Plan or to an IRA which engaged interested persons to submit written the Fund for the Restricted Shares, Ivy in the subject transactions, other than comments and requests for a hearing on will pay, as soon as practicable after Ivy and the Affiliate, shall be subject to the proposed exemption within 45 days receipt of such amounts by Ivy and/or a civil penalty under section 502(i) of of the date of the publication of the by the Affiliate, the entirety of such the Act or the taxes imposed by section Notice in the Federal Register on excess in cash to each Unit Holder in 4975(a) and (b) of the Code, if such November 16, 2009.4 All comments and proportion to each such Unit Holder’s records are not maintained, or not requests for hearing were due by investment in the Fund; and Ivy will available for examination, as required, December 31, 2009. absorb the loss, if the aggregate below, by section II(f)(1) of this The applicant informed the redemption proceeds are less than the exemption; and Department by letter dated December aggregate purchase price from the sale of (2) A separate prohibited transaction 18, 2009, that the Notice, along with a the Shares and the sale of the Restricted shall not be considered to have occurred Shares. solely because, due to circumstances 4 74 FR 58996, November 16, 2009.

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cover letter from the applicant, the representation 3 in the Notice reads, as Bank, where such sale (an Unrelated supplemental statement (the follows: Sale) is unrelated to, and not made in Supplemental Statement), described at The Retirement Fund is the only holder of connection with, a Settlement 29 CFR 2570.43(b)(2) of the Class E units. The Retirement Fund invested Agreement (as defined in Section V(f)), Department’s regulations, and a copy of $25 million in Class E units in the Fund in provided that the conditions set forth in the January 29, 2008, Notice to all Unit 1996 and over time has received in excess of Section II have been met.5 holders was sent on December 1, 2009, $33,503,000 in distributions. Ivy does not to all interested persons. However, in a receive any fees with respect to the Class E Section II. Conditions Applicable to telephone call on February 3, 2010, the units. Transactions Described in Section I applicant informed the Department that In this regard, the applicant wishes to The transactions described in Section page 58997 was inadvertently omitted clarify that the distributions in excess of I of this exemption are subject to the from the copy of the Notice that was $33,503,000 received by the Retirement following conditions: sent to all interested persons. In light of Fund includes approximately $8.5 (a) The Plan acquired the Auction the fact that notification to these million profit on such Retirement Rate Security in connection with interested persons was defective and in Fund’s original investment of $25 brokerage or advisory services provided order to allow all such interested million. by Deutsche Bank; persons the benefit of the full thirty (30) The Department concurs with the (b) The last auction for the Auction day comment period, the Department applicant’s requested clarification. Rate Security was unsuccessful; required, and the applicant agreed to, an After full consideration and review of (c) Except in the case of a Plan extension of the deadline within which the entire record, including the written sponsored by Deutsche Bank for its own all interested persons could comment comment filed by the applicant, the employees (a Deutsche Bank Plan), the and/or request a hearing on the Department has determined to grant the Unrelated Sale is made pursuant to a proposed exemption. In this regard, in exemption, as corrected, and clarified written offer by Deutsche Bank (the accordance with the Department’s above. Comments submitted by the Offer) containing all of the material instructions, the applicant sent a cover applicant to the Department have been terms of the Unrelated Sale, including, letter on February 4, 2009, to all included as part of the public record of but not limited to the most recent rate interested persons informing such the exemption application. The information for the Auction Rate interested persons of the omission of complete application file (D–11492), Security (if reliable information is page 58997 from the Notice, and of the including all supplemental submissions available). Either the Offer or other extension of the comment period until received by the Department, is available materials available to the Plan provide March 5, 2010. Accompanying the for public inspection in the Public the identity and par value of the February 4, cover letter, was a copy of Documents Room of the Employee Auction Rate Security. Notwithstanding the Notice, including page 58997, a Benefits Security Administration, Room the foregoing, in the case of a pooled copy of the Supplemental Statement, N–1513, U.S. Department of Labor, 200 fund maintained or advised by Deutsche and a copy of the January 29, 2008, Constitution Avenue, NW., Washington, Bank, this condition shall be deemed Notice to all Unit holders. DC 20210. met to the extent each Plan invested in During the comment period, the For a more complete statement of the the pooled fund (other than a Deutsche Department received no requests for facts and representations supporting the Bank Plan) receives written notice hearing. However, the Department did Department’s decision to grant this regarding the Unrelated Sale, where receive a comment letter on March 11, exemption refer to the Notice of such notice contains the material terms 2010, from the applicant, Ivy. In the Exemption published on November 16, of the Unrelated Sale (including, but not comment letter, the applicant requested 2009, at 74 FR 58996. limited to, the material terms described two changes/clarifications to the FOR FURTHER INFORMATION CONTACT: Ms. in the preceding sentence); Summary of Facts and Representations Angelena C. Le Blanc of the Department, (d) The Unrelated Sale is for no (SFR), as published in the Notice in the telephone (202) 693–8540. (This is not consideration other than cash payment Federal Register. The applicant’s a toll-free number.) against prompt delivery of the Auction requested changes/clarifications to the Rate Security; SFR are discussed, below, in an order Deutsche Bank AG and Its Affiliates (together, Deutsche Bank or the (e) The sales price for the Auction that corresponds to the appearance of Rate Security is equal to the par value the relevant language in the Notice. Applicant) of the Auction Rate Security, plus any 1. The applicant has requested a Located in New York, New York [Prohibited Transaction Exemption accrued but unpaid interest or change in representation 1, as set forth 2010–10; Exemption Application No. dividends; in the SFR on page 58997, column 2, D–11518] (f) The Plan does not waive any rights lines 26–27 in the Notice. In this regard, or claims in connection with the the sentence in the Notice which Exemption Unrelated Sale; indicates that the applicant’s principal Section I. Sales of Auction Rate (g) The decision to accept the Offer or place of business is located in Garden Securities From Plans to Deutsche Bank: retain the Auction Rate Security is made City, New York should be changed to Unrelated to a Settlement Agreement by a Plan fiduciary or Plan participant reflect the fact that the applicant’s or IRA owner who is independent (as principal place of business has moved Effective February 1, 2008, the defined in Section V(d)) of Deutsche to Jericho, New York. restrictions of section 406(a)(1)(A) and The Department concurs with the (D) and section 406(b)(1) and (2) of the Bank. Notwithstanding the foregoing: (1) applicant’s requested change. Act and the sanctions resulting from the In the case of an individual retirement 2. The applicant has requested a application of section 4975 of the Code, account (an IRA, as described in Section clarification of the language in the third by reason of section 4975(c)(1)(A), (D), V(e) below) which is beneficially owned paragraph of representation 3, as set and (E) of the Code, shall not apply, to 5 For purposes of this exemption, references to forth in the SFR on page 58997, column the sale by a Plan (as defined in Section section 406 of ERISA should be read, unless 3, lines 7–13 in the Notice. In this V(e)) of an Auction Rate Security (as otherwise specified, to refer to the corresponding regard, the third paragraph of defined in Section V(c)) to Deutsche provisions of section 4975 of the Code.

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by an employee, officer, director or are lost or destroyed prior to the end of (b) The Offer or other documents partner of Deutsche Bank, the decision the six-year period; available to the Plan specifically to accept the Offer or retain the Auction (l)(1) Except as provided below in describe, among other things: Rate Security may be made by such paragraph (l)(2), and notwithstanding (1) How a Plan may determine: the employee, officer, director or partner; or any provisions of subsections (a)(2) and Auction Rate Securities held by the Plan (2) in the case of a Deutsche Bank Plan (b) of section 504 of the Act, the records with Deutsche Bank, the purchase dates or a pooled fund maintained or advised referred to above in paragraph (k) are for the Auction Rate Securities, and (if by Deutsche Bank, the decision to unconditionally available at their reliable information is available) the accept the Offer may be made by customary location for examination most recent rate information for the Deutsche Bank after Deutsche Bank has during normal business hours by— Auction Rate Securities; determined that such purchase is in the (A) Any duly authorized employee or (2) The number of shares and par best interest of the Deutsche Bank Plan representative of the Department, the value of the Auction Rate Securities or pooled fund; 6 Internal Revenue Service, or the U.S. available for purchase under the Offer; (h) Except in the case of a Deutsche Securities and Exchange Commission; (3) The background of the Offer; Bank Plan or a pooled fund maintained or (4) That participating in the Offer will or advised by Deutsche Bank, neither (B) Any fiduciary of any Plan, not result in or constitute a waiver of Deutsche Bank nor any affiliate including any IRA owner, that engages any claim of the tendering Plan; exercises investment discretion or in a Sale, or any duly authorized (5) The methods and timing by which renders investment advice within the employee or representative of such Plans may accept the Offer; meaning of 29 CFR 2510.3–21(c) with fiduciary; or (6) The purchase dates, or the manner respect to the decision to accept the (C) Any employer of participants and of determining the purchase dates, for Offer or retain the Auction Rate beneficiaries and any employee Auction Rate Securities tendered Security; organization whose members are pursuant to the Offer; (i) The Plan does not pay any covered by a Plan that engages in the (7) The timing for acceptance by commissions or transaction costs with Unrelated Sale, or any authorized Deutsche Bank of tendered Auction Rate respect to the Unrelated Sale; employee or representative of these Securities; (j) The Unrelated Sale is not part of an entities; (8) The timing of payment for Auction arrangement, agreement or (2) None of the persons described Rate Securities accepted by Deutsche understanding designed to benefit a above in paragraph (l)(1)(B)–(C) shall be Bank for payment; party in interest to the Plan; authorized to examine trade secrets of (9) The methods and timing by which (k) Deutsche Bank and its affiliates, as Deutsche Bank, or commercial or a Plan may elect to withdraw tendered applicable, maintain, or cause to be financial information which is Auction Rate Securities from the Offer; maintained, for a period of six (6) years privileged or confidential; and from the date of the Unrelated Sale, (3) Should Deutsche Bank refuse to (10) The expiration date of the Offer; such records as are necessary to enable disclose information on the basis that (11) The fact that Deutsche Bank may the persons described below in such information is exempt from make purchases of Auction Rate paragraph (l)(1), to determine whether disclosure, Deutsche Bank shall, by the Securities outside of the Offer and may the conditions of this exemption, if close of the thirtieth (30th) day otherwise buy, sell, hold or seek to granted, have been met, except that— following the request, provide a written restructure, redeem or otherwise (1) No party in interest with respect notice advising that person of the dispose of the Auction Rate Securities; to a Plan which engages in an Unrelated reasons for the refusal and that the (12) A description of the risk factors Sale, other than Deutsche Bank and its Department may request such relating to the Offer as Deutsche Bank affiliates, as applicable, shall be subject information. deems appropriate; to a civil penalty under section 502(i) of (13) How to obtain additional Section III. Sales of Auction Rate the Act or the taxes imposed by section information concerning the Offer; and Securities From Plans to Deutsche Bank: 4975(a) and (b) of the Code, if such (14) The manner in which Related to a Settlement Agreement records are not maintained, or not information concerning material available for examination, as required, Effective February 1, 2008, the amendments or changes to the Offer will below, by paragraph (l)(1); and restrictions of section 406(a)(1)(A) and be communicated to affected Plans. (2) A separate prohibited transaction (D) and section 406(b)(1) and (2) of the (c) The terms of the Settlement Sale shall not be considered to have occurred Act and the sanctions resulting from the are consistent with the requirements set solely because, due to circumstances application of section 4975 of the Code, forth in the Settlement Agreement; and beyond the control of Deutsche Bank or by reason of section 4975(c)(1)(A), (D), (d) All of the conditions in Section II its affiliates, as applicable, such records and (E) of the Code, shall not apply, to have been met. the sale by a Plan of an Auction Rate Section V. Definitions 6 The Department notes that the Act’s general Security to Deutsche Bank, where such standards of fiduciary conduct also apply to the sale (a Settlement Sale) is related to, and For purposes of this exemption: transactions described herein. In this regard, section made in connection with, a Settlement (a) The term ‘‘affiliate’’ means: Any 404 requires, among other things, that a fiduciary person directly or indirectly, through discharge his duties respecting a plan solely in the Agreement, provided that the conditions interest of the plan’s participants and beneficiaries set forth in Section IV have been met. one or more intermediaries, controlling, and in a prudent manner. Accordingly, a plan controlled by, or under common control fiduciary must act prudently with respect to, among Section IV. Conditions Applicable to with such other person; other things, the decision to sell the Auction Rate Transactions Described in Section III (b) The term ‘‘control’’ means: The Security to Deutsche Bank for the par value of the Auction Rate Security, plus any accrued but unpaid The transactions described in Section power to exercise a controlling interest or dividends. The Department further III of this exemption are subject to the influence over the management or emphasizes that it expects Plan fiduciaries, prior to following conditions: policies of a person other than an entering into any of the transactions, to fully individual; understand the risks associated with this type of (a) The terms and delivery of the Offer transaction following disclosure by Deutsche Bank are consistent with the requirements set (c) The term ‘‘Auction Rate Security’’ of all relevant information. forth in the Settlement Agreement; means a security that:

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(1) Is either a debt instrument (a) Red Re— Red Re will be indemnity insurance (generally with a long-term nominal (1) Is a party in interest with respect only, i.e., the insurer will not be maturity) or preferred stock; and to the Plan by reason of a stock or relieved of liability to the Plan should (2) Has an interest rate or dividend partnership affiliation with TCCC that is Red Re be unable or unwilling to cover that is reset at specific intervals through described in section 3(14)(E) or (G) of any liability arising from the a Dutch auction process; the Act; reinsurance arrangement; (d) A person is ‘‘independent’’ of (2) Is licensed to sell insurance or (h) The Plan retains an independent Deutsche Bank if the person is: (1) Not conduct reinsurance operations in at fiduciary (the Independent Fiduciary), Deutsche Bank or an affiliate; and (2) least one State as defined in section at TCCC’s expense, to analyze the not a relative (as defined in ERISA 3(10) of the Act; transactions and render an opinion that section 3(15)) of the party engaging in (3) Has obtained a Certificate of the requirements of sections (a) the transaction; Authority from the Insurance thorough (g) have been complied with. (e) The term ‘‘Plan’’ means: An Commissioner of its domiciliary state For purposes of this exemption, the individual retirement account or similar that has not been revoked or suspended; Independent Fiduciary is a person who: account described in section (4)(A) Has undergone an examination (1) Is not directly or indirectly, 4975(e)(1)(B) through (F) of the Code (an by an independent certified public through one or more intermediaries, IRA); an employee benefit plan as accountant for its last completed taxable controlling, controlled by, or under defined in section 3(3) of ERISA; or an year immediately prior to the taxable common control with TCCC or Red Re entity holding plan assets within the year of the reinsurance transaction; or (this relationship hereinafter referred to meaning of 29 CFR 2510.3–101, as (B) Has undergone a financial as an ‘‘Affiliate’’); modified by ERISA section 3(42); and examination (within the meaning of the (2) Is not an officer, director, (f) The term ‘‘Settlement Agreement’’ law of its domiciliary State) by the employee of, or partner in TCCC or Red means: A legal settlement involving Insurance Commissioner of the State Re (or any Affiliate of either); Deutsche Bank and a U.S. state or within 5 years prior to the end of the (3) Is not a corporation or partnership federal authority that provides for the year preceding the year in which the in which TCCC or Red Re has an purchase of an Auction Rate Security by reinsurance transaction occurred; and ownership interest or is a partner; Deutsche Bank from a Plan. (5) Is licensed to conduct reinsurance (4) Does not have an ownership DATES: Effective Date: This exemption is transactions by a State whose law interest in TCCC or Red Re, or any of effective as of February 1, 2008. requires that an actuarial review of either’s Affiliates; After giving full consideration to the reserves be conducted annually by an (5) Is not a fiduciary with respect to entire record, the Department has independent firm of actuaries and the Plan prior to the appointment; and decided to grant the exemption, as reported to the appropriate regulatory (6) Has acknowledged in writing described above. The complete authority; and acceptance of fiduciary responsibility application file is made available for (b) The Plan pays no more than and has agreed not to participate in any public inspection in the Public adequate consideration for the decision with respect to any transaction Documents Room of the Employee insurance contracts; in which the Independent Fiduciary has Benefits Security Administration, Room (c) No commissions are paid by the an interest that might affect its best N–1513, US Department of Labor, 200 Plan with respect to the direct sale of judgment as a fiduciary. Constitution Avenue, NW., Washington, such contracts or the reinsurance For purposes of this definition of an DC 20210. thereof; ‘‘Independent Fiduciary,’’ no For a more complete statement of the (d) In the initial year of any contract organization or individual may serve as facts and representations supporting the involving Red Re, there will be an an Independent Fiduciary for any fiscal Department’s decision to grant this immediate and objectively determined year if the gross income received by exemption refer to the Notice published benefit to the Plan’s participants and such organization or individual (or on January 19, 2010, at 75 FR 3074. beneficiaries in the form of increased partnership or corporation of which FOR FURTHER INFORMATION CONTACT: benefits; such individual is an officer, director, or Warren Blinder of the Department, (e) In subsequent years, should the 10 percent or more partner or telephone (202) 693–8553. (This is not relationship with Prudential be shareholder) from TCCC, Red Re, or a toll-free number.) terminated, the formula used to their Affiliates (including amounts The Coca-Cola Company (TCCC) calculate premiums by any successor received for services as Independent Located in Atlanta, Georgia insurer will be similar to formulae used Fiduciary under any prohibited [Prohibited Transaction Exemption by other insurers providing comparable transaction exemption granted by the 2010–11; Exemption Application No. stop-loss coverage under similar Department) for that fiscal year exceeds D–11555] programs. Furthermore, the premium 3 percent of that organization or charge calculated in accordance with individual’s annual gross income from Exemption the formula will be reasonable and will all sources for the prior fiscal year. The restrictions of section 406(a) and be comparable to the premium charged In addition, no organization or (b) of the Act shall not apply to the by the insurer and its competitors with individual who is an Independent reinsurance of risks and the receipt of the same or a better rating providing the Fiduciary, and no partnership or premiums therefrom by Red Re Inc. same coverage under comparable corporation of which such organization (Red Re), in connection with a medical programs; or individual is an officer, director, or stop-loss insurance policy sold by the (f) To the extent Red Re earns any 10 percent or more partner or Prudential Insurance Company of profit due to favorable claims shareholder, may acquire any property America (Prudential), or any successor experience, such profit will be promptly from, sell any property to, or borrow insurance company to Prudential which returned to the Plan. funds from TCCC, Red Re, or their is unrelated to TCCC, which would pay (g) The Plan only contracts with Affiliates during the period that such for certain benefits under the TCCC insurers with a rating of A or better from organization or individual serves as Retiree Health Plan (the Plan), provided A.M. Best Company. The reinsurance Independent Fiduciary, and continuing the following conditions are met: arrangement between the insurer and for a period of six months after such

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organization or individual ceases to be (2) This exemption is supplemental to exemption. A request for a hearing must an Independent Fiduciary, or negotiates and not in derogation of, any other also state the issues to be addressed and any such transaction during the period provisions of the Act and/or the Code, include a general description of the that such organization or individual including statutory or administrative evidence to be presented at the hearing. serves as Independent Fiduciary. exemptions and transactional rules. ADDRESSES: All written comments and For a more complete statement of the Furthermore, the fact that a transaction requests for a hearing (at least three facts and representations supporting the is subject to an administrative or copies) should be sent to the Employee Department’s decision to grant this statutory exemption is not dispositive of Benefits Security Administration exemption, refer to the notice of whether the transaction is in fact a (EBSA), Office of Exemption proposed exemption published on prohibited transaction; and Determinations, Room N–5700, U.S. December 22, 2009 at 74 FR 68106. (3) The availability of this exemption Department of Labor, 200 Constitution Written Comments and Hearing is subject to the express condition that Avenue, NW., Washington, DC 20210. Requests the material facts and representations Attention: Application No.ll, stated contained in the application accurately in each Notice of Proposed Exemption. During the comment period, the describes all material terms of the Interested persons are also invited to Department received approximately 30 transaction which is the subject of the submit comments and/or hearing telephone calls and three written exemption. requests to EBSA via e-mail or FAX. comments in response to the notice of Signed at Washington, DC, this 30th day of Any such comments or requests should proposed exemption, one of which also be sent either by e-mail to: requested a hearing. The request for a March, 2010. Ivan Strasfeld, ‘‘[email protected]’’, or by FAX to hearing was subsequently withdrawn. (202) 219–0204 by the end of the The telephone calls and written Director of Exemption Determinations, Employee Benefits Security Administration, scheduled comment period. The comments raised no substantive issues, applications for exemption and the but rather reflected the commenters’ U.S. Department of Labor. [FR Doc. 2010–7446 Filed 4–1–10; 8:45 am] comments received will be available for failure to fully understand the notice of public inspection in the Public BILLING CODE 4510–29–P proposed exemption or the effect of the Documents Room of the Employee proposed exemption on the Benefits Security Administration, U.S. commenters’ health care benefits. The DEPARTMENT OF LABOR Department of Labor, Room N–1513, Department provided explanations to 200 Constitution Avenue, NW., each of the commentators by telephone, Employee Benefits Security Washington, DC 20210. and each was satisfied with the Administration responses provided by the Department. Warning: If you submit written comments or hearing requests, do not include any The Department has given full Application Nos. and Proposed consideration to the entire record, personally-identifiable or confidential Exemptions; D–11533 and D–11534; business information that you do not want to including the comment letters received. CUNA Mutual Pension Plan for Non- be publicly-disclosed. All comments and Because the comments were not Represented Employees (Together, the hearing requests are posted on the Internet germane to the subject matter of the Plans); and D–11565; Citizens Bank exactly as they are received, and they can be proposed exemption, the Department Wealth Management, N.A., et al. retrieved by most Internet search engines. has determined to grant the exemption The Department will make no deletions, as it was proposed. AGENCY: Employee Benefits Security modifications or redactions to the comments or hearing requests received, as they are FOR FURTHER INFORMATION CONTACT: Administration, Labor. Gary public records. H. Lefkowitz of the Department, ACTION: Notice of Proposed Exemptions. telephone (202) 693–8546. (This is not Notice to Interested Persons a toll-free number.) SUMMARY: This document contains notices of pendency before the Notice of the proposed exemptions General Information Department of Labor (the Department) of will be provided to all interested The attention of interested persons is proposed exemptions from certain of the persons in the manner agreed upon by directed to the following: prohibited transaction restrictions of the the applicant and the Department (1) The fact that a transaction is the Employee Retirement Income Security within 15 days of the date of publication subject of an exemption under section Act of 1974 (ERISA or the Act) and/or in the Federal Register. Such notice 408(a) of the Act and/or section the Internal Revenue Code of 1986 (the shall include a copy of the notice of 4975(c)(2) of the Code does not relieve Code). proposed exemption as published in the a fiduciary or other party in interest or Federal Register and shall inform disqualified person from certain other Written Comments and Hearing interested persons of their right to provisions to which the exemption does Requests comment and to request a hearing not apply and the general fiduciary All interested persons are invited to (where appropriate). responsibility provisions of section 404 submit written comments or requests for SUPPLEMENTARY INFORMATION: The of the Act, which among other things a hearing on the pending exemptions, proposed exemptions were requested in require a fiduciary to discharge his unless otherwise stated in the Notice of applications filed pursuant to section duties respecting the plan solely in the Proposed Exemption, within 45 days 408(a) of the Act and/or section interest of the participants and from the date of publication of this 4975(c)(2) of the Code, and in beneficiaries of the plan and in a Federal Register Notice. Comments and accordance with procedures set forth in prudent fashion in accordance with requests for a hearing should state: (1) 29 CFR Part 2570, Subpart B (55 FR section 404(a)(1)(B) of the Act; nor does The name, address, and telephone 32836, 32847, August 10, 1990). it affect the requirement of section number of the person making the Effective December 31, 1978, section 401(a) of the Code that the plan must comment or request, and (2) the nature 102 of Reorganization Plan No. 4 of operate for the exclusive benefit of the of the person’s interest in the exemption 1978, 5 U.S.C. App. 1 (1996), transferred employees of the employer maintaining and the manner in which the person the authority of the Secretary of the the plan and their beneficiaries; would be adversely affected by the Treasury to issue exemptions of the type

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requested to the Secretary of Labor. length transaction between unrelated Street Bank and Trust Company of Therefore, these notices of proposed parties; Boston, Massachusetts. exemption are issued solely by the (c) The terms and conditions of both 3. The Applicant represents that, Department. the Sale and of the Top-Up Payments during the years 2006 and 2007, both it The applications contain were at least as favorable to the Plans as and the Plans co-invested their representations with regard to the those that would have been obtained in respective assets in ten private equity proposed exemptions which are an arm’s length transaction between Funds.1 The Applicant further summarized below. Interested persons unrelated parties; and represents the decision of each Plan to are referred to the applications on file (d) The independent fiduciary invest in the Funds 2 was made by the with the Department for a complete provided its opinion in written reports Employee Benefit Plan Administrative statement of the facts and on behalf of the Plans as to the fairness Committee (the Committee), the named representations. and reasonableness of the Sale of the fiduciary of both of the Plans, and that CUNA Mutual Pension Plan for Plans’ interests in the Funds to the no additional interests in the Funds Represented Employees and CUNA Mutual Applicant, and determined that the were acquired by the Plans after the year Pension Plan for Non-Represented terms of the original Sale and 2007.3 The Applicant also states that, as Employees (together, the Plans), Located in subsequent Top-Up Payments were of November of 2008, the Plans’ interest Madison, Wisconsin. especially beneficial to each of the Plans in the Funds represented a relatively [Application Nos. D–11533 and 11534, small portion (i.e., less than 7%) of the Respectively] because: (i) On February 20, 2009, the Plans received a return of their aggregate Applicant’s overall position in the Proposed Exemption cost basis of their interests in the Funds Funds, and that the Applicant’s overall The Department is considering (which cost basis was determined by the interest in each Fund in turn granting an exemption under the independent fiduciary to exceed the represented only a small portion of the authority of section 408(a) of the Act aggregate fair market value of the Plans’ overall funding commitments to each and section 4975(c)(2) of the Code and interests in the Funds as of October 31, Fund. 4. On November 25, 2008, the in accordance with the procedures set 2008), plus interest accrued on the Committee contracted with U.S. Trust, forth in 29 CFR Part 2570, Subpart B (55 Funds from their date of acquisition by Bank of America Private Wealth FR 32836, 32847, August 10, 1990). If each Plan through the date of the Sale; Management (U.S. Trust) to serve as an the exemption is granted, the and (ii) On September 14, 2009, the independent fiduciary (the Independent restrictions of sections 406(a)(1)(A), independent fiduciary determined that, Fiduciary) on behalf of the Plans to 406(a)(1)(B), 406(a)(1)(D), 406(b)(1), and in instances where the fair market value determine whether the terms of the (b)(2) of the Act, and the sanctions of any Fund on December 31, 2008 resulting from the application of section exceeded its original cost basis, each of the Plans received a Top-Up Payment 1 The ten private equity Funds in which each of 4975 of the Code, by reason of section the Plans acquired interests were: (1) AIG Highstar 4975(c)(1)(A) through (E) of the Code, on September 14, 2009 comprised of the Capital III; (2) Audax Mezzanine Fund II LP; (3) shall not apply to: (i) The February 20, increased value of such Fund, plus Capital Partners Private Equity Fund; (4) Citigroup 2009 cash sale (the Sale), at aggregate interest accrued on such increased value Capital Partners II; (5) CP Lone Star; (6) Crimson from December 31, 2008 to the date of Capital Partners III; (7) EnerVest Energy cost basis plus interest, by each of the Institutional Fund XI; (8) New Science Ventures Plans of interests in certain private the Top-Up Payments (September 14, Fund I; (9) Webster Capital II; and (10) Five Arrows equity funds (the Funds) to the CUNA 2009). Realty Securities V, LP. Mutual Insurance Society (the 2 With respect to the co-investment arrangement Summary of Facts and Representations of both the Applicant and the Plans in the Funds, Applicant), the sponsor of the Plans and the Department notes that if a plan fiduciary causes a party in interest with respect to the 1. The Applicant is the parent of each a plan to enter into a transaction where, by the Plans, pursuant to a contract between of the companies forming the CUNA terms or nature of the transaction, a conflict of the Applicant and the trustee of the Mutual Group, which is a leading interest between the plan and the fiduciary (or provider of financial services to persons in which the fiduciary has an interest) Plans concluded on that same date; (ii) exists or will arise in the future, that transaction the September 14, 2009 payment by the cooperatives, credit unions, their would violate section 406(a)(1)(D) and 406(b)(1) of Applicant of certain additional cash members, and other customers. The the Act (or the parallel provisions under the Code). amounts, including interest (the Top-Up Applicant represents that its primary In this connection, the fiduciary must not rely upon products include group credit life and and cannot be otherwise dependent upon the Payments); to the Plans pursuant to the participation of the plan in order for the fiduciary terms of the foregoing contract; and (iii) group credit disability products sold to (or persons in which the fiduciary has an interest) the extension of credit between the credit unions; retirement plans and to undertake or to continue his or her share of the Plans and the Applicant from the date group life and disability products sold investment. Furthermore, even if at its inception the to credit union employees; and health, transaction did not involve a violation, if a of the Sale (February 20, 2009) to the divergence of interests develops between the plan date of the Top-Up Payments life, and annuity policies for credit and the fiduciary (or persons in which the fiduciary (September 14, 2009), provided that the union members. has an interest), the fiduciary must take steps to following conditions were satisfied: 2. The Applicant sponsors the Plans, eliminate the conflict of interest in order to avoid (a) An independent fiduciary each of which is a defined benefit engaging in a prohibited transaction. See ERISA Advisory Opinion Letter 2000–10A (July 27, 2000). reviewed the terms and conditions of pension plan. The Applicant represents 3 Section 404 of the Act requires, among other the Sale and of the Top-Up Payments that, as of December 31, 2008, the things, that a plan fiduciary act prudently, solely in prior to their execution, and determined CUNA Mutual Pension Plan for the interest of the plan’s participants and that both were protective of the interests Represented Employees had 1,271 beneficiaries, and for the exclusive purpose of providing benefits to participants and beneficiaries of the Plans; participants and assets of $90,282,987. when making decisions on behalf of a plan. (b) The independent fiduciary The Applicant also represents that, as of Accordingly, the Department is not expressing an determined that the terms and December 31, 2008, the CUNA Mutual opinion herein as to whether any investment conditions of both the Sale and of the Pension Plan for Non-Represented decisions or other actions taken by the Committee regarding the acquisition and subsequent holding of Top-Up Payments were at least as Employees had 5,749 participants and the interests in the Funds by the Plans were favorable to the Plans as those that assets of $326,563,333. The trustee consistent with, or in violation of, its fiduciary would have been obtained in an arm’s (Trustee) of each of the Plans is the State obligations under Part 4 of Title I of the Act.

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proposed Sale of the Plans’ interests in privately-held corporate clients and of the Plans on February 18, 2009 the Funds to the Applicant would be in ERISA fiduciaries, and that such directing the Trustee to sell the Plans’ the interest of the Plans.4 The Applicant assignments have included merger and interests in the Funds to the Applicant. represents that both U.S. Trust and its acquisition analyses, fairness opinions, In connection with the Independent eventual successor as Independent shareholder liquidity analyses, private Fiduciary’s direction, the Applicant and Fiduciary, Evercore Trust Company equity and debt placements, and the Trustee of each of the Plans entered N.A. (Evercore) are experienced and corporate valuation matters. The into agreements (the Transfer qualified fiduciaries with extensive trust Applicant also represents that Mr. Agreements) on February 20, 2009, and management capabilities such as Bayston is a member of the CFA pursuant to which all of the interests in discretionary asset management, asset Institute and the Business Valuation the Funds held by each Plan were sold allocation and diversification, Association. In December of 2008, the on that same date to the Applicant. In investment advice, securities trading, Initial LCB Report was issued to the addition to determining the price paid and the performance of independent Independent Fiduciary. In the executive by the Applicant for the Plans’ interests fiduciary assignments for plans covered summary of this report, LCB stated that in the Funds, each of the Transfer by the Act. In addition, U.S. Trust and it had examined all relevant information Agreements contained a provision (the Evercore each represent that less than that was provided by the Fund Top-Up Provision) stipulating that in 1% of their annual revenues during managers, including the amount and the event that year-end (i.e., December their respective periods of service as date of the original investment, current 31, 2008) stated valuations of any of the Independent Fiduciary were derived valuation information provided by the Funds in which the Plans held an from the Applicant and its affiliates. Fund managers, as well as business interest exceeded the Plans’ original In its engagement letter dated descriptions and relevant industry cost, the Trustee of each of the Plans December 5, 2008, the original classifications. would be entitled to receive on behalf Independent Fiduciary, U.S. Trust, 6. Subsequent to the issuance of the of the Plans the difference between the agreed to: (1) Review and evaluate the Initial LCB Report, the Independent December 31, 2008 valuation and the consideration to be paid to the Plans in Fiduciary issued a report on January 15, original cost. In accordance with the connection with the Sale to determine 2009 (the Initial I/F Report) detailing its requirements of the Top-Up Provision, whether such consideration is fair and analysis and opinion regarding the the Independent Fiduciary stated at the reasonable and in the interests of the proposed Sale of the Plans’ interests in conclusion of the Initial I/F Report that Plans; (2) review and evaluate the terms the Funds. The Independent Fiduciary it would update its analysis to reflect of the Sale to determine whether they represented that the valuation analysis year-end December 31, 2008 Fund data are at least as favorable to the Plans as contained in the Initial LCB Report as soon as it became available from the terms that would have been agreed to focused on specific industry and Fund managers. between unrelated parties; (3) determine financial market trends which were whether the Plans should enter into the likely to have had an impact on the The Applicant represents that, on Sale on such terms; (4) direct the trustee value of the Funds. The Independent February 20, 2009, the cash Sale of the of the Plans whether or not to enter into Fiduciary further represented in the Plans’ interests in the Funds to the the Sale; and (5) provide a written Initial I/F Report that it had reviewed Applicant was consummated. The total opinion on behalf of the Plans the content of the Initial LCB Report, cash payment to the Plans incident to concerning the fairness and and determined that the assumptions, the Sale was the higher of (i) the reasonableness of the Sale. methodology, and conclusions aggregate cost basis of the Plans’ 5. In order to assist it in rendering its contained in the report were reasonable interests in the Funds as of October 31, decision, the Independent Fiduciary and reliable. The Initial I/F Report 2008 or (ii) the aggregate stated fair engaged LCB Capital LLC (LCB) of stated that the comparison by LCB of market value of the interests in the Chicago, Illinois to perform an analysis market conditions at the end of 2008 Funds held by the Plans as of October of the Funds and to provide U.S. Trust relative to those prevailing in 2006 and 31, 2008. The Independent Fiduciary with an initial report (the Initial LCB 2007 when the interests in the Funds further represented that the total cash Report) detailing its conclusions. LCB were acquired by the Plans provided Sale price of $20,754,736.58 was represents that it receives less than 1% compelling evidence that the value of comprised of the Plans’ aggregate cost of its revenue directly from the the Funds had declined significantly basis in the Funds ($19,168,999.58) plus Applicant and its affiliates. A from their original cost. interest ($1,585,737.00).5 The Applicant supplement to the Initial LCB Report 7. Taking into account the foregoing further represents that the total cash also states that the LCB managing contents of the Initial LCB Report, the Sale price was allocated between the director who conducted the valuation Independent Fiduciary determined in Plans, with $4,981,186.84 being paid to analysis of the Funds, Mr. Daniel its Initial I/F Report that a purchase by the CUNA Mutual Pension Plan for Bayston, founded LCB in 2008 after a the Applicant of the Plans’ interests in Represented Employees and 25-year career with the financial the Funds at their original cost was fair $15,773,549.74 being paid to the CUNA services and business valuation firm of and reasonable to, and in the interest of, Mutual Pension Plan for Non- Duff & Phelps. The Applicant represents the Plans. The Independent Fiduciary Represented Employees. that during his career, Mr. Bayston represented in this report that it had managed a wide range of corporate concluded that there was no separate 5 The Applicant represents that the interest paid finance and business valuation benefit to the Applicant in engaging in to the Plans incident to the February 20, 2009 Sale the Sale transaction, and that the only was calculated based upon the Plans’ original cost assignments for publicly-traded and basis in the Funds, plus interest accrued from the discernible benefit was enabling the date of the Plans’ capital contribution to each Fund 4 It is represented that, in accordance with this Plans to liquidate, at original cost, a through the date of the Sale. Specifically, the per contractual arrangement, Evercore Trust Company series of investments which had lost annum interest rate utilized was 5.49% for capital N.A. (a subsidiary of Evercore LP) assumed all of money. Pursuant to its determination contributions made by the Plans in 2006 and 5.52% U.S. Trust’s existing obligations as the Independent for capital contributions made in 2007. This interest Fiduciary with respect to the Plans as a that the proposed Sale was in the rate reflects the credited interest rate paid by the consequence of the May 1, 2009 sale of U.S. Trust’s interest of the Plans, the Independent Applicant’s general account over the relevant time Special Fiduciary Services business to Evercore LP. Fiduciary issued a letter to the Trustee periods.

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8. In September of 2009, immediately Report, LCB stated that it examined Report, the Independent Fiduciary after the completion of the audits of the information such as the date and noted in its Updated I/F Report that the 2008 financial statements of the Funds amount of the original investment by December 31, 2008 fair market value of (and in accordance with Top-Up the Plans, relevant industry eight of the ten Funds in which the Provisions of the Transfer Agreements), classification, and any available current Plans held an interest on that date the Independent Fiduciary (which, as of valuation information provided by the remained below the Plans’ original cost July 1, 2009, was Evercore) issued an Fund manager. LCB then determined basis in those Funds. However, the updated analysis of the Sale transaction the appropriate industry valuation Updated I/F Report also stated that the (the Updated I/F Report) to determine, multiple at or near the time of the December 31, 2008 stated fair market as of December 31, 2008, whether the investment and compared that with the value of two of the Funds (i.e., CP Lone fair market value of any of the Funds same industry valuation multiple as of Star and New Science Venture Fund I) held by the Plans was greater than the December 31, 2008. The Updated LCB Plans’ cost basis in the Funds at the time Report also noted that industry exceeded the Plans’ cost basis in these of their acquisition. The Updated I/F valuation metrics and earnings Funds. The aggregate valuation gains Report relied upon an August 2009 multiples for virtually all industries had (and losses) experienced by the Plans’ written valuation analysis prepared by declined significantly from the time of combined holdings in the Funds LCB (the Updated LCB Report) which, the Plans’ original investments in the through December 31, 2008, as according to the Independent Fiduciary, Funds through December 31, 2008. compiled in the Updated I/F Report, are utilized a valuation approach that was Utilizing the updated information summarized below in the following identical to that employed by LCB in its provided by the managers of the Funds chart: Initial Report. In the Updated LCB and contained in the Updated LCB

Aggregate gains Value of each (or losses) experi- Date of acquisition Aggregate amount fund as stated by enced by the Funds in which the plans held interests of interests in invested in each the fund plans based upon each fund by the fund by the plans managers as of the 12/31/08 stat- plans (cost basis) 12/31/08 ed value of each fund

AIG Highstar Capital III ...... 5/25/07 $2,490,691 $2,297,321 ($193,370) Audax Mezzanine Fund II LP ...... 11/30/06 914,682 873,787 (40,894) Capital Partners Private Equity Fund ...... 5/3/07 1,128,158 1,022,935 (105,223) Citigroup Capital Partners II ...... 11/15/06 8,709,246 5,532,666 (3,176,579) CP Lone Star ...... 5/3/07 666,667 722,280 55,613 Crimson Capital Partners III ...... 9/28/07 278,275 153,390 (124,885) EnerVest Energy Institutional Fund XI ...... 6/22/07 1,496,003 1,190,539 (305,464) Five Arrows Realty Securities V, LP ...... 8/23/07 358,123 342,081 (16,042) New Science Ventures Fund I ...... 10/31/06 2,452,255 2,489,795 37,495 Webster Capital II ...... 5/11/07 675,000 587,378 (87,622)

9. The Independent Fiduciary’s of the Plans, the Top-Up Payments were Sale allowed the Plans to sell illiquid Updated I/F Report determined that a made to the Plans.7 The Independent assets for a price that, in the aggregate, purchase price of the Plans’ interests in Fiduciary reaffirmed in its Updated I/F exceeded the fair market value of those the Funds at original cost plus interest Report that there was no separate assets. Second, the Applicant represents (with additional Top-Up Payments plus benefit to the Applicant of engaging in that the Sale allowed the Plans to interest to the Plans for those individual the Sale. Instead, the Independent reduce their exposure to a class of Funds whose December 31, 2008 fair Fiduciary represented that the only investments with an uncertain future. market value exceeded their cost basis) discernible benefit was to enable the Third, the Applicant represents that the was fair and reasonable to, and in the Plans to liquidate a series of Sale allowed the Plans to obtain cash for interest of, the Plans. Accordingly, the investments which had lost money at their respective interests in the Funds, Independent Fiduciary further their original cost. thereby permitting allocation of the determined that, for those Funds whose 10. The Applicant represents that the assets of the Plans to more favorable stated fair market value was greater than Sale of the Plans’ interests in the Funds investment vehicles. Fourth, in cost, the Plans were entitled to receive was beneficial to, and in the interest of, instances where the fair market value of Top-Up Payments totalling $96,583, each of the Plans for several reasons. any Fund on December 31, 2008 comprised of $93,108 plus an interest First, the Applicant represents that the exceeded its original cost basis, each of 6 payment of $3,475. On September 14, the Plans received a Top-Up Payment 2009, pursuant to the direction of the 7 In this connection, the Applicant represents that, on September 14, 2009, it made a Top-Up on September 14, 2009 comprised of the Independent Fiduciary and in Payment of $23,180 (including $834 in interest increased value of such Fund, plus accordance with the provisions of the accrued from December 31, 2008 to September 14, interest accrued on such increased value February 20, 2009 Transfer Agreements 2009) to the CUNA Mutual Pension Plan for from December 31, 2008 to the date of between the Applicant and the Trustee Represented Employees and a Top-Up Payment of $73,403 (including $2,641 in interest accrued from the Top-Up Payments. December 31, 2008 to September 14, 2009) to the 6 This Top-Up Payment figure was the sum of (1) CUNA Mutual Pension Plan for Non-Represented 11. In summary, the Applicant an aggregate gain of $37,495 experienced by the Employees. The Applicant represents that the represents that the past transactions Plans from their investment in New Science interest component of the Top-Up Payments was described herein for which exemptive Ventures Fund I, (2) an aggregate gain of $55,613 calculated at the rate of 5.28%, which was the rate relief is sought satisfied the statutory experienced by the Plans from their investment in of interest credited to the Plans when the Applicant the CP Lone Star Fund, plus (3) the $3,475 interest purchased the Plans’ interests in the Funds on criteria of section 408(a) of the Act payment described above. February 20, 2009. because: (a) The Independent Fiduciary

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reviewed the terms and conditions of a fiduciary or other party in interest or SUMMARY: The Copyright Royalty Judges the Sale and of the Top-Up Payments disqualified person from certain other are announcing receipt of notices of and determined that both were provisions of the Act and/or the Code, intent to audit the 2009 statements of protective of the interests of the Plans; including any prohibited transaction account submitted by Sirius Satellite (b) The Independent Fiduciary provisions to which the exemption does Radio Inc. and XM Satellite Radio Inc. determined that the terms and not apply and the general fiduciary FOR FURTHER INFORMATION CONTACT: conditions of both the Sale and the Top- responsibility provisions of section 404 Richard Strasser, Senior Attorney, or Up Payments were at least as favorable of the Act, which, among other things, Gina Giuffreda, Attorney Advisor, by to the Plans as those that would have require a fiduciary to discharge his telephone at (202) 707–7658 or by e- been obtained in an arm’s length duties respecting the plan solely in the mail at [email protected]. transaction between unrelated parties; interest of the participants and SUPPLEMENTARY INFORMATION: Section (c) The terms and conditions of both the beneficiaries of the plan and in a 106(6) of the Copyright Act, title 17 of Sale and of the Top-Up Payments were prudent fashion in accordance with the United States Code, gives a at least as favorable to the Plans as those section 404(a)(1)(b) of the Act; nor does copyright owner of sound recordings an that would have been obtained in an it affect the requirement of section exclusive right to perform the arm’s length transaction between 401(a) of the Code that the plan must copyrighted works publicly by means of unrelated parties; and (d) The operate for the exclusive benefit of the a digital audio transmission. This right Independent Fiduciary provided its employees of the employer maintaining is limited by section 114(d), which opinion in written reports on behalf of the plan and their beneficiaries; allows certain non-interactive digital the Plans as to the fairness and (2) Before an exemption may be audio services, including preexisting reasonableness of the Sale of the Plans’ granted under section 408(a) of the Act satellite digital audio radio services, to interests in the Funds to the Applicant, and/or section 4975(c)(2) of the Code, make digital transmissions of a sound and determined that the terms of the the Department must find that the recording under a compulsory license. original Sale and subsequent Top-Up exemption is administratively feasible, Moreover, these services may make any Payments were especially beneficial to in the interests of the plan and of its necessary ephemeral reproductions to each of the Plans because: (i) On participants and beneficiaries, and facilitate the digital transmission of the February 20, 2009, the Plans received a protective of the rights of participants sound recording under a second license return of their aggregate cost basis of and beneficiaries of the plan; set forth in section 112(e) of the their interests in the Funds (which cost (3) The proposed exemptions, if Copyright Act. basis was determined by the granted, will be supplemental to, and Licensees may operate under these Independent Fiduciary to exceed the not in derogation of, any other licenses provided they pay the royalty aggregate fair market value of the Plans’ provisions of the Act and/or the Code, fees and comply with the terms of the interests in the Funds as of October 31, including statutory or administrative licenses set by the Copyright Royalty 2008), plus interest accrued on the exemptions and transitional rules. Judges (‘‘Judges’’). On January 24, 2008, Funds from their date of acquisition by Furthermore, the fact that a transaction the Judges issued their final each Plan through the date of the Sale; is subject to an administrative or determination setting rates and terms for and (ii) On September 14, 2009, the statutory exemption is not dispositive of the section 112 and 114 licenses for the Independent Fiduciary determined that, whether the transaction is in fact a period 2007–2012. 73 FR 4080, affirmed in instances where the fair market value prohibited transaction; and in part, remanded in part, of any Fund on December 31, 2008 (4) The proposed exemptions, if SoundExchange v. Librarian of exceeded its original cost basis, each of granted, will be subject to the express Congress, 571 F.3d 1220 (DC Cir. 2009). the Plans received a Top-Up Payment condition that the material facts and As part of the terms set for these on September 14, 2009 comprised of the representations contained in each licenses, the Judges designated increased value of such Fund, plus application are true and complete, and SoundExchange, Inc., as the interest accrued on such increased value that each application accurately organization charged with collecting the from December 31, 2008 to the date of describes all material terms of the royalty payments and statements of the Top-Up Payments (September 14, transaction which are the subject of the account and distributing the royalties to 2009). exemption. the copyright owners and performers Notice to Interested Persons: Notice of entitled to receive such royalties under the proposed exemption shall be given Signed at Washington, DC, this 30th day of the section 112 and 114 licenses. 37 March 2010. to all interested persons in the manner CFR 382.13(b)(1). As the designated agreed upon by the Applicant and the Ivan Strasfeld, Collective, SoundExchange may Department within 15 days of the date Director of Exemption Determinations, conduct a single audit of a licensee for of publication in the Federal Register. Employee Benefits Security Administration, any calendar year for the purpose of Comments and requests for a hearing are U.S. Department of Labor. verifying their royalty payments. due forty-five (45) days after publication [FR Doc. 2010–7447 Filed 4–1–10; 8:45 am] SoundExchange must first file with the of the notice in the Federal Register. BILLING CODE 4510–29–P Judges a notice of intent to audit a FOR FURTHER INFORMATION CONTACT: Mr. licensee and serve the notice on the Mark Judge of the Department at (202) licensee to be audited. 37 CFR 693–8550. (This is not a toll-free 382.15(b), (c). number). LIBRARY OF CONGRESS On March 23, 2010, pursuant to 37 CFR 382.15(c), SoundExchange filed General Information Copyright Royalty Board with the Judges separate notices of The attention of interested persons is Notice of Intent To Audit intent to audit Sirius Satellite Radio Inc. directed to the following: (‘‘Sirius’’) and XM Satellite Radio Inc. (1) The fact that a transaction is the AGENCY: Copyright Royalty Board, (‘‘XM’’) for the year 2009.1 Section subject of an exemption under section Library of Congress. 408(a) of the Act and/or section 1 ACTION: Public notice. On February 13, 2009, SoundExchange filed 4975(c)(2) of the Code does not relieve with the Judges separate notices of intent to audio

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382.15(c) requires the Judges to publish additional systems of records to its AUTHORITY FOR MAINTENANCE OF THE SYSTEM: a notice in the Federal Register within inventory of record systems subject to The National Security Act of 1947, as 30 days of receipt of the notice the Privacy Act of 1974 (5 U.S.C. 552a). amended, 50 U.S.C. 401–442; The announcing the Collective’s intent to These systems of records are subject to Federal Records Act of 1950, as conduct an audit. routine uses established by final rule amended, 44 U.S.C. 3101 et seq.; In accordance with 37 CFR 382.15(c), dated March 28, 2008 (73 FR 16531, Executive Order 12333, as amended (73 the Copyright Royalty Judges are 16541). To protect classified and FR 45325); Executive Order 12958, as publishing today’s notice to fulfill this sensitive personnel or law enforcement amended (68 FR 15315); Executive requirement with respect to information contained in these systems, Order 9397, as amended (73 FR 70239); SoundExchange’s separate notices of the Office of the Director of National and 32 CFR 1701 et seq. (73 FR 16531, intent to audit Sirius Satellite Radio Inc. Intelligence is proposing to exempt 16541). and XM Satellite Radio Inc. each filed these systems of records from certain March 23, 2010. portions of the Privacy Act where PURPOSE(S): ODNI reviews writings intended for Dated: March 30, 2010. necessary, as permitted by law. As required by the Privacy Act, a proposed publication to ensure that potentially James Scott Sledge, classified material or information that Chief U.S. Copyright Royalty Judge. rule is being published concurrently with this notice to seek public comment requires protection from public [FR Doc. 2010–7444 Filed 4–1–10; 8:45 am] on exemption of these systems. The disclosure is not compromised. BILLING CODE 1410–72–P ODNI has previously established a rule ROUTINE USES OF RECORDS MAINTAINED IN THE that it will preserve the exempt status of SYSTEM, INCLUDING CATEGORIES OF USERS AND records it receives when the reason for THE PURPOSES OF SUCH USES: OFFICE OF THE DIRECTOR OF the exemption remains valid (73 FR NATIONAL INTELLIGENCE See General Routine Uses Applicable 16537). In accordance with 5 U.S.C. to More than One ODNI Privacy Act Office of the Director of National 552a (r), the ODNI has provided a report System of Records, Subpart C of ODNI’s Intelligence; Privacy Act of 1974; of these new systems of records to the Privacy Act Regulation published at 32 System of Records Office of Management and Budget and CFR part 1701 (73 FR 16531, 16541) and to Congress. incorporated by reference (see also AGENCY: Office of the Director of Dated: March 25, 2010. http://www.dni.gov). In addition, a National Intelligence. John F. Hackett, record from this system of records ACTION: Notice to establish systems of Director, Information Management. maintained by ODNI may be disclosed records. as a routine use to Federal agencies SYSTEM NAME: involved in a classification review of SUMMARY: The Office of the Director of ODNI records. National Intelligence (ODNI) provides Manuscript, Presentation, and notice that it is establishing fourteen Resume Review Records (ODNI–01). DISCLOSURE TO CONSUMER REPORTING (14) new systems of records subject to AGENCIES: SECURITY CLASSIFICATION: the Privacy Act of 1974, as amended, 5 None. U.S.C. 552a. These systems of records The classification of records in this are maintained by the ODNI. system can range from UNCLASSIFIED POLICIES AND PRACTICES FOR STORING, to TOP SECRET. RETRIEVING, ACCESSING, RETAINING, AND DATES: This action will be effective on DISPOSING OF RECORDS IN THE SYSTEM: May 12, 2010, unless comments are SYSTEM LOCATION: received that result in a contrary STORAGE: Office of the Director of National determination. Paper records are stored in secured Intelligence, Washington, DC 20511. areas within the control of the ODNI. ADDRESSES: You may submit comments, identified by RIN number, by any of the CATEGORIES OF INDIVIDUALS COVERED BY THE Electronic records are stored in secure following methods: SYSTEM: file-servers located within secure facilities under control of the ODNI. Federal eRulemaking Portal: http:// Current and former employees of the www.regulations.gov. Office of the Director of National RETRIEVABILITY: Mail: Director, Information Intelligence (ODNI), including assignees By name and case number. Management, Office of the Director of and detailees to the ODNI, contractors, Information may be retrieved from this National Intelligence, Washington, DC individuals hired under the system of records by automated or hand 20511. Intergovernmental Personnel Act, and search based on indices and automated FOR FURTHER INFORMATION CONTACT: Mr. other individuals who have had access capabilities utilized in the normal John F. Hackett, Director, Information to ODNI information or facilities and course of business. All searches of this Management, 703–275–2215. who are subject to prepublication system of records will be performed in SUPPLEMENTARY INFORMATION: The ODNI review of writings or presentations ODNI offices by authorized staff. was created by the Intelligence Reform pursuant to non-disclosure agreements. and Terrorism Prevention Act of 2004 SAFEGUARDS: CATEGORIES OF RECORDS IN THE SYSTEM: (IRTPA), Public Law 108–458, 118 Stat. Information in this system is 3638 (Dec. 17, 2004). ODNI published Manuscripts and other writings safeguarded in accordance with its final Privacy Act Regulation on (including those supporting oral recommended and/or prescribed March 28, 2008 (73 FR 16531) and presentations), resumes, videos, internet administrative, physical, and technical twelve Privacy Act systems of records postings, and other works or products safeguards. Records are maintained in a notices on December 28, 2007 (72 FR relating to the activities of the ODNI; secure government or contractor facility 73887). ODNI now adds fourteen (14) records consulted in conducting pre- with access to the facility limited to publication review; records generated in authorized personnel only and Sirius and XM for the years 2007 and 2008. See 74 documenting pre-publication review authorized and escorted visitors. FR 8585 (February 25, 2009). decisions. Physical security protections include

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guards and locked facilities requiring CONTESTING RECORD PROCEDURES: encompassing the spectrum of ODNI badges and passwords for access. As specified below, records in this missions, policies, procedures, Records are accessed only by authorized system are exempt from certain operations, and activities, including government personnel and contractors notification, access, and amendment public and congressional affairs. The holding appropriate security clearances procedures. Individuals seeking to system incorporates taskings, messages, and whose official duties require access correct or amend non-exempt records correspondence, reports, studies, and to the records. Communications are should address their requests to the communications with the Congress, the encrypted where required and other ODNI at the address and according to National Security Council, the White safeguards are in place to monitor and the requirements set forth above under House, other government departments audit access and to detect intrusions. the heading ‘‘Records Access and agencies as well as ODNI System backup is maintained Procedures.’’ Regulations governing components, non-government separately. access to and amendment of one’s organizations and the public. Also records or for appealing an initial included are minutes and other records RETENTION AND DISPOSAL: determination concerning access to or of the Intelligence Community Pursuant to 44 U.S.C. 3303a(d) and 36 amendment of records are contained in Leadership Committee and other high CFR chapter 12, subchapter B, part the ODNI regulation implementing the level councils, committees, task forces, 1228–Disposition of Federal Records, Privacy Act. and groups in which the ODNI records will not be disposed of until leadership holds functional or such time as the National Archives and RECORD SOURCE CATEGORIES: secretariat responsibilities. Records Administration (NARA) Records received from individuals approves an applicable ODNI Records covered by this system; records AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Control Schedule. generated internally in reviewing The National Security Act of 1947, as proposed publications; records from amended, 50 U.S.C. 401–442; Executive SYSTEM MANAGER(S) AND ADDRESS: other elements of the Intelligence Order 12333, as amended (73 FR 45325); Office of the Director, Information Community used in conducting pre- Executive Order 12958, as amended (68 Management, Office of the Director of publication reviews. FR 15315); and Executive Order 12968, National Intelligence, Washington, DC as amended (73 FR 38103). 20511. EXEMPTIONS CLAIMED FOR THE SYSTEM: Records contained in this System of PURPOSE(S): NOTIFICATION PROCEDURE: Records may be exempted from the ODNI personnel use records in the As specified below, records in this requirements of subsections (c)(3); ODNI Action Management System to system are exempt from certain (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), track and manage incoming and notification, access, and amendment (H), (I); and (f) of the Privacy Act outgoing official correspondence. procedures. Individuals seeking to learn pursuant to 5 U.S.C. 552a(k)(1). Records whether this system contains non- may be exempted from these ROUTINE USES OF RECORDS MAINTAINED IN THE exempt information about them should subsections or, additionally, from the SYSTEM, INCLUDING CATEGORIES OF USERS AND address inquiries to the ODNI at the requirements of subsections (c)(4); THE PURPOSES OF SUCH USES: address and according to the (e)(2), (3), (5), (8), (12); and (g) of the See General Routine Uses Applicable requirements set forth below under the Privacy Act consistent with any to More than One ODNI Privacy Act heading ‘‘Record Access Procedures.’’ exemptions claimed under 5 U.S.C. System of Records, Subpart C of ODNI’s 552a(j) or (k) by the originator of the Privacy Act Regulation published at 32 RECORD ACCESS PROCEDURES: record, provided the reason for the CFR part 1701 (73 FR 16531, 16541) and As specified below, records in this exemption remains valid and necessary. incorporated by reference (see also system have been exempted from http://www.dni.gov). certain notification, access, and SYSTEM NAME: amendment procedures. A request for Executive Secretary Action DISCLOSURE TO CONSUMER REPORTING access to non-exempt records shall be Management System Records (ODNI— AGENCIES: made in writing with the envelope and 02). None. letter clearly marked ‘‘Privacy Act Request.’’ Requesters shall provide their SECURITY CLASSIFICATION: POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND full name and complete address. The The classification of records in this DISPOSING OF RECORDS IN THE SYSTEM: requester must sign the request and system can range from UNCLASSIFIED have it verified by a notary public. to TOP SECRET. STORAGE: Alternately, the request may be SYSTEM LOCATION: Paper and other hard-copy records are submitted under 28 U.S.C. 1746, stored in secured areas within the certifying the requester’s identity and Office of the Director of National Intelligence, Washington, DC 20511. control of the ODNI. Electronic records understanding that obtaining a record are stored in secure file-servers located under false pretenses constitutes a CATEGORIES OF INDIVIDUALS COVERED BY THE within secure facilities under control of criminal offense. Requests for access to SYSTEM: the ODNI. information must be addressed to the Individuals who communicate with RETRIEVABILITY: Director, Information Management, the Office of the Director of National Office of the Director of National Intelligence (ODNI) via e-mail, fax, By name and action tracking number. Intelligence, Washington, DC 20511. courier, and mail, and individuals who Information may be retrieved from this Regulations governing access to one’s are the subject of official system of records by automated or hand records or for appealing an initial communications to and from the ODNI. search based on indices and automated determination concerning access to capabilities utilized in the normal records are contained in the ODNI CATEGORIES OF RECORDS IN THE SYSTEM: course of business. All searches of this regulation implementing the Privacy All incoming and outgoing official system of records will be performed by Act. correspondence and communications authorized staff.

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SAFEGUARDS: criminal offense. Requests for access to CATEGORIES OF INDIVIDUALS COVERED BY THE Information in this system is information must be addressed to the SYSTEM: safeguarded in accordance with Director, Information Management, Media representatives and other recommended and/or prescribed Office of the Director of National members of the public who exchange administrative, physical, and technical Intelligence, Washington, DC 20511. communications with the Office of the safeguards. Records are maintained in a Regulations governing access to one’s Director of National Intelligence (ODNI) secure government or contractor facility records or for appealing an initial about ODNI and Intelligence with access to the facility limited to determination concerning access to Community (IC) activities; and ODNI authorized personnel only and records are contained in the ODNI personnel, including those assigned and authorized and escorted visitors. regulation implementing the Privacy detailed to the ODNI, who report media Physical security protections include Act. contacts. guards and locked facilities requiring CATEGORIES OF RECORDS IN THE SYSTEM: badges and passwords for access. CONTESTING RECORD PROCEDURES: Records are accessed only by authorized As specified below, records in this Media products and extracts; copies government personnel and contractors system are exempt from certain of media communications to and from holding appropriate security clearances notification, access, and amendment the Public Affairs Office (PAO) and whose official duties require access procedures. Individuals seeking to including memoranda of conversations; to the records. Communications are correct or amend non-exempt records relevant correspondence from the public encrypted where required and other should address their requests to the and ODNI responses; ODNI memoranda safeguards are in place to monitor and ODNI at the address and according to regarding matters under the purview of audit access and to detect intrusions. the requirements set forth above under the PAO; and names of ODNI personnel System backup is maintained the heading ‘‘Records Access who have reported contacts with the separately. Procedures.’’ Regulations governing media. access to and amendment of one’s AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RETENTION AND DISPOSAL: records or for appealing an initial The National Security Act of 1947, as Pursuant to 44 U.S.C. 3303a(d) and 36 determination concerning access to or amended, 50 U.S.C. 401–442; Executive CFR chapter 12, subchapter B, part amendment of records are contained in Order 12333, as amended (73 FR 45325); 1228—Disposition of Federal Records, the ODNI regulation implementing the Executive Order 12958, as amended (68 records will not be disposed of until Privacy Act. such time as the National Archives and FR 15315); and Executive Order 12968, Records Administration (NARA) RECORD SOURCE CATEGORIES: as amended (73 FR 38103). approves an applicable ODNI Records Officials and staff of the executive, PURPOSE(S): Control Schedule. judicial, and legislative branches, PAO personnel use this system to SYSTEM MANAGER(S) AND ADDRESS: representatives of non-governmental track institutional communications with organizations, and members of the Executive Secretary, c/o Director, the media and the public, including general public who exchange official speeches, press releases and fact sheets, Information Management, Office of the communications with the ODNI. Director of National Intelligence, issuances and messages to the IC, as well as individual ODNI staff contacts Washington, DC 20511. EXEMPTIONS CLAIMED FOR THE SYSTEM: with the media. NOTIFICATION PROCEDURE: Records contained in this System of ROUTINE USES OF RECORDS MAINTAINED IN THE As specified below, records in this Records may be exempted from the requirements of subsections (c)(3); SYSTEM, INCLUDING CATEGORIES OF USERS AND system are exempt from certain THE PURPOSES OF SUCH USES: (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), notification, access, and amendment See General Routine Uses Applicable procedures. Individuals seeking to learn (H), (I); and (f) of the Privacy Act pursuant to exemptions under to More than One ODNI Privacy Act whether this system contains non- System of Records, Subpart C of ODNI’s exempt information about them should subsection (k)(1) of the Privacy Act, 5 U.S.C. 552a. Records may be exempted Privacy Act Regulation published at 32 address inquiries to the ODNI at the CFR part 1701 (73 FR 16531, 16541) and address and according to the from these subsections or, additionally, from the requirements of subsections incorporated by reference (see also requirements set forth below under the http://www.dni.gov). heading ‘‘Record Access Procedures.’’ (c)(4); (e)(2), (3), (5), (8), (12); and (g) of the Privacy Act consistent with any DISCLOSURE TO CONSUMER REPORTING RECORD ACCESS PROCEDURES: exemptions claimed under 5 U.S.C. AGENCIES: As specified below, records in this 552a(j) or (k) by the originator of the None. system have been exempted from record, provided the reason for the certain notification, access, and exemption remains valid and necessary. POLICIES AND PRACTICES FOR STORING, amendment procedures. A request for RETRIEVING, ACCESSING, RETAINING, AND access to non-exempt records shall be SYSTEM NAME: DISPOSING OF RECORDS IN THE SYSTEM: made in writing with the envelope and Public Affairs Office Records (ODNI— STORAGE: letter clearly marked ‘‘Privacy Act 03). Paper records are stored in secured Request.’’ Requesters shall provide their areas within the control of the ODNI. SECURITY CLASSIFICATION: full name and complete address. The Electronic records are stored in secure requester must sign the request and The classification of records in this file-servers located within secure have it verified by a notary public. system can range from UNCLASSIFIED facilities under control of the ODNI. Alternately, the request may be to TOP SECRET. submitted under 28 U.S.C. 1746, RETRIEVABILITY: certifying the requester’s identity and SYSTEM LOCATION: By name or other key word. understanding that obtaining a record Office of the Director of National Information may be retrieved from this under false pretenses constitutes a Intelligence, Washington, DC 20511. system of records by automated or hand

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search based on indices and automated Alternately, the request may be SYSTEM LOCATION: capabilities utilized in the normal submitted under 28 U.S.C. 1746, Office of the Director of National course of business. All searches of this certifying the requester’s identity and Intelligence, Washington, DC 20511. system of records will be performed by understanding that obtaining a record CATEGORIES OF INDIVIDUALS COVERED BY THE authorized staff. under false pretenses constitutes a SYSTEM: criminal offense. Requests for access to SAFEGUARDS: information must be addressed to the Current and former members of the Information in this system is Director, Information Management, U.S. Congress and Congressional staff; safeguarded in accordance with Office of the Director of National individuals whose inquiries are recommended and/or prescribed Intelligence, Washington, DC 20511. forwarded by members of the U.S. administrative, physical, and technical Regulations governing access to one’s Congress or Congressional staff to the safeguards. Records are maintained in a records or for appealing an initial Office of the Director of National secure government or contractor facility determination concerning access to Intelligence (ODNI) for response; or with access to the facility limited to records are contained in the ODNI individuals who are the subject of authorized personnel only and regulation implementing the Privacy official ODNI correspondence with authorized and escorted visitors. Act. members of Congress or Congressional Physical security protections include staff. guards and locked facilities requiring CONTESTING RECORD PROCEDURES: CATEGORIES OF RECORDS IN THE SYSTEM: badges and passwords for access. Records are accessed only by authorized As specified below, records in this Congressional notifications; government personnel and contractors system are exempt from certain communications between ODNI’s Office holding appropriate security clearances notification, access, and amendment of Legislative Affairs (OLA), members of and whose official duties require access procedures. Individuals seeking to Congress, Congressional staff, to the records. Communications are correct or amend non-exempt records constituents, other ODNI offices and/or encrypted where required and other should address their requests to the U.S. Government entities regarding safeguards are in place to monitor and ODNI at the address and according to constituent or other inquiries sent to the audit access and to detect intrusions. the requirements set forth above under ODNI for response; and memoranda, System backup is maintained the heading ‘‘Records Access correspondence, position papers and separately. Procedures.’’ Regulations governing other communications supporting access to and amendment of one’s ODNI’s liaison with Congress, including RETENTION AND DISPOSAL: records or for appealing an initial documentation of briefings, debriefings Pursuant to 44 U.S.C. 3303a(d) and 36 determination concerning access to or and reports on ODNI activities. CFR chapter 12, subchapter B, part amendment of records are contained in AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 1228—Disposition of Federal Records, the ODNI regulation implementing the records will not be disposed of until Privacy Act. The National Security Act of 1947, as such time as the National Archives and amended, 50 U.S.C. 401–442; Executive Records Administration (NARA) RECORD SOURCE CATEGORIES: Order 12333, as amended (73 FR 45325); Executive Order 12958, as amended (68 approves an applicable ODNI Records Records in the system are received Control Schedule. FR 15315); and Executive Order 12968, from or generated by individuals as amended (73 FR 38103). SYSTEM MANAGER(S) AND ADDRESS: covered by this system of records or PURPOSE(S): Public Affairs Office, c/o Director, produced by the ODNI concerning ODNI Information Management, Office of the or IC activities. ODNI collects and maintains records regarding communications and Director of National Intelligence, EXEMPTIONS CLAIMED FOR THE SYSTEM: Washington, DC 20511. interactions with Congress, constituents, Records contained in this System of and legislative matters. NOTIFICATION PROCEDURE: Records may be exempted from the ROUTINE USES OF RECORDS MAINTAINED IN THE As specified below, records in this requirements of subsections (c)(3); SYSTEM, INCLUDING CATEGORIES OF USERS AND system are exempt from certain (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), THE PURPOSES OF SUCH USES: notification, access, and amendment (H), (I); and (f) of the Privacy Act See General Routine Uses Applicable procedures. Individuals seeking to learn pursuant to 5 U.S.C. 552a(k)(1). Records to More than One ODNI Privacy Act whether this system contains non- may be exempted from these System of Records, Subpart C of ODNI’s exempt information about them should subsections or, additionally, from the Privacy Act Regulation published at 32 address inquiries to the ODNI at the requirements of subsections (c)(4); CFR part 1701 (73 FR 16531, 16541) and address and according to the (e)(2), (3), (5), (8), (12); and (g) of the incorporated by reference (see also requirements set forth below under the Privacy Act consistent with any http://www.dni.gov) heading ‘‘Record Access Procedures.’’ exemptions claimed under 5 U.S.C. DISCLOSURE TO CONSUMER REPORTING RECORD ACCESS PROCEDURES: 552a(j) or (k) by the originator of the record, provided the reason for the AGENCIES: As specified below, records in this exemption remains valid and necessary. None. system have been exempted from POLICIES AND PRACTICES FOR STORING, certain notification, access, and SYSTEM NAME: amendment procedures. A request for RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: access to non-exempt records shall be Office of Legislative Affairs Records made in writing with the envelope and (ODNI–04). STORAGE: letter clearly marked ‘‘Privacy Act Paper records are stored in secured Request.’’ Requesters shall provide their SECURITY CLASSIFICATION: areas within the control of the ODNI. full name and complete address. The The classification of records in this Electronic records are stored in secure requester must sign the request and system can range from UNCLASSIFIED file-servers located within secure have it verified by a notary public. to TOP SECRET. facilities under control of the ODNI.

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RETRIEVABILITY: Request.’’ Requesters shall provide their SYSTEM LOCATION: By name or other key word. full name and complete address. The Office of the Director of National Information may be retrieved from this requester must sign the request and Intelligence, Washington, DC 20511. system of records by automated or hand have it verified by a notary public. search based on indices and automated Alternately, the request may be CATEGORIES OF INDIVIDUALS COVERED BY THE capabilities utilized in the normal submitted under 28 U.S.C. 1746, SYSTEM: course of business. All searches of this certifying the requester’s identity and Individuals who may be or have been system of records will be performed by understanding that obtaining a record engaged as guest speakers (academics, authorized staff. under false pretenses constitutes a business professionals, and government criminal offense. Requests for access to officials), trainers and other presenters. SAFEGUARDS: information must be addressed to the Information in this system is Director, Information Management, CATEGORIES OF RECORDS IN THE SYSTEM: safeguarded in accordance with Office of the Director of National Biographic data including academic recommended and/or prescribed Intelligence, Washington, DC 20511. credentials; publicly available administrative, physical, and technical Regulations governing access to one’s information (e.g., publications authored safeguards. Records are maintained in a records or for appealing an initial by the speaker); correspondence; and secure government or contractor facility determination concerning access to administrative records concerning the with access to the facility limited to records are contained in the ODNI engagements. authorized personnel only and regulation implementing the Privacy AUTHORITY FOR MAINTENANCE OF THE SYSTEM: authorized and escorted visitors. Act. Physical security protections include The National Security Act of 1947, as guards and locked facilities requiring CONTESTING RECORD PROCEDURES: amended, 50 U.S.C. 401–442; Executive badges and passwords for access. As specified below, records in this Order 12333, as amended (73 FR 45325); Records are accessed only by authorized system are exempt from certain Executive Order 12958, as amended (68 government personnel and contractors notification, access, and amendment FR 15315); and Executive Order 12968, holding appropriate security clearances procedures. Individuals seeking to as amended (73 FR 38103). and whose official duties require access correct or amend non-exempt records to the records. Communications are should address their requests to the PURPOSE(S): encrypted where required and other ODNI at the address and according to The Office of the Director of National safeguards are in place to monitor and the requirements set forth above under Intelligence (ODNI) maintains records of audit access and to detect intrusions. the heading ‘‘Records Access speakers’ presentations and biographies System backup is maintained Procedures.’’ Regulations governing as a resource for Intelligence separately. access to and amendment of one’s Community elements. records or for appealing an initial RETENTION AND DISPOSAL: determination concerning access to or ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND Pursuant to 44 U.S.C. 3303a(d) and 36 amendment of records are contained in THE PURPOSES OF SUCH USES: CFR chapter 12, subchapter B, part the ODNI regulation implementing the 1228—Disposition of Federal Records, Privacy Act. See General Routine Uses Applicable records will not be disposed of until to More than One ODNI Privacy Act such time as the National Archives and RECORD SOURCE CATEGORIES: System of Records, Subpart C of Office Records Administration (NARA) Current and former members of the of the Director of National Intelligence approves an applicable ODNI Records U.S. Congress and their staffs; ODNI (ODNI)’s Privacy Act Regulation Control Schedule. officials and offices; and individuals published at 32 CFR part 1701 (73 FR communicating with the ODNI. 16531, 16541) and incorporated by SYSTEM MANAGER(S) AND ADDRESS: reference (see also http://www.dni.gov). Director of Legislative Affairs c/o EXEMPTIONS CLAIMED FOR THE SYSTEM: Director, Information Management, Records contained in this System of DISCLOSURE TO CONSUMER REPORTING Office of the Director of National Records may be exempted from the AGENCIES: Intelligence, Washington, DC 20511. requirements of subsections (c)(3); None. (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), NOTIFICATION PROCEDURE: (H), (I); and (f) of the Privacy Act POLICIES AND PRACTICES FOR STORING, As specified below, records in this pursuant to 5 U.S.C. 552a(k)(1). Records RETRIEVING, ACCESSING, RETAINING, AND system are exempt from certain may be exempted from these DISPOSING OF RECORDS IN THE SYSTEM: notification, access, and amendment subsections or, additionally, from the STORAGE: procedures. Individuals seeking to learn requirements of subsections (c)(4); Paper records are stored in secured whether this system contains non- (e)(2), (3), (5), (8), (12); and (g) of the exempt information about them should areas within the control of the ODNI. Privacy Act consistent with any Electronic records are stored in secure address inquiries to the ODNI at the exemptions claimed under 5 U.S.C. address and according to the file-servers located within secure 552a(j) or (k) by the originator of the facilities under control of the ODNI. requirements set forth below under the record, provided the reason for the ‘‘ ’’ heading Record Access Procedures. exemption remains valid and necessary. RETRIEVABILITY: RECORD ACCESS PROCEDURES: SYSTEM NAME: By name or other key word. As specified below, records in this ODNI Guest Speaker Records (ODNI– Information may be retrieved from this system have been exempted from 05). system of records by automated or hand certain notification, access, and search based on indices and automated amendment procedures. A request for SECURITY CLASSIFICATION: capabilities utilized in the normal access to non-exempt records shall be The classification of records in this course of business. All searches of this made in writing with the envelope and system can range from UNCLASSIFIED system of records will be performed by letter clearly marked ‘‘Privacy Act to TOP SECRET. authorized staff.

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SAFEGUARDS: understanding that obtaining a record CATEGORIES OF INDIVIDUALS COVERED BY THE Information in this system is under false pretenses constitutes a SYSTEM: safeguarded in accordance with criminal offense. Requests for access to Current and former staff and contract recommended and/or prescribed information must be addressed to the employees, personal services administrative, physical, and technical Director, Information Management, independent contractors, employees of safeguards. Records are maintained in a Office of the Director of National industrial contractors, military and secure government or contractor facility Intelligence, Washington, DC 20511. civilian personnel detailed or assigned with access to the facility limited to Regulations governing access to one’s to the Office of the Director of National authorized personnel only and records or for appealing an initial Intelligence (ODNI); applicants for authorized and escorted visitors. determination concerning access to employment with the ODNI; current and Physical security protections include records are contained in the ODNI former employees and contractors of guards and locked facilities requiring regulation implementing the Privacy other U.S. Government agencies; badges and passwords for access. Act. individuals in contact with the ODNI, Records are accessed only by authorized including individuals whose inquiries CONTESTING RECORD PROCEDURES: government personnel and contractors concerning the ODNI or the Intelligence holding appropriate security clearances As specified below, records in this Community (IC) are forwarded to the and whose official duties require access system are exempt from certain Office of General Counsel for response; to the records. Communications are notification, access, and amendment attorneys in private practice who hold encrypted where required and other procedures. Individuals seeking to ODNI security clearances or access safeguards are in place to monitor and correct or amend non-exempt records approvals; individuals in government, audit access and to detect intrusions. should address their requests to the academia, the business community, or System backup is maintained ODNI at the address and according to other elements of the private sector with separately. the requirements set forth above under expertise on matters of interest to the the heading ‘‘Records Access Office of General Counsel; and RETENTION AND DISPOSAL: Procedures.’’ Regulations governing individuals involved in matters subject Pursuant to 44 U.S.C. 3303a(d) and 36 access to and amendment of one’s to the ODNI or the IC’s legal authorities, CFR chapter 12, subchapter B, part records or for appealing an initial responsibilities, and obligations, 1228—Disposition of Federal Records, determination concerning access to or including but not limited to records will not be disposed of until amendment of records are contained in administrative claimants, grievants, such time as the National Archives and the ODNI regulation implementing the parties in litigation, witnesses, targets or Records Administration (NARA) Privacy Act. potential targets of investigations or approves an applicable ODNI Records intelligence collection, and individuals RECORD SOURCE CATEGORIES: Control Schedule. who are interviewed by, or provide Records in the system are obtained information to the ODNI or the IC. SYSTEM MANAGER(S) AND ADDRESS: from individuals covered by this Deputy Director of National system; ODNI officials and offices; and CATEGORIES OF RECORDS IN THE SYSTEM: Intelligence for Policy, Plans, and academic institutions, private Legal documents, including but not Requirements c/o Director, Information organizations, libraries, commercial limited to pleadings, subpoenas, Management, Office of the Director of databases, and federal agencies. motions, affidavits, declarations, briefs, National Intelligence, Washington, DC litigation reports, and legal opinions; 20511. EXEMPTIONS CLAIMED FOR THE SYSTEM: crimes reports obtained from the U.S. Records contained in this System of Department of Justice or other law NOTIFICATION PROCEDURE: Records may be exempted from the enforcement agencies; public and As specified below, records in this requirements of subsections (c)(3); confidential Financial Disclosure system are exempt from certain (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), Reports; internal ODNI documents and notification, access, and amendment (H), (I); and (f) of the Privacy Act cables, and correspondence with procedures. Individuals seeking to learn pursuant to 5 U.S.C. 552a(k)(1). Records members of the public, members of the whether this system contains non- may be exempted from these U.S. Congress, Congressional staff, and exempt information about them should subsections or, additionally, from the federal, state, local, international and address inquiries to the ODNI at the requirements of subsections (c)(4); foreign agencies, courts and address and according to the (e)(2), (3), (5), (8), (12); and (g) of the administrative tribunals. requirements set forth below under the Privacy Act consistent with any heading ‘‘Record Access Procedures.’’ exemptions claimed under 5 U.S.C. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: The National Security Act of 1947, as RECORD ACCESS PROCEDURES: 552a(j) or (k) by the originator of the record, provided the reason for the amended, 50 U.S.C. 401–442; Executive As specified below, records in this exemption remains valid and necessary. Order 12333, as amended (73 FR 45325); system have been exempted from Executive Order 12958, as amended (68 certain notification, access, and SYSTEM NAME: FR 15315); and Executive Order 12968, amendment procedures. A request for Office of General Counsel Records as amended (73 FR 38103). access to non-exempt records shall be (ODNI–06). made in writing with the envelope and PURPOSE(S): letter clearly marked ‘‘Privacy Act SECURITY CLASSIFICATION: Records in this system are used by Request.’’ Requesters shall provide their The classification of records in this attorneys in the ODNI Office of General full name and complete address. The system can range from UNCLASSIFIED Counsel to provide legal advice and requester must sign the request and to TOP SECRET. representation to the ODNI and its have it verified by a notary public. officers; provide factual information Alternately, the request may be SYSTEM LOCATION: necessary for the preparation of legal submitted under 28 U.S.C. 1746, Office of Director of National documents, including but not limited to certifying the requester’s identity and Intelligence, Washington, DC 20511. pleadings, subpoenas, motions,

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affidavits, declarations, briefs, legal required and other safeguards are in the requirements set forth above under opinions, litigation reports, and reports place to monitor and audit access and the heading ‘‘Records Access to law enforcement agencies; provide a to detect intrusions. System backup is Procedures.’’ Regulations governing record of all private attorneys who have maintained separately. access to and amendment of one’s received security clearances and/or records or for appealing an initial RETENTION AND DISPOSAL: access approvals for information determination concerning access to or necessary to their representation of Pursuant to 44 U.S.C. 3303a(d) and 36 amendment of records are contained in ODNI-affiliated clients, and CFR chapter 12, subchapter B, part the ODNI regulation implementing the documentation of the nature, scope and 1228—Disposition of Federal Records, Privacy Act. duration of their representation of records will not be disposed of until ODNI-affiliated clients; and maintain a such time as the National Archives and RECORD SOURCE CATEGORIES: record of federal, state, local, Records Administration (NARA) Records in the system are received international or foreign litigation, approves an applicable ODNI Records from individuals covered by the system; administrative claims, and other legal Control Schedule. generated by the ODNI and federal, state matters in which ODNI is a party or has SYSTEM MANAGER(S) AND ADDRESS: and local government agencies and an interest. General Counsel, c/o Director, courts; obtained from the media, the internet and commercial databases. ROUTINE USES OF RECORDS MAINTAINED IN THE Information Management, Office of the SYSTEM, INCLUDING CATEGORIES OF USERS AND Director of National Intelligence, EXEMPTIONS CLAIMED FOR THE SYSTEM: THE PURPOSES OF SUCH USES: Washington, DC 20511. Records contained in this System of See General Routine Uses Applicable NOTIFICATION PROCEDURE: to More than One ODNI Privacy Act Records may be exempted from the As specified below, records in this System of Records, Subpart C of ODNI’s requirements of subsections (c)(3); system are exempt from certain Privacy Act Regulation published at 32 (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), notification, access, and amendment CFR part 1701 (73 FR 16531, 16541) and (H), (I); and (f) of the Privacy Act procedures. Individuals seeking to learn incorporated by reference (see also pursuant to 5 U.S.C. 552a(k)(1), (k)(2), whether this system contains non- http://www.dni.gov). and (k)(5). Records may be exempted exempt information about them should from these subsections or, additionally, DISCLOSURE TO CONSUMER REPORTING address inquiries to the ODNI at the from the requirements of subsections AGENCIES: address and according to the (c)(4); (e)(2), (3), (5), (8), (12); and (g) of None. requirements set forth below under the the Privacy Act consistent with any heading ‘‘Record Access Procedures.’’ exemptions claimed under 5 U.S.C. POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND RECORD ACCESS PROCEDURES: 552a(j) or (k) by the originator of the record, provided the reason for the DISPOSING OF RECORDS IN THE SYSTEM: As specified below, records in this exemption remains valid and necessary. STORAGE: system have been exempted from Paper records are stored in secured certain notification, access, and SYSTEM NAME: areas within the ODNI. Electronic amendment procedures. A request for access to non-exempt records shall be Analytic Resources Catalog (ARC) records are stored in secure file-servers (ODNI–07). located within the ODNI. made in writing with the envelope and letter clearly marked ‘‘Privacy Act SYSTEM CLASSIFICATION: RETRIEVABILITY: Request.’’ Requesters shall provide their By name, personal identifier, case full name and complete address. The The classification of records in this number, or key word. Information may requester must sign the request; and system can range from UNCLASSIFIED be retrieved from this system of records have it verified by a notary public. to TOP SECRET. by automated or hand search based on Alternately, the request may be SYSTEM LOCATION: indices and automated capabilities submitted under 28 U.S.C. 1746, utilized in the normal course of certifying the requester’s identity and Office of the Director of National business. All searches of this system of understanding that obtaining a record Intelligence, Washington, DC 20511. records will be performed in ODNI under false pretenses constitutes a CATEGORIES OF INDIVIDUALS COVERED BY THE offices by authorized staff. criminal offense. Requests for access to SYSTEM: information must be addressed to the SAFEGUARDS: Director, Information Management, Current and former staff (employees, Information in this system is Office of the Director of National detailees, assignees and contractors) of safeguarded in accordance with Intelligence, Washington, DC 20511. the Intelligence Community (IC) recommended and/or prescribed Regulations governing access to one’s elements, including military personnel administrative, physical and technical records or for appealing an initial and other federal employees with safeguards. Records are maintained in a determination concerning access to intelligence analysis duties. secure government facility with access records are contained in the ODNI CATEGORIES OF RECORDS IN THE SYSTEM: to the facility limited to only authorized regulation implementing the Privacy personnel or authorized and escorted Act. Records, including the Analyst visitors. Physical security protections Yellow Pages, reflecting the include guards and locked facilities CONTESTING RECORD PROCEDURES: assignments, expertise, education, requiring badges and passwords for As specified below, records in this specialized foreign language and other access. Records are accessed only by system are exempt from certain skills, and experiences of federal authorized government personnel and notification, access, and amendment government employees and contractors contractors holding an appropriate procedures. Individuals seeking to performing intelligence analysis duties; security clearance and whose official correct or amend non-exempt records pre-set reports and other documentation duties require access to the records. should address their requests to the about analytic resources at each IC Communications are encrypted where ODNI at the address and according to element and across the IC.

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AUTHORITY FOR MAINTENANCE OF THE SYSTEM: name or other key word (e.g., degrees submitted under 28 U.S.C. 1746, The National Security Act of 1947, as held, foreign language ability, country certifying the requester’s identity and amended, 50 U.S.C. 401–442; Executive or intelligence area of specialization) understanding that obtaining a record Order 12333, as amended (73 FR 45325); pertinent to analytic expertise. under false pretenses constitutes a and Executive Order 9397, as amended criminal offense. Requests for access to SAFEGUARDS: (73 FR 70239). information must be addressed to the Information in this system is Director, Information Management, PURPOSE: safeguarded in accordance with Office of the Director of National Records in this system are used to: recommended and/or prescribed Intelligence, Washington, DC 20511. locate IC and other intelligence analysts administrative, physical and technical Regulations governing access to one’s for collaborative activities; identify safeguards. Records are maintained in a records or for appealing an initial analysts authorized to access on-line secure government facility with access determination concerning access to collaboration zones; obtain information to the facility limited to only authorized records are contained in the ODNI about the expertise, skills and personnel or authorized and escorted regulation implementing the Privacy educational backgrounds of IC and other visitors. Physical security protections Act. intelligence analysts; obtain aggregate include guards and locked facilities information about the use of analytic requiring badges and passwords for CONTESTING RECORD PROCEDURES: resources across the IC; and assist in access. Records are accessed only by As specified below, records in this management and planning functions of authorized government personnel and system are exempt from certain each IC element and of the IC as a contractors holding an appropriate notification, access, and amendment whole. security clearance and whose official procedures. Individuals seeking to duties require access to the records. correct or amend non-exempt records ROUTINE USES OF RECORDS MAINTAINED IN THE Communications are encrypted where SYSTEM, INCLUDING CATEGORIES OF USERS AND should address their requests to the required and other safeguards are in THE PURPOSES OF SUCH USES: ODNI at the address and according to place to monitor and audit access and See General Routine Uses Applicable the requirements set forth above under to detect intrusions. System backup is the heading ‘‘Records Access to More than One ODNI Privacy Act maintained separately. System of Records, Subpart C of ODNI’s Procedures.’’ Regulations governing Privacy Act Regulation published at 32 RETENTION AND DISPOSAL: access to and amendment of one’s CFR part 1701 (73 FR 16531, 16541) and Pursuant to 44 U.S.C. 3303a(d) and 36 records or for appealing an initial incorporated by reference (see also CFR chapter 12, subchapter B, part determination concerning access to or http://www.dni.gov). In addition, as 1228—Disposition of Federal Records, amendment of records are contained in routine uses specific to this system, the records will not be disposed of until the ODNI regulation implementing the ODNI may disclose relevant ARC such time as the National Archives and Privacy Act. records to the following persons or Records Administration (NARA) RECORDS SOURCE CATEGORIES: entities and under the circumstances or approves an applicable ODNI Records Records in the system are obtained for the purposes described below: Control Schedule. (a) A record from this system of directly from individual analysts and records may be disclosed, as a routine SYSTEM MANAGER(S) AND ADDRESS: from their employing agencies’ human use, to appropriately cleared and ARC Program Manager, c/o Director, resource information systems. Information Management, Office of the authorized staff of the IC elements in EXEMPTIONS CLAIMED FOR THE SYSTEM: order to identify and locate intelligence Director of National Intelligence, Records contained in this System of analysts possessing specific expertise, Washington, DC 20511. Records may be exempted from the skills or experiences for the purpose of NOTIFICATION PROCEDURE: requirements of subsections (c)(3); collaborative analytic endeavors. As specified below, records in this (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), (b) A record from this system of system are exempt from certain (H), (I); and (f) of the Privacy Act records may be disclosed, as a routine notification, access, and amendment pursuant to 5 U.S.C. 552a(k)(1). Records use, to appropriately cleared and procedures. Individuals seeking to learn may be exempted from these authorized staff of the IC elements whether this system contains non- subsections or, additionally, from the whose responsibility it is to assess the exempt information about them requirements of subsections (c)(4); depth and strength of the IC’s analytic (‘‘notification’’) should address inquiries (e)(2), (3), (5), (8), (12); and (g) of the skills, expertise and experience and for to the ODNI at the address and Privacy Act consistent with any other workforce management, budgeting according to the requirements set forth exemptions claimed under 5 U.S.C. or planning purposes. below under the heading ‘‘Record 552a(j) or (k) by the originator of the DISCLOSURE TO CONSUMER REPORTING Access Procedures.’’ record, provided the reason for the AGENCIES: exemption remains valid and necessary. RECORD ACCESS PROCEDURES: None. As specified below, records in this SYSTEM NAME: POLICIES AND PRACTICES FOR STORING, system have been exempted from Intelligence Community Customer RETRIEVING, ACCESSING, RETAINING AND certain notification, access, and Registry (ODNI–09). DISPOSING OF RECORDS IN THE SYSTEM: amendment procedures. A request for STORAGE: access to non-exempt records shall be SECURITY CLASSIFICATION: Electronic records are stored in secure made in writing with the envelope and The classification of records in this file-servers located within secure letter clearly marked ‘‘Privacy Act system can range from UNCLASSIFIED facilities under control of the ODNI. Request.’’ Requesters shall provide their to TOP SECRET. full name and complete address. The RETRIEVABILITY: requester must sign the request and SYSTEM LOCATION: Records about individual analysts can have it verified by a notary public. Office of the Director of National be searched and retrieved based on Alternately, the request may be Intelligence, Washington, DC 20511.

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CATEGORIES OF INDIVIDUALS COVERED BY THE retrieved from this system of records by public. Alternately, the request may be SYSTEM: automated searches conducted by submitted under 28 U.S.C. 1746, Current and former intelligence authorized members of the U.S. certifying the requester’s identity and customers including U.S. policymakers, Government. acknowledging that obtaining records U.S. Government personnel, and other under false pretenses constitutes a SAFEGUARDS: authorized recipients of Intelligence criminal offense. Requests for access to Community (IC) intelligence products. Information in this system is information must be addressed to the safeguarded in accordance with Director, Information Management, CATEGORIES OF RECORDS IN THE SYSTEM: recommended and/or prescribed Office of the Director of National Biographic data (including name, administrative, physical and technical Intelligence, Washington, DC 20511. title, employing agency), organizational safeguards. Records are maintained in a Regulations governing access to one’s charts, contact information, security secure government or contractor facility records or for appealing an initial clearances and access approvals, with access to the facility limited to determination concerning access to subjects of intelligence interest to only authorized personnel or authorized records are contained in the ODNI covered individuals, comments and and escorted visitors. Physical security regulation implementing the Privacy feedback from covered individuals protections include guards and locked Act. regarding preferred format for receiving facilities requiring badges and intelligence products. passwords for access. Records are CONTESTING RECORD PROCEDURES: accessed only by authorized government AUTHORITY FOR MAINTENANCE OF THE SYSTEM: As specified below, records in this personnel and contractors holding system are exempt from certain The National Security Act of 1947, as appropriate security clearances and amended, 50 U.S.C. 401–442; Executive notification, access, and amendment whose official duties require access to procedures. Individuals seeking to Order 12333, as amended (73 FR 45325); the records. Communications are Executive Order 12958, as amended (68 correct or amend non-exempt records encrypted where required and other should address their requests to the FR 15315); and Executive Order 12968, safeguards are in place to monitor and as amended (73 FR 38103). ODNI at the address and according to audit access and to detect intrusions. the requirements set forth above under PURPOSE(S): System backup is maintained the heading ‘‘Record Access Records in this system enable separately. Procedures.’’ Regulations governing authorized personnel of the ODNI and RETENTION AND DISPOSAL: access to and amendment of one’s other IC elements to ensure intelligence Pursuant to 44 U.S.C. 3303a(d) and 36 records or for appealing an initial customers receive intelligence products CFR chapter 12, subchapter B, part determination concerning access or in accordance with their expressed 1228–Disposition of Federal Records, amendment of records are contained in interests and particular requirements for records will not be disposed of until the ODNI regulation implementing the format and delivery. such time as the National Archives and Privacy Act. ROUTINE USES OF RECORDS MAINTAINED IN THE Records Administration (NARA) RECORD SOURCE CATEGORIES: SYSTEM, INCLUDING CATEGORIES OF USERS AND approves an applicable ODNI Records THE PURPOSES OF SUCH USES: Control Schedule. Records in the system are obtained See General Routine Uses Applicable from individual intelligence customers; SYSTEM MANAGER(S) AND ADDRESS: to More Than One ODNI Privacy Act intelligence support personnel; System of Records, Subpart C of ODNI’s Deputy Director of National commercial subscription services; other Privacy Act Regulation published at 32 Intelligence for Analysis, c/o Director, agency repositories. CFR part 1701 (73 FR 16531, 16541) and Information Management, Office of the EXEMPTIONS CLAIMED FOR THE SYSTEM: incorporated by reference (see also Director of National Intelligence, http://www.dni.gov). In addition, the Washington, DC 20511. Records contained in this System of Customer Registry will be made NOTIFICATION PROCEDURE: Records may be exempted from the available to authorized U.S. Government As specified below, records in this requirements of subsections analysts, analytical managers and other system are exempt from certain (c)(3);(d)(1),(2),(3),(4); (e)(1) and intelligence support personnel to ensure notification, access, and amendment (e)(4)(G),(H),(I); and (f) of the Privacy that customers receive relevant procedures. Individuals seeking to learn Act pursuant to 5 U.S.C. 552a(k)(1). intelligence products and to identify whether this system contains non- Records may be exempted from these new and under-served customers by exempt information about them should subsections or additionally, from the name and title. address inquiries to the ODNI at the requirements of subsections address and according to the (c)(4);(e)(2),(3),(5),(8),(12); and (g) of the DISCLOSURE TO CONSUMER REPORTING Privacy Act consistent with any AGENCIES: requirements set forth below under the heading ‘‘Record Access Procedures.’’ exemptions claimed under 5 U.S.C. None. 552a(j) or (k) by the originator of the POLICIES AND PRACTICES FOR STORING, RECORD ACCESS PROCEDURES: record, provided the reason for the RETRIEVING, ACCESSING, RETAINING, AND As specified below, records in this exemption remains valid and necessary. DISPOSING OF RECORDS IN THE SYSTEM: system have been exempted from SYSTEM NAME: STORAGE: certain notification, access, and Electronic records are stored in secure amendment procedures. A request for Equal Employment Opportunity and file-servers located within secure access to non-exempt records shall be Diversity Office (EEOD) Records (ODNI– facilities under control of the ODNI or made in writing with the envelope and 10). its Executive Agent. letter clearly marked ‘‘Privacy Act Request.’’ Each request must provide the SECURITY CLASSIFICATION: RETRIEVABILITY: requester’s full name and complete The classification of records in this By full text search, including name or address. The requester must sign the system can range from UNCLASSIFIED identifying title. Information may be request and have it verified by a notary to TOP SECRET.

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SYSTEM LOCATION: system of records will be performed in requester must sign the request and Office of the Director of National ODNI offices by authorized personnel. have it verified by a notary public. Intelligence, Washington, DC 20511. Alternately, the request may be SAFEGUARDS: submitted under 28 U.S.C. 1746, CATEGORIES OF INDIVIDUALS COVERED BY THE Information in this system is certifying the requester’s identity and SYSTEM: safeguarded in accordance with understanding that obtaining a record Current and former Office of the recommended and/or prescribed under false pretenses constitutes a Director of National Intelligence (ODNI) administrative, physical, and technical criminal offense. Requests for access to staff and contract personal, and military safeguards. Records are maintained in a information must be addressed to the and civilian personnel detailed or secure government facility with access Director, Information Management, assigned to the ODNI; and applicants for to the facility limited to authorized Office of the Director of National employment with the ODNI. personnel only and authorized and Intelligence, Washington, DC 20511. escorted visitors. Physical security CATEGORIES OF RECORDS IN THE SYSTEM: Regulations governing access to one’s protections include guards and locked records or for appealing an initial Records relating to requests made by facilities requiring badges and determination concerning access to individuals or offices for reasonable passwords for access. Records are records are contained in the ODNI accommodations (including medical accessed only by authorized government regulation implementing the Privacy records), and the products or services personnel and contractors holding Act. provided in response to such requests. appropriate security clearances and whose official duties require access to CONTESTING RECORD PROCEDURES: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: the records. Communications are As specified below, records in this The National Security Act of 1947, as encrypted where required and other system are exempt from certain amended, 50 U.S.C. 401–442; The safeguards are in place to monitor and notification, access, and amendment Rehabilitation Act of 1973, as amended, audit access and to detect intrusions. procedures. Individuals seeking to 29 U.S.C. 791; The Federal Records Act Backup tapes are maintained in a correct or amend non-exempt records of 1950, as amended, 44 U.S.C. 3101 et. secure, off-site location. should address their requests to the seq; Executive Order 12333, as amended ODNI at the address and according to RETENTION AND DISPOSAL: (73 FR 45325); Executive Order 12958, the requirements set forth above under as amended (68 FR 15315); Executive EEOD records covered by the General the heading ‘‘Records Access Order 12968, as amended (73 FR 38103); Records Schedule 1, Items 24 through Procedures.’’ Regulations governing and Executive Order 13164 (65 FR 27, will be retained and disposed access to and amendment of one’s 46565). according to those provisions. Any other records or for appealing an initial EEOD records, pursuant to 44 U.S.C. PURPOSE(S): determination concerning access to or 3303a(d) and 36 CFR chapter 12, amendment of records are contained in Records in this system are used to subchapter B, part 1228—Disposition of track requests for and provision of the ODNI regulation implementing the Federal Records, will not be disposed of Privacy Act. reasonable accommodations based on until such time as the National Archives medical disability. and Records Administration (NARA) RECORD SOURCE CATEGORIES: approves an applicable ODNI Records ROUTINE USES OF RECORDS MAINTAINED IN THE Individuals covered by this system; SYSTEM, INCLUDING CATEGORIES OF USERS AND Control Schedule. medical and psychiatric professionals. THE PURPOSES OF SUCH USES: SYSTEM MANAGER(S) AND ADDRESS: EXEMPTIONS CLAIMED FOR THE SYSTEM: See General Routine Uses Applicable Chief, Office of Equal Employment Records contained in this System of to More than One ODNI Privacy Act Opportunity and Diversity, c/o Director, Records may be exempted from the System of Records, Subpart C of ODNI’s Information Management, Office of the requirements of subsections (c)(3); Privacy Act Regulation published at 32 Director of National Intelligence, (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), CFR part 1701 (73 FR 16531, 16541) and Washington, DC 20511. (H), (I); and (f) of the Privacy Act incorporated by reference (see also NOTIFICATION PROCEDURE: pursuant to 5 U.S.C. 552a(k)(1), (k)(2), http://www.dni.gov). and (k)(5). Records may be exempted As specified below, records in this from these subsections or, additionally, DISCLOSURE TO CONSUMER REPORTING system are exempt from certain from the requirements of subsections AGENCIES: notification, access, and amendment (c)(4); (e)(2), (3), (5), (8), (12); and (g) of None. procedures. Individuals seeking to learn the Privacy Act consistent with any whether this system contains non- POLICIES AND PRACTICES FOR STORING, exemptions claimed under 5 U.S.C. exempt information about them should RETRIEVING, ACCESSING, RETAINING, AND 552a(j) or (k) by the originator of the address inquiries to the ODNI at the DISPOSING OF RECORDS IN THE SYSTEM: record, provided the reason for the address and according to the exemption remains valid and necessary. STORAGE: requirements set forth below under the Paper records are stored in secured heading ‘‘Record Access Procedures.’’ SYSTEM NAME: areas within the ODNI. Electronic RECORD ACCESS PROCEDURES: Office of Protocol Records (ODNI— records are stored in secure file-servers 11). located within the ODNI. As specified below, records in this system have been exempted from SECURITY CLASSIFICATION: RETRIEVABILITY: certain notification, access, and The classification of records in this By name, and case number. amendment procedures. A request for system can range from UNCLASSIFIED Information may be retrieved from this access to non-exempt records shall be to TOP SECRET. system of records by automated or hand made in writing with the envelope and search based on indices and automated letter clearly marked ‘‘Privacy Act SYSTEM LOCATION: capabilities utilized in the normal Request.’’ Requesters shall provide their Office of the Director of National course of business. All searches of this full name and complete address. The Intelligence, Washington, DC 20511.

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CATEGORIES OF INDIVIDUALS COVERED BY THE recommended and/or prescribed Office of the Director of National SYSTEM: administrative, physical, and technical Intelligence, Washington, DC 20511. Individuals invited to and attending safeguards. Records are maintained in a Regulations governing access to one’s events organized by the Office of secure government facility with access records or for appealing an initial Protocol; U.S. officials receiving gifts to the facility limited to authorized determination concerning access to and decorations from foreign sources. personnel only and authorized and records are contained in the ODNI escorted visitors. Physical security regulation implementing the Privacy CATEGORIES OF RECORDS IN THE SYSTEM: protections include guards and locked Act. Guest lists; details of visitor facilities requiring badges and preferences or needs; records of access, passwords for access. Records are CONTESTING RECORD PROCEDURES: escorts and travel arrangements of accessed only by authorized government As specified below, records in this attendees to events sponsored by the personnel and contractors holding system are exempt from certain Office of the Director of National appropriate security clearances and notification, access, and amendment Intelligence (ODNI); and records relating whose official duties require access to procedures. Individuals seeking to to gifts and decorations from foreign the records. Communications are correct or amend non-exempt records sources. encrypted where required and other should address their requests to the AUTHORITY FOR MAINTENANCE OF THE SYSTEM: safeguards are in place to monitor and ODNI at the address and according to audit access and to detect intrusions. The National Security Act of 1947, as the requirements set forth above under System backup is maintained the heading ‘‘Records Access amended, 50 U.S.C. 401–442; Executive separately. Order 12333, as amended (73 FR 45325); Procedures.’’ Regulations governing Executive Order 12958, as amended (68 RETENTION AND DISPOSAL: access to and amendment of one’s records or for appealing an initial FR 15315); and Executive Order 12968, Pursuant to 44 U.S.C. 3303a(d) and 36 as amended (73 FR 38103). determination concerning access to or CFR chapter 12, subchapter B, part amendment of records are contained in PURPOSE(S): 1228—Disposition of Federal Records, the ODNI regulation implementing the records will not be disposed of until Office of Protocol personnel use this Privacy Act. such time as the National Archives and system to record communications with Records Administration (NARA) those invited to or attending ODNI RECORD SOURCE CATEGORIES: approves an applicable ODNI Records events and to record U.S. officials’ Control Schedule. Records in the system are (1) receipt of gifts and decorations from Obtained directly from the individuals foreign sources. SYSTEM MANAGER(S) AND ADDRESS: or their representatives covered by this system of records; (2) publicly available ROUTINE USES OF RECORDS MAINTAINED IN THE Chief of Protocol, c/o Director, information from the media, the Internet SYSTEM, INCLUDING CATEGORIES OF USERS AND Information Management, Office of the THE PURPOSES OF SUCH USES: Director of National Intelligence, and commercial databases; and (3) ODNI materials produced in the course See General Routine Uses Applicable Washington, DC 20511. of ODNI events. to More than One ODNI Privacy Act NOTIFICATION PROCEDURE: System of Records, Subpart C of ODNI’s As specified below, records in this EXEMPTIONS CLAIMED FOR THE SYSTEM: Privacy Act Regulation published at 32 system are exempt from certain CFR part 1701 (73 FR 16531, 16541) and Records contained in this System of notification, access, and amendment incorporated by reference (see also Records may be exempted from the procedures. Individuals seeking to learn http://www.dni.gov). requirements of subsections (c)(3); whether this system contains non- (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), DISCLOSURE TO CONSUMER REPORTING exempt information about them should (H), (I); and (f) of the Privacy Act AGENCIES: address inquiries to the ODNI at the pursuant to 5 U.S.C. 552a(k)(1). Records None. address and according to the may be exempted from these requirements set forth below under the subsections or, additionally, from the POLICIES AND PRACTICES FOR STORING, heading ‘‘Record Access Procedures.’’ requirements of subsections (c)(4); RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: RECORD ACCESS PROCEDURES: (e)(2), (3), (5), (8), (12); and (g) of the Privacy Act consistent with any STORAGE: As specified below, records in this exemptions claimed under 5 U.S.C. Paper records are stored in secured system have been exempted from 552a(j) or (k) by the originator of the areas within the ODNI. Electronic certain notification, access, and record, provided the reason for the records are stored in secure file-servers amendment procedures. A request for exemption remains valid and necessary. located within the ODNI. access to non-exempt records shall be made in writing with the envelope and SYSTEM NAME: RETRIEVABILITY: letter clearly marked ‘‘Privacy Act Intelligence Community Security By name or other key word. Request.’’ Requesters shall provide their full name and complete address. The Clearance and Access Approval Information may be retrieved from this Repository (ODNI–12). system of records by automated or hand requester must sign the request and search based on indices and automated have it verified by a notary public. SECURITY CLASSIFICATION: capabilities utilized in the normal Alternately, the request may be course of business. All searches of this submitted under 28 U.S.C. 1746, The classification of records in this system of records will be performed by certifying the requester’s identity and system can range from UNCLASSIFIED authorized staff. understanding that obtaining a record to TOP SECRET. under false pretenses constitutes a SAFEGUARDS: criminal offense. Requests for access to SYSTEM LOCATION: Information in this system is information must be addressed to the Office of the Director of National safeguarded in accordance with Director, Information Management, Intelligence, Washington, DC 20511.

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CATEGORIES OF INDIVIDUALS COVERED BY THE RETRIEVABILITY: RECORD ACCESS PROCEDURES: SYSTEM: By name, social security number, or As specified below, records in this Subjects of security clearance and other unique employee identifier. system have been exempted from access approval investigations, Information may be retrieved from this certain notification, access, and including current and former U.S. system of records by automated search amendment procedures. A request for government employees, applicants for based on indices and automated access to non-exempt records shall be employment in the Intelligence capabilities utilized in the normal made in writing with the envelope and Community (IC), military personnel, course of business. All searches of the letter clearly marked ‘‘Privacy Act personal service independent system are conducted by authorized Request.’’ Each request must provide the contractors and industrial contractors to staff or contractors of the IC member requester’s full name and complete U.S. government programs. agencies. address. The requester must sign the CATEGORIES OF RECORDS IN THE SYSTEM: request and have it verified by a notary Biographic data (including name, date SAFEGUARDS: public. Alternately, the request may be and place of birth, social security Information in this system is submitted under 28 U.S.C. 1746, number, and employer); current status safeguarded in accordance with certifying the requester’s identity and of security clearances and security recommended and/or prescribed acknowledging that obtaining records access approvals, and date and source of administrative, physical, and technical under false pretenses constitutes a background investigation and, if safeguards. Records are maintained in a criminal offense. Requests for access to applicable, of polygraph examination. secure facility with access to the facility information must be addressed to the Director, Information Management, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: limited to authorized personnel only and authorized and escorted visitors. Office of the Director of National The National Security Act of 1947, as Physical security protections include Intelligence, Washington, DC 20511. amended, 50 U.S.C. 401–442; The guards and locked facilities requiring Regulations governing access to one’s Federal Records Act of 1950, as badges and passwords for access. records or for appealing an initial amended, 44 U.S.C. 3101 et seq.; Records are accessed only by authorized determination concerning access to Executive Order 12333, as amended (73 government personnel holding records are contained in the ODNI FR 45325); Executive Order 12958, as appropriate security clearances and regulation implementing the Privacy amended (68 FR 15315); and Executive Act. Order 9397, as amended (73 FR 70239). whose official duties require access to the records as certified by an Access CONTESTING RECORD PROCEDURES: PURPOSE(S): Control List. Communications are Records in this system enable encrypted where required and other As specified below, records in this authorized personnel of the ODNI and safeguards are in place to monitor and system are exempt from certain other IC elements to reciprocally share audit access and to detect intrusions. notification, access, and amendment information about individuals who are System backup is maintained procedures. Individuals seeking to currently cleared or individuals where separately. correct or amend non-exempt records some processing was previously should address their requests to the conducted for a clearance/access. Such RETENTION AND DISPOSAL: ODNI at the address and according to the requirements set forth above under information supports clearance Records in this system are dynamic reciprocity and security business the heading ‘‘Record Access and are refreshed as necessary by the Procedures.’’ processes enabling the appropriate contributing IC element. Pursuant to 44 Regulations governing access to and access to controlled facilities and U.S.C. 3303a(d) and 36 CFR chapter 12 amendment of one’s records or for classified information. subchapter B, part 1228—Disposition of appealing an initial determination Federal Records, and in accordance ROUTINE USES OF RECORDS MAINTAINED IN THE concerning access or amendment of with General Records Schedule (GRS) SYSTEM, INCLUDING CATEGORIES OF USERS AND records are contained in the ODNI THE PURPOSES OF SUCH USES 18, Item 23, records in this system are : regulation implementing the Privacy destroyed when they are superseded or Records in this system are disclosed Act. to elements of the IC and authorized become obsolete for the purpose government contractors to verify intended. RECORD SOURCE CATEGORIES: individuals’ security clearances and SYSTEM MANAGER(S) AND ADDRESS: Records in this system derive from access approvals. See also General background investigations conducted or Routine Uses Applicable to More Than Personnel Security Databases Program maintained by government and private One ODNI Privacy Act System of Manager, c/o Director, Information sector organizations. Records, Subpart C of ODNI’s Privacy Management, Office of the Director of Act Regulation published at 32 CFR part National Intelligence, Washington, DC EXEMPTIONS CLAIMED FOR THE SYSTEM: 1701 (73 FR 16531, 16541) and 20511. Records contained in this System of incorporated by reference (see also Records may be exempted from the http://www.dni.gov). NOTIFICATION PROCEDURE: requirements of subsections (c)(3); DISCLOSURE TO CONSUMER REPORTING As specified below, records in this (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), AGENCIES: system are exempt from certain (H), (I); and (f) of the Privacy Act None. notification, access, and amendment pursuant to 5 U.S.C. 552a(k)(1), (2) and procedures. Individuals seeking to learn (5). Records may be exempted from POLICIES AND PRACTICES FOR STORING, whether this system contains non- these subsections or additionally, from RETRIEVING, ACCESSING, RETAINING, AND exempt information about them should the requirements of subsections (c)(4); DISPOSING OF RECORDS IN THE SYSTEM: address inquiries to the ODNI at the (e)(2), (3), (5), (8), (12); and (g) of the STORAGE: address and according to the Privacy Act consistent with any Electronic records are stored in secure requirements set forth below under the exemptions claimed under 5 U.S.C. file-servers maintained by the ODNI. heading ‘‘Record Access Procedures.’’ 552a(j) or (k) by the originator of the

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record, provided the reason for the security subjects for IC elements; (3) RETENTION AND DISPOSAL: exemption remains valid and necessary. encouraging cooperative research within Pursuant to 44 U.S.C. 3303a(d) and 36 and among IC elements on personnel CFR chapter 12, subchapter B, part SYSTEM NAME: security issues that have IC-wide 1228–Disposition of Federal Records, Security Clearance Reform Research programmatic or policy implications; records will not be disposed of until Records (ODNI–13). and (4) conducting pilot test projects such time as the National Archives and SECURITY CLASSIFICATION: regarding personnel security and related Records Administration (NARA) research interests of the Office of the The classification of records in this approves an applicable ODNI Records Director of National Intelligence (ODNI) system can range from UNCLASSIFIED Control Schedule. or the IC. to TOP SECRET. SYSTEM MANAGER(S) AND ADDRESS: ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM LOCATION: Security Research Program Manager SYSTEM, INCLUDING CATEGORIES OF USERS AND c/o Director, Information Management, Office of the Director of National THE PURPOSES OF SUCH USES: Intelligence, Washington, DC 20511. Office of the Director of National See General Routine Uses Applicable Intelligence, Washington, DC 20511. CATEGORIES OF INDIVIDUALS COVERED BY THE to More Than One ODNI Privacy Act SYSTEM: System of Records, Subpart C of ODNI’s NOTIFICATION PROCEDURE: Present and former Intelligence Privacy Act Regulation published at 32 As specified below, records in this Community (IC) civilian employees, CFR part 1701 (73 FR 16531, 16541) and system are exempt from certain military members and contractor incorporated by reference ( see also notification, access, and amendment employees who possess or have applied http://www.dni.gov). procedures. Individuals seeking to learn for a security clearance; individuals whether this system contains non- whose names, exclusive of other DISCLOSURE TO CONSUMER REPORTING exempt information about them should AGENCIES: information, are captured in publicly address inquiries to the ODNI at the available data sets (including those None. address and according to the obtained through subscription or fee). requirements set forth below under the POLICIES AND PRACTICES FOR STORING, heading ‘‘Record Access Procedures.’’ CATEGORIES OF RECORDS IN THE SYSTEM: RETRIEVING, ACCESSING, RETAINING, AND RECORD ACCESS PROCEDURES: Completed Standard Forms 85, 85P DISPOSING OF RECORDS IN THE SYSTEM: and 86 and associated authorization and STORAGE: As specified below, records in this consent forms; financial disclosure system have been exempted from Paper and other hard-copy records forms; records of polygraph certain notification, access, and (computer output products, disks, etc.) examinations (including reports, charts, amendment procedures. A request for are stored in secured areas maintained tapes and notes of polygraph access to non-exempt records shall be by the ODNI. Electronic records are interviews); records from credit, made in writing with the envelope and stored in secure file-servers located criminal history and other databases letter clearly marked ‘‘Privacy Act within secure facilities under control of and sources checked in conducting a Request.’’ Each request must provide the ODNI. suitability determination, background requester’s full name and complete address. The requester must sign the investigation, and/or personnel security RETRIEVABILITY: continuing evaluation; background request and have it verified by a notary By name, social security number, or investigation reports; responses from public. Alternately, the request may be other unique employee identifier. personnel security-related interviews submitted under 28 U.S.C. 1746, Information may be retrieved from this and questionnaires; and name-data sets certifying the requester’s identity and system of records by automated or hand obtained from publicly available acknowledging that obtaining records search. sources, including those obtained for fee under false pretenses constitutes a criminal offense. Requests for access to or by subscription. SAFEGUARDS: information must be addressed to the AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Information in this system is Director, Information Management, The National Security Act of 1947, as safeguarded in accordance with Office of the Director of National amended, 50 U.S.C. 401–442; Executive recommended and/or prescribed Intelligence, Washington, DC 20511. Order 12968, as amended (73 FR 38103); administrative, physical, and technical Regulations governing access to one’s Internal Security Act of 1950, as safeguards. Records are maintained in a records or for appealing an initial amended, 50 U.S.C. 781–887; Executive secure government or contractor facility determination concerning access to Order 9397, as amended (73 FR 70239); with access to the facility limited to records are contained in the ODNI Executive Order 10450, as amended (44 authorized personnel only and regulation implementing the Privacy FR 1055); Executive Order 10865, as authorized and escorted visitors. Act. amended (68 FR 4075); Executive Order Physical security protections include 12333, as amended (73 FR 45325); guards and locked facilities requiring CONTESTING RECORD PROCEDURES: Executive Order 12958, as amended (68 badges and passwords for access. As specified below, records in this FR 15315); Executive Order 13467 (73 Records are accessed only by authorized system are exempt from certain FR 38103); and 5 U.S.C. 9101. government personnel holding notification, access, and amendment appropriate security clearances and procedures. Individuals seeking to PURPOSE(S): whose official duties require access to correct or amend non-exempt records To conduct research, development the records. Communications are should address their requests to the and analyses for (1) Evaluating and encrypted where required and other ODNI at the address and according to improving IC personnel security safeguards are in place to monitor and the requirements set forth above under procedures, programs and policies; (2) audit access and to detect intrusions. the heading ‘‘Record Access assisting in providing training, System backup is maintained Procedures.’’ Regulations governing instruction and advice on personnel separately. access to and amendment of one’s

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records or for appealing an initial AUTHORITY FOR MAINTENANCE OF THE SYSTEM: required and other safeguards are in determination concerning access or The National Security Act of 1947, as place to monitor and audit access and amendment of records are contained in amended, 50 U.S.C. 401–442; Executive to detect intrusions. System backup is the ODNI regulation implementing the Order 12333, as amended (73 FR 45325); maintained separately. Privacy Act. Executive Order 12958, as amended (68 RETENTION AND DISPOSAL: FR 15315); and Executive Order 12968, RECORD SOURCE CATEGORIES: as amended (73 FR 38103). Pursuant to 44 U.S.C. 3303a(d) and 36 Records are obtained from the CFR chapter 12, subchapter B, part personnel security records of the PURPOSE(S): 1228—Disposition of Federal Records, member IC elements, the Defense Records in this system are used by records will not be disposed of until Security Service (DSS) and other authorized personnel of the Civil such time as the National Archives and departmental intelligence elements; the Liberties and Privacy Office (CLPO) to Records Administration (NARA) DOD Joint Personnel Adjudication track, review, and, as appropriate, approves an applicable ODNI Records System (JPAS); the Office of Personnel investigate complaints of civil liberties Control Schedule. Management’s Clearance Verification or privacy violations in the conduct of SYSTEM MANAGER(S) AND ADDRESS: (CVS) and Personnel Investigations programs and activities by the ODNI or Civil Liberties Protection Officer c/o Processing (PIPS) systems; other IC elements. government data sources and publicly Director, Information Management, available commercial data sets; ROUTINE USES OF RECORDS MAINTAINED IN THE Office of the Director of National interviews with and questionnaires SYSTEM, INCLUDING CATEGORIES OF USERS AND Intelligence, Washington, DC 20511. THE PURPOSES OF SUCH USES: completed by covered individuals. NOTIFICATION PROCEDURE: See General Routine Uses Applicable EXEMPTIONS CLAIMED FOR THE SYSTEM: to More Than One ODNI Privacy Act As specified below, records in this Records contained in this System of System of Records, Subpart C of ODNI’s system are exempt from certain Records may be exempted from the Privacy Act Regulation published at 73 notification, access, and amendment requirements of subsections (c)(3); FR 16531, 16541 and incorporated by procedures. Individuals seeking to learn (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), reference (see also http://www.dni.gov). whether this system contains non- (H), (I); and (f) of the Privacy Act exempt information about them should pursuant to 5 U.S.C. 552a(k)(1), (k)(2) DISCLOSURE TO CONSUMER REPORTING address inquiries to the ODNI at the and (k)(5). Records may be exempted AGENCIES: address and according to the from these subsections or additionally, None. requirements set forth below under the heading ‘‘Record Access Procedures.’’ from the requirements of subsections POLICIES AND PRACTICES FOR STORING, (c)(4); (e)(2), (3), (5), (8), (12); and (g) of RETRIEVING, ACCESSING, RETAINING, AND RECORD ACCESS PROCEDURES: the Privacy Act consistent with any DISPOSING OF RECORDS IN THE SYSTEM: As specified below, records in this exemptions claimed under 5 U.S.C. STORAGE: system have been exempted from 552a(j) or (k) by the originator of the Paper and other hard-copy records are certain notification, access, and record, provided the reason for the amendment procedures. A request for exemption remains valid and necessary. stored in secured areas within the CLPO. Electronic records are stored in access to non-exempt records shall be SYSTEM NAME: secure file-servers located within the made in writing with the envelope and Civil Liberties and Privacy Office ODNI. letter clearly marked ‘‘Privacy Act Complaint Records (ODNI–14). Request.’’ Each request must provide the RETRIEVABILITY: requester’s full name and complete SECURITY CLASSIFICATION: By name or case number. Information address. The requester must sign the The classification of records in this may be retrieved from this system of request and have it verified by a notary system can range from UNCLASSIFIED records by automated or hand search public. Alternately, the request may be to TOP SECRET. based on existing indices and automated submitted under 28 U.S.C. 1746, capabilities utilized in the normal SYSTEM LOCATION: certifying the requester’s identity and course of business. All searches of this acknowledging that obtaining records Office of the Director of National system of records will be performed in under false pretenses constitutes a Intelligence, Washington, DC 20511. ODNI offices by CLPO personnel. criminal offense. Requests for access to CATEGORIES OF INDIVIDUALS COVERED BY THE information must be addressed to the SAFEGUARDS: SYSTEM: Director, Information Management, Current and former Office of the Information in this system is Office of the Director of National Director of National Intelligence (ODNI) safeguarded in accordance with Intelligence, Washington, DC 20511. staff and staff of the Intelligence recommended and/or prescribed Regulations governing access to one’s Community (IC) elements, including administrative, physical, and technical records or for appealing an initial military and civilian personnel detailed safeguards. Records are maintained in a determination concerning access to to the ODNI or IC elements; contract secure government facility with access records are contained in the ODNI employees, including personal services to the facility limited to authorized regulation implementing the Privacy independent contractors and industrial personnel only and authorized and Act. contractors; and members of the public. escorted visitors. Physical security protections include guards and locked CONTESTING RECORD PROCEDURES: CATEGORIES OF RECORDS IN THE SYSTEM: facilities requiring badges and As specified below, records in this Records alleging violations of civil passwords for access. Records are system are exempt from certain liberties or privacy arising from the accessed only by authorized government notification, access, and amendment programs and activities of the ODNI or personnel holding appropriate security procedures. Individuals seeking to any of the IC elements; and records of clearances and whose official duties correct or amend non-exempt records review, investigation, acknowledgment require access to the records. should address their requests to the or disposition of allegations received. Communications are encrypted where ODNI at the address and according to

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the requirements set forth above under AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RETENTION AND DISPOSAL: the heading ‘‘Record Access The National Security Act of 1947, as Pursuant to 44 U.S.C. 3303a(d) and 36 Procedures.’’ Regulations governing amended, 50 U.S.C. 401–442; Executive CFR chapter 12, subchapter B, part access to and amendment of one’s Order 12333, as amended (73 FR 45325); 1228– Disposition of Federal Records, records or for appealing an initial Executive Order 12958, as amended (68 records will not be disposed of until determination concerning access or FR 15315); and Executive Order 12968, such time as the National Archives and amendment of records are contained in as amended (73 FR 38103). Records Administration (NARA) the ODNI regulation implementing the approves an applicable ODNI Records Privacy Act. PURPOSE(S): Control Schedule. Records in this system enable the NIC RECORD SOURCE CATEGORIES: to enlist expertise from outside of the IC SYSTEM MANAGER(S) AND ADDRESS: Individuals covered by this system; in furtherance of its responsibility to Director, Plans and Production, records generated by ODNI CLPO produce strategic intelligence products. National Intelligence Council, c/o personnel in reviewing and addressing Director, Information Management, ROUTINE USES OF RECORDS MAINTAINED IN THE complaints. Office of the Director of National SYSTEM, INCLUDING CATEGORIES OF USERS AND Intelligence, Washington, DC 20511. THE PURPOSES OF SUCH USES: EXEMPTIONS CLAIMED FOR THE SYSTEM: NOTIFICATION PROCEDURE: Records contained in this System of See General Routine Uses Applicable As specified below, records in this Records may be exempted from the to More than One ODNI Privacy Act system are exempt from certain requirements of subsections (c)(3); System of Records, Subpart C of ODNI’s notification, access, and amendment (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), Privacy Act Regulation published at 32 procedures. Individuals seeking to learn (H), (I); and (f) of the Privacy Act CFR part 1701 (73 FR 16531, 16541) and whether this system contains non- pursuant to 5 U.S.C. 552a(k)(1), (k)(2), incorporated by reference (see also exempt information about them should and (k)(5). Records may be exempted http://www.dni.gov). address inquiries to the ODNI at the from these subsections or additionally, DISCLOSURE TO CONSUMER REPORTING address and according to the from the requirements of subsections AGENCIES: requirements set forth below under the (c)(4); (e)(2), (3), (5), (8), (12); and (g) of None. heading ‘‘Record Access Procedures.’’ the Privacy Act consistent with any exemptions claimed under 5 U.S.C. POLICIES AND PRACTICES FOR STORING, RECORD ACCESS PROCEDURES: RETRIEVING, ACCESSING, RETAINING, AND 552a(j) or (k) by the originator of the As specified below, records in this DISPOSING OF RECORDS IN THE SYSTEM: record, provided the reason for the system have been exempted from exemption remains valid and necessary. STORAGE: certain notification, access, and SYSTEM NAME: Paper records are stored in secured amendment procedures. A request for areas within ODNI facilities. Electronic access to non-exempt records shall be National Intelligence Council (NIC) records are stored in secure file-servers made in writing with the envelope and Consultation Records (ODNI–15). located within ODNI facilities. letter clearly marked ‘‘Privacy Act Request.’’ Requesters shall provide their SECURITY CLASSIFICATION: RETRIEVABILITY: full name and complete address. The The classification of records in this By name or other key word. requester must sign the request and system can range from UNCLASSIFIED Information may be retrieved from this have it verified by a notary public. to TOP SECRET. system of records by automated or hand Alternately, the request may be search based on indices and automated submitted under 28 U.S.C. 1746, SYSTEM LOCATION: capabilities utilized in the normal certifying the requester’s identity and Office of the Director of National course of business. understanding that obtaining a record Intelligence, Washington, DC 20511. under false pretenses constitutes a SAFEGUARDS: criminal offense. Requests for access to CATEGORIES OF INDIVIDUALS COVERED BY THE Information in this system is information must be addressed to the SYSTEM: safeguarded in accordance with Director, Information Management, U.S. Government personnel and recommended and/or prescribed Office of the Director of National personal services independent administrative, physical, and technical Intelligence, Washington, DC 20511. contractors and industrial contractors, safeguards. Records are maintained in a Regulations governing access to one’s or others who serve in liaison or secure government facility with access records or for appealing an initial contractual relationships with the to the facility limited to authorized determination concerning access to National Intelligence Council (NIC) or personnel only and authorized and records are contained in the ODNI with Intelligence Community (IC) escorted visitors. Physical security regulation implementing the Privacy elements; individuals in academia and protections include guards and locked Act. the private sector with expertise on facilities requiring badges and matters of intelligence interest to the passwords for access. Records are CONTESTING RECORD PROCEDURES: NIC. accessed only by authorized government As specified below, records in this personnel and contractors holding system are exempt from certain CATEGORIES OF RECORDS IN THE SYSTEM: appropriate security clearances and notification, access, and amendment Records in this system include whose official duties require access to procedures. Individuals seeking to biographic, administrative, and contact the records. Communications are correct or amend non-exempt records information for individuals covered by encrypted where required and other should address their requests to the the system; records about intelligence safeguards are in place to monitor and ODNI at the address and according to products and activities in which audit access and to detect intrusions. the requirements set forth above under covered individuals collaborated or System backup is maintained the heading ‘‘Record Access participated. separately. Procedures.’’ Regulations governing

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access to and amendment of one’s reactor events are reportable as they cautions you against including any records or for appealing an initial occur. information in your submission that you determination concerning access or 4. Who is required or asked to report: do not want to be publicly disclosed. amendment of records are contained in Holders of operating licenses for Comments submitted should reference the ODNI regulation implementing the commercial nuclear power plants. Docket No. NRC–2010–0119. You may Privacy Act. 5. The number of annual respondents: submit your comments by any of the 104. following methods. Electronic RECORD SOURCE CATEGORIES: 6. The number of hours needed comments: Go to http:// Individuals covered by this system; annually to complete the requirement or www.regulations.gov and search for U.S. Government employees, agencies request: 32,000 (25,600 reporting + Docket No. NRC–2010–0119. Mail and organizations; private sector 6,400 recordkeeping). This is estimated comments to NRC Clearance Officer, entities, academia, media, libraries and to be 80 hours for each of 400 reports Tremaine U. Donnell (T–5 F53), U.S. commercial databases. annually. Nuclear Regulatory Commission, 7. Abstract: With NRC Forms 366, EXEMPTIONS CLAIMED FOR THE SYSTEM: Washington, DC 20555–0001. Questions 366A, and 366B, the NRC collects about the information collection Records contained in this System of reports of the types of reactor events and requirements may be directed to the Records may be exempted from the problems that are believed to be NRC Clearance Officer, Tremaine U. requirements of subsections (c)(3); significant and useful to the NRC in its Donnell (T–5 F53), U.S. Nuclear (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G), efforts to identify and resolve possible Regulatory Commission, Washington, (H), (I); and (f) of the Privacy Act threats to the public health and safety, DC 20555–0001, by telephone at 301– pursuant to 5 U.S.C. 552a(k)(1). Records or to the environment. The information 415–6258, or by e-mail to may be exempted from these reported on NRC Forms 366, 366A, and [email protected]. subsections or, additionally, from the 366B is used by the NRC to confirm requirements of subsections (c)(4); licensing bases, study potentially Dated at Rockville, Maryland, this 25th day of March 2010. (e)(2), (3), (5), (8), (12); and (g) of the generic safety problems, assess trends Privacy Act consistent with any and patterns of operating experience, For the Nuclear Regulatory Commission. exemptions claimed under 5 U.S.C. monitor performance, identify Tremaine Donnell, 552a(j) or (k) by the originator of the precursors of more significant events, NRC Clearance Officer, Office of Information record, provided the reason for the and provide operating experience Services. exemption remains valid and necessary. feedback to the industry. These forms [FR Doc. 2010–7476 Filed 4–1–10; 8:45 am] [FR Doc. 2010–7535 Filed 4–1–10; 8:45 am] are designed to provide the information BILLING CODE 7590–01–P BILLING CODE P necessary for engineering studies of operational anomalies and trends and patterns analysis of abnormal NUCLEAR REGULATORY occurrences. The same information is COMMISSION NUCLEAR REGULATORY used for other analytic procedures that COMMISSION [Docket No. NRC–2010–0139] aid in identifying accident precursors. [Docket No. NRC–2010–0119] Submit, by June 1, 2010, comments Agency Information Collection that address the following questions: Activities: Proposed Collection; Agency Information Collection 1. Is the proposed collection of Comment Request Activities: Proposed Collection; information necessary for the NRC to Comment Request properly perform its functions? Does the AGENCY: U.S. Nuclear Regulatory information have practical utility? Commission (NRC). AGENCY: U. S. Nuclear Regulatory 2. Is the burden estimate accurate? ACTION: Notice of pending NRC action to Commission (NRC). 3. Is there a way to enhance the submit an information collection ACTION: Notice of pending NRC action to quality, utility, and clarity of the request to the Office of Management and submit an information collection information to be collected? Budget (OMB) and solicitation of public request to the Office of Management and 4. How can the burden of the comment. Budget (OMB) and solicitation of public information collection be minimized, comment. including the use of automated SUMMARY: The NRC invites public collection techniques or other forms of comment about our intention to request SUMMARY: The NRC invites public information technology? the OMB’s approval for renewal of an comment about our intention to request A copy of the draft supporting existing information collection that is the OMB’s approval for renewal of an statement may be viewed free of charge summarized below. We are required to existing information collection that is at the NRC Public Document Room, One publish this notice in the Federal summarized below. We are required to White Flint North, 11555 Rockville Register under the provisions of the publish this notice in the Federal Pike, Room O–1 F21, Rockville, MD Paperwork Reduction Act of 1995 (44 Register under the provisions of the 20852. OMB clearance requests are U.S.C. Chapter 35). Paperwork Reduction Act of 1995 (44 available at the NRC World Wide Web Information pertaining to the U.S.C. Chapter 35). site: http://www.nrc.gov/public-involve/ requirement to be submitted: Information pertaining to the doc-comment/omb/index.html. The 1. The title of the information requirement to be submitted: document will be available on the NRC collection: 10 CFR Part 11, Criteria and 1. The title of the information home page site for 60 days after the Procedures for Determining Eligibility collection: ‘‘NRC Forms 366, 366A, signature date of this notice. Comments for Access to, or Control Over, Special 366B, ‘Licensee Event Report’ ’’. submitted in writing or in electronic Nuclear Material. 2. Current OMB approval number: form will be made available for public 2. Current OMB approval number: 3150–0104. inspection. Because your comments will 3150–0062. 3. How often the collection is not be edited to remove any identifying 3. How often the collection is required: On occasion, as defined or contact information, the NRC required: On occasion. New

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applications, certifications, and Docket No. NRC–2010–0139. You may enrichment facility, a mandatory amendments may be submitted at any submit your comments by any of the hearing is required. time. Applications for renewal are following methods. Electronic The Board is comprised of the submitted every 5 years. comments: Go to http:// following administrative judges: 4. Who is required or asked to report: www.regulations.gov and search for Alex S. Karlin, Chair, Atomic Safety and Employees (including applicants for Docket No. NRC–2010–0139. Mail Licensing Board Panel, U.S. Nuclear employment), contractors and comments to NRC Clearance Officer, Regulatory Commission, Washington, consultants of NRC licensees and Tremaine Donnell (T–5 F53), U.S. DC 20555–0001; contractors whose activities involve Nuclear Regulatory Commission, Kaye D. Lathrop, Atomic Safety and access to, or control over, special Washington, DC 20555–0001. Questions Licensing Board Panel, U.S. Nuclear nuclear material at either fixed sites or about the information collection Regulatory Commission, Washington, for transportation activities. requirements may be directed to the DC 20555–0001; 5. The number of annual respondents: NRC Clearance Officer, Tremaine Craig M. White, Atomic Safety and 5 NRC licensees. Donnell (T–5 F53), U.S. Nuclear Licensing Board Panel, U.S. Nuclear 6. The number of hours needed Regulatory Commission, Washington, Regulatory Commission, Washington, annually to complete the requirement or DC 20555–0001, by telephone at 301– DC 20555–0001. request: 1.25 hours (approximately 0.25 415–6258, or by e-mail to All correspondence, documents, and hours annually per response). [email protected]. other materials shall be filed in 7. Abstract: NRC regulations in 10 accordance with the NRC E-Filing rule, CFR Part 11 establish requirements for Dated at Rockville, Maryland, this 26th day of March 2010. which the NRC promulgated in August access to special nuclear material, and 2007 (72 FR 49,139). the criteria and procedures for resolving For the Nuclear Regulatory Commission. questions concerning the eligibility of Tremaine Donnell, Issued at Rockville, Maryland, this 26th day of March 2010. individuals to receive special nuclear NRC Clearance Officer, Office of Information material access authorization. Personal Services. E. Roy Hawkens, history information which is submitted [FR Doc. 2010–7478 Filed 4–1–10; 8:45 am] Chief Administrative Judge, Atomic Safety on applicants for relevant jobs is BILLING CODE 7590–01–P and Licensing Board Panel. provided to the Office of Personnel [FR Doc. 2010–7457 Filed 4–1–10; 8:45 am] Management (OPM), which conducts BILLING CODE 7590–01–P investigations. NRC reviews the results NUCLEAR REGULATORY of these investigations and makes COMMISSION NUCLEAR REGULATORY determinations of the eligibility of the [Docket No. 70–7015–ML; ASLBP No. 10– applicants for access authorization. 899–02–ML–BD01] COMMISSION Submit, by June 1, 2010, comments [Docket No. 50–255; NRC–2010–0127] that address the following questions: Areva Enrichment Services, LLC; 1. Is the proposed collection of Establishment of Atomic Safety and Entergy Nuclear Operations, LLC; information necessary for the NRC to Licensing Board Palisades Nuclear Plant; Exemption properly perform its functions? Does the Pursuant to delegation by the 1.0 Background information have practical utility? Commission dated December 29, 1972, 2. Is the burden estimate accurate? Entergy Nuclear Operations, LLC 3. Is there a way to enhance the published in the Federal Register, 37 FR 28,710 (1972), and the Commission’s (ENO) (the licensee) is the holder of quality, utility, and clarity of the Facility Operating License No. DPR–20, information to be collected? regulations, see 10 CFR 2.104, 2.105, 2.300, 2.309, 2.313, 2.318, and 2.321, which authorizes operation of Palisades 4. How can the burden of the Nuclear Plant (PNP). The license information collection be minimized, notice is hereby given that an Atomic Safety and Licensing Board (Board) is provides, among other things, that the including the use of automated facility is subject to all rules, collection techniques or other forms of being established to preside over the following proceeding: regulations, and orders of the U.S. information technology? Nuclear Regulatory Commission (NRC, A copy of the draft supporting Areva Enrichment Services, LLC the Commission) now or hereafter in statement may be viewed free of charge (Eagle Rock Enrichment Facility) effect. at the NRC Public Document Room, One The facility consists of one White Flint North, 11555 Rockville This Board is being established pressurized-water reactor located in Van Pike, Room O–1 F21, Rockville, MD pursuant to a Notice of Hearing and Buren County, Michigan. 20852. OMB clearance requests are Commission Order regarding the available at the NRC worldwide Web application of Areva Enrichment 2.0 Request/Action site: http://www.nrc.gov/public-involve/ Services, LLC for a license to possess Title 10 of the Code of Federal doc-comment/omb/index.html. The and use source, byproduct, and special Regulations (10 CFR) part 73, ‘‘Physical document will be available on the NRC nuclear material and to enrich natural protection of plants and materials,’’ home page site for 60 days after the uranium to a maximum of 5 percent by section 73.55, ‘‘Requirements for signature date of this notice. Comments the gas centrifuge process at a proposed physical protection of licensed activities submitted in writing or in electronic plant to be known as the Eagle Rock in nuclear power reactors against form will be made available for public Enrichment Facility that would be radiological sabotage,’’ published March inspection. Because your comments will located in Bonneville County, Idaho. 27, 2009, effective May 26, 2009, with not be edited to remove any identifying See 74 FR 38,052 (July 30, 2009). No a full implementation date of March 31, or contact information, the NRC request for hearing or petition to 2010, requires licensees to protect, with cautions you against including any intervention has been received in high assurance, against radiological information in your submission that you response to the notice in the Federal sabotage by designing and do not want to be publicly disclosed. Register. Because Areva is seeking implementing comprehensive site Comments submitted should reference authorization to construct a uranium security programs. The amendments to

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10 CFR 73.55 published on March 27, endanger life or property or the common March 31, 2010, deadline and why, the 2009, establish and update generically defense and security, and are otherwise required changes to the site’s security applicable security requirements similar in the public interest. configuration, and a timeline with to those previously imposed by NRC approval of this exemption ‘‘critical path’’ activities that would Commission orders issued after the request, as noted above, would allow an enable the licensee to achieve full terrorist attacks of September 11, 2001, extension from March 31, 2010, to compliance by August 31, 2010. The and implemented by licensees. In August 31, 2010, for the implementation timeline provides dates indicating when addition, the amendments to 10 CFR date for three specified areas of the new (1) construction will begin on various 73.55 include additional requirements rule. The NRC staff has determined that phases of the project (i.e., new buildings to further enhance site security based granting of the licensee’s proposed and fences), and (2) critical equipment upon insights gained from exemption would not result in a will be installed, tested and become implementation of the post-September violation of the Atomic Energy Act of operational. 11, 2001, security orders. It is from three 1954, as amended, or the Commission’s Notwithstanding the schedule of these new requirements that ENO regulations. Therefore, the exemption is exemptions of these limited now seeks an exemption from the March authorized by law. requirements, the licensee indicated 31, 2010, implementation date. All other In the draft final power reactor that it will continue to be in compliance physical security requirements security rule provided to the with all other applicable physical established by this recent rulemaking Commission, the NRC staff proposed security requirements as described in 10 have already been or will be that the requirements of the new CFR 73.55 and reflected in its current implemented by the licensee by March regulation be met within 180 days. The NRC-approved physical security 31, 2010. Commission directed a change from 180 program. By August 31, 2010, the By letter dated January 14, 2010, days to approximately 1 year for licensee also stated that PNP will be in (inadvertently dated January 14, 2009), licensees to fully implement the new full compliance with the regulatory as supplemented by letter dated requirements. This change was requirements of 10 CFR 73.55, as issued February 16, 2010, the licensee incorporated into the final rule. From on March 27, 2009. requested an exemption in accordance this, it is clear that the Commission 4.0 Conclusion for Part 73 Schedule with 10 CFR 73.5, ‘‘Specific wanted to provide a reasonable Exemption Request exemptions.’’ The licensee’s January 14, timeframe for licensees to achieve full 2010, and February 16, 2010, letters, compliance. The NRC staff has reviewed the have certain portions which contain As noted in the final rule, the licensee’s submittals and concludes that security-related information and, Commission also anticipated that the ENO has provided adequate accordingly, are not available to the licensees would have to conduct site- justification for its request for an public. The licensee has requested an specific analyses to determine what extension of the compliance date to exemption from the March 31, 2010, changes were necessary to implement August 31, 2010, with regard to three compliance date stating that it must the rule’s requirements, and that any specified requirements of 10 CFR 73.55. complete a number of significant such changes could be accomplished Accordingly, the Commission has modifications to the current site security through a variety of licensing determined that pursuant to 10 CFR configuration before all requirements mechanisms, including exemptions. 73.5, ‘‘Specific exemptions,’’ an can be met. Specifically, the request is Since issuance of the final rule, the exemption from the March 31, 2010, to extend the compliance date for three Commission has rejected a generic compliance date is authorized by law requirements that would be in place by industry request to extend the rule’s and will not endanger life or property or August 31, 2010, versus the March 31, compliance date for all operating the common defense and security, and 2010, deadline. Being granted this nuclear power plants, but noted that the is otherwise in the public interest. exemption for the three requirements Commission’s regulations provide Therefore, the Commission hereby would allow the licensee to complete mechanisms for individual licensees, grants the requested exemption. the modifications designed to update with good cause, to apply for relief from The NRC staff has determined that the aging equipment and incorporate state- the compliance date (Reference: June 4, long-term benefits that will be realized of-the-art technology to meet or exceed 2009, letter, from R. W. Borchardt, NRC, when the PNP modifications are the noted regulatory requirements. to M. S. Fertel, Nuclear Energy completed justifies exceeding the full Institute). The licensee’s request for an compliance date in the case of this 3.0 Discussion of Part 73 Schedule exemption is therefore consistent with particular licensee. The security Exemptions From the March 31, 2010, the approach set forth by the measures PNP needs additional time to Full Implementation Date Commission and discussed in the June implement are new requirements Pursuant to 10 CFR 73.55(a)(1), ‘‘By 4, 2009, letter. imposed by March 27, 2009, March 31, 2010, each nuclear power amendments to 10 CFR 73.55, and are reactor licensee, licensed under 10 CFR ENO Schedule Exemption Request in addition to those currently required part 50, shall implement the The licensee provided detailed by the security orders issued in requirements of this section through its information in Attachments 1, 2, and 3 response to the events of September 11, Commission-approved Physical Security of its supplemental submittal to its 2001. Therefore, the NRC concludes that Plan, Training and Qualification Plan, January 14, 2010, letter, requesting an the licensee’s actions are in the best Safeguards Contingency Plan, and Cyber exemption. It describes a interest of protecting the public health Security Plan referred to collectively comprehensive plan which provides a and safety through the security changes hereafter as ‘security plans.’ ’’ Pursuant timeline for achieving full compliance that will result from granting this to 10 CFR 73.5, the Commission may, with the new regulation. Attachments 1, exemption. upon application by any interested 2, and 3 contain security-related As per the licensee’s request and the person or upon its own initiative, grant information regarding the site security NRC’s regulatory authority to grant an exemptions from the requirements of 10 plan, details of the specific exemption from the March 31, 2010, CFR part 73 when the exemptions are requirements of the regulation for which deadline for the three requirements authorized by law, and will not the site cannot be in compliance by the specified in Attachments 1, 2, and 3 of

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the ENO letter dated January 14, 2010, sabotage by designing and person or upon its own initiative, grant supplemented by letter dated February implementing comprehensive site exemptions from the requirements of 10 16, 2010, the licensee is required to be security plans. The amendments to 10 CFR Part 73 when the exemptions are in full compliance by August 31, 2010. CFR 73.55 published on March 27, authorized by law, and will not In achieving compliance, the licensee is 2009, establish and update generically endanger life or property or the common reminded that it is responsible for applicable security requirements similar defense and security, and are otherwise determining the appropriate licensing to those previously imposed by in the public interest. mechanism (i.e., 10 CFR 50.54(p) or 10 Commission orders issued after the NRC approval of these exemptions CFR 50.90) for incorporation of all terrorist attacks of September 11, 2001, would, as noted above, allow an necessary changes to its security plans. and implemented by licensees. In extension from March 31, 2010, until Pursuant to 10 CFR 51.32, ‘‘Finding of addition, the amendments to 10 CFR December 20, 2010, for compliance with no significant impact,’’ the Commission 73.55 include additional requirements the new rule in two specific areas. As has previously determined that the to further enhance site security based stated above, 10 CFR 73.5 allows the granting of this exemption will not have upon insights gained from NRC to grant exemptions from the a significant effect on the quality of the implementation of the post-September requirements of 10 CFR 73. The NRC human environment [75 FR 14473; 11, 2001, security orders. It is from two staff has determined that granting of the dated March 25, 2010]. of these new requirements that BSEP licensee’s proposed exemptions would This exemption is effective upon now seeks an exemption from the March not result in a violation of the Atomic issuance. 31, 2010, implementation date. All other Energy Act of 1954, as amended, or the Commission’s regulations. Therefore, Dated at Rockville, Maryland, this 25th day physical security requirements of March 2010. established by this recent rulemaking the exemptions are authorized by law. have already been or will be In the draft final power reactor For the Nuclear Regulatory Commission. implemented by the licensee by March security rule provided to the Joseph G. Giitter, 31, 2010. Commission, the NRC staff proposed Director, Division of Operating Reactor By letter dated November 30, 2009 that the requirements of the new Licensing, Office of Nuclear Reactor (Agencywide Documents Access and regulation be met within 180 days. The Regulation. Management System Accession No. Commission directed a change from 180 [FR Doc. 2010–7449 Filed 4–1–10; 8:45 am] ML093370132), the licensee requested days to approximately 1 year for BILLING CODE 7590–01–P exemptions in accordance with 10 CFR licensees to fully implement the new 73.5, ‘‘Specific exemptions.’’ Attachment requirements. This change was 1 to the licensee’s November 30, 2009, incorporated into the final rule. From NUCLEAR REGULATORY letter contains security-related this, it is clear that the Commission COMMISSION information and, accordingly is not wanted to provide a reasonable [Docket Nos. 50–325 and 50–324; NRC– available to the public. The licensee has timeframe for licensees to achieve full 2010–0066] requested exemptions from the March compliance. 31, 2010, compliance date stating that it As noted in the final rule, the Carolina Power & Light Company, must complete a number of significant Commission also anticipated that Brunswick Steam Electric Plant, Units modifications to the current site security licensees would have to conduct site- 1 and 2; Exemption configuration before all requirements specific analyses to determine what can be met. Specifically, the request is changes were necessary to implement 1.0 Background to extend the compliance date for two the rule’s requirements, and that Carolina Power & Light Company specific requirements of the new rule changes could be accomplished through (CP&L, the licensee) is the holder of from the current March 31, 2010, a variety of licensing mechanisms, Facility Operating Renewed License deadline to December 20, 2010. Being including exemptions. Since issuance of Nos. DPR–71 and DPR–62, which granted this exemption for the two items the final rule, the Commission has authorize operation of the Brunswick would allow the licensee to complete rejected an industry generic request to Steam Electric Plant (BSEP), Units 1 and changes to the BSEP security systems extend the rule’s compliance date for all 2. The licenses provide, among other that include infrastructure upgrades, operating nuclear power plants, but things, that the facility is subject to all modification and installation of the noted that the Commission’s regulations rules, regulations, and orders of the U.S. security system equipment, and provide mechanisms for individual Nuclear Regulatory Commission (NRC, construction of new facilities to support licensees, with good cause, to apply for the Commission) now or hereafter in the new physical protection program relief from the compliance date effect. requirements. (Reference: June 4, 2009, letter from R. The facility consists of two boiling W. Borchardt, NRC, to M. S. Fertel, 3.0 Discussion of Part 73 Schedule water reactors located in Brunswick Nuclear Energy Institute). The licensee’s Exemptions From the March 31, 2010, County, North Carolina. request for exemptions is therefore Full Implementation Date 2.0 Request/Action consistent with the approach set forth Pursuant to 10 CFR 73.55(a)(1), ‘‘By by the Commission and discussed in the Title 10 of the Code of Federal March 31, 2010, each nuclear power June 4, 2009, letter. Regulations (10 CFR) Part 73, ‘‘Physical reactor licensee, licensed under 10 CFR protection of plants and materials,’’ Part 50, shall implement the Brunswick Schedule Exemption Request Section 73.55, ‘‘Requirements for requirements of this section through its The licensee provided detailed physical protection of licensed activities Commission-approved Physical Security information in Attachment 1 of the in nuclear power reactors against Plan, Training and Qualification Plan, CP&L letter dated November 30, 2009, radiological sabotage,’’ published March Safeguards Contingency Plan, and Cyber requesting exemptions. It describes a 27, 2009, effective May 26, 2009, with Security Plan referred to collectively comprehensive plan for upgrade and a full implementation date of March 31, hereafter as ‘security plans.’ ’’ Pursuant installation of equipment, infrastructure 2010, requires licensees to protect, with to 10 CFR 73.5, the Commission may, upgrades, and construction of new high assurance, against radiological upon application by any interested facilities to support the physical

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protection program and provides a modifications and the issues and has previously determined that the timeline for achieving full compliance challenges identified and; is consistent granting of this exemption will not have with the new regulation. These plant with the licensee’s requested a significant effect on the quality of the modifications are significant in scope compliance date. human environment (75 FR 8753, involving the construction of new Notwithstanding the schedule February 25, 2010). facilities, extensive design and exemptions for these limited This exemption is effective upon procurement efforts, and work with high requirements, the licensee will continue issuance. voltage cabling and the personnel safety to be in compliance with all other Dated at Rockville, Maryland, this 25th day risk associated with such work. These applicable physical security of March 2010. modifications warrant a thorough requirements as described in 10 CFR For the Nuclear Regulatory Commission. review of the safety-security interface 73.55 and reflected in its current NRC- and must be coordinated with BSEP approved physical security program. By Joseph G. Giitter, Unit 1 refueling outage in spring 2010. December 20, 2010, BSEP Units 1 and Director, Division of Operating Reactor All of these efforts require careful 2 will be in full compliance with all the Licensing, Office of Nuclear Reactor Regulation. design, planning, procurement, and regulatory requirements of 10 CFR implementation efforts. Attachment 1 of 73.55, as issued on March 27, 2009. [FR Doc. 2010–7470 Filed 4–1–10; 8:45 am] BILLING CODE 7590–01–P the November 30, 2009, letter contains 4.0 Conclusion for Part 73 Schedule security-related information regarding Exemption Request the site security plan, details of specific NUCLEAR REGULATORY portions of the regulation of which the The NRC staff has reviewed the site will not be in compliance by the licensee’s submittals and concludes that COMMISSION March 31, 2010, deadline, changes to the licensee has provided adequate [Docket Nos. 50–003, 50–247 and 50–286; the site’s security configuration to meet justification for its request for an NRC–2010–0137] the new requirements, and a timeline extension of the compliance date with (Project Schedule Milestones) with regard to two specified requirements of Indian Point Nuclear Generating Unit critical path activities for the licensee to 10 CFR 73.55 until December 20, 2010. Nos. 1, 2, and 3; Exemption Accordingly, the Commission has achieve full compliance by December 1.0 Background 20, 2010. The timeline provides dates determined that pursuant to 10 CFR indicating when (1) design activities are 73.5, exemption from the March 31, Entergy Nuclear Operations, Inc. (the completed and approved, (2) the outage 2010, compliance date is authorized by licensee) is the holder of Facility is scheduled for BSEP Unit 1, (3) law and will not endanger life or Operating License Nos. DPR–5, DPR–26, construction of a new Security Electrical property or the common defense and and DPR–64, which authorize operation Equipment Building begins and is security, and is otherwise in the public of the Indian Point Nuclear Generating completed, and (4) the new and interest. Therefore, the Commission Unit Nos. 1, 2, and 3 (IP1, IP2, and IP3). relocated equipment is installed and hereby grants the requested exemptions. The licenses provide, among other tested. The long-term benefits that will be things, that the facilities are subject to The licensee has provided an realized when these projects are all rules, regulations, and orders of the adequate basis for the exemption complete justify extending the March Nuclear Regulatory Commission (NRC, request. CP&L identified the physical 31, 2010, full compliance date with the Commission) now or hereafter in protection program components for regard to the specific requirements of 10 effect. which modifications are needed, the CFR 73.55 for this particular licensee. The facilities consist of one types of modifications and upgrades The security measures that BSEP needs permanently shut down reactor and two needed, as well as construction, additional time to implement are new operating pressurized-water reactors engineering, safety, and infrastructure requirements imposed by March 27, located in Westchester County in New considerations which impact the final 2009, amendments to 10 CFR 73.55, and York State. are in addition to those required by the compliance date requested. The 2.0 Request/Action required modifications must be security orders issued in response to the completed in sequence to support all events of September 11, 2001. Title 10 of the Code of Federal program upgrades being performed. The Therefore, it is concluded that the Regulations (10 CFR) Part 73, schedule provided by the licensee in licensee’s actions are in the best interest ‘‘PHYSICAL PROTECTION OF PLANTS this request outlines the specific tasks of protecting the public health and AND MATERIALS,’’ Section 73.55, required at BSEP and shows the safety through the security changes that ‘‘Requirements for physical protection of sequential order in which work must will result from granting this exemption. licensed activities in nuclear power proceed with associated dates that As per the licensee’s request and the reactors against radiological sabotage,’’ support the requested new compliance NRC’s regulatory authority to grant published March 27, 2009, effective date. exemptions to the March 31, 2010, May 26, 2009, with a full The site-specific information deadline for the two items specified in implementation date of March 31, 2010, provided within the BSEP exemption Attachment 1 of CP&L letter dated requires licensees to protect, with high request is relative to the requirements November 30, 2009, the licensee is assurance, against radiological sabotage from which the licensee requested required to be in full compliance with by designing and implementing exemption and demonstrates the need 10 CFR 73.55 by December 20, 2010. In comprehensive site security programs. for modification to meet the two specific achieving compliance, the licensee is The amendments to 10 CFR 73.55 requirements of 10 CFR 73.55. The reminded that it is responsible for published on March 27, 2009, establish proposed implementation schedule determining the appropriate licensing and update generically applicable depicts the critical activity milestones of mechanism (i.e., 10 CFR 50.54(p) or 10 security requirements similar to those the security system upgrades; is CFR 50.90) for incorporation of all previously imposed by Commission consistent with the licensee’s solution necessary changes to its security plans. Orders issued after the terrorist attacks for meeting the requirements; is Pursuant to 10 CFR 51.32, ‘‘Finding of of September 11, 2001, and consistent with the scope of the no significant impact,’’ the Commission implemented by licensees. In addition,

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the amendments to 10 CFR 73.55 endanger life or property or the common security-related information regarding include additional requirements to defense and security, and are otherwise the site security plan, (2) details of further enhance site security based upon in the public interest. specific portions of the regulation for insights gained from implementation of This exemption would, as noted which the site cannot be in compliance the post-September 11, 2001, security above, allow an extension of compliance by the March 31, 2010, deadline and the Orders. It is from four of these new with the new rule from March 31, 2010, reasons therefore, (3) the required requirements that IP1, IP2, and IP3 now until February 17, 2011, in four specific changes to the site’s security seek an exemption from the March 31, areas. As stated above, 10 CFR 73.5 configuration, and (4) a timeline with 2010, implementation date. All other allows the NRC to grant exemptions critical path activities that would enable physical security requirements from the requirements of 10 CFR Part the licensee to achieve full compliance established by this recent rulemaking 73. The NRC staff has determined that by February 17, 2011. The timeline have already been or will be granting the licensee’s proposed provides dates indicating when implemented by the licensee by March exemption would not result in a construction will begin on various 31, 2010. violation of the Atomic Energy Act of phases of the project and when critical By letter dated January 28, 2010, as 1954, as amended, or the Commission’s equipment will be ordered, installed, supplemented by letter dated March 8, regulations. Therefore, the exemption is tested and become operational. 2010, the licensee requested an authorized by law. Notwithstanding the scheduler exemption in accordance with 10 CFR In the draft final power reactor exemptions for these limited 73.5, ‘‘Specific exemptions.’’ Portions of security rule provided to the requirements, the licensee will continue the licensee’s letter dated January 28, Commission, the NRC staff proposed to be in compliance with all other 2010, contain security-related that the requirements of the new applicable physical security information and, accordingly, are regulation be met within 180 days. The requirements as described in 10 CFR withheld from public disclosure in Commission directed a change from 180 73.55 and reflected in its current NRC- accordance with 10 CFR 2.390(d)(1). days to approximately 1 year for approved physical security program. By The licensee’s supplemental letter dated licensees to fully implement the new February 17, 2011, IP1, IP2, and IP3 will March 8, 2010, is withheld in its requirements. This change was be in full compliance with all the entirety as security-related information incorporated into the final rule. From regulatory requirements of 10 CFR in accordance with 10 CFR 2.390(d)(1). this, it is clear that the Commission 73.55, as issued on March 27, 2009. The licensee has requested an wanted to provide a reasonable 4.0 Conclusion for Part 73 Schedule exemption from the March 31, 2010, timeframe for licensees to reach full Exemption Request compliance date stating that due to compliance. design, procurement, and installation As noted in the final rule, the The NRC staff reviewed the licensee’s activities, and in consideration of Commission also anticipated that submittals and concludes that the impediments to construction such as licensees would have to conduct site- licensee has justified its request for an winter weather conditions and specific analyses to determine what extension of the compliance date with equipment delivery schedules, changes were necessary to implement regard to four specific requirements of completion of some of the activities to the requirements of the rule, and that 10 CFR 73.55 until February 17, 2011. facilitate compliance with 10 CFR 73.55 changes could be accomplished through Accordingly, the Commission has will require additional time beyond a variety of licensing mechanisms, determined that pursuant to 10 CFR March 31, 2010, before all requirements including exemptions. Since issuance of 73.5, ‘‘Specific exemptions,’’ an can be met. Specifically, the request is the final rule, the Commission has exemption from the March 31, 2010, to extend the compliance date for four rejected a request to generically extend compliance date is authorized by law specific requirements from the current the rule’s compliance date for all and will not endanger life or property or March 31, 2010, deadline to February operating nuclear power plants, but the common defense and security, and 17, 2011. Being granted this exemption noted that the Commission’s regulations is otherwise in the public interest. for the four items would allow the provide mechanisms for individual Therefore, the Commission hereby licensee to complete the modifications licensees, with good cause, to apply for grants the requested exemption. designed to meet the new regulatory relief from the compliance date The NRC staff has determined that the requirements. (Reference: June 4, 2009, letter from R. long-term benefits that will be realized W. Borchardt, NRC, to M. S. Fertel, when the design, procurement, and 3.0 Discussion of Part 73 Schedule Nuclear Energy Institute). The licensee’s installation activities are complete, Exemptions From the March 31, 2010, request for an exemption is, therefore, justifies extending the full compliance Full Implementation Date consistent with the approach set forth date in the case of this particular Pursuant to 10 CFR 73.55(a)(1), ‘‘By by the Commission and discussed in the licensee. The security measures IP1, IP2, March 31, 2010, each nuclear power June 4, 2009, letter. and IP3 need additional time to reactor licensee, licensed under 10 CFR implement are new requirements Part 50, shall implement the IP1, IP2, and IP3 Schedule Exemption imposed by March 27, 2009, requirements of this section through its Request amendments to 10 CFR 73.55, and are Commission-approved Physical Security The licensee provided detailed in addition to those required by the Plan, Training and Qualification Plan, information in a letter dated January 28, security Orders issued in response to Safeguards Contingency Plan, and Cyber 2010, requesting an exemption, as the events of September 11, 2001. Security Plan referred to collectively supplemented by letter dated March 8, Therefore, the NRC concludes that the hereafter as security plans.’’ Pursuant to 2010. It describes a comprehensive plan licensee’s actions are in the best interest 10 CFR 73.5, the Commission may, to improve certain physical security of protecting the public health and upon application by any interested measures, and provides a timeline for safety through the security changes that person or upon its own initiative, grant achieving full compliance with the new will result from granting this exemption. exemptions from the requirements of 10 regulation. The licensee’s letter dated As per the licensee’s request and the CFR Part 73 when the exemptions are January 28, 2010, as supplemented by NRC’s regulatory authority to grant an authorized by law, and will not letter dated March 8, 2010, contains (1) exemption to the March 31, 2010,

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deadline for the four items specified in Brown (telephone: 301–415–7111, e- experimental product on May 1, 2010. the licensee’s letter dated January 28, mail: [email protected]), five The Postal Service has filed with the 2010, as supplemented by letter dated days prior to the meeting, if possible, so Postal Regulatory Commission a notice March 8, 2010, the licensee is required that appropriate arrangements can be setting out the basis for the Postal to be in full compliance by February 17, made. Thirty-five hard copies of each Service’s determination that the market 2011. In achieving compliance, the presentation or handout should be test is covered by 39 U.S.C. 3641 and licensee is reminded that it is provided to the DFO thirty minutes describing the nature and scope of the responsible for determining the before the meeting. In addition, one market test. Documents are available at appropriate licensing mechanism (i.e., electronic copy of each presentation http://www.prc.gov, Docket No. 10 CFR 50.54(p) or 10 CFR 50.90) for should be emailed to the DFO one day MT2010–1. incorporation of all necessary changes before the meeting. If an electronic copy Stanley F. Mires, to its security plans. cannot be provided within this Pursuant to 10 CFR 51.32, ‘‘Finding of timeframe, presenters should provide Chief Counsel, Legislative. no significant impact,’’ the Commission the DFO with a CD containing each [FR Doc. 2010–7507 Filed 4–1–10; 8:45 am] has previously determined that the presentation at least 30 minutes before BILLING CODE 7710–12–P granting of this exemption will not have the meeting. Electronic recordings will a significant effect on the quality of the be permitted. Detailed procedures for human environment (75 FR 14639; the conduct of and participation in RAILROAD RETIREMENT BOARD dated March 26, 2010). ACRS meetings were published in the This exemption is effective upon Federal Register on October 14, 2009, Proposed Collection; Comment issuance. (74 FR 52829–52830). Request Dated at Rockville, Maryland, this 26th day Detailed meeting agendas and meeting SUMMARY: In accordance with the of March 2010. transcripts are available on the NRC requirement of Section 3506(c)(2)(A) of For the Nuclear Regulatory Commission. Web site at http://www.nrc.gov/reading- the Paperwork Reduction Act of 1995 Joseph G. Giitter, rm/doc-collections/acrs. Information which provides opportunity for public Director, Division of Operating Reactor regarding topics to be discussed, comment on new or revised data Licensing, Office of Nuclear Reactor changes to the agenda, whether the collections, the Railroad Retirement Regulation. meeting has been canceled or Board (RRB) will publish periodic [FR Doc. 2010–7466 Filed 4–1–10; 8:45 am] rescheduled, and the time allotted to summaries of proposed data collections. present oral statements can be obtained BILLING CODE 7590–01–P Comments are invited on: (a) Whether from the website cited above or by the proposed information collection is contacting the identified DFO. necessary for the proper performance of NUCLEAR REGULATORY Moreover, in view of the possibility that the functions of the agency, including COMMISSION the schedule for ACRS meetings may be whether the information has practical adjusted by the Chairman as necessary utility; (b) the accuracy of the RRB’s Advisory Committee on Reactor to facilitate the conduct of the meeting, estimate of the burden of the collection Safeguards (ACRS); Meeting of the persons planning to attend should check of the information; (c) ways to enhance ACRS Subcommittee on Radiation with these references if such the quality, utility, and clarity of the Protection and Nuclear Materials; rescheduling would result in major information to be collected; and (d) Notice of Meeting inconvenience. ways to minimize the burden related to The ACRS Subcommittee on Dated: March 29, 2010. the collection of information on Radiation Protection and Nuclear Antonio F. Dias, respondents, including the use of Materials will hold a meeting on April Branch Chief, Reactor Safety Branch B, automated collection techniques or 21, 2010, Room T2–B3, at 11545 Advisory Committee on Reactor Safeguards. other forms of information technology. Rockville Pike, Rockville, Maryland. [FR Doc. 2010–7455 Filed 4–1–10; 8:45 am] 1. Title and purpose of information The meeting will be open to public BILLING CODE 7590–01–P collection: attendance. RUIA Investigations and Continuing The agenda for the subject meeting Entitlement; OMB 3220–0025. shall be as follows: POSTAL SERVICE Under Section 1(k) of the Railroad Wednesday, April 21, 2010–8:30 a.m.– Unemployment Insurance Act (RUIA), 5 p.m. Market Test of ‘‘Samples Co-Op Box’’ unemployment and sickness benefits are The Subcommittee will review Experimental Product not payable for any day with respect to changes to NUREG–1536, ‘‘Standard which remuneration is payable or TM Review Plan for Spent Fuel Storage AGENCY: Postal Service . accrues to the claimant. Also Section Systems at a General License Facility.’’ ACTION: Notice. 4(a–1) of the RUIA provides that The Subcommittee will hear unemployment or sickness benefits are SUMMARY: The Postal Service gives presentations by and hold discussions not payable for any day the claimant notice of a market test of an with NRC staff and other interested receives the same benefits under any experimental product in accordance persons regarding this matter. The law other than the RUIA. Under with statutory requirements. Subcommittee will gather information, Railroad Retirement Board (RRB) analyze relevant issues and facts, and DATES: April 2, 2010. regulations, 20 CFR 322.4(a), a formulate proposed positions and FOR FURTHER INFORMATION CONTACT: claimant’s certification or statement on actions, as appropriate, for deliberation Nabeel Cheema, 202–268–7178. an RRB provided claim form that he or by the Full Committee. SUPPLEMENTARY INFORMATION: The she did not work on any day claimed Members of the public desiring to United States Postal Service® hereby and did not receive income such as provide oral statements and/or written gives notice pursuant to 39 U.S.C. vacation pay or pay for time lost shall comments should notify the Designated 3641(c)(1) that it will begin a market test constitute sufficient evidence unless Federal Official (DFO), Christopher L. of its ‘‘Samples Co-Op Box’’ there is conflicting evidence. Further,

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under 20 CFR 322.4(b), when there is earnings in the applicable base year. In unemployment or sickness benefits. question raised as to whether or not addition, to qualify for extended or Form UI–9, Applicant’s Statement of remuneration is payable or has accrued accelerated benefits under Section 2 of Employment and Wages, Form UI–23, to a claimant with respect to a claimed the RUIA, a railroad employee who has Claimant’s Statement of Service for day or days, investigation shall be made exhausted his or her rights to normal Railroad Unemployment Insurance with a view to obtaining information benefits must have at least 10 years of Benefits, Form UI–44, Claim for Credit sufficient for a finding. The RRB utilizes railroad service (under certain for Military Service (RUIA), Form ID– the following four forms to obtain conditions, military service may be 4F, Advising of Ineligibility for RUIA information from railroad employers, credited as months of railroad service). Benefits, Form ID–4U, Advising of nonrailroad employers and claimants, Accelerated benefits are unemployment Service/Earnings Requirements for that are needed to determine whether a or sickness benefits that are payable to RUIA Benefits, Form ID–4X, Advising of claimed days or days of unemployment a railroad employee before the regular Service/Earnings Requirements for or sickness were improperly or July 1 beginning date of a benefit year Sickness Benefits, Form ID–4Y, fraudulently claimed: Form ID–5I, Letter if an employee has 10 or more years of Advising of Ineligibility for Sickness to Non-Railroad Employers on service and is not qualified for benefits Benefits, Form ID–20–1, Advising that Employment and Earnings of a in the current benefit year. Normal Unemployment Benefits Are Claimant; Form ID–5R(SUP), Report of During the RUIA claims review About to Be Exhausted, Form ID–20–2, Employees Paid RUIA Benefits for Every process, the RRB may determine that Advising the Normal Sickness Benefits Day in Month Reported as Month of unemployment or sickness benefits Are About to Be Exhausted, and Form cannot be awarded because RRB records Creditable Service; Form ID–49R, Letter ID–20–4, Advising That Normal show insufficient qualifying service to Railroad Employer for Payroll Sickness Benefits Are About to Be and/or compensation. When this occurs, Information; and Form UI–48, Exhausted/Non-Entitlement. the RRB allows the claimant the Claimant’s Statement Regarding Benefit Completion of these forms is required to opportunity to provide additional Claim for Days of Employment. obtain or retain a benefit. One response information if they believe that the RRB is required of each respondent. Completion is voluntary. One response service and compensation records are is requested of each respondent. incorrect. The RRB proposes no changes to any To qualify for unemployment or Depending on the circumstances, the of the forms in the information sickness benefits payable under Section RRB provides the following form(s) to collection. 2 of the Railroad Unemployment obtain information needed to determine The burden associated with the Insurance Act (RUIA), a railroad if a claimant has sufficient service or information collection is estimated as employee must have certain qualifying compensation to qualify for follows:

Completion Form No. Annual time Burden hours responses (Minutes)

ID–5I ...... 9,100 15 2,275 ID–5R(SUP) ...... 1,200 10 200 ID–49R ...... 5 15 3 UI–48 ...... 5 12 1 UI–9 ...... 100 10 8 UI–23 ...... 5 5 50 UI–44 ...... 5 5 1 ID–4F ...... 25 5 2 ID–4U ...... 30 5 3 ID–4X ...... 25 5 2 ID–4Y ...... 5 5 1 ID–20–1 ...... 90 5 8 ID–20–2 ...... 100 5 8 ID–20–4 ...... 5 5 1

Total ...... 10,700 ...... 2,512

2. Title and purpose of information a representative payee are prescribed in capability to manage payments. The collection: 20 CFR part 266. form is completed by the annuitant’s Application to Act as Representative The forms furnished by the RRB to personal physician or by a medical Payee; OMB 3220–0052. apply for representative payee status, officer, if the annuitant is in an institution. It is not required when a Under Section 12 of the Railroad and for securing the information needed court has appointed an individual or Retirement Act, the Railroad Retirement to support the application follow. RRB Board (RRB) may pay benefits to a Form AA–5, Application for institution to manage the annuitant’s representative payee when an employee, Substitution of Payee, obtains funds or, in the absence of such spouse or survivor annuitant is information needed to determine the appointment, when the annuitant is a incompetent or is a minor. A selection of a representative payee who minor. The RRB also provides representative payee may be a court- will serve in the best interest of the representative payees with a booklet at appointed guardian, a statutory beneficiary. RRB Form G–478, the time of their appointment. The conservator or an individual selected by Statement Regarding Patient’s booklet, RRB Form RB–5, Your Duties the RRB. The procedures pertaining to Capability to Manage Payments, obtains as Representative Payee-Representative the appointment and responsibilities of information about an annuitant’s Payee’s Record, advises representative

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payees of their responsibilities under 20 collections, the Railroad Retirement annuitant’s recovery from disability of CFR 266.9 and provides a means for the Board (RRB) will publish periodic work are prescribed in 20 CFR 220.17– representative payee to maintain records summaries of proposed data collections. 220.20. pertaining to the receipt and use of RRB Comments are invited on: (a) Whether In addition, the RRB conducts benefits. The booklet is provided for the the proposed information collection is continuing disability reviews, (also representative payee’s convenience. The necessary for the proper performance of known as a CDR) to determine whether RRB also accepts records that were kept the functions of the agency, including the annuitant continues to meet the by representative payee’s as part of a whether the information has practical disability requirements of the law. common business practice. utility; (b) the accuracy of the RRB’s Payment of disability benefits and/or a Completion is voluntary. One estimate of the burden of the collection beneficiary’s period of disability will response is requested of each of the information; (c) ways to enhance end if medical evidence or other respondent. The RRB is proposing non- the quality, utility, and clarity of the information shows that an annuitant is burden impacting editorial changes to information to be collected; and (d) not disabled under the standards Forms AA–5 and G–478. No changes are ways to minimize the burden related to prescribed in Section 2 of the RRA. proposed for the Booklet RB–5. The the collection of information on Continuing disability reviews are estimated completion time(s) is respondents, including the use of generally conducted if one or more of estimated at 17 minutes for Form AA– automated collection techniques or the following conditions are met: (1) 5, 6 minutes for Form G–478 and 60 other forms of information technology. The annuitant is scheduled for a routine minutes for Booklet RB–5. The RRB Title and purpose of information periodic review, (2) the annuitant estimates that approximately 3,000 collection: Self-Employment/Corporate returns to work and successfully Form AA–5’s, 2,000 Form G–478’s and Officer Work and Earnings Monitoring; completes a trial work period, (3) 15,300 RB–5’s are completed annually. OMB 3220–XXXX(New). substantial earnings are posted to the Additional Information or Comments: Section 2 of the Railroad Retirement annuitant’s wage record, or (4) To request more information or to Act (RRA) provides for the payment of information is received from the obtain a copy of the information disability annuities to qualified annuitant or a reliable source that the collection justification, forms, and/or employees. Section 2 also provides that annuitant has recovered or returned to supporting material, please call the RRB if the Railroad Retirement Board (RRB) work. Provisions relating to when and Clearance Officer at (312) 751–3363 or receives a report of an annuitant how often the RRB conducts disability send an e-mail request to working for a railroad or earning more reviews are prescribed in 20 CFR [email protected]. Comments than prescribed dollar amounts from 220.186. regarding the information collection either nonrailroad employment or self- To enhance program integrity should be addressed to Patricia A. employment, the annuity is no longer activities, the RRB proposes the Henaghan, Railroad Retirement Board, payable, or can be reduced, for the implementation of Form G–252, Self- 844 North Rush Street, Chicago, Illinois months worked. The regulations related Employment/Corporate Officer Work 60611–2092 or send an e-mail to to the nonpayment or reduction of the and Earnings Monitoring. Form G–252 [email protected]. Written annuity by reason of work are will obtain information from a disability comments should be received within 60 prescribed in 20 CFR 220.160–164. annuitant who claims to be self- days of this notice. Some activities claimed by the employed or a corporate officer or who applicant as ‘‘self-employment’’ may the RRB determines to be self-employed Charles Mierzwa, actually be employment for someone or a corporate officer after a continuing RRB Clearance Officer. else (e.g. training officer, consultant, disability review. The continuing [FR Doc. 2010–7468 Filed 4–1–10; 8:45 am] salesman). 20 CFR 216.229(c) states, for disability review may be prompted by a BILLING CODE 7905–01–P example, that an applicant is considered report of work, return to railroad an employee, and not self-employed, service, an allegation of a medical when acting as a corporate officer, since improvement or a routine disability RAILROAD RETIREMENT BOARD the corporation is the applicant’s review call-up. The information Proposed Data Collection Available for employer. Whether the RRB classifies a gathered will be used to determine Public Comment and particular activity, as self-employment entitlement and/or continued Recommendations. or as work for an employer depends entitlement to, and the amount of, the upon the circumstances in each case. disability annuity, as prescribed in 20 SUMMARY: In accordance with the The circumstances are prescribed in 20 CFR 220.176. Completion will be requirement of section 3506(c)(2)(A) of CFR 216.21–216.23. required to retain benefits. One response the Paperwork Reduction Act of 1995 Certain types of work may actually will be required of each respondent. which provides opportunity for public indicate an annuitant’s recovery from The estimated annual respondent comment on new or revised data disability. Regulations related to an burden is as follows:

ESTIMATE OF ANNUAL RESPONDENT BURDEN

Annual Time Burden Form #(s) responses (min) (hrs)

G–252 ...... 100 20 33

Total ...... 100 ...... 33

Additional Information or Comments: obtain a copy of the information supporting material, please call the RRB To request more information or to collection justification, forms, and/or Clearance Officer at (312) 751–3363 or

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send an e-mail request to SECURITIES AND EXCHANGE Independence Standards Board Standard 1, [email protected]. Comments COMMISSION and the audit committee’s responsibility for] regarding the information collection actively engaging in a dialogue with the [Release No. 34–61789; File No. SR– auditor with respect to any disclosed should be addressed to Patricia A. NASDAQ–2010–037] relationships or services that may impact the Henaghan, Railroad Retirement Board, objectivity and independence of the auditor 844 North Rush Street, Chicago, Illinois Self-Regulatory Organizations; The and for taking, or recommending that the full 60611–2092 or send an e-mail to NASDAQ Stock Market LLC; Notice of board take, appropriate action to oversee the [email protected]. Written Filing and Immediate Effectiveness of independence of the outside auditor; and comments should be received within 60 Proposed Rule Change To Modify (C)–(D) No change. days of this notice. Nasdaq’s Rules To Eliminate an IM–5605–3. No change. Outdated Reference (2)–(5) No change. Charles Mierzwa, (d)–(e) No change. RRB Clearance Officer. March 26, 2010. * * * * * Pursuant to Section 19(b)(1) of the [FR Doc. 2010–7475 Filed 4–1–10; 8:45 am] II. Self-Regulatory Organization’s Securities Exchange Act of 1934 BILLING CODE 7905–01–P Statement of the Purpose of, and (‘‘Act’’),1 and Rule 19b–4 thereunder,2 Statutory Basis for, the Proposed Rule notice is hereby given that on March 15, Change 2010, The NASDAQ Stock Market LLC (‘‘Nasdaq’’) filed with the Securities and In its filing with the Commission, SECURITIES AND EXCHANGE Exchange Commission (‘‘Commission’’) Nasdaq included statements concerning COMMISSION the proposed rule change as described the purpose of and basis for the proposed rule change and discussed any Sunshine Act Meeting in Items I and II below, which Items have been prepared by Nasdaq. Nasdaq comments it received on the proposed rule change. The text of these statements Notice is hereby given, pursuant to has designated the proposed rule change may be examined at the places specified the provisions of the Government in the as effecting a change described under 3 in Item IV below. Nasdaq has prepared Sunshine Act, Public Law 94–409, that Rule 19b–4(f)(6) under the Act, which renders the proposal effective upon summaries, set forth in Sections A, B, the Securities and Exchange filing with the Commission. The and C below, of the most significant Commission will hold an Open Meeting Commission is publishing this notice to aspects of such statements. on Wednesday, April 7, 2010 at 10 a.m., solicit comments on the proposed rule in the Auditorium, Room L–002. A. Self-Regulatory Organization’s change from interested persons. Statement of the Purpose of, and The subject matter of the Open Statutory Basis for, the Proposed Rule Meeting will be: I. Self-Regulatory Organization’s Statement of the Terms of the Substance Change Item 1: The Commission will consider of the Proposed Rule Change 1. Purpose whether to propose revisions to Nasdaq proposes to modify Rule Regulation AB and other rules Nasdaq Rule 5605(c)(1) describes the 5605(c), which contains the audit provisions that are required to be regarding the offering process, committee charter requirements, to disclosure and reporting for asset- included in the audit committee charter eliminate an outdated reference to of each Nasdaq-listed company. Among backed securities. The proposed Independence Standards Board amendments would revise the shelf those provisions, Rule 5605(c)(1)(B) Standard 1. requires that the charter specify the offering process and eligibility criteria The text of the proposed rule change audit committee’s responsibility for for asset-backed securities and require is below. Proposed new language is in ‘‘ensuring its receipt from the outside asset-backed issuers to provide italics; proposed deletions are in auditors of a formal written statement enhanced disclosures including brackets.4 delineating all relationships between information regarding each asset in * * * * * the auditor and the Company, consistent the underlying pool in a standardized, 5605. Board of Directors and Committees with Independence Standards Board tagged format. The Commission will (a)–(b) No change. Standard 1. * * * ’’ also consider proposed revisions to (c) Audit Committee Requirements The Independence Standards Board Securities Act Rule 144A and other (‘‘ISB’’), which was created in 1997 rules for privately-placed asset-backed (1) Audit Committee Charter through an agreement between the SEC securities. Each Company must certify that it has and the AICPA ceased operations in At times, changes in Commission adopted a formal written audit committee 2001.5 In 2002, Congress adopted charter and that the audit committee has priorities require alterations in the Section 103(b) of the Sarbanes-Oxley reviewed and reassessed the adequacy of the 6 scheduling of meeting items. Act, directing the Public Company formal written charter on an annual basis. Accounting Oversight Board (the For further information and to The charter must specify: (A) No change. ‘‘PCAOB’’) to establish rules on auditor ascertain what, if any, matters have been independence for public companies. added, deleted or postponed, please (B) The audit committee’s responsibility for ensuring its receipt from the outside Pursuant to that authority, the PCAOB contact: auditors of a formal written statement adopted Rule 3526, Communication The Office of the Secretary at (202) delineating all relationships between the with Audit Committees Concerning 551–5400. auditor and the Company, [consistent with Independence.7 This rule was designed Dated: March 31, 2010. 1 15 U.S.C. 78s(b)(1). 5 SEC Press Release 2001–72, available at http:// Elizabeth M. Murphy, 2 17 CFR 240.19b–4. www.sec.gov/news/press/2001-72.txt. Secretary. 3 17 CFR 240.19b–4(f)(6). 6 15 U.S.C. 7213. 4 Changes are marked to the rule text that appears 7 Exchange Act Release No. 58415 (August 22, [FR Doc. 2010–7628 Filed 3–31–10; 4:15 pm] in the electronic manual of Nasdaq found at 2008), 73 FR 50843 (August 28, 2008) (File No. BILLING CODE 8011–01–P http://nasdaqomx.cchwallstreet.com. Continued

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to build on ISB Standard 1, and 19(b)(3)(A) of the Act 10 and Rule 19b– Reference Room on official business superseded that standard and two 4(f)(6)(iii) thereunder.11 days between the hours of 10 a.m. and related interpretations. At any time within 60 days of the 3 p.m. Copies of such filing also will be Nasdaq proposes to remove the filing of the proposed rule change, the available for inspection and copying at Commission may summarily abrogate reference in its rules to the superseded the principal office of Nasdaq. All such rule change if it appears to the ISB Standard. This proposed change comments received will be posted Commission that such action is will not change the substantive without change; the Commission does necessary or appropriate in the public not edit personal identifying requirements that must be contained in interest, for the protection of investors, information from submissions. You the audit committee charter. or otherwise in furtherance of the should submit only information that 2. Statutory Basis purposes of the Act. you wish to make available publicly. All IV. Solicitation of Comments submissions should refer to File Nasdaq believes that the proposed Number SR–NASDAQ–2010–037 and rule change is consistent with the Interested persons are invited to should be submitted on or before April provisions of Section 6 of the Act,8 in submit written data, views, and 23, 2010. 9 arguments concerning the foregoing, general, and Section 6(b)(5) of the Act, For the Commission, by the Division of in particular, because it is designed to including whether the proposed rule Trading and Markets, pursuant to delegated prevent fraudulent and manipulative change is consistent with the Act. authority.12 acts and practices, to promote just and Comments may be submitted by any of Florence E. Harmon, the following methods: equitable principles of trade, to foster Deputy Secretary. cooperation and coordination with Electronic Comments: [FR Doc. 2010–7430 Filed 4–1–10; 8:45 am] persons engaged in facilitating • BILLING CODE 8011–01–P transactions in securities, and to remove Use the Commission’s Internet impediments to and perfect the comment form (http://www.sec.gov/ rules/sro.shtml); or mechanism of a free and open market • Send an e-mail to rule- SECURITIES AND EXCHANGE and a national market system. The [email protected]. Please include File COMMISSION proposed rule change is designed to Number SR–NASDAQ–2010–037 on the update Nasdaq’s requirements [Release No. 34–61793; File No. SR–MSRB– subject line. 2010–02] concerning auditor independence by eliminating an outdated, redundant Paper Comments: Self-Regulatory Organizations; reference. • Send paper comments in triplicate Municipal Securities Rulemaking B. Self-Regulatory Organization’s to Elizabeth M. Murphy, Secretary, Board; Notice of Filing of Proposed Statement on Burden on Competition Securities and Exchange Commission, Rule Change to MSRB Rule G–34, Station Place, 100 F Street, NE., CUSIP Numbers and New Issue Nasdaq does not believe that the Washington, DC 20549–1090. Requirements, To Enhance the Interest proposed rule change will result in any All submissions should refer to File Rate and Descriptive Information burden on competition that is not Number SR–NASDAQ–2010–037. This Currently Collected and Made necessary or appropriate in furtherance file number should be included on the Transparent by the MSRB on Municipal of the purposes of the Act, as amended. subject line if e-mail is used. To help the Auction Rate Securities and Variable Commission process and review your Rate Demand Obligations C. Self-Regulatory Organization’s comments more efficiently, please use March 26, 2010. Statement on Comments on the only one method. The Commission will Pursuant to Section 19(b)(1) of the Proposed Rule Change Received From post all comments on the Commission’s Securities Exchange Act of 1934 Members, Participants, or Others Internet Web site (http://www.sec.gov/ (‘‘Act’’),1 and Rule 19b–4 thereunder,2 rules/sro.shtml). Copies of the Written comments were neither notice is hereby given that on March 10, submission, all subsequent solicited nor received. 2010, the Municipal Securities amendments, all written statements Rulemaking Board (‘‘MSRB’’) filed with III. Date of Effectiveness of the with respect to the proposed rule the Securities and Exchange Proposed Rule Change and Timing for change that are filed with the Commission (‘‘Commission’’ or ‘‘SEC’’) Commission Action Commission, and all written the proposed rule change as described communications relating to the in Items I, II, and III below, which Items Because the foregoing proposed rule proposed rule change between the have been prepared by the MSRB. The change does not: (i) Significantly affect Commission and any person, other than Commission is publishing this notice to the protection of investors or the public those that may be withheld from the solicit comments on the proposed rule interest; (ii) impose any significant public in accordance with the change from interested persons. burden on competition; and (iii) become provisions of 5 U.S.C. 552, will be operative for 30 days from the date on available for Web site viewing and I. Self-Regulatory Organization’s which it was filed, or such shorter time printing in the Commission’s Public Statement of the Terms of Substance of as the Commission may designate, if the Proposed Rule Change consistent with the protection of 10 15 U.S.C. 78s(b)(3)(A). The MSRB is filing with the investors and the public interest, it has 11 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule Commission a proposed rule change to become effective pursuant to Section 19b–4(f)(6)(iii) requires that a self-regulatory organization submit to the Commission written enhance the interest rate and descriptive notice of its intent to file the proposed rule change, information currently collected and PCAOB–2008–003). This rule requires auditor’s along with a brief description and text of the made transparent by the MSRB on [sic] to deliver certain information concerning their proposed rule change, at least five business days independence to the audit committee and to discuss prior to the date of filing of the proposed rule that information with the committee. change, or such shorter time as designated by the 12 17 CFR 200.30–3(a)(12). 8 15 U.S.C. 78f. Commission. The Commission notes that Nasdaq 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(b)(5). satisfied the five-day pre-filing notice requirement. 2 17 CFR 240.19b–4.

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municipal Auction Rate Securities the purpose of and basis for the utilized by other programs, services and (‘‘ARS’’) and Variable Rate Demand proposed rule change. The text of these systems within the MSRB market Obligations (‘‘VRDOs’’). The proposed statements may be examined at the information programs to optimize the rule change would: (i) Amend Rules G– places specified in Item IV below. The effectiveness of the MSRB market 8, books and records, and G–34(c), MSRB has prepared summaries, set information programs and the variable rate security market forth in Sections A, B, and C below, of individual components thereof.3 information, to require brokers, dealers the most significant aspects of such Background and municipal securities dealers statements. (collectively ‘‘dealers’’) to submit to the Since January 30, 2009 for ARS and MSRB (a) documents that define auction A. Self-Regulatory Organization’s April 1, 2009 for VRDOs, MSRB Rule G– procedures and interest rate setting Statement of the Purpose of, and 34(c), on variable rate security market mechanisms for ARS and liquidity Statutory Basis for, the Proposed Rule information, has required dealers that facilities for VRDOs (‘‘short-term Change act as Program Dealers 4 for ARS or obligation document disclosure rule 1. Purpose Remarketing Agents for VRDOs to report ’’ change ); (b) ARS bidding information The proposed rule change would (either directly or through an agent) ‘‘ ( ARS bidding information rule enhance the interest rate and descriptive certain information following an ARS ’’ change ); and (c) additional VRDO information currently collected and auction or VRDO interest rate reset to ‘‘ 5 information ( VRDO information rule made transparent by the MSRB on the SHORT System. Information change’’) (collectively, the ‘‘rule change municipal Auction Rate Securities generally is required to be reported to proposal’’); (ii) amend the MSRB Short- (‘‘ARS’’) and Variable Rate Demand the SHORT System by no later than 6:30 term Obligation Rate Transparency Obligations (‘‘VRDOs’’). The proposed p.m. Eastern Time on the day that an (‘‘SHORT’’) System Facility to collect rule change would: (i) Amend MSRB ARS auction or VRDO interest rate reset and disseminate information identified Rules G–8, books and records, and G– occurs and all collected information is in the ARS bidding information rule 34(c), variable rate security market made available to market participants change and the VRDO information rule information, to require brokers, dealers for free in real-time on the MSRB’s change and documents identified in the and municipal securities dealers Electronic Municipal Market Access short-term obligation document ‘‘ ’’ 6 (collectively ‘‘dealers’’) to submit to the ( EMMA ) Web site. The specific items disclosure rule change (the ‘‘SHORT of interest rate and descriptive System Facility amendment proposal’’); MSRB (a) documents that define auction procedures and interest rate setting information about ARS and VRDOs and (iii) amend the MSRB EMMA Short- currently required to be reported to the term Obligation Rate Transparency mechanisms for ARS and liquidity facilities for VRDOs; (b) ARS bidding SHORT System are listed below. Service to make the documents The following is a list of the information; and (c) additional VRDO collected in the SHORT System Facility information currently required to be information (collectively ‘‘rule change amendment proposal available on the reported to the SHORT System by an proposal’’); (ii) amend the MSRB Short- MSRB’s Electronic Municipal Market ARS Program Dealer following an ARS term Obligation Rate Transparency Access (EMMA) Web site (the ‘‘EMMA auction: ‘‘ ’’ Short-term Obligation Rate ( SHORT ) System Facility to collect • CUSIP number; Transparency Service amendment’’). and disseminate the documents • Interest rate for the next reset The MSRB has requested that the identified in the rule change proposal period; proposed rule change, which may be (‘‘SHORT System Facility amendment • Identity of Program Dealer(s); implemented in phases, be made proposal’’); and (iii) amend the MSRB • Number of days of the reset period; effective on such date or dates as would EMMA Short-term Obligation Rate • Minimum denomination; be announced by the MSRB in notices Transparency Service to make the • Date and time of the auction; published on the MSRB Web site, which documents collected in the SHORT • Date and time of posting of auction dates would be no later than nine System Facility amendment proposal results by an Auction Agent; months after Commission approval of available on the MSRB’s Electronic • Indication of whether the interest the proposed rule change and would be Municipal Market Access (EMMA) Web rate represents a ‘‘maximum rate,’’ an announced no later than sixty (60) days site (the ‘‘EMMA Short-term Obligation ‘‘all hold rate,’’ or a rate that was ‘‘set by prior to the effective dates. Rate Transparency Service auction;’’ The text of the proposed rule change amendment’’). is available on the MSRB’s Web site SHORT and EMMA are components 3 For example, certain elements of the SHORT (http://www.msrb.org), at the MSRB’s of an integrated suite of programs, System Facility amendment proposal would rely on services and systems (‘‘MSRB market components previously placed into service principal office, and at the pursuant to the EMMA primary market or Commission’s Public Reference Room. If information programs’’) for the continuing disclosure services for purposes of approved, the rule text for the Short- collection of municipal securities processing submissions made to the MSRB. term Obligation Rate Transparency market data and documents from 4 An ARS Program Dealer is defined in Rule G– dealers and other market participants 34(c) as a dealer that submits an order directly to System, as well as for the EMMA Short- an Auction Agent for its own account or on behalf Term Obligation Rate Transparency and the dissemination of such data and of another account to buy, hold or sell ARS through Service, would be available on the documents to the public. The MSRB the auction process. MSRB Web site at http://www.msrb.org/ market information programs leverage 5 See Securities Exchange Act Release No. 34– msrb1/rulesandforms under the heading the components of the various 59212, January 7, 2009 (File No. SR–MSRB–2008– individual programs, services and 07). Information Facilities. 6 systems to enhance the overall The 6:30 p.m. Eastern Time deadline only II. Self-Regulatory Organization’s applies to those ARS auctions and VRDO interest efficiency and effectiveness of the rate resets that occur during an ‘‘RTRS Business Statement of the Purpose of, and MSRB market information programs. In Day,’’ as defined in Rule G–14(d)(ii). Information Statutory Basis for, the Proposed Rule particular, processes, software, about ARS auctions and VRDO interest rate resets Change that occur outside of the hours of an ‘‘RTRS hardware or other components initially Business Day’’ is required to be submitted to the In its filing with the Commission, the placed into service for a particular SHORT System by no later than 6:30 p.m. Eastern MSRB included statements concerning program, service or system may be Time on the next ‘‘RTRS Business Day.’’

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• Minimum and maximum rates, if ARS and VRDOs that would be required conjunction with the VRDO interest rate any, applicable at the time of the to be provided to the MSRB under the and descriptive information currently auction or, if not calculable as of the proposed rule change are described required to be reported under Rule time of auction, indication that such below. G–34(c). This information would rate or rates are not calculable; 7 and provide additional details concerning ARS Bidding Information • Par amount auctioned, not the interest rate set for a VRDO, such as including hold orders effective at any The proposed rule change would the effective date of the interest rate, rate. require each ARS Program Dealer to and would facilitate the tendering of a The following is a list of the report to the SHORT System an position in a VRDO by investors by information currently required to be electronic document containing ‘‘ARS requiring VRDO Remarketing Agents to reported to the SHORT System by a bidding information,’’ which would report the identity of the agent of the VRDO Remarketing Agent following a include information about all orders issuer of the VRDOs to which a holder VRDO interest rate reset: placed by an ARS Program Dealer with may tender their security (‘‘Tender • CUSIP number; an ARS Auction Agent for inclusion in Agent’’). • Interest rate for the next reset an auction. This information would The additional VRDO information period; augment the interest rate and would also provide transparency related • Identity of Remarketing Agent; descriptive information currently • to the current holders of the VRDO. Date of interest rate reset; provided to market participants by also • Information about current holders of a Length of the interest rate reset providing information that would show, VRDO would indicate, for example, that period; • for example, how the interest rate was interest rate set represents an interest Length of Notification Period; determined for a successful auction. The • Indication of whether interest rate rate paid to holders of the VRDO instead specific items of ARS bidding is ‘‘set by formula,’’ ‘‘set by Remarketing of instances when the VRDO is held information an ARS Program Dealer Agent’’ or a ‘‘maximum rate;’’ entirely by a liquidity provider (as a would be required to report to the • Minimum and maximum rates, if ‘‘Bank Bond’’) and that the interest rate SHORT System are listed below. All any, applicable at the time of the set is therefore not set by market items would be required to be reported interest rate reset or, if not calculable as demand. A complete list of the specific within the same timeframe as the ARS of the time of the interest rate reset, items of additional VRDO information a interest rate and descriptive information indication that such rate or rates are not VRDO Remarketing Agent would be currently required to be reported under calculable; 8 required to report to the SHORT System • Minimum denomination; Rule G–34(c). The ARS bidding under the proposed rule change are • Type of liquidity facility(ies); 9 and information document would be listed below. • • Expiration date of each liquidity required to be submitted to the SHORT Effective date that the interest rate facility. System as a word-searchable portable reset is applicable; document format (‘‘PDF’’) file. • Identity of the Tender Agent; Description of the Rule Change Proposal • Interest rate(s) and aggregate par • Identity of the liquidity provider(s) The proposed rule change would amount(s) of orders to sell at a specific including a indication of those VRDOs enhance the interest rate and descriptive interest rate and aggregate par amount of for which an issuer provides ‘‘self information currently made available to such orders that were executed; liquidity’’ and the identity of the party • 11 market participants about ARS and Aggregate par amount of orders to providing such self-liquidity; • VRDOs. The proposed rule change sell at any interest rate and aggregate par Information available to the VRDO would require dealers to report to the amount of such orders that were Remarketing Agent as of the time of the executed; interest rate reset of the par amount of MSRB documents that set forth auction • procedures and interest rate setting Interest rate(s) and aggregate par the VRDO, if any, held as a Bank Bond; amount(s) of orders to hold at a specific and mechanisms for ARS and liquidity • facilities for VRDOs, as well as ARS interest rate and aggregate par amount of Information available to the VRDO such orders that were successfully held; Remarketing Agent as of the time of the bidding information and additional • VRDO information. All collected Interest rate(s) and aggregate par interest rate reset of the aggregate par documents and information would be amount(s) of orders to buy and aggregate amount of the VRDO, if any, held by made available in real-time on EMMA.10 par amount of such orders that were parties other than a liquidity provider, The documents and information about executed; which includes the par amounts held by • Interest rate(s), aggregate par a VRDO Remarketing Agent and by amount(s), and type of order—either 7 Some ARS and VRDOs have minimum and investors. maximum rates that are set pursuant to formulas buy, sell or hold—by a Program Dealer that are unable to be calculated at the time a for its own account and aggregate par ARS and VRDO Documents submission to the SHORT System is required. In amounts of such orders, by type, that The proposed rule change would these cases, a value of ‘‘NC’’ is required to be were executed; and require ARS Program Dealers and VRDO included in a submission to the SHORT System to • show that the minimum and maximum rates are Interest rate(s), aggregate par Remarketing Agents to submit certain ‘‘not calculable.’’ This exception does not apply to amount(s), and type of order—either documents to the SHORT System to minimum and maximum rates that are linked to an buy, sell or hold—by an issuer or index or bank lending rate, such as LIBOR. Such conduit borrower for such Auction Rate 11 Some VRDOs have liquidity provisions under rates are required to be computed and the resulting which the liquidity is provided by the issuer, values included on a submission to the SHORT Security and aggregate par amounts of such orders, by type, that were conduit borrower or affiliate instead of by a third- System. party. Rule G–34(c) currently requires Remarketing 8 Id. executed. Agents to report the type of liquidity facility 9 Dealers are required to submit to the SHORT applicable to a VRDO. Currently, SHORT System System whether each applicable liquidity facility is Additional VRDO Information specifications only provide two options for this data a letter of credit or standby bond purchase The proposed rule change would element—letter of credit and standby bond agreement. purchase agreement—and in conjunction with 10 In the future, the MSRB also plans to make all require VRDO Remarketing Agents to proposed rule change the MSRB would revise the information collected under the rule change submit additional items of VRDO specifications to also capture VRDOs that have ‘‘self proposal available on a subscription basis. information to the SHORT System in liquidity.’’

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ensure that market participants have Description of the Short System Facility single, secure access point for all MSRB centralized access to critical documents Amendment Proposal applications. Submitters of information about ARS programs and VRDO issues. The SHORT System is an MSRB to the SHORT System are required to For existing ARS programs, dealers Facility for the collection and public obtain an account in MSRB Gateway in would be required to submit the current dissemination of information about ARS order to submit information to the versions of ARS documents defining and VRDO. The amendment to this SHORT System. Through MSRB current auction procedures and interest facility would provide for the collection Gateway, submitters also have the rate setting mechanisms to the SHORT and public dissemination of documents ability to designate third-party agents to submit information to the SHORT System within ninety days after the identified in the rule change proposal. effective date of the proposed rule System on the submitter’s behalf. change. For existing VRDO issues, Submissions to the SHORT System Submissions may be made by the dealers would be required to undertake The SHORT System receives following classes of submitters: 12 • ARS Program Dealer; and document best efforts to obtain submissions of information and current versions of VRDO liquidity • VRDO Remarketing Agent; documents about securities bearing • facility documents, including Letters of ARS Auction Agent; and interest at short-term rates under MSRB • Designated Agent, which may Credit, Stand-by Bond Purchase Rule G–34, on CUSIP numbers, new Agreements and any other document submit any information otherwise issue and market information permitted to be submitted by another that establishes an obligation to provide requirements. liquidity, and submit such documents to class of submitter which has designated Information and Documents to be such agent, as provided below. the SHORT System within ninety days Submitted. The basic items of after the effective date of the proposed All ARS Auction Agents are allowed information and documents that would to submit information about an auction rule change. On an ongoing basis, be required to be submitted to the dealers would be required to submit any to the SHORT System without prior SHORT System are the same as those designation by an ARS Program Dealer. new or amended versions of these required to be submitted to the MSRB documents within one business day of Dealers optionally may designate agents under MSRB Rule G–34(c). Submitters receipt. to submit information on their behalf, of documents would be required to The MSRB recognizes that for some and may revoke the designation of any ARS programs, documents defining provide to the SHORT System related such agents, through MSRB Gateway. current auction procedures and interest indexing information with respect to All actions taken by a Designated Agent rate setting mechanisms may already be each document submitted, including an on behalf of a dealer that has designated available in the SHORT System. This indication of the document type, date such agent shall be the responsibility of may occur in the case of an ARS with such document became available to the the dealer. multiple Program Dealers in which one dealer, and CUSIP number(s) of the Timing of Submissions. Submitters Program Dealer has already submitted to municipal securities to which such are required to make submissions to the the SHORT System the required document relates. A submitter required SHORT System within the timeframes document. In these cases, in lieu of to submit a document that is already set forth in MSRB Rule G–34(c) and submitting duplicate documents, available in its entirety in the SHORT related MSRB procedures. Submissions dealers would be provided the System would be permitted to, in lieu of information to the SHORT System capability to signify that a document of submitting a duplicate document, may be made throughout any RTRS required to be submitted has already identify the document already Business Day, as defined in Rule G–14 been submitted to the SHORT System submitted and provide such items of RTRS Procedures, from at least the by identifying the relevant document. related indexing information as are hours of 6 a.m. to 9 p.m. Eastern Time, Since January 1, 2010, all documents required by MSRB rules or the SHORT subject to the right of the MSRB to make submitted to EMMA have been required System input specifications and system such processes unavailable at times as to be word-searchable PDF files. While procedures. A submitter required to needed to ensure the integrity of the this same requirement would apply to submit a document that is not able to be SHORT System and any related systems. the submission of ARS and VRDO obtained through best efforts as Submissions of documents would be documents to the SHORT System, provided in the proposed rule change able to be made throughout any day, MSRB acknowledges that some of these would be required to provide an subject to the right of the MSRB to make documents for outstanding ARS and affirmative indication that a document such processes unavailable between the VRDOs are likely to be older documents required to be submitted is not available hours of 3 a.m. and 6 a.m. each day, that may not be available in electronic for submission notwithstanding the Eastern Time, for required maintenance, format or a format that would easily submitter’s best efforts to obtain such upgrades or other purposes, or at other permit a dealer to produce a word- document. The complete list of data times as needed to ensure the integrity searchable PDF file of the document. elements that would be required on a of MSRB systems. The MSRB provides Accordingly, the proposed rule change submission to the SHORT System advance notice of any planned periods would only require ARS and VRDO would be available in input of unavailability and shall endeavor to documents submitted to EMMA to be specifications and system procedures provide information to submitters as to word-searchable for new or amended made available on http://www.msrb.org. the status of the submission interface versions of documents produced after Submitters would be responsible for the during unanticipated periods of the effective date of the proposed rule accuracy and completeness of all unavailability, to the extent technically change. information submitted to the SHORT feasible. System. Method of Submission. Information 12 The proposed rule change would require Submitters. Submissions to the and documents may be submitted to the dealers to keep records for a period of three years SHORT System may be made solely by SHORT System through a secure, of all best efforts undertaken to obtain documents authorized submitters using password- password-protected, Web-based for existing VRDO issues. Such records of best efforts would include, for example, all written protected accounts in the MSRB’s user electronic submitter interface or through requests for documents to and any responses from authentication system, MSRB Gateway. a secure, authenticated computer-to- an issuer or liquidity provider. MSRB Gateway is designed to be a computer data connection, at the

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election of the submitter. When making disseminated to the EMMA short-term impediments to and helping to perfect submissions using the Web-based obligation rate transparency service the mechanisms of a free and open interface, related information is entered within 15 minutes of acceptance, market in municipal securities by manually into an on-line form and although during peak traffic periods providing a centralized venue for free documents would be required to be dissemination may occur within one public access to information about and uploaded as portable document format hour of acceptance. Submissions of documents relating to ARS and VRDO. (PDF) files. Computer-to-computer documents to the SHORT System The proposed rule change would submissions utilize XML files for data accepted during the hours of 8:30 a.m. provide greater access to information and PDF files for documents. to 6 p.m. Eastern Time on an MSRB about and documents relating to ARS Appropriate schemas and procedures business day would generally be and VRDO to all participants in the for Web-based and computer-to- disseminated to the EMMA short-term municipal securities market on an equal computer submissions would be obligation transparency service within basis thereby removing potential available in input specifications and 15 minutes of acceptance, although barriers to obtaining such information. system procedures made available on during peak traffic periods posting may These factors serve to promote the http://www.msrb.org. occur within one hour of acceptance. statutory mandate of the MSRB to Designated Electronic Format for Submissions outside of such hours often protect investors and the public interest. Documents. All documents submitted to would be posted within 15 minutes B. Self-Regulatory Organization’s the SHORT System would be required although some submissions outside of Statement on Burden on Competition to be in portable document format the MSRB’s normal business hours may (PDF), configured to permit documents not be processed until the next business The MSRB does not believe the to be saved, viewed, printed and day. SHORT System information and proposed rule change will impose any retransmitted by electronic means. If the documents, along with related indexing burden on competition not necessary or submitted file is a reproduction of the information, would be made available to appropriate in furtherance of the original document, the submitted file the public through the EMMA portal for purposes of the Act, since it would must maintain the graphical and textual the life of the related securities. apply equally to dealers in municipal integrity of the original document. The MSRB plans to offer securities. Documents submitted to the SHORT subscriptions to the information and System created on or after the effective documents submitted to the SHORT C. Self-Regulatory Organization’s date of the proposed rule change would System in the future. Statement on Comments on the be required to be word-searchable Proposed Rule Change Received From (without regard to diagrams, images and Description of the EMMA Short-Term Members, Participants, or Others other non-textual elements). Obligation Rate Transparency Service Amendment Proposal On March 17, 2008, the MSRB SHORT System Processing requested comment on a proposed plan The EMMA short-term obligation rate The SHORT System provides a single for increasing the information available transparency service currently makes for ARS (‘‘March 2008 ARS Notice’’),14 portal for the submission of information the information collected by the SHORT and documents. The SHORT System, as on May 23, 2008, the MSRB requested System available to the public, at no comment on a proposed plan for well as other MSRB systems and charge, on the EMMA portal. The services, performs various data checks increasing the information available for amendment to this service would add VRDOs (‘‘May 2008 VRDO Notice’’),15 to ensure that information and the documents identified in the rule documents are submitted in the correct and on July 14, 2009 the MSRB change proposal to this service so that requested comment on the draft format. In addition, data checks are such documents would also be available performed to monitor dealer compliance amendments to Rule G–34(c) (‘‘July 2009 to the public, at no charge, on the Notice’’).16 These notices, the comments with MSRB Rule G–34(c) as well as to EMMA portal. identify information submitted in received, and the MSRB’s responses are correct formats that may contain errors 2. Statutory Basis discussed below. due to information not falling within The MSRB has adopted the proposed March 2008 ARS Notice reasonable ranges of expected values for rule change pursuant to Section a given item of information. All 15B(b)(2)(C) of the Act,13 which The March 2008 ARS Notice proposed submissions generate an provides that the MSRB’s rules shall: a plan to create a centralized system for acknowledgement or error message, and the collection and dissemination of all dealers that have information or be designed to prevent fraudulent and critical market information about ARS. manipulative acts and practices, to promote The March 2008 ARS Notice proposed documents submitted on their behalf by just and equitable principles of trade, to either an ARS Auction Agent or a foster cooperation and coordination with the collection and dissemination of the Designated Agent are able to monitor persons engaged in regulating, clearing, current interest rate and certain such submissions. settling, processing information with respect descriptive information for ARS to, and facilitating transactions in municipal programs, bidding information detailing SHORT System Information and securities, to remove impediments to and the orders placed by an ARS Program Document Dissemination perfect the mechanism of a free and open Dealer with an ARS Auction Agent for Information and documents submitted market in municipal securities, and, in inclusion in an auction (‘‘ARS bidding to the SHORT System that pass the general, to protect investors and the public information’’) and documents format and data checks described above interest. concerning ARS that were not required are processed and disseminated on a The MSRB believes that the proposed to be filed with the MSRB under former real-time basis. Any changes to rule change is consistent with the Act. Rule G–36, on delivery of official submissions also are processed upon The proposed rule change would serve statements, advance refunding receipt and updated information and as an additional mechanism by which documents are disseminated in real- the MSRB works toward removing 14 See MSRB Notice 2008–15 (March 17, 2008). time. Information submitted to the 15 See MSRB Notice 2008–24 (May 23, 2008). SHORT System is, in general, 13 15 U.S.C. 78o–4(b)(2)(C). 16 See MSRB Notice 2009–43 (July 14, 2009).

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documents and Forms G–36(OS) and G– Notice from five commentators.19 After • Effective date that the interest rate 36(ARD). reviewing the comments on the March reset is applicable; 2008 ARS Notice and May 2008 VRDO • Identity of the Tender Agent; May 2008 VRDO Notice Notice, the MSRB approved a phased-in • Identity of the liquidity provider; • The May 2008 VRDO Notice proposed approach to the collection and Par amount, if any, held by VRDO a plan to collect and disseminate critical dissemination of ARS and VRDO Remarketing Agent, at time of interest market information about VRDOs using rate reset; information and documents. The first • the same system proposed in the March phase of this approach included Par amount, if any, held by a 2008 ARS Notice for ARS. The May changes to MSRB Rule G–34 to require liquidity facility (‘‘Bank Bond’’) at time 2008 VRDO Notice proposed collecting dealers to report ARS and VRDO of interest rate reset and interest rate and disseminating the current interest interest rate and descriptive information paid to the liquidity provider; and • Par amount, if any, held by a party rate and certain descriptive information to the MSRB and implementation of the other than the Remarketing Agent or as for VRDOs and documents concerning SHORT System, which became effective a Bank Bond. VRDOs that were not required to be on January 30, 2009 for ARS and April filed with the MSRB under former Rule 20 In response to July 2009 Notice, First 1, 2009 for VRDOs. The principal Southwest and SIFMA stated concerns G–36, such as the letter of credit or comments of the March 2008 ARS standby bond purchase agreement. relating to the draft amendment’s Notice, May 2008 VRDO Notice and July requirement to report the additional July 2009 Notice 2009 Notice concerning the collection of VRDO information to the SHORT ARS bidding information, additional The July 2009 Notice requested System, which are primarily focused on VRDO descriptive information and comment on draft amendments to Rule whether a VRDO Remarketing Agent short-term obligation disclosure G–34(c). The draft amendments would would be able to obtain and report require ARS Program Dealers to report documents are discussed below. accurate information for several of the ARS bidding information and VRDO Additional VRDO Data additional items of VRDO information. Remarketing Agents to report additional For example, with respect to reporting The draft amendments in the July descriptive information about VRDOs to the identity of the Tender Agent and 2009 Notice identified items of the MSRB Short-term Obligation Rate liquidity provider, First Southwest information that a VRDO Remarketing Transparency (‘‘SHORT’’) System. The stated that it would be ‘‘difficult and Agent would be required to report to the draft amendments also would require burdensome to be required to be SHORT System in conjunction with the ARS Program Dealers and VRDO continually updating [this] information, VRDO interest rate and descriptive Remarketing Agents to submit ARS which can and does change frequently, information currently required to be documents defining current auction between two parties where [the VRDO procedures and interest rate setting reported on the day that an interest rate Remarketing Agent] has no legal mechanisms and VRDO liquidity facility reset occurs. The specific items of standing and should be the documents, including current Letters of information proposed included: responsibility of the bank or tender Credit and Stand-by Bond Purchase agent that is party to those transactions.’’ Agreements (collectively ‘‘short-term to Mr. Pica, dated July 1, 2008; Daniel Thieke, Vice However, RBDA generally supported the President, Depository Trust and Clearing obligation documents’’). For existing Corporation (‘‘DTCC’’) to Mr. Pica, dated June 26, additional items of VRDO information ARS and VRDOs, the draft amendments 2008; Christine Walsh, Managing Director, Merrill and stated that ‘‘the information would require dealers to provide the Lynch to Mr. Pica, dated June 26, 2008; S. Lauren proposed to be disclosed for VRDOs is current versions of documents to the Heyne, Chief Compliance Officer, RW Smith and material to evaluating VRDO Associates, Inc. (‘‘RW Smith’’) to Mr. Pica, dated MSRB within thirty days after the June 30, 2008; Joseph S. Fichera, Senior Managing investments’’ but acknowledged that effective date of the draft amendments Director and CEO, Saber Partners to Mr. Pica, dated ‘‘Remarketing Agents may not have and on an ongoing basis dealers would July 9, 2008; Leslie M. Norwood, Managing Director ready access to all of the information be required to provide any new or and Associate General Counsel, SIFMA to Mr. Pica, * * * proposed to be submitted * * * dated June 30, 2008; Dara L. Smith, Managing amended versions of these documents Director, SunTrust Robinson Humphrey [and] would support other reasonable within one business day of receipt. (‘‘SunTrust’’) to Mr. Pica, dated June 27, 2008; initiatives to achieve the ends outlined Discussion of Comments Joseph A. Whitehead, Thornton Farish Inc. in the [July 2009 Notice] * * *.’’ (‘‘Thornton Farish’’) to Mr. Pica, dated June 30, The MSRB believes that information The MSRB received comments on the 2008; and, Belle Walker, Senior Vice President, concerning the identity of the Tender March 2008 ARS Notice from seven W.R. Taylor and Company, LLC (‘‘W.R. Taylor’’) to Mr. Pica, dated August 7, 2008. Agent and liquidity provider is material 17 commentators, on the May 2008 19 See letters from Patricia W. Wilson, Senior to market participants and, in particular, VRDO Notice from nine Managing Director Global Alternatives, Allstate investors of VRDOs. With respect to commentators,18 and on the July 2009 Investments, LLC (‘‘Allstate’’) to Mr. Pica, dated Tender Agents, the July 2009 Notice September 1, 2009; Robert J. Stracks, Counsel, BMO Capital Markets GKST Inc. to Mr. Pica, dated also solicited comment on whether a 17 See letters from Paula Stuart, Chief Executive VRDO Remarketing Agent could also Officer, Digital Assurance Certification, LLC September 1, 2009; Carl Giles, Managing Director (‘‘DAC’’) to Justin Pica, dated April 21, 2008; Jack Capital Markets, First Southwest Company (‘‘First provide the contact information for the B. McPherson to Mr. Pica, dated March 27, 2008; Southwest’’) to Mr. Pica, dated August 31, 2009; Tender Agent and the MSRB believes Michael Decker, Co-Chief Executive Officer, and [email protected] to Mr. Pica, e-mail dated April 23, some of the concerns stated by SIFMA 2008; Michael Decker, Co-Chief Executive Officer, Mike Nicholas, Co-Chief Executive Officer, RBDA to and Mike Nicholas, Co-Chief Executive Officer, Mr. Pica, dated September 1, 2009; and Leslie M. about providing the identity of the Regional Bond Dealers Association (‘‘RBDA’’) to Mr. Norwood, Managing Director and Associate General Tender Agent were focused on Pica, dated April 21, 2008; Joseph S. Fichera, Senior Counsel, SIFMA to Mr. Pica, dated September 1, challenges in obtaining and keeping 2009. Managing Director and CEO, Saber Partners, LLC current contact information for the (‘‘Saber Partners’’) to Mr. Pica, dated July 9, 2008; 20 See Securities Exchange Act Release No. 59212, Leslie M. Norwood, Managing Director and January 7, 2009 (File No. SR–MSRB–2008–07). The Tender Agent. MSRB acknowledges that Associate General Counsel, Securities Industry and principal comments of the March ARS Notice and it may be difficult to obtain and keep Financial Markets Association (‘‘SIFMA’’) to Mr. May VRDO Notice concerning the collection of ARS current contact information for a Tender Pica, dated April 21, 2008; and, Jeff Yankauer to Mr. and VRDO interest rate and descriptive information Pica, e-mail dated April 17, 2008. as well as the implementation of the SHORT Agent, particularly for smaller Tender 18 See letters from Paula Stuart, Chief Executive System were discussed in File No. SR–MSRB– Agents that use the name and contact Officer, Digital Assurance Certification LLC (‘‘DAC’’) 2008–07. information for an individual instead of

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a division within a company for ARS Bidding Information indexing of each such submission to the submitting tender requests, but the The July 2009 Notice identified ARS appropriate security so that the MSRB believes that a basic requirement Bidding Information that an ARS information would be easy to find, even to provide the identity of the Tender Program Dealer would be required to if the information contained within Agent is reasonable and that it is submit to the SHORT System as such documents could not easily be important that investors be able to have individual data elements in connection exported to a data file or otherwise access to the identity of the Tender with a report of the ARS interest rate manipulated. Agent to facilitate an investor tendering and descriptive information currently In response to specific items of ARS its position in VRDOs. required to be reported following an Bidding information identified in the July 2009 Notice, SIFMA noted that In response to the July 2009 Notice auction. In response to the July 2009 Notice, First Southwest and SIFMA both when an ARS Program Dealer receives proposal to require reporting of the par noted that reporting ARS Bidding orders to buy from other dealers for amounts of a VRDO held as a Bank Information to the SHORT System as submission to an ARS auction, such Bond, by the VRDO Remarketing Agent individual data elements would be orders may be aggregated by the other and by investors at the time of the costly and time consuming, particularly, dealer making it impossible for the ARS interest rate reset, SIFMA stated that as SIFMA noted, ‘‘for a product that is Program Dealer to provide accurate making such information transparent winding down.’’ SIFMA further noted information on the number of unique ‘‘would be detrimental to the municipal that ‘‘there have not been any new ARS bidders other than the Program Dealer securities market by giving competitors issues in over a year and a half, and bidding for its own account. MSRB a trading advantage against one none are expected.’’ Instead of acknowledges that orders submitted to another.’’ MSRB is sensitive to SIFMA’s submitting information as individual an ARS Program Dealer may be concerns related to reporting and data elements, SIFMA suggested that aggregated by the submitting party and making transparent the individual par ‘‘the disclosure of this information to believes that disclosing such aggregated amounts of the VRDO held as a Bank [the MSRB] by way of document, orders may be misleading to market Bond,21 by the VRDO Remarketing instead of breaking out each data participants. Thus, the MSRB has not Agent and by investors. One of the element, would help minimize the included this requirement in the purposes of requiring this information burden.’’ proposed rule change. SIFMA also to be reported is to provide market The MSRB acknowledges that noted that separately requiring an ARS participants with an indication that the reporting ARS Bidding Information to Program Dealer to report bidding interest rate set by the VRDO the SHORT System as individual data information for orders submitted by an elements would result in ARS Program Remarketing Agent represents an issuer or conduit borrower would be Dealers incurring programming unnecessary since issuers and ARS interest rate paid to holders of the expenses as well as increasing the Program Dealers have made such VRDO instead of instances when the ongoing cost of compliance with information available on public Web VRDO is held entirely as a Bank Bond reporting information to the SHORT sites. The MSRB notes that while the and that the interest rate set is therefore System. Further, current interest rate EMMA Continuing Disclosure Service 22 not set by market demand. As an information from the SHORT System provides a document category for alternative to the requirement in the indicates that approximately 80% of all issuers to voluntarily disclose an intent July 2009 Notice, the proposed rule ARS continue to experience failed to bid on its ARS, this does not provide change includes a requirement for a auctions,23 so one of the purposes of for a centralized source of all orders VRDO Remarketing Agent to report the having ARS Bidding Information as submitted by an issuer or conduit ‘‘par amount remarketed,’’ which would individual data elements, to compute a borrower, which would be provided by be the aggregate of VRDOs held by the ‘‘bid-to-cover ratio’’ 24 that would show the proposed rule change.25 VRDO Remarketing Agent and investors, the demand for the ARS, may not at this Short-term Obligation Documents but not Bank Bonds, and separately time justify the expense incurred by report the par amount held as Bank ARS Program Dealers to report such The draft amendments in the July Bonds. This should provide a sufficient information as individual data elements 2009 Notice proposed requiring ARS indication that the interest rate set to the SHORT System. Nonetheless, the Program Dealers and VRDO reflects a market interest rate paid to MSRB believes that having a centralized Remarketing Agents to submit to the holders of the VRDO while preventing source of ARS Bidding Information, MSRB current and any new or amended individual par amounts held by VRDO even if such information is only versions of the following documents: • Remarketing Agents from being available as a document, would be of ARS documents defining auction disclosed to the public. benefit to market participants as it procedures and interest rate setting would further the MSRB’s investor mechanisms; protection mission. This document- • 21 The July 2009 Notice also proposed collecting VRDO documents consisting of the interest rate paid to a liquidity provider for based approach would provide for liquidity facilities, including Letter of VRDOs held as a Bank Bond. SIFMA noted that Credit Agreements and Stand-by Bond many VRDO Remarketing Agents are not made 23 In light of the high number of failed auctions, Purchase Agreements. aware of the interest rate paid on Bank Bonds. The Allstate suggests requiring ARS Program Dealers to MSRB acknowledges that this requirement may provide the formula used to compute the maximum In response to the July 2009 Notice present significant compliance challenges for rate, including the ‘‘net loan rate.’’ MSRB does not First Southwest and SIFMA both stated dealers and has accordingly decided not to proceed believe that this information is readily available to with it at this time. ARS Program Dealers but notes that a separate 25 MSRB notes that issuers or conduit borrowers 22 This information also is intended to provide a requirement for certain ARS documents to be may instruct a third party, such as an investment centralized source of information about holdings of submitted to the MSRB and made available publicly adviser, to submit orders to an ARS Program Dealer VRDOs. SIFMA notes that information collected by should aide in determining how maximum rates are on their behalf. In these cases, MSRB acknowledges the SEC in its Financial and Operational Combined set. that the ARS Program Dealer would not know that Uniform Single (‘‘FOCUS’’) Reports, while not an 24 In response to the April 2008 ARS Notice, such orders are on behalf of issuers or conduit identical requirement, provides such a centralized Saber Partners identified this statistic as one that borrowers and would not be able to include this fact source of information about the holdings of VRDOs ‘‘can give great insight into the liquidity of an when making submissions of ARS Bidding by Remarketing Agents. auction.’’ Information to the SHORT System.

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concerns with the requirement to outstanding issues, dealers may need III. Date of Effectiveness of the submit ARS and VRDO documents for time to request documents from third Proposed Rule Change and Timing for outstanding issues to the MSRB. First parties, MSRB has provided 90 days Commission Action Southwest noted that to obtain some of from the date of effectiveness of a rule Within 35 days of the date of ‘‘ these documents, dealers would need in the proposed rule change for dealers publication of this notice in the Federal to go back to the creators of those to submit outstanding ARS and VRDO Register or within such longer period (i) ’’ documents to comply with the rule but documents to the MSRB. However, as the Commission may designate up to ‘‘ nevertheless noted that in general, the MSRB notes that dealers should not 90 days of such date if it finds such ’’ 26 requested documents are available. wait until a rule is in effect to begin the longer period to be appropriate and SIFMA also stated a concern that some process of requesting documents and publishes its reasons for so finding or documents for outstanding VRDOs may converting them into the appropriate (ii) as to which the self-regulatory contain information that was not electronic format.27 organization consents, the Commission intended to be made public. In response In response to the July 2009 Notice will: to the May 2008 VRDO Notice DAC also A. By order approve such proposed noted that dealers ‘‘may not always be proposal that any new or amended versions of documents be submitted to rule change, or a party to or have control over all of the B. institute proceedings to determine documents.’’ MSRB recognizes that the MSRB within one day of receipt, SIFMA suggested that dealers be whether the proposed rule change dealers’ ability to comply with the should be disapproved. requirement proposed in the July 2009 required to submit a document within 5- Notice for VRDOs would, in some cases, days of receipt so that the deadline IV. Solicitation of Comments would be consistent with the deadline be subject to the ability of the dealer to Interested persons are invited to for submitting advance refunding obtain a document from a third party. submit written data, views, and documents to the MSRB. MSRB believes Therefore, MSRB has incorporated into arguments concerning the foregoing, that it is important that market the proposed rule change a ‘‘best efforts’’ including whether the proposed rule participants have access to documents provision coupled with a recordkeeping change is consistent with the Act. that are current and therefore has requirement that would require dealers Comments may be submitted by any of to make and document all efforts to retained in the proposed rule change the the following methods: obtain a VRDO document for which the timeframe for an ARS Program Dealer or dealer does not already have access. VRDO Remarketing Agent to provide Electronic Comments First Southwest and SIFMA also such new or amended versions of • Use the Commission’s Internet stated concerns with the timeframes documents to the MSRB no later than comment form (http://www.sec.gov/ proposed for submitting ARS and VRDO one business day after receipt by the rules/sro.shtml); or documents to the MSRB due to the high dealer.28 • Send an e-mail to rule- number of ARS and VRDO issues, [email protected]. Please include File which SIFMA states is approximately Public Availability of Collected Information and Documents Number SR–MSRB–2010–02 on the 16,500 VRDOs and 1,750 ARS, and the subject line. fact that dealers may not have such In response to the April 2008 ARS Paper Comments documents in a format that would allow Notice, Mr. Yankauer recommended • for easy electronic submission of the that the MSRB make information Send paper comments in triplicate document to the MSRB. Given the high collected about ARS available ‘‘to the to Elizabeth M. Murphy, Secretary, numbers of these securities, First general public without any fee to view Securities and Exchange Commission, Southwest and SIFMA both stated that the information.’’ MSRB agrees with Mr. 100 F Street, NE., Washington, DC 180 days, instead of the 30 days Yankauer’s recommendation and notes 20549–1090. proposed in the July 2009 Notice, would that the interest rate and descriptive All submissions should refer to File be a more appropriate amount of time to information currently collected by the Number SR–MSRB–2010–02. This file submit the documents to the MSRB. SHORT System is available at no charge number should be included on the MSRB recognizes that there are a large on the EMMA Web site. MSRB also subject line if e-mail is used. To help the number of documents that would need notes that it plans to make all Commission process and review your to be obtained, converted into an information and documents collected comments more efficiently, please use electronic format and submitted to the under the proposed rule change only one method. The Commission will MSRB. However, MSRB believes that it available at no charge on the EMMA post all comments on the Commission’s is important for investors and other Web site. Internet Web site (http://www.sec.gov/ market participants to have centralized rules/sro.shtml). Copies of the access to these documents. 27 submission, all subsequent Acknowledging the large number of As previously described, the MSRB has requested flexibility with respect to the setting of amendments, all written statements documents and the fact that, for effective dates for the proposed rule change. The with respect to the proposed rule MSRB notes that it would be prudent for dealers to change that are filed with the 26 Both First Southwest and SIFMA also noted use the time between the approval date of the that Official Statements typically contain proposed rule change and the effective date to begin Commission, and all written summaries of the information contained in the collecting such required documents and converting communications relating to the documents identified in the draft amendments and them into electronic format. proposed rule change between the note that if an investor wanted to obtain the actual 28 RBDA also suggested that MSRB look into Commission and any person, other than document, they could request the documents utilizing optical character recognition technology to identified in the draft amendments from either the facilitate performing word searches on EMMA of those that may be withheld from the issuer or a dealer. In particular, SIFMA noted in documents that are scanned and not ‘‘native’’ PDFs. public in accordance with the response to the April 2008 ARS Notice that ARS MSRB notes that all documents submitted to provisions of 5 U.S.C. 552, will be Official Statements generally already contain much EMMA since January 1, 2010 are required to be available for Web site viewing and of the information. MSRB notes that the proposed word-searchable and that the proposed rule change rule change would permit dealers to reference would require documents created after the effective printing in the Commission’s Public documents already submitted in lieu of submitting date of the proposed rule change to also be word- Reference Room, 100 F Street, NE., duplicate documents. searchable. Washington, DC 20549, on official

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business days between the hours of 10 Envelope Settlement Service (‘‘ESS’’) as adjust their processes and systems as a.m. and 3 p.m. Copies of such filing of April 1, 2010. necessary to accommodate the changes. also will be available for inspection and (B) Self-Regulatory Organization’s copying at the principal office of the II. Self-Regulatory Organization’s Statement on Burden on Competition MSRB. All comments received will be Statement of the Purpose of, and posted without change; the Commission Statutory Basis for, the Proposed Rule NSCC does not believe that the does not edit personal identifying Change proposed rule change will have any impact or impose any burden on information from submissions. You In its filing with the Commission, competition. should submit only information that NSCC included statements concerning you wish to make available publicly. All the purpose of and basis for the (C) Self-Regulatory Organization’s submissions should refer to File proposed rule change and discussed any Statement on Comments on the Number SR–MSRB–2010–02 and should comments it received on the proposed Proposed Rule Change Received From be submitted on or before April 23, rule change. The text of these statements Members, Participants, or Others 2010. may be examined at the places specified Written comments relating to the For the Commission, by the Division of in Item IV below. NSCC has prepared proposed rule change were not and are Trading and Markets, pursuant to delegated summaries, set forth in sections (A), (B), authority.29 not intended to be solicited or received. and (C) below, of the most significant NSCC will notify the Commission of any Florence E. Harmon, aspects of these statements.4 written comments received by NSCC. Deputy Secretary. [FR Doc. 2010–7463 Filed 4–1–10; 8:45 am] (A) Self-Regulatory Organization’s III. Date of Effectiveness of the BILLING CODE 8011–01–P Statement of the Purpose of, and Proposed Rule Change and Timing for Statutory Basis for, the Proposed Rule Commission Action Change The foregoing proposed rule change SECURITIES AND EXCHANGE has become effective upon filing COMMISSION On March 1, 2010, the Commission approved rule filing SR–NSCC–2010–01 pursuant to Section 19(b)(3)(A)(i) of the 7 8 [Release No. 34–61798; File No. SR–NSCC– (‘‘Approved Filing’’) relating to NSCC’s Act and Rule 19b–4(f)(1) thereunder 2010–04] elimination of the guarantee of payment because the proposed rule change in connection with ESS.5 Specifically, constitutes a stated policy, practice, or Self-Regulatory Organizations; The the approval will give effect to specified interpretation with respect to the National Securities Clearing changes to Rule 9, Addendum D, meaning, administration or enforcement Corporation; Notice of Filing and Addendum K, and Procedure XV of of an existing rule. At any time within Immediate Effectiveness of Proposed NSCC’s rules and procedures as set forth sixty days of the filing of the proposed Rule Change To Set the Effective Date in Exhibit 5 of the Approved Filing, to: rule change, the Commission may for the Elimination of the Guaranty of (1) Eliminate NSCC’s guaranty of the summarily abrogate such rule change if Payment With Respect to Its Envelope payment to the receiving NSCC member it appears to the Commission that such Settlement Service in an ESS delivery, (2) provide that the action is necessary or appropriate in the public interest, for the protection of credits and debits of the payment March 29, 2010. investors, or otherwise in furtherance of amount of an envelope may be reversed, Pursuant to section 19(b)(1) of the the purposes of the Act. Securities Exchange Act of 1934 and (3) eliminate clearing fund deposits (‘‘Act’’),1 notice is hereby given that on allocated to ESS. In order to afford IV. Solicitation of Comments March 8, 2010, the National Securities members a transitional period to Interested persons are invited to Clearing Corporation (‘‘NSCC’’) filed prepare for these changes, NSCC is submit written data, views, and with the Securities and Exchange proposing to implement the changes on arguments concerning the foregoing, Commission (‘‘Commission’’) the April 1, 2010. including whether the proposed rule proposed rule change described in Items The proposed rule change is change is consistent with the Act. I, II, and III below, which items have consistent with Section 17A of the Act,6 Comments may be submitted by any of been prepared primarily by NSCC. as amended, and the rules and the following methods: NSCC filed the proposal pursuant to regulations thereunder applicable to Electronic Comments section 19(b)(3)(A)(i) of the Act 2 and NSCC. The proposed rule change will • Rule 19b–4(f)(1) 3 thereunder so that the protect NSCC’s net settlement process Use the Commission’s Internet proposal was effective upon filing with while continuing to provide a central comment form (http://www.sec.gov/ the Commission. The Commission is rules/sro.shtml); or delivery point for physical deliveries of • publishing this notice to solicit envelopes with constrained payment Send an e-mail to rule- comments on the rule change from processing. The changes will reduce [email protected]. Please include File interested parties. NSCC’s exposure to potential losses Number SR–NSCC–2010–04 on the subject line. I. Self-Regulatory Organization’s from member defaults, insolvencies, Statement of the Terms of Substance of mistakes, and fraud and will Paper Comments the Proposed Rule Change appropriately shift the risk outside • Send paper comments in triplicate NSCC to the contracting members in an The proposed rule change will set the to Elizabeth M. Murphy, Secretary, ESS transaction. The interim period for Securities and Exchange Commission, effective date for the elimination of a implementation will permit members to guarantee of payment (and associated 100 F Street, NE., Washington, DC rule changes) with respect to NSCC’s 20549–1090. 4 The Commission has modified the text of the summaries prepared by NSCC. All submissions should refer to File 29 17 CFR 200.30–3(a)(12). 5 See Securities Exchange Act Release No. 61618 Number SR–NSCC–2010–04. This file 1 15 U.S.C. 78s(b)(1). (March 1, 2010), 75 FR 10542 (March 8, 2010) (SR– 2 15 U.S.C. 78s(b)(3)(A)(i). NSCC–2010–01). 7 15 U.S.C. 78s(b)(3)(A)(i). 3 17 CFR 240.19b–4(f)(1). 6 15 U.S.C. 78q–1. 8 17 CFR 240.19b–4(f)(1).

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number should be included on the with the Securities and Exchange rule change is consistent with Section subject line if e-mail is used. To help the Commission (‘‘Commission’’) a proposed 6(b)(5) of the Act,8 which requires, Commission process and review your rule change pursuant to Section 19(b)(1) among other things, that the rules of a comments more efficiently, please use of the Securities Exchange Act of 1934 national securities exchange be only one method. The Commission will (‘‘Act’’) 1 and Rule 19b–4 2 thereunder to designed to prevent fraudulent and post all comments on the Commission’s expand the number of components in manipulative acts and practices, to Internet Web site (http://www.sec.gov/ the PHLX Semiconductor SectorSM promote just and equitable principles of rules/sro.shtml). Copies of the known as SOXSM, on which options are trade, to foster cooperation and submission, all subsequent listed and traded.3 The proposed rule coordination with persons engaged in amendments, all written statements change was published for comment in facilitating transactions in securities, with respect to the proposed rule the Federal Register on February 25, and to remove impediments to and change that are filed with the 2010 for a 21-day comment period.4 The perfect the mechanisms of a free and Commission, and all written Commission received no comment open market and a national market communications relating to the letters regarding the proposal. This system. proposed rule change between the order approves the proposed rule Commission and any person, other than change. Listing and Trading of Options on the those that may be withheld from the SOX is a modified market SOX Index capitalization-weighted index composed public in accordance with the As set out more fully in the Notice, provisions of 5 U.S.C. 552, will be of twenty-one companies primarily involved in the design, distribution, Phlx has represented that options on an available for Web site viewing and expanded thirty-component SOX index printing in the Commission’s Public manufacture, and sale of semiconductors, and is one of several would continue to meet all of the initial Reference Room, 100 F Street, NE., and maintenance generic index listing Washington, DC 20549, on official narrow-based sector indexes on which options are listed and traded on the standards contained in Sections (b) and business days between the hours of 10 (c) of Phlx Rule 1009A except a.m. and 3 p.m. Copies of such filings Exchange. Options on the SOX index are currently listed pursuant to subsection (c)(2) of Phlx Rule 1009A. also will be available for inspection and Subsection (c)(2) of Phlx Rule 1009A copying at the principal office of NSCC ‘‘generic’’ initial listing and maintenance standards in Phlx Rule 1009A for only permits a maximum increase of and on NSCC’s Web site at http:// 1 narrow-based indexes.5 The Exchange 33 ⁄3% from the total number of www.dtcc.com/downloads/legal/ securities in the index at the time of its _ proposes to expand the number of rule filings/2010/nscc/2010-04.pdf. All initial listing, i.e., an increase to 28 comments received will be posted components in the SOX index to thirty. The Exchange represents that the components, whereas Phlx proposes an without change; the Commission does increase to 30 components. not edit personal identifying expanded SOX index would continue to meet all the index maintenance Additionally, the Exchange has information from submissions. You represented that no other changes are should submit only information that requirements in subsection (c) of Rule 1009A applicable to options on narrow- being made to the SOX index as it you wish to make available publicly. All currently exists. Based on these submissions should refer to File based indexes, except subsection (c)(2), which indicates that the total number of representations, the Commission Number SR–NSCC–2010–04 and should believes that the proposed expansion to be submitted on or before April 23, component securities in the index may not increase or decrease by more than the SOX index is appropriate and that 2010. 331⁄3% from the total number of Phlx should continue to be able to list For the Commission by the Division of securities in the index at the time of its and trade options on the SOX index. Trading and Markets, pursuant to delegated initial listing. 9 Surveillance authority. After careful consideration, the Florence E. Harmon, Commission finds that the proposed The Commission notes that the Deputy Secretary. rule change is consistent with the Exchange has represented that it has an [FR Doc. 2010–7465 Filed 4–1–10; 8:45 am] requirements of the Act and the rules adequate surveillance program in place BILLING CODE 8011–01–P and regulations thereunder applicable to for options traded on the proposed a national securities exchange 6 and, in expanded SOX index and intends to particular, the requirements of Section 6 apply those same program procedures SECURITIES AND EXCHANGE of the Act.7 Specifically, the that it applies to the Exchange’s current COMMISSION Commission finds that the proposed SOX options and other index options. [Release No. 34–61796; File No. SR–Phlx– Additionally, the Exchange is a member 1 15 U.S.C. 78s(b)(1). of the Intermarket Surveillance Group 2010–20] 2 17 CFR 240.19b–4. (‘‘ISG’’) under the Intermarket 3 PHLX Semiconductor SectorSM may also be Self-Regulatory Organizations; known as PHLX Semiconductor Index or PHLX Surveillance Group Agreement, dated NASDAQ OMX PHLX, Inc.; Order Semiconductor SectorSM Index. June 20, 1994.9 In addition, the major Granting Approval of Proposed Rule 4 See Securities Exchange Act Release No. 61539 futures exchanges are affiliated Change To Expand the Number of (February 18, 2010), 75 FR 8765 (‘‘Notice’’). members of the ISG, which allows for 5 Components in the PHLX A narrow-based index or industry index is the sharing of surveillance information SM defined as: An index designed to be representative Semiconductor Sector Known as of a particular industry or a group of related for potential intermarket trading abuses. SOXSM, on Which Options are Listed industries. The term ‘‘narrow-based index’’ includes The Exchange also represented that it and Traded indices the constituents of which are all has the necessary systems capacity to headquartered within a single country. See Phlx continue to support listing and trading March 29, 2010. Rule 1000A(b)(12). On February 2, 2010, NASDAQ OMX 6 In approving this proposed rule change, the Commission has considered the proposed rule’s 8 15 U.S.C. 78f(b)(5). PHLX, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed impact on efficiency, competition, and capital 9 A list of the current members and affiliate formation. 15 U.S.C. 78c(f). members of ISG can be found at http:// 9 17 CFR 200.30–3(a)(12). 7 15 U.S.C. 78f. www.isgportal.com.

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SOX options. This order is based on II. Self-Regulatory Organization’s options’’), index options overlying the these representations. Statement of the Purpose of, and same index on which the ETF is based It is therefore ordered, pursuant to Statutory Basis for, the Proposed Rule currently cannot be combined with the Section 19(b)(2) of the Act,10 that the Change ETF options to calculate a net delta for proposed rule change (SR–Phlx–2010– In its filing with the Commission, the purposes of the Exemption. 20) is hereby approved. self-regulatory organization included Many ETF options overlie exchange- statements concerning the purpose of traded funds that track the performance For the Commission, by the Division of and basis for the proposed rule change of an index. For example, options on Trading and Markets, pursuant to delegated and discussed any comments it received Standard & Poor’s Depositary Receipts 11 authority. on the proposed rule change. The text (‘‘SPY’’) track the performance of the Florence E. Harmon, of those statements may be examined at S&P 500 index. Market participants Deputy Secretary. the places specified in Item IV below. often hedge SPY options with options [FR Doc. 2010–7464 Filed 4–1–10; 8:45 am] The Exchange has prepared summaries, on the S&P 500 Index (‘‘SPX options’’) or BILLING CODE 8011–01–P set forth in sections A, B, and C below, with other financial instruments based of the most significant parts of such on the S&P 500 Index for risk statements. management purposes. The Exchange believes that in order for eligible market SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s COMMISSION participants to more fully benefit from Statement of the Purpose of, and the Exemption as it relates to ETF Statutory Basis for, the Proposed Rule options, securities and other [Release No. 34–61785; File No. SR–CBOE– Change instruments that are based on the same 2010–021] 1. Purpose underlying ETF or the same index on which the ETF is based should also be Self-Regulatory Organizations; I. Expansion of Delta-Based Equity included in any determination of an Chicago Board Options Exchange, Hedge Exemption Incorporated; Notice of Proposed Rule ETF option position’s net delta or On December 14, 2007,3 the whether the options position is hedged Change Relating to Correlated Commission approved a proposed rule delta neutral.7 Instrument Delta Hedge Exemption change establishing an exemption from Accordingly, the Exchange proposes equity options position and exercise March 25, 2010. to expand the Exemption by amending limits for positions held by CBOE Rule 4.11.04(c)(A) to permit equity Pursuant to Section 19(b)(1) of the members, and certain of their affiliates, option positions for which the 4 Securities Exchange Act of 1934 that are ‘‘delta neutral’’ under a underlying security is an ETF that is 1 2 5 (‘‘Act’’) and Rule 19b–4 thereunder, ‘‘permitted pricing model’’ , subject to based on the same index as an index notice is hereby given that on March 19, certain conditions (‘‘Exemption’’). option to be combined with an index The ‘‘options contract equivalent of 2010, the Chicago Board Options option position for calculation of the the net delta’’ of a hedged equity option Exchange, Incorporated (‘‘Exchange’’ or delta-based equity hedge exemption. position is subject to the position limits ‘‘CBOE’’) filed with the Securities and The proposed rule would allow under Rule 4.11, subject to the Exchange Commission (‘‘Commission’’) financial products such as securities availability of other exemptions.6 the proposed rule change as described index options, index futures, and Currently, the Exemption only is in Items I, II, and III below, which Items options on index futures to be included available for securities that directly have been prepared by the Exchange. along with the ETF in an equity option’s underlie the applicable option position. net delta calculation. So for example, The Commission is publishing this This means that with respect to options the proposed rule would allow SPY notice to solicit comments on the on exchange-traded funds (‘‘ETF proposed rule change from interested options to be hedged not only with SPY persons. 3 See Securities Exchange Act Release No. 56970 shares, but with S&P 500 options, S&P (December 14, 2007), 72 FR 72428 (December 20, 500 futures, options on S&P 500 futures I. Self-Regulatory Organization’s 2007). The exemption was extended to certain or any other instrument that tracks the Statement of the Terms of Substance of customers whose accounts are carried by a member. performance of or is based on the S&P the Proposed Rule Change See Securities Exchange Act Release No. 60555 (August 21, 2009), 74 FR 43741 (August 27, 2009). 500 index. This would be accomplished 4 by including such positions with a CBOE proposes to (i) expand the delta The term ‘‘delta neutral’’ is defined in Rule 4.11.04(c)(A) as referring to an equity option related index option position in hedging exemption available for equity position that is hedged, in accordance with a accordance with the Delta-Based Index options position limits, (ii) amend the permitted pricing model, by a position in the Hedge Exemption rule proposed below. reporting requirements applicable to underlying security or one or more instruments relating to the underlying security, for the purpose Index options and equity options (i.e., members relying on the delta hedging of offsetting the risk that the value of the option ETF options) that are eligible to be exemption, and (iii) adopt a delta position will change with incremental changes in combined for computing a delta-based the price of the security underlying the option hedging exemption from certain index hedge exemption, along with all options position limits. The text of the position. 5 Permitted pricing model is defined in Rule securities and/or other instruments that rule proposal is available on the 4.11.04(c)(C). are based on or track the performance of Exchange’s Web site (http:// 6 The term ‘‘options contract equivalent of the net the same underlying security or index, www.cboe.org/legal), at the Exchange’s delta’’ is defined in Rule 4.11.04(c)(B) as the net will be grouped and the net delta and Office of the Secretary and at the delta divided by the number of shares underlying the option contract. The term ‘‘net delta’’ is defined options contract equivalent of the net Commission. in the same rule to mean, at any time, the number delta will be calculated for each of shares (either long or short) required to offset the respective option class based on offsets 10 15 U.S.C. 78s(b)(2). risk that the value of an equity option position will realized from the grouping as a whole. 11 change with incremental changes in the price of the 17 CFR 200.30–3(a)(12). security underlying the option position, as 1 15 U.S.C. 78s(b)(1). determined in accordance with a permitted pricing 7 However, this would not include baskets of 2 17 CFR 240.19b–4. model. securities for purposes of the Exemption.

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The Exchange proposes to amend the disrupt the underlying market so as to apply to industry index options under definition of ‘‘net delta’’ in Rule benefit the holder of the options proposed Rule 24.4A.03. 4.11.04(c)(B) to mean, at any time, the position. The term ‘‘delta neutral’’ is defined in proposed Rule 24.4.05(A) as referring to number of shares and/or other units of Index options are often used by 8 an index option position that is hedged, trade (either long or short) required to market participants such as institutional in accordance with a permitted pricing offset the risk that the value of an equity investors to hedge large portfolios. option position will change with model, by a position in one or more Exchange rules include hedge incremental changes in the price of the correlated instruments for the purpose exemptions to allow certain positions in security underlying the option position, of offsetting the risk that the value of the index options in excess of the as determined in accordance with a option position will change with permitted pricing model. The Exchange applicable standard position limit if incremental changes in the value of the proposes to amend the definition of the hedged with an Exchange-approved underlying index. Correlated 13 ‘‘option contract equivalent of the net qualified portfolio. Under Rule instruments would be defined to mean delta’’ to mean the net delta divided by 24.4.01(c) (broad-based index hedge securities and/or other instruments that the number of shares that equate to one exemption), a qualified portfolio may track the performance of or are based on option contract on a delta basis.9 consist of common stocks or securities the same underlying index as the index readily convertible to common stock, underlying the option position. These II. Reporting Requirement and/or index futures contracts, options definitions would allow financial Rule 4.11.04(c)(F) sets forth the on index futures contracts, or long or products such as ETF options, index reporting requirements applicable to short positions in index options or futures, options on index futures and CBOE members who rely on the index warrants that meet certain ETFs that track the performance of or Exemption. The Exchange proposes to standards. Under Rule 24.4A.01(a) are based on the same underlying index amend Rule 4.11.04(c)(F) to exempt (industry index hedge exemption), a to be included in an index option’s net from the reporting requirements qualified portfolio may consist only of delta calculation.15 Exchange Market-Makers and underlying component stocks or in Any index option position that is not Designated Primary Market-Makers securities readily convertible to such delta neutral would be subject to (‘‘DPMs’’) relying on the Exemption who component stocks. In the case of both position and exercise limits, subject to use the Options Clearing Corporation hedge exemptions, the maximum size of the availability of other exemptions. (‘‘OCC’’) pricing model, because Market- the exempt position is set at a specified Only the ‘‘options contract equivalent of Maker and DPM position and delta maximum number of contracts. the net delta’’ of such position would be information can be accessed through the The Exchange believes that any limit subject to the appropriate position Exchange’s market surveillance systems. limit.16 on the ability of market participants to This proposed exemption is consistent In addition, members could not use use index options to hedge their with similar exemptions from the the same positions in correlated portfolios exposes market participants reporting requirements under Rule 4.13 instruments in connection with more and those applicable to broad-based to unnecessary risk on the unhedged than one hedge exemption. Therefore, a index options and FLEX options.10 portion of their portfolios. The position in correlated instruments used Exchange proposes to adopt a delta- as part of a delta hedging strategy could III. Delta-Based Index Hedge Exemption based exemption from index option not also serve as the basis for any other Most index options traded on the position and exercise limits that is index hedge exemption. Exchange are subject to position and substantially similar to the delta-based Permitted Pricing Model. Under the exercise limits, as provided under CBOE equity hedge exemption under Rule proposed rule, the calculation of the Rules 24.4, 24.4A and 24.4B.11 Certain 4.11.04(c). A delta-based index hedge delta for any index option position, and broad-based index options are not exemption would provide market the determination of whether a subject to position and exercise limits.12 participants the ability to accumulate an particular index option position is Position limits are imposed, generally, unlimited number of index options hedged delta neutral, must be made to prevent the establishment of options contracts provided that such contracts using a permitted pricing model. A positions that can be used or might are properly delta hedged in accordance ‘‘permitted pricing model’’ is defined in create incentives to manipulate or with the requirements of the exemption. proposed Rule 24.4.05(C) to have the Proposed Exemption. The Exchange same meaning as defined in Rule 8 ‘‘Other units of trade’’ would include, for proposes to adopt an exemption from 4.11.04(c)(C), namely, the pricing model example, options or futures contracts hedging the maintained and operated by OCC and relevant option position. When determining index options position and exercise whether an ETF option hedged with other limits 14 for positions held by CBOE the pricing models used by (i) a member instruments such as ETF or index options is delta members and certain of their affiliates, or its affiliate subject to consolidated neutral, the relative size of the ETF option when and customers that are ‘‘delta neutral’’ supervision by the SEC or pursuant to compared to the other product is taken into Appendix E of SEC Rule 15c3–1; (ii) a consideration. For example, SPX options are ten (as defined below) under a ‘‘permitted (10) times larger than SPY options thus 1 SPX delta pricing model’’ (as defined below), financial holding company (‘‘FHC’’) or a is equivalent to .10 SPY deltas. subject to certain conditions (‘‘Index company treated as an FHC under the 9 The Exchange also proposes to amend Rule Exemption’’). The Index Exemption 4.11.04(c)(C)(2) to clarify that there is no longer a 15 under proposed Rule 24.4.05 would also See Supra footnote 5 (sic). consolidated supervision program by the SEC 16 Under proposed Rule 24.4.05(B), the term pursuant to Appendix E of Rule 15c3–1 of the Act. ‘‘options contract equivalent of the net delta’’ is 10 See Rules 4.13(b), 24.4.03 and 24A.7(b) and (c). 13 See Interpretation and Policy .01 to Rule 24.4 defined as the net delta divided by units of trade 11 Rules 24.4, 24.4A and 24.4B provide position (broad-based index hedge exemption) and that equate to one option contract on a delta basis, limits for broad-based index options, industry index Interpretation and Policy .01 to Rule 24.4A and the term ‘‘net delta’’ is defined as, at any time, options and micro narrow-based index options, (industry index hedge exemption). the number of shares and/or other units of trade respectively. 14 Exchange Rule 24.5 establishes exercise limits (either long or short) required to offset the risk that 12 Broad-based index options not subject to for an index option at the same level as the index the value of an index option position will change position and exercise limits are DJX, OEX, XEO, option’s position limit under index options position with incremental changes in the value of the NDX, RUT, VIX, VXN, VXD and SPX. See CBOE limit rules, therefore no changes are proposed to underlying index, as determined in accordance Rules 24.4(a) and 24.5. Rule 24.5. with a permitted pricing model.

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Bank Holding Company Act of 1956, or demonstrates to the Exchange’s the rule for purposes of the Index its affiliate subject to consolidated satisfaction that no control relationship, Exemption.23 holding company group supervision; 17 as defined in Rule 4.11.03, exists A member carrying an account that (iii) an SEC registered OTC derivatives between such affiliates or trading units, includes an index option position for a dealer; 18 and (iv) a national bank.19 and (ii) the entity has provided the customer that intends to rely on the Customers seeking to use the delta- Exchange written notice in advance that Index Exemption would be required to based index hedge exemption could it intends to be considered separate and obtain from such customer and provide only hedge their position in accordance distinct from any affiliate, or, as to the Exchange a written certification with the OCC model. applicable, which trading units within that the customer is using the OCC Aggregation of Accounts. Members, the entity are to be considered separate Model as defined in the rule for non-member affiliates and customers and distinct from each other for purposes of the Index Exemption.24 relying on the Index Exemption would purposes of the Index Exemption.20 The Reporting. Under proposed Rule be required to ensure that the permitted Exchange has set forth in Regulatory 24.4.05(F), each member (other than an pricing model is applied to all positions Circular RG08–12 the conditions under Exchange Market-Maker, DPM or LMM in correlated instruments hedging the which it will deem no control using the OCC Model) relying on the relevant option position that are owned Index Exemption would be required to relationship to exist between affiliated 25 or controlled by the member, or its broker-dealers and between separate report, in accordance with Rule 4.13, affiliates. and distinct trading units within the (i) all index option positions (including However, the net delta of an index same broker-dealer. those that are delta neutral) that are option position held by an entity reportable thereunder, and (ii) on its entitled to rely on the Index Exemption, Any member, non-member affiliate or own behalf or on behalf of a designated or by a separate and distinct trading unit customer relying on the Index aggregation unit pursuant to Rule of such entity, may be calculated Exemption must designate, by prior 24.4.05(D), for each such account that without regard to positions in correlated written notice to the Exchange, each holds an index option position subject instruments held by an affiliated entity trading unit or entity whose options to the Index Exemption in excess of the or by another trading unit within the positions are required by Exchange rules levels specified in Rule 24.4 (and Rule same entity, provided that: (i) The entity to be aggregated with the options 24.4A, in the case of industry index positions of such member, non-member options) the net delta and the options 17 The pricing model of an FHC or of an affiliate affiliate or customer relying on the contract equivalent of the net delta of of an FHC would have to be consistent with: (i) The Index Exemption for purposes of such position. requirements of the Board of Governors of the compliance with Exchange position or Records. Under proposed Rule Federal Reserve System (‘‘Fed’’), as amended from 21 time to time, in connection with the calculation of exercise limits. 24.4.05(G), each member relying on the risk-based adjustments to capital for market risk Obligations of Members and Index Exemption would be required to under capital requirements of the Fed, provided Affiliates. Any member relying on the (i) retain, and would be required to that the member or affiliate of a member relying on undertake reasonable efforts to ensure this exemption in connection with the use of such Index Exemption would be required to model is an entity that is part of such company’s provide a written certification to the that any non-member affiliate of the consolidated supervised holding company group; or Exchange that it is using a permitted 23 (ii) the standards published by the Basel Committee pricing model as defined in the rule for In addition, the member would be required to on Banking Supervision, as amended from time to obtain from such non-member affiliate a written time and as implemented by such company’s purposes of the Index Exemption. In statement confirming that such non-member principal regulator, in connection with the addition, by such reliance, such member affiliate: (a) Is relying on the Index Exemption; (b) calculation of risk-based deductions or adjustments would authorize any other person will use only a permitted pricing model for to or allowances for the market risk capital carrying for such member an account purposes of calculating the net delta of its option requirements of such principal regulator applicable positions for purposes of the Index Exemption; (c) to such company—where ‘‘principal regulator’’ including, or with whom such member will promptly notify the member if it ceases to rely means a member of the Basel Committee on has entered into, a position in a on the Index Exemption; (d) authorizes the member Banking Supervision that is the home country correlated instrument hedging the to provide to the Exchange or the OCC such consolidated supervisor of such company— relevant option position to provide to information regarding positions of the non-member provided that the member or affiliate of a member affiliate as the Exchange or OCC may request as part relying on this exemption in connection with the the Exchange or OCC such information of the Exchange’s confirmation or verification of the use of such model is an entity that is part of such regarding such account or position as accuracy of any net delta calculation under the company’s consolidated supervised holding the Exchange or OCC may request as Index Exemption; and (e) if the non-member company group. See subparagraph (C) of proposed part of the Exchange’s confirmation or affiliate is using the OCC Model, has duly executed Rule 24.4.05, which incorporates Rule 4.11.04(c)(C). and delivered to the Exchange such documents as 18 The pricing model of an SEC registered OTC verification of the accuracy of any net the Exchange may require to be executed and derivatives dealer would have to be consistent with delta calculation under this delivered to the Exchange as a condition to reliance the requirements of Appendix F to SEC Rule 15c3– exemption.22 on the Exemption. See subparagraph (E)(3) of 1 and SEC Rule 15c3–4 under the Act, as amended proposed Rule 24.4.05. from time to time, in connection with the The index option positions of a non- 24 In addition, the member would be required to calculation of risk-based deductions from capital for member affiliate relying on the Index obtain from such customer a written statement market risk thereunder. Only an OTC derivatives Exemption must be carried by a member confirming that such customer: (a) Is relying on this dealer and no other affiliated entity (including a exemption; (b) will use only the OCC Model for member) would be able to rely on this part of the with which it is affiliated. A member purposes of calculating the net delta of the Exemption. See subparagraph (C) of proposed Rule carrying an account that includes an customer’s option positions for purposes of this 24.4.05, which incorporates Rule 4.11.04(c)(C). index option position for a non-member exemption; (c) will promptly notify the member if 19 The pricing model of a national bank would affiliate that intends to rely on the Index the customer ceases to rely on this exemption; (d) have to be consistent with the requirements of the Exemption would be required to obtain in connection with using the OCC Model, has duly Office of the Comptroller of the Currency, as executed and delivered to the member such amended from time to time, in connection with the from such non-member affiliate a documents as the Exchange may require to be calculation of risk-based adjustments to capital for written certification that it is using a executed and delivered to the Exchange as a market risk under capital requirements of the Office permitted pricing model as defined in condition to reliance on this exemption. of the Comptroller of the Currency. Only a national 25 Exchange Rule 4.13 requires, among other bank and no other affiliated entity (including a things, that members report to the Exchange member) would be able to rely on this part of the 20 See subparagraph (D) of proposed Rule 24.4.05. aggregate long or short positions on the same side Exemption. See subparagraph (C) of proposed Rule 21 See proposed Rule 24.4.05(D)(3). of the market of 200 or more contracts of any single 24.4.05, which incorporates Rule 4.11.04(c)(C). 22 See subparagraph (E) of proposed Rule 24.4.05. class of options contracts dealt in on the Exchange.

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member or customer relying on the a delta neutral basis as properly Commission process and review your Index Exemption retains, a list of the exempted from position limits.29 comments more efficiently, please use options, securities and other only one method. The Commission will B. Self-Regulatory Organization’s instruments underlying each options post all comments on the Commission’s Statement on Burden on Competition position net delta calculation reported Internet Web site (http://www.sec.gov/ to the Exchange hereunder, and (ii) CBOE does not believe that the rules/sro.shtml). Copies of the produce such information to the proposed rule change will impose any submission,30 all subsequent Exchange upon request.26 burden on competition not necessary or amendments, all written statements appropriate in furtherance of the Reliance on Federal Oversight. As with respect to the proposed rule purposes of the Act. provided under proposed Rule change that are filed with the 24.4.05(C), a permitted pricing model C. Self-Regulatory Organization’s Commission, and all written includes proprietary pricing models Statement on Comments on the communications relating to the used by members and affiliates that Proposed Rule Change Received From proposed rule change between the have been approved by the SEC, the Fed Members, Participants or Others Commission and any person, other than or another Federal financial regulator. In those that may be withheld from the The Exchange neither solicited nor public in accordance with the adopting the proposed Index Exemption received comments on the proposal. the Exchange would be relying upon the provisions of 5 U.S.C. 552, will be rigorous approval processes and III. Date of Effectiveness of the available for Web site viewing and ongoing oversight of a Federal financial Proposed Rule Change and Timing for printing in the Commission’s Public regulator. The Exchange notes that it Commission Action Reference Room, on official business days between the hours of 10 a.m. and would not be under any obligation to Within 35 days of the date of 3 p.m. Copies of the filing also will be verify whether a member’s or its publication of this notice in the Federal available for inspection and copying at affiliate’s use of a proprietary pricing Register or within such longer period (i) the principal office of the Exchange. All model is appropriate or yielding as the Commission may designate up to comments received will be posted accurate results. 90 days of such date if it finds such without change; the Commission does longer period to be appropriate and The Exchange will announce the not edit personal identifying publishes its reasons for so finding or effective date of the proposed rule information from submissions. You (ii) as to which the self-regulatory change in a regulatory circular to be should submit only information that organization consents, the Commission published no later than 60 days after you wish to make available publicly. All Commission approval. The effective will: (a) By order approve such proposed submissions should refer to File date shall be no later than 30 days after Number SR–CBOE–2010–021 and publication of the regulatory circular. rule change, or (b) Institute proceedings to determine should be submitted on or before April 2. Statutory Basis whether the proposed rule change 23, 2010. should be disapproved. For the Commission, by the Division of The Exchange believes that this Trading and Markets, pursuant to delegated proposed rule change is consistent with IV. Solicitation of Comments authority.31 Section 6(b) of the Securities Exchange Interested persons are invited to Florence E. Harmon, 27 Act of 1934 (‘‘Act’’) , in general, and submit written data, views, and Deputy Secretary. furthers the objectives of Section 6(b)(5) arguments concerning the foregoing, [FR Doc. 2010–7462 Filed 4–1–10; 8:45 am] of the Act 28 in particular, in that it is including whether the proposed rule BILLING CODE 8011–01–P designed to prevent fraudulent and change is consistent with the Act. manipulative acts and practices, Comments may be submitted by any of promote just and equitable principles of the following methods: SECURITIES AND EXCHANGE trade, remove impediments to and COMMISSION perfect the mechanism of a free and Electronic Comments open market and a national market • Use the Commission’s Internet [Release No. 34–61797; File No. SR–BX– system, and, in general, to protect comment form (http://www.sec.gov/ 2010–009] investors and the public interest. The rules/sro.shtml); or • Self-Regulatory Organizations; Exchange believes that allowing Send an e-mail to rule- NASDAQ OMX BX, Inc.; Order correlated instruments to be included in [email protected]. Please include File Approving Proposed Rule Change, as the calculation of an equity option’s net Number SR–CBOE–2010–021 on the Modified by Amendments No. 1 and 3 delta would enable eligible market subject line. Thereto, Relating to the Directed Order participants to more fully realize the Paper Comments Process on the Boston Options benefit of the delta based equity hedge Exchange Facility exemption. The proposed delta-based • Send paper comments in triplicate index hedge exemption would be to Elizabeth M. Murphy, Secretary, March 29, 2010. substantially similar to the delta-based Securities and Exchange Commission, I. Introduction equity hedge exemption under Rule 100 F Street, NE., Washington, DC 4.11.04. Also, the Commission has 20549–1090. On January 25, 2010, NASDAQ OMX previously stated its support for All submissions should refer to File BX, Inc. (‘‘Exchange’’) filed with the recognizing options positions hedged on Number SR–CBOE–2010–021. This file Securities and Exchange Commission number should be included on the (‘‘Commission’’), pursuant to Section 26 A member would be authorized to report subject line if e-mail is used. To help the 19(b)(1) of the Securities Exchange Act position information of its non-member affiliate pursuant to the written statement required under 29 See Securities Exchange Act Release No. 40594 30 The text of the proposed rule change is proposed Rule 24.4.05(E)(3)(ii)(d). (October 23, 1998), 63 FR 59362, 59380 (November available on the Commission’s Web site at http:// 27 15 U.S.C. 78f(b). 3, 1998) (adopting rules relating to OTC Derivatives www.sec.gov/rules/sro.shtml. 28 15 U.S.C. 78f(b)(5). Dealers). 31 17 CFR 200.30–3(a)(12).

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of 1934 (‘‘Act’’) 1 and Rule 19b–4 current NBBO for at least the size of his order.9 If no GDO had been established, thereunder,2 a proposed rule change quote. This guarantee is called the GDO. then the modified Directed Order shall amending the rules of the Boston Under the current rule, the EP must be resubmitted to the EP. The proposal Options Exchange Group, LLC (‘‘BOX’’) immediately send the Directed Order provides that it shall be considered by to modify the Directed Order process on with the GDO to the Trading Host. the Exchange to be conduct inconsistent BOX. The Exchange filed Amendment Sending the GDO to the Trading Host with just and equitable principles of No 1. to the proposed rule change on enables it to simultaneously take down trade for any Options Participant or February 10, 2010. The proposed rule or ‘‘shelve’’ the EP’s quote and any person to communicate with an EP change, as modified by Amendment No. pending quote updates while the about the terms or conditions of a 1, was published in the Federal Register Directed Order is being exposed on the Directed Order prior to its outcome in on February 24, 2010.3 On March 22, BOX Book. the BOX Trading Host (e.g. execution, 2010, the Exchange filed Partial Under the proposal, if the Directed cancellation). Amendment No. 2 (‘‘Amendment No. 2’’) Order is executable against the current Under the proposal, the EP’s to the proposed rule change, and on NBBO and the EP is also quoting at such obligations when using the PIP remain March 24, 2010, the Exchange filed NBBO on the opposite side of the the same as under the current rule, Partial Amendment No. 3 (‘‘Amendment Directed Order, the GDO will be however in some instances the No. 3’’) to the proposed rule change.4 automatically created by the Trading obligation will be met automatically by The Commission received no comments Host and the EP’s quote will be the Trading Host. For example, if a GDO on the proposal. This order approves the automatically shelved. In addition, the has been automatically generated, then proposed rule change, as modified by GDO creation and the quote shelving the Trading Host will prohibit the EP Amendments No. 1 and 3. will be moved to an earlier point in the from adjusting his quotation prior to Directed Order process. Where presently submitting the Directed Order to the PIP II. Description of the Proposal they occur only when the Directed process. Moreover, upon submission of The Exchange is proposing Order is sent to the BOX Book by the the Directed Order to the PIP, the modifications to the Directed Order EP, they will now take place Trading Host will only accept a Primary process on BOX.5 Specifically, the immediately upon the Trading Host’s Improvement Order priced at or better Exchange is proposing to automate the receipt of the Directed Order from the than (i) the GDO or (ii) the NBBO at the creation of the Guaranteed Directed submitting order flow provider time the EP sent the Directed Order to Order (‘‘GDO’’) and the manner in which (‘‘OFP’’).8 the PIP, whichever is better for the the quote of an Executing Participant Once the GDO has been generated by Directed/PIP Order. (‘‘EP’’) 6 is handled during the Directed the Trading Host, the EP will The Exchange proposes to add certain Order process. systemically be prohibited from posting details and clarifications to the rule a quotation. The EP’s pending quote that regarding the treatment of Directed A. Quote Shelving and GDO was taken down by the Trading Host Orders that have been released to the Currently, upon receipt of a Directed will not be released until: (i) The BOX Book for exposure when a GDO Order an EP must either submit the Directed Order is modified by the has been automatically generated. The Directed Order to the PIP 7 or send the submitting OFP; (ii) the EP sends the proposal clarifies that when the EP does Directed Order to the BOX Book. When Directed Order to the PIP; or (iii) the EP not PIP the Directed Order and releases the EP sends the Directed Order to the submits the Directed Order to the BOX it to the BOX Book, if a GDO has been BOX Book and the EP’s quotation on the Book, and either one of the following automatically generated and the opposite side of the market from the occurs: (a) the Directed Order trades in Directed Order is not executable against Directed Order is equal to the National full; (b) the Directed Order exposition the current NBBO, then the Trading Best Bid or Offer (‘‘NBBO’’) and the ends; or (c) the Directed Order is Host will expose the order at the better 10 Directed Order is also executable against modified or cancelled by the submitting GDO price for three (3) seconds. the NBBO, the EP must guarantee OFP during such exposition. Under the proposal, if a GDO has been execution of the Directed Order at the Under the proposal, if the Directed automatically generated and the Order is modified by the submitting Directed Order is executable against the 1 15 U.S.C. 78s(b)(1). OFP once the Trading Host has current NBBO, the Directed Order will 2 17 CFR 240.19b–4. automatically established the GDO, then immediately execute against the BOX 3 See Securities Exchange Act Release No. 61531 the modified Directed Order shall no Book if the BOX Best Bid or Offer is (February 17, 2010), 75 FR 8416 (hereinafter longer be considered a Directed Order equal to or better than the NBBO and referred to as ‘‘Notice’’). GDO. Any remaining quantity not 4 Amendment No. 3 replaced and superseded and shall be immediately released to the Amendment No. 2 in its entirety. In Amendment BOX Book and treated as a regular executed will immediately be exposed No. 3, the Exchange made conforming changes to to BOX Participants at the better of the its rule text to reflect a recently approved proposed 8 The proposal clarifies that if a GDO has been NBBO or GDO price. As is the case rule change. See Securities Exchange Act Release automatically generated and is pending, then upon under the current rule, this exposure No. 61577 (February 24, 2010), 75 FR 9496 (March receipt by the Trading Host of a subsequent 2, 2010) (SR–BX–2010–017). This technical period will last three (3) seconds, during Directed Order for the same EP for the same series which time any Options Participant, amendment does not require notice and comment and side of the market, such subsequent order will as it did not materially affect the substance of the not be considered a Directed Order but will be rule filing. treated as a regular order. The Trading Host will not 9 Upon modification or cancellation of the 5 See Chapter VI, Section 5(c). A Directed Order send the order to the EP, but will immediately Directed Order, the Trading Host will immediately is any Customer Order to buy or sell which has release it to the BOX Book as a regular order. If no reestablish the EP’s quote, including any of the EP’s been directed to a particular Market Maker by an GDO has been automatically generated, then such pending quote modifications, with a new time OFP. See Chapter I, Section 1(a)(21) of the BOX subsequent order will be sent to the EP and treated priority; or in the case of a pending quote Rules. Terms not otherwise defined herein shall as a new Directed Order. See electronic mail from cancellation, the EP’s quote will be cancelled. have the meaning assigned to them in the BOX Wayne Pestone, Chief Legal Officer, BOX, to 10 See electronic mail from Wayne Pestone, Chief Rules. Heather Seidel, Terri Evans and Sarah Schandler, Legal Officer, BOX, to Heather Seidel, Terri Evans 6 When a BOX Market Maker indicates its interest Division of Trading and Markets, Commission, and Sarah Schandler, Division of Trading and in receiving Directed Orders, the receiving Market dated February 3, 2010 (confirming that the Markets, Commission, dated February 3, 2010 Maker is referred to as the EP. Directed Order process currently functions in this (confirming that the Directed Order process 7 See Chapter V, Section 18 of the BOX Rules. manner on BOX). currently functions in this manner on BOX).

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except for the EP, may submit an order C. Implementation been automatically generated. The to the BOX Book in response, and any The Exchange has represented that Commission believes that the orders submitted to the BOX Book after Commission approval and at least Exchange’s proposed treatment of during this period will execute one week prior to implementation of the modified or cancelled Directed Orders is immediately against any remaining rule change, Boston Options Exchange consistent with the Act. As discussed quantity of the Directed Order, in time Regulation LLC will issue a regulatory above, the Exchange has proposed that priority. Also as is the case under the circular to all Participants that will it would be conduct inconsistent with current rule, after exposure of the inform Participants of the just and equitable principles of trade for Directed Order for three (3) seconds, the implementation date and will give any Options Participant or person to Trading Host will release the GDO, Participants an opportunity to make any communicate with an EP about the where it will be able to execute against necessary modifications to coincide terms or conditions of a Directed Order any remaining quantity of the Directed with the implementation date. prior to its outcome in the BOX Trading Order. Host. Moreover, when a Directed Order During the exposure period, the EP III. Discussion and Commission’s is modified or cancelled after a GDO has may not decrement the size, worsen the Findings been automatically generated, the EP’s price of his GDO or submit a contra After careful review, the Commission quote will be reestablished with a new order. Because the Trading Host will finds that the proposed rule change is time priority. The Commission believes now automatically create the GDO and consistent with the requirements of the that these provisions should ensure that shelve the EP’s quote, it will not process Act and the rules and regulations Directed Orders are not modified or such changes to the GDO or pending thereunder applicable to a national cancelled in a manner that would be quote, except a decrementation of the securities exchange. Specifically, the inconsistent with the Act. GDO size down to the size of the Commission finds that the proposal is As set forth above, the Exchange has remaining Directed Order after consistent with Section 6(b)(5) of the proposed the addition of language to the execution with the BOX Book. The EP Act,11 which requires, among other rule text to describe what occurs on may increase the size of his GDO, the things, that the rules of an exchange are BOX when a GDO has been same as today. Under the proposal the designed to prevent fraudulent and automatically generated and is pending EP also may better the price of his GDO manipulative acts and practices, to and the Trading Host receives a subsequent Directed Order for the same or modify his pending quote to be promote just and equitable principles of EP. The Exchange has also proposed the reestablished, but the Trading Host will trade, to foster cooperation and addition of language to the rule text to not apply such modification until the coordination with persons engaged in clarify the treatment of Directed Orders quote is reestablished. Following regulating, clearing, settling, processing that have been released to the Box Book execution of the Directed Order, the information with respect to, and for exposure after a GDO has been Trading Host will reestablish the quote facilitating transactions in securities, to automatically generated. The Exchange of the EP with a new time priority, remove impediments to and perfect the has represented that the processes decremented by any executed portion of mechanism of a free and open market described by this additional and the GDO or as modified by the EP. and a national market system, and, in clarifying language are currently a part The Exchange also proposes to make general, to protect investors and the 12 of the Directed Order process on BOX several additional changes to the text of public interest. although not specifically set forth in the As noted above, BOX Rules currently Chapter VI, Section 5(c). The Exchange current rule text. The Exchange also provide that if an EP is at the NBBO and proposes to change several references to proposes to make several non- the Directed Order is marketable, the EP ‘‘Market Maker’’ to ‘‘EP’’ to more closely substantive changes in the text of must guarantee execution of that order align the rule text with the terminology Chapter VI, Section 5(c) to more closely at the NBBO for at least the size of his used to describe the Directed Order align the rule text with the terminology quote. Under the current rule, the EP is process. In addition, the Exchange used to describe the Directed Order proposes to add the word ‘‘current’’ responsible for submitting a GDO to the process and to remove duplicative before certain instances of the term Trading Host. Pursuant to the proposed language. The Commission believes that ‘‘NBBO’’ in order to clarify which NBBO rule change, the Exchange is proposing these changes and additions, which will is being referenced at a particular stage to automate the GDO process. The provide greater clarity throughout the in the Directed Order process. The Commission believes that automating Directed Order process for Market Exchange also is proposing to remove the GDO process, including ‘‘shelving’’ Makers, OFPs and other Participants on from Section 5(c)(iii)(1) certain language the EP’s quote, should help ensure that BOX and will more closely align the about the function of the NBBO filter GDOs are generated in compliance with rule text with the Directed Order process pursuant to Chapter V, Section BOX rules. Further, the Commission process as it occurs on BOX, are 16(b), which the Exchange views as believes that automating the creation of consistent with the Act. unnecessary and duplicative. the GDO by the Trading Host will aid The Commission also believes that the Market Makers in complying with the B. Market Maker Quoting Obligations Exchange’s proposed addition of BOX rules regarding Directed Orders. Supplementary Material .02, clarifying The Exchange proposes to add new The Exchange has proposed the that the time that a Market Maker’s Supplementary Material .02 to Chapter addition of language to the rule text to quote is shelved does not count towards VI, Section 5(c)(ii). The proposed describe the treatment of a Directed fulfilling his quoting obligations under Supplementary Material .02 states that Order when the Directed Order is Chapter VI, Section 6(d) of the BOX when a Market Maker’s quote is shelved subsequently modified or cancelled, Rules, is appropriate and consistent while acting as EP, such time without depending upon whether a GDO has with the Act. The Commission notes posting a quote will not count towards that Market Makers are subject to fulfilling his obligations for purposes of 11 15 U.S.C. 78f(b)(5). quoting requirements under Chapter VI, 12 15 U.S.C. 78f(b)(4). In approving the proposed the Market Maker’s quoting obligations rule change, the Commission has considered the Section 6(d). Specifically, Market under Chapter VI, Section 6(d) of the proposed rule’s impact on efficiency, competition Makers are required on a daily basis to BOX Rules. and capital formation. See 15 U.S.C. 78c(f). post quotes at least 80 percent of the

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time an options class is open for trading obtain pre-clearance for entry, members challenges, and opportunities of the in 90 percent of their appointed classes. of the public planning to attend should global economy. The committee will Furthermore, Market Makers must post provide, by Monday, April 12, their consist of approximately 19 voting valid quotations at least 60 percent of name, professional affiliation, valid members. The committee will provide the time in each of their appointed government-issued ID number (i.e., U.S. its recommendations to the Secretary of classes during the time that the class is Government ID [agency], U.S. military Transportation and will make them open for trading. Accordingly, the ID [branch], passport [country], or available to the public. The membership Commission believes that it is drivers license [state]), date of birth, and of the FAAC will be representative of appropriate for the Exchange to exclude citizenship to Sherry Booth by fax (202) the various stakeholders in the aviation the time a Market Maker’s quote is 647–5936, e-mail ([email protected]), or industry. shelved under the Directed Order telephone (202) 647–0847. One of the DATES: This charter will be effective 15 process in determining whether a following forms of valid photo days after the posting of this notice. Market Maker has satisfied his quoting identification will be required for FOR FURTHER INFORMATION CONTACT: obligations as no quote will be posted admission to the State Department Christa Fornarotto, Deputy Assistant by the Market Maker during such time building: U.S. driver’s license, U. S. Secretary of Transportation Office of the quote is shelved. Government identification card, or any Aviation and International Affairs, 202– valid passport. Enter the Department of IV. Conclusion 366–4551 or [email protected]. State from the C Street lobby. In view of SUPPLEMENTARY INFORMATION: It is therefore ordered, pursuant to escorting requirements, non- Section 19(b)(2) of the Act,13 that the Government attendees should plan to Background proposed rule change (SR–BX–2010– arrive 15 minutes before the meeting On November 12, 2009, the Secretary 009), as modified by Amendments No. begins. Requests for reasonable of Transportation convened a meeting of 1 and 3 thereto, be, and it hereby is, accommodation should be made to the aviation industry stakeholders. The approved. Sherry Booth prior to Thursday, April Secretary solicited input from the For the Commission, by the Division of 8th. Requests made after that date will attendees about identifying the most Trading and Markets, pursuant to delegated be considered, but might not be possible important issues currently facing the 14 authority. to fulfill. aviation industry. Florence E. Harmon, For additional information, contact In accordance with the requirements Deputy Secretary. Senior Coordinator Nancy Smith- of the Federal Advisory Committee Act, Nissley, Office of Economic Policy [FR Doc. 2010–7431 Filed 4–1–10; 8:45 am] as amended, 5 U.S.C. App. 2, the Analysis and Public Diplomacy, Bureau BILLING CODE 8011–01–P Department is publishing this notice to of Economic, Energy and Business announce the Secretary’s intent to Affairs, at (202) 647–1682 or Smith- establish an advisory committee. The [email protected]. DEPARTMENT OF STATE advisory committee’s objective will be Dated: March 29, 2010. to provide advice and recommendations [Public Notice 6910] Sandra E. Clark, to the Secretary regarding the aviation Advisory Committee on International Office Director, Office of Economic Policy issues identified in its charter. Analysis and Public Diplomacy, U.S. The advisory committee is expected Economic Policy; Notice of Open Department of State. Meeting to meet at least four times during this [FR Doc. 2010–7477 Filed 4–1–10; 8:45 am] year to carry out its duties. Meetings of The Advisory Committee on BILLING CODE 4710–07–P subcommittees or work groups may International Economic Policy (ACIEP) occur more frequently. Members of the will meet from 2 p.m. to 4 p.m. on public may review the draft charter for Thursday, April 15, 2010, at the U.S. DEPARTMENT OF TRANSPORTATION FAAC at http://www.regulations.gov in Department of State, 2201 C Street, NW., docket number DOT–OST–2010–0074. Office of the Secretary of Room 1107, Washington, DC. The Issued the 26th day of March, 2010, in meeting will be hosted by the Assistant Transportation Washington, DC. Secretary of State for Economic, Energy, Establishment of the Future of Aviation Ray LaHood, and Business Affairs Jose W. Fernandez Advisory Committee Secretary of Transportation. and Committee Chair Ted Kassinger. [FR Doc. 2010–7440 Filed 4–1–10; 8:45 am] The ACIEP serves the U.S. Government AGENCY: U.S. Department of BILLING CODE 4910–9X–P in a solely advisory capacity, and Transportation, Office of the Secretary provides advice concerning issues and of Transportation. challenges in international economic ACTION: Notice of Intent to Establish the DEPARTMENT OF TRANSPORTATION policy. The meeting will focus on key Future of Aviation Advisory Committee. economic and commercial priorities for Surface Transportation Board the Department. Subcommittee reports SUMMARY: On March 24, 2010, the and discussions will be led by the Secretary of Transportation authorized [STB Ex Parte No. 558 (Sub-No. 13)] the establishment of a Federal Advisory Economic Empowerment in Strategic Railroad Cost of Capital—2009 Regions Subcommittee, the Economic Committee to address aviation issues. Sanctions Subcommittee, and the The Future of Aviation Advisory AGENCY: Surface Transportation Board, Investment Subcommittee. Committee (FAAC) will present DOT. This meeting is open to public information, advice, and ACTION: Notice of decision instituting a participation, though seating is limited. recommendations to the Secretary of proceeding to determine the railroad Entry to the building is controlled; to Transportation on ensuring the industry’s 2009 cost of capital. competitiveness of the U.S. aviation 13 15 U.S.C. 78s(b)(2). industry and its capability to address SUMMARY: The Board is instituting a 14 17 CFR 200.30–3(a)(12). the evolving transportation needs, proceeding to determine the railroad

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industry’s cost of capital for 2009. The By the Board, Chairman Elliott, Vice For this new regulation, NHTSA is decision solicits comments on the Chairman Mulvey, and Commissioner submitting to OMB a request for following narrow issues: (1) The Nottingham. approval of the following collection of railroads’ 2009 current cost of debt Kulunie L. Cannon, information. capital; (2) the railroads’ 2009 current Clearance Clerk. In compliance with the PRA, this cost of preferred equity capital (if any); [FR Doc. 2010–7411 Filed 4–1–10; 8:45 am] notice announces that the Information (3) the railroads’ 2009 cost of common BILLING CODE 4915–01–P Collection Request (ICR) abstracted equity capital; (4) how the change in below has been forwarded to OMB for BNSF Railway Company’s (BNSF’s) review and comment. The ICR describes share prices from November 2009 DEPARTMENT OF TRANSPORTATION the nature of the information collections through December 2009, following the and their expected burden. This is a announcement of BNSF’s acquisition by National Highway Traffic Safety request for a new collection. Berkshire Hathaway Inc., should be Administration Agency: National Highway Traffic considered in calculating the 2009 cost Safety Administration (NHTSA). Reports, Forms and Record Keeping of common equity capital; and (5) the Title: 49 CFR Part 575.106, Tire fuel Requirements; Agency Information 2009 capital structure mix of the efficiency consumer information Collection Activity Under OMB Review railroad industry on a market value program. basis. Comments should focus on the AGENCY: National Highway Traffic Type of Request: New collection. various cost of capital components Safety Administration, Department of OMB Clearance Number: Not listed above using the same Transportation (NHTSA). assigned. Form Number: The collection of this methodology followed in Railroad Cost ACTION: Notice. of Capital—2008, Ex Parte No. 558 (Sub- information will not use any standard No. 12) (STB served Sept. 25, 2009). SUMMARY: In compliance with the forms. Paperwork Reduction Act of 1995 (44 Requested Expiration Date of DATES: Notices of intent to participate U.S.C. 3501 et seq.), this notice Approval: Three years from the date of are due by April 16, 2010. Statements of announces that the Information approval. the railroads are due by May 17, 2010. Collection Request (ICR) abstracted Statements of other interested persons Summary of the Collection of below has been forwarded to the Office Information are due by June 15, 2010. Rebuttal of Management and Budget (OMB) for statements by the railroads are due by review and comment. The ICR describes NHTSA is adding a new requirement July 15, 2010. the nature of the information collection in Part 575 which would require tire manufacturers and tire brand name ADDRESSES: Comments may be and the expected burden. The Federal owners to rate all replacement passenger submitted either via the Board’s e-filing Register notice with a 60-day comment car tires for fuel efficiency (i.e., rolling system or in the traditional paper period was published on June 22, 2009. resistance), safety (i.e., wet traction), format. Any person using e-filing should This is a request for a new collection. and durability (i.e., treadwear), and comply with the instructions at the E– DATES: Comments must be submitted on submit reports to NHTSA regarding the FILING link on the Board’s Web site, at or before May 3, 2010. ratings. The ratings for safety and http://www.stb.dot.gov. Any person ADDRESSES : Send comments within 30 durability are based on test procedures submitting a filing in the traditional days to the Office of Information and specified under the UTQGS traction and paper format should send an original Regulatory Affairs, Office of treadwear ratings requirements. This and 10 copies to: Surface Transportation Management and Budget, 725 17th information would be used by Board, Attn: STB Ex Parte No. 558 (Sub- Street, NW., Washington, DC 20503, consumers of replacement passenger car No. 13), 395 E Street, SW., Washington, Attention: NHTSA Desk Officer. tires to compare tire fuel efficiency DC 20423–0001. FOR FURTHER INFORMATION CONTACT: Ms. across different tires and examine any Mary Versailles, Office of Rulemaking, FOR FURTHER INFORMATION CONTACT: tradeoffs between fuel efficiency (i.e., National Highway Traffic Safety Pedro Ramirez at (202) 245–0333. rolling resistance), safety (i.e., wet Administration, 1200 New Jersey [Assistance for the hearing impaired is traction), and durability (i.e., treadwear) Avenue, SE., Washington, DC 20590. available through the Federal in making their purchase decisions. Telephone: (202) 366–0846. Information Relay Service (FIRS) at 1– For legal issues: Ms. Sarah Alves, Description of the Need for the 800–877–8339.] Office of the Chief Counsel, National Information and Use of the Information SUPPLEMENTARY INFORMATION: The Highway Traffic Safety Administration, NHTSA needs the information to Board’s decision is posted on the 1200 New Jersey Avenue, SE., provide consumers information to allow Board’s Web site, http:// Washington, DC 20590. them to compare tire fuel efficiency www.stb.dot.gov. Copies of the decision Telephone: (202) 366–2992. across different tires and examine any may be purchased by contacting the SUPPLEMENTARY INFORMATION: tradeoffs between fuel efficiency (i.e., Board’s Office of Public Assistance, Under the procedures established by rolling resistance), safety (i.e., wet Governmental Affairs, and Compliance the Paperwork Reduction Act of 1995 traction), and durability (i.e., treadwear) at (202) 245–0235. Assistance for the (PRA), a person is not required to in making their purchase decisions. hearing impaired is available through respond to a collection of information FIRS at 1–800–877–8339. by a Federal agency unless the Description of the Likely Respondents (Including Estimated Number, and This action will not significantly collection displays a valid OMB control number. The final rule establishes a new Proposed Frequency of Response to the affect either the quality of the human Collection of Information) environment or the conservation of consumer information program at 49 energy resources. CFR Part 575.106, Tire fuel efficiency There are approximately 28 consumer information program. Tire manufacturers of replacement tires sold Authority: 49 U.S.C. 10704(a). manufacturers would provide data to in the United States who would be Decided: March 29, 2010. NHTSA under a reporting requirement. required to report annually.

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Estimate of the Total Annual Reporting Issued on: March 29, 2010. Railroad Administration, 1200 New and Recordkeeping Burden Resulting Stephen R. Kratzke, Jersey Ave., SE., Mail Stop 17, from the Collection of Information Associate Administrator for Rulemaking. Washington, DC 20590 (telephone: (202) NHTSA estimates that there are 28 [FR Doc. 2010–7396 Filed 4–1–10; 8:45 am] 493–6292) or Ms. Kimberly Toone, tire manufacturers that will be required BILLING CODE P Office of Information Technology, RAD– to report. Each of these will need to set 20, Federal Railroad Administration, up the software in a computer program 1200 New Jersey Ave., SE., Mail Stop to combine the testing information, DEPARTMENT OF TRANSPORTATION 35, Washington, DC 20590 (telephone: organize it for NHTSA’s use, etc. We (202) 493–6132). (These telephone estimate this cost to be a one-time Federal Railroad Administration numbers are not toll-free.) charge of about $10,000 per company. [Docket No. FRA 2010–0005–N–7] SUPPLEMENTARY INFORMATION: The Based on the costs used in the Early Paperwork Reduction Act of 1995 Warning Reporting Regulation analysis,1 Proposed Agency Information (PRA), Public Law 104–13, § 2, 109 Stat. we estimate the annual cost per report Collection Activities; Comment 163 (1995) (codified as revised at 44 per tire manufacturer to be $287. There Request U.S.C. 3501–3520), and its are also computer maintenance costs of implementing regulations, 5 CFR Part AGENCY: Federal Railroad keeping the data up to date, etc. as tests 1320, require Federal agencies to Administration, DOT. come in throughout the year. In the provide 60-days notice to the public for EWR analysis, we estimated costs of ACTION: Notice. comment on information collection $3,755 per year per company. Thus, the SUMMARY: In accordance with the activities before seeking approval for total annual cost is estimated to be Paperwork Reduction Act of 1995 and reinstatement or renewal by OMB. 44 $4,042 per company. Thus the total its implementing regulations, the U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), costs would be $280,000 + $113,176 = Federal Railroad Administration (FRA) 1320.10(e)(1), 1320.12(a). Specifically, $393,176 for the first year and $113,176 hereby announces that it is seeking FRA invites interested respondents to as an annual cost for the 28 tire renewal of the following currently comment on the following summary of manufacturers. approved information collection proposed information collection The largest portion of the cost burden activities regarding (i) whether the imposed by the tire fuel efficiency activities. Before submitting these information collection requirements for information collection activities are program arises from the testing necessary for FRA to properly execute necessary to determine the ratings that clearance by the Office of Management and Budget (OMB), FRA is soliciting its functions, including whether the should be assigned to the tires. As activities will have practical utility; (ii) detailed in our reponse to question #8, public comment on specific aspects of the activities identified below. the accuracy of FRA’s estimates of the our revised per-SKU costs to test for burden of the information collection DATES: Comments must be received no rolling resistance, traction, and activities, including the validity of the later than June 1, 2010. treadwear amount to $2,040 (i.e. $540 + methodology and assumptions used to $500 + $1,000). This would result in ADDRESSES: Submit written comments determine the estimates; (iii) ways for testing costs of $38,760,000 in the first on any or all of the following proposed FRA to enhance the quality, utility, and year (19,000 SKUs) and $6,573,000 in activities by mail to either: Mr. Robert clarity of the information being subsequent years (3,222 new SKUs Brogan, Office of Safety, Planning and collected; and (iv) ways for FRA to annually). Evaluation Division, RRS–21, Federal minimize the burden of information The estimated annual cost to the Railroad Administration, 1200 New collection activities on the public by Federal government is $1.28 million. Jersey Ave., SE., Mail Stop 17, automated, electronic, mechanical, or This cost includes $730,000 for Washington, DC 20590, or Ms. Kimberly other technological collection enforcement testing, and about $550,000 Toone, Office of Information techniques or other forms of information annually to set up and keep up to date Technology, RAD–20, Federal Railroad technology (e.g., permitting electronic a website that includes the information Administration, 1200 New Jersey Ave., submission of responses). See 44 U.S.C. reported to NHTSA. SE., Mail Stop 35, Washington, DC 3506(c)(2)(A)(i)–(iv); 5 CFR Comments are invited on: 20590. Commenters requesting FRA to • Whether the collection of 1320.8(d)(1)(i)–(iv). FRA believes that acknowledge receipt of their respective soliciting public comment will promote information is necessary for the proper comments must include a self-addressed performance of the functions of the its efforts to reduce the administrative stamped postcard stating, ‘‘Comments and paperwork burdens associated with Department, including whether the on OMB control number lll.’’ information will have practical utility. the collection of information mandated • Alternatively, comments may be by Federal regulations. In summary, Whether the Department’s estimate transmitted via facsimile to (202) 493– for the burden of the information FRA reasons that comments received 6216 or (202) 493–6497, or via e-mail to will advance three objectives: (i) Reduce collection is accurate. Mr. Brogan at [email protected], or • Ways to minimize the burden of the reporting burdens; (ii) ensure that it to Ms. Toone at [email protected]. collection of information on organizes information collection Please refer to the assigned OMB control respondents, including the use of requirements in a ‘‘user friendly’’ format number in any correspondence automated collection techniques or to improve the use of such information; submitted. FRA will summarize other forms of information technology. and (iii) accurately assess the resources A comment to OMB is most effective comments received in response to this expended to retrieve and produce if OMB receives it within 30 days of notice in a subsequent notice and information requested. See 44 U.S.C. publication. include them in its information 3501. collection submission to OMB for Below are brief summaries of eight 1 Preliminary Regulatory Evaluation, Tread Act approval. currently approved information Amendments to Early Warning Reporting FOR FURTHER INFORMATION CONTACT: Mr. collection activities that FRA will Regulation Part 579 and Defect and Noncompliance Part 573, August 2008 (Docket No. 2008–0169– Robert Brogan, Office of Planning and submit for clearance by OMB as 0007.1). Evaluation Division, RRS–21, Federal required under the PRA:

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Title: Grade Crossing Signal System repaired within a reasonable period of determine whether periodic Safety Regulations. time. A greater risk of an accident is maintenance, inspection, and testing OMB Control Number: 2130–0534. present when a warning system fails to standards are effective. FRA also uses Status: Regular Review. activate as a train approaches a grade the information collected to alert Type of Request: Extension without crossing. FRA’s regulations require railroad employees and appropriate change of a previously approved railroads to take specific responses in highway traffic authorities of warning collection. the event of an activation failure. FRA system malfunctions so that they can Abstract: FRA believes that highway- uses the information to develop better take the necessary measures to protect rail grade crossing (grade crossing) solutions to the problems of grade motorists and railroad workers at the accidents resulting from warning system crossing device malfunctions. With this grade crossing until repairs have been failures can be reduced. Motorists lose information, FRA is able to correlate made. faith in warning systems that constantly accident data and equipment Form Number(s): FRA F 6180.83. warn of an oncoming train when none malfunctions with the types of circuits is present. Therefore, the fail-safe and age of equipment. FRA can then Affected Public: Businesses. feature of a warning system loses its identify the causes of grade crossing Frequency of Submission: On effectiveness if the system is not system failures and investigate them to occasion; recordkeeping.

Average time CFR section Respondent uni- Total annual re- per response Total annual verse sponses (minutes) burden hours

234.7—Telephone Notification ...... 728 railroads ...... 8 phone calls ...... 15 2 234.9—Grade crossing signal system failure rpts ...... 728 railroads ...... 600 reports ...... 15 150 234.105–107—Notification to crew and Proper Law Enforce- 728 railroads ...... 24,000 notifications ... 15 6,000 ment Authority. 234.109—Record Keeping ...... 728 railroads ...... 12,000 records ...... 10 2,000

Total Estimated Responses: 36,608. Form Number(s): N/A. Form Number(s): N/A. Total Estimated Annual Burden: Affected Public: Businesses. Affected Public: Businesses. 8,152 hours. Frequency of Submission: On Frequency of Submission: On Title: Bridge Worker Safety Rules. occasion. occasion. OMB Control Number: 2130–0535. Total Estimated Responses: 6. Respondent Universe: 728 railroads. Total Estimated Annual Burden: 1 Status: Regular Review. Total Estimated Responses: 25,000 hour. Type of Request: Extension without cars stenciled. change of a previously approved Title: Railroad Police Officers. Total Estimated Annual Burden: collection. OMB Control Number: 2130–0537. 18,750 hours. Abstract: Section 20139 of Title 49 of Status: Regular Review. Title: Rear-End Marking Devices. the United States Code required FRA to Type of Request: Extension without OMB Control Number: 2130–0523. issue rules, regulations, orders, and change of a previously approved Status: Regular Review. standards for the safety of maintenance- collection. Type of Request: Extension without Abstract: Under 49 CFR Part 207, of-way employees on railroad bridges, change of a previously approved railroads are required to notify states of including for ‘‘bridge safety equipment’’ collection. all designated police officers who are such as nets, walkways, handrails, and Abstract: The collection of discharging their duties outside of their safety lines, and requirements for the information is set forth under 49 CFR respective jurisdictions. This use of vessels when work is performed Part 221 which requires railroads to requirement is necessary to verify on bridges located over bodies of water. furnish a detailed description of the proper police authority. type of marking device to be used for FRA has added 49 CFR Part 214 to Affected Public: Railroads and States. establish minimum workplace safety Frequency of Submission: On the trailing end of rear cars in order to standards for railroad employees as they occasion. ensure rear cars meet minimum apply to railroad bridges. Specifically, Form(s): None. standards for visibility and display. section 214.15(c) establishes standards Total Estimated Responses: 35. Railroads are required to furnish a and practices for safety net systems. Total Annual Estimated Burden certification that the device has been Safety nets and net installations are to Hours: 175 hours. tested in accordance with current be drop-tested at the job site after initial Title: Stenciling Reporting Mark on ‘‘Guidelines for Testing of Rear End installation and before being used as a Freight Cars. Marking Devices.’’ Additionally, fall-protection system; after major OMB Control Number: 2130–0520. railroads are required to furnish detailed repairs; and at six-month intervals if left Status: Regular Review. test records which include the testing at one site. If a drop-test is not feasible Type of Request: Extension without organizations, description of tests, and is not performed, then a written change of a previously approved number of samples tested, and the test certification must be made by the collection. results in order to demonstrate railroad or railroad contractor, or a Abstract: Title 49, Section 215.301 of compliance with the performance designated certified person, that the net the Code of Federal Regulations, sets standard. does comply with the safety standards forth certain requirements that must be Form Number(s): N/A. of this section. FRA and State inspectors followed by railroad carriers and private Affected Public: Businesses. use the information to enforce Federal car owners relative to identification Respondent Universe: 728 railroads. regulations. The information that is marks on railroad equipment. FRA, Frequency of Submission: On maintained at the job site promotes safe railroads, and the public refer to the occasion. bridge worker practices. stencilling to identify freight cars. Total Estimated Responses: 2.

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Total Estimated Annual Burden: 38 Abstract: Part 210 of title 49 of the FRA under Part 210 is necessary to hours. United States Code of Federal ensure compliance with EPA noise Regulations (CFR) pertains to FRA’s standards for new locomotives. Title: Locomotive Certification (Noise noise enforcement procedures which Form Number(s): N/A. Compliance Regulations). encompass rail yard noise source Affected Public: Businesses. OMB Control Number: 2130–0527. standards published by the Status: Regular Review. Environmental Protection Agency Respondent Universe: 2 Locomotive Type of Request: Extension without (EPA). EPA has the authority to set these Manufacturers. change of a previously approved standards under the Noise Control Act Frequency of Submission: On collection. of 1972. The information collected by occasion.

REPORTING BURDEN

Respondent uni- Total annual re- Average time per Total annual CFR section verse sponses response burden hours

210.27: New Loco. Certification—Requests for Information ...... Locomotive Manuf 4 requests ...... 30 minutes ...... 2 Identification of Locomotives ...... 4 Locomotive 790 badges/plates ... 30 minutes ...... 395 Manuf. 210.31—Operation Standards—Measurement of Loco. 4 Locomotive 790 recorded meas- 3 hours ...... 2,370 Noise Emissions. Manuf. urements.

Total Estimated Responses: 1,620. switches are lined to protect workers days. Operators of remotely controlled Total Estimated Annual Burden: who are vulnerable to being struck by switches use the information as a record 2,785 hours. moving cars as they inspect or service documenting blue signal protection of Title: Remotely Controlled Switch equipment on a particular track or, workers or camp cars. This record also Operations. alternatively, occupy camp cars. FRA serves as a valuable resource for railroad OMB Control Number: 2130–0516. believes that production of notification supervisors and FRA inspectors Status: Regular Review. requests promotes safety by minimizing monitoring regulatory compliance. Type of Request: Extension without mental lapses of workers who are Form Number(s): N/A. change of a previously approved simultaneously handling several tasks. Affected Public: Businesses. collection. Sections 218.30 and 218.67 require the Abstract: Title 49, Section 218.30 of operator of remotely controlled switches Respondent Universe: 718 railroads. the Code of Federal Regulations (CFR), to maintain a record of each notification Frequency of Submission: On ensures that remotely controlled requesting blue signal protection for 15 occasion.

REPORTING BURDEN

Respondent uni- Total annual re- Average time per Total annual CFR section verse sponses response burden hours

218.30—Blue Signal Protection of Workmen; Remotely 70 railroads ...... 3,600,000 notifica- 1 minute ...... 60,000 Controlled Switches. tions. 218.77—Protection of occupied camp cars; Remotely Con- 4 railroads ...... 2,300 notifications ... 1 minute ...... 38 trolled Switches.

Total Estimated Responses: 3,602,300. are identified. Part 215 defects are only. At the repair point, the ‘‘bad order’’ Total Estimated Annual Burden: specific in nature and relate to items tag serves as a repair record. Railroads 120,153 hours. that have or could have caused must retain each tag for 90 days to verify Title: Bad Order and Home Shop accidents or incidents. Section 215.9 that proper repairs were made at the Card. sets forth specific procedures that designated location. FRA and State OMB Control Number: 2130–0519. railroads must follow when it is inspectors review all pertinent records Status: Regular Review. necessary to move defective cars for to determine whether defective cars Type of Request: Extension without repair purposes. For example, railroads presenting an immediate hazard are change of a previously approved must affix a ‘‘bad order’’ tag describing being moved in transportation. collection. each defect to each side of the freight Form Number(s): N/A. Abstract: Under 49 CFR Part 215, each car. It is imperative that a defective Affected Public: Businesses. railroad is required to inspect freight freight car be tagged ‘‘bad order’’ so that Respondent Universe: 718 railroads. cars placed in service and take the it may be readily identified and moved Frequency of Submission: On necessary remedial action when defects to another location for repair purposes occasion.

REPORTING BURDEN

Respondent uni- Total annual re- Average time per Total annual CFR section verse sponses response burden hours

215.9: Movement of Defective Cars for Repair ...... 728 railroads ...... 150,000 tags ...... 5 minutes ...... 12,500

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REPORTING BURDEN—Continued

Respondent uni- Total annual re- Average time per Total annual CFR section verse sponses response burden hours

Notifications of Removal of Defective Car Tags ...... 728 railroads ...... 75,000 notifications 2 minutes ...... 2,500 215.11—Designated Inspectors—Records ...... 728 railroads ...... 45,000 records ...... 1 minute ...... 750

Total Estimated Responses: 225,000. ADDRESSES: Documents are available for Aviation Drive; Thence following the Total Estimated Annual Burden: review by appointment by contacting northerly limit of the right-of-way of 12,750 hours. Mr. Doug Hazlett, Town Manager at 21 Aviation Drive: North 88°58′52″ West, a Pursuant to 44 U.S.C. 3507(a) and 5 Water Street, Houlton, Maine, distance of 84.45 feet, more or less, to CFR 1320.5(b), 1320.8(b)(3)(vi), FRA Telephone (207) 532–7111 or by an angle point in the road; informs all interested parties that it may contacting Donna R. Witte, Federal Thence, continuing along the not conduct or sponsor, and a Aviation Administration, 16 New northerly limit of the right-of-way of respondent is not required to respond England Executive Park, Burlington, aforementioned Aviation Drive: North to, a collection of information unless it Massachusetts, Telephone 781–238– 70°37′46″ West, a distance of 362.69 displays a currently valid OMB control 7624. feet, more or less, to the intersection of number. the northerly limit of the right-of-way of FOR FURTHER INFORMATION CONTACT: Authority: 44 U.S.C. 3501–3520. Aviation Drive with the easterly limit of Donna R. Witte at the Federal Aviation the right-of-way of Airport Drive; Issued in Washington, DC on March 30, Administration, 12 New England Thence, following the easterly limit of 2010. Executive Park, Burlington, the right-of-way of Airport Drive: North Kimberly Coronel, Massachusetts 01803, Telephone 781– 30°28′32″ East, a distance of 929.33 feet, Director, Office of Financial Management, 238–7624. more or less, to the Point of Beginning. Federal Railroad Administration. SUPPLEMENTARY INFORMATION: The The above described parcel contains [FR Doc. 2010–7595 Filed 4–1–10; 8:45 am] following is a legal description of the 4.69 acres, more or less. property located in the Town of BILLING CODE 4910–06–P Issued in Burlington, Massachusetts on Houlton, County of Aroostook, State of March 10, 2010. Maine as shown on a plan prepared by LaVerne F. Reid, DEPARTMENT OF TRANSPORTATION Stantec Consulting Services, Inc., dated Manager, Airports Division, New England February 8, 2010, entitled ‘‘Houlton Region. Federal Aviation Administration International Airport, Proposed FAA [FR Doc. 2010–7077 Filed 4–1–10; 8:45 am] Property Release, Mess Hall Property’’: Public Notice for a Change in Use of BILLING CODE 4910–13–M A roughly triangular parcel of land as Aeronautical Property at Houlton shown on a Plan prepared by Stantec International Airport, Houlton, ME Consulting Services Inc., William A. DEPARTMENT OF TRANSPORTATION AGENCY: Federal Aviation Gerrish PLS #2023, dated February 8, Administration (FAA), DOT. 2010, entitled ‘‘Houlton International Federal Aviation Administration ACTION: Request for Public Comments. Airport, Proposed FAA Property Release, Mess Hall Property’’; on the Notice of Intent To Prepare an SUMMARY: The FAA is requesting public referenced Plan the parcel is enclosed Environmental Assessment and comment on the Town of Houlton’s by ‘‘Range Drive’’ on the east, ‘‘Airport Request for Public Scoping Comments request to change a portion (4.68 acres) Drive’’ on the northwest, and ‘‘Aviation for the Air Tour Management Plan of Airport property from aeronautical Drive’’ on the south. Program at Mount Rainier National use to nonaeronautical use. The Said parcel is more particularly Park property address is 84 Aviation Drive, described as follows: Commencing at a AGENCY: Federal Aviation Houlton, Maine 04730. Upon concrete monument at the most easterly Administration (FAA), DOT. disposition, the property will be used as corner of Lot 20 as shown on said Plan, ACTION: Notice of intent to prepare an a wood pellet production plant. The said monument also marking the environmental assessment and to Town acquired the property by Surplus intersection of the southerly limit of the request public scoping comments. Property Deed dated July 14, 1947. right-of-way of Wesson Drive with the Section 125 of The Wendell H. Ford westerly limit of the right-of-way of SUMMARY: The FAA, with National Park Aviation Investment and Reform Act for Airport Drive, thence crossing said Service (NPS) as a cooperating agency, the 21st Century (AIR 21) requires the Airport Drive on a Maine State Grid has initiated development of an Air FAA to provide an opportunity for bearing of South 16°31′58″ East, a Tour Management Plan (ATMP) for public notice and comment to the distance of 90.23 feet, more or less, to Mount Rainier National Park (MORA), ‘‘waiver’’ or ‘‘modification’’ of a sponsor’s the intersection of the easterly limit of pursuant to the National Parks Air Tour Federal obligation to use certain airport the right-of-way of Airport Drive with Management Act of 2000 (Pub. L. 106– property for aeronautical purposes. the westerly limit of the right-of-way of 181) and its implementing regulations The disposition of proceeds from the Range Drive, said intersection being the (14 CFR part 136, subpart B, National disposal of airport property will be in Point of Beginning; Thence, following Parks Air Tour Management). The accordance with FAA’s Policy and the westerly limit of the right-of-way of objective of the ATMP is to develop Procedures Concerning the Use of Range Drive: South 2°46′31″ W, a acceptable and effective measures to Airport Revenue, published in the distance of 923.82 feet, more or less, to mitigate or prevent the significant Federal Register on February 16, 1999. the intersection of the westerly limit of adverse impacts, if any, of commercial DATES: Comments must be received on the right-of-way of Range Drive with the air tour operations upon the natural or before May 3, 2010. northerly limit of the right-of-way of resources, cultural resources, and visitor

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experiences of a national park unit and • http://www.faa.gov/about/office_ comment on the release of land at the any tribal lands within or abutting the org/headquarters_offices/arc/programs/ Cincinnati/Northern Kentucky park. It should be noted that the ATMP air_tour_management_plan/park_ International Airport in the city of has no authorization over other non-air- specific_plans/mountrainier.cfm. Hebron, Kentucky. This property, tour operations such as military and • Longmire Museum, Mount Rainier approximately 75.88 acres of fee simple general aviation operations. In National Park. release, and approximately 28.48 acres compliance with the National • Henry M Jackson Memorial Visitor of requested easement, will change to a Environmental Policy Act of 1969 Center at Paradise, Mount Rainier non-aeronautical use. This action is (NEPA) and FAA Order 1050.1E, CHG 1, National Park. taken under the provisions of Section • an Environmental Assessment is being Ohanapecosh Visitor Center, Mount 125 of the Wendell H. Ford Aviation prepared. Rainier National Park. Investment Reform Act for the 21st • In October 2009, the NPS and FAA Sunrise Visitor Center, Mount Century (AIR 21). held a two-day kickoff meeting at Rainier National Park. • Eatonville Library. DATES: Comments must be received on MORA; minutes may be found at: • or before May 3, 2010. http://www.faa.gov/about/office_org/ Puyallop Library. • Enumclaw City Library. ADDRESSES: Documents are available for headquarters_offices/arc/programs/air_ • Buckley Library. review at the Cincinnati/Northern tour_management_plan/park_specific_ • Tacoma Public Library. Kentucky International Airport, 2939 plans/mountrainier.cfm. • Yakima Valley Regional Library. The purpose of the kickoff meeting • Terminal Drive, 2nd Floor Environmental Ctr. Resource Administration, Hebron, KY 41048 and was for the FAA and NPS to have the Library, Huxley College of opportunity to share information the FAA Airports District Office, 2862 Environmental Studies, Western Business Park Drive, Building G, regarding environmental and other Washington University. issues to consider in the development of • Memphis, TN 38118. Written comments http://parkplanning.nps.gov/project on the Sponsor’s request must be an ATMP. Materials presented at the Home.cfm?parkId=323& meeting included information on: park delivered or mailed to: Mr. Phillip J. projectId=29122. Braden, Manager, Memphis Airports resources; the acoustical environment at Notice Regarding FOIA: Individuals District Office, 2862 Business Park MORA; current and historical air tour may request that their name and/or Drive, Building G, Memphis, TN 38118. operations; and representative air tour address be withheld from public In addition, a copy of any comments flight paths. In addition, MORA staff disclosure. If you wish to do this, you submitted to the FAA must be mailed or provided information regarding must state this prominently at the delivered to Ms. Barbara Schempf, sensitive park resources, tribal concerns, beginning of your comment. Government Affairs/Noise Abatement and tourism patterns. Based on input Commentators using the website can Officer, P. O. Box 752000, Cincinnati, received at the meeting, the FAA and make such a request by checking the OH 45275. NPS have decided to proceed with box ‘‘keep my contact information developing the ATMP at MORA with an private.’’ Such requests will be honored FOR FURTHER INFORMATION CONTACT: Mr. Environmental Assessment (EA). to the extent allowable by law, but you Tommy L. Dupree, Team lead/Civil The FAA and NPS are now inviting should be aware that pursuant to the Engineer, Federal Aviation the public, agencies, tribes, and other Freedom of Information Act, your name Administration, Memphis Airports interested parties to provide comments, and address may be disclosed. We will District Office, 2862 Business Park suggestions, and input on the scope of make all submissions from Drive, Building G, Memphis, TN 38118. issues to be addressed in the organizations, businesses, and from The application may be reviewed in environmental process. individuals identifying themselves as person at this same location, by DATES: By this notice, the FAA is representatives or officials of appointment. requesting comments on the scope of organizations or businesses available for SUPPLEMENTARY INFORMATION: The FAA the environmental assessment for the public inspection in their entirety. proposes to rule and invites public ATMP at Mount Rainier National Park. Issued in Hawthorne, CA on March 28, comment on the request to release Comments must be submitted by May 3, 2010. property at the Cincinnati/Northern 2010. Keith Lusk, Kentucky International Airport, Hebron, FOR MORE INFORMATION CONTACT: Keith Program Manager, Special Programs Staff, KY. Under the provisions of AIR 21(49 Lusk—Mailing address: P.O. Box 92007, Western-Pacific Region. U.S.C. 47107(h)(2)). Los Angeles, California 90009–2007. [FR Doc. 2010–7548 Filed 4–1–10; 8:45 am] On March 25, 2010, the FAA Telephone: (310) 725–3808. Street BILLING CODE 4910–13–P determined that the request to release address: 15000 Aviation Boulevard, property at Cincinnati/Northern Lawndale, California 90261. E-mail: Kentucky International Airport meets [email protected]. DEPARTMENT OF TRANSPORTATION the procedural requirements of the Written comments on the scope of the Federal Aviation Administration. The Environmental Assessment should be Federal Aviation Administration FAA may approve the request, in whole submitted electronically via the or in part, no later than May 3, 2010. electronic public comment form on the Notice of Intent To Rule on Request To The following is a brief overview of NPS Planning, Environment and Public Release Airport Property at the the request: Comment System at: Cincinnati/Northern Kentucky The Cincinnati/Northern Kentucky http://parkplanning.nps.gov/project International Airport, Hebron, KY International Airport is proposing the Home.cfm?parkId=323& AGENCY: Federal Aviation release of approximately 75.88 acres of projectId=29122, or sent to the mailing Administration (FAA), DOT. fee simple release, and approximately address or e-mail address above. ACTION: Request for Public Comment. 28.48 acres of requested easement to SUPPLEMENTARY INFORMATION: A public accommodate the construction of a new scoping packet that describes the project SUMMARY: The Federal Aviation by-pass road connector by the Boone in greater detail is available at: Administration is requesting public County, KY government.

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Any person may inspect, by information can be made available to ADDRESSES: The meeting will be held at appointment, the request in person at COMSTAC members for their review Malakoff (France), 102 rue Etienne the FAA office listed above under FOR and consideration prior to the May 18 Dolet—92240 Malakoff (4th Floor), FURTHER INFORMATION CONTACT. and 19, 2010, meetings. Written hosted by EUROCAE. In addition, any person may, upon statements should be supplied in the FOR FURTHER INFORMATION CONTACT: appointment and request, inspect the following formats: One hard copy with RTCA Secretariat, 1828 L Street, NW., request, notice and other documents original signature or one electronic copy Suite 805, Washington, DC 20036; germane to the request in person at the via e-mail. telephone (202) 833–9339; fax (202) Tennessee Department of Subject to approval, a portion of the 833–9434; Web site http://www.rtca.org. Transportation, Division of Aeronautics. May 19th meeting will be closed to the SUPPLEMENTARY INFORMATION: Pursuant Issued in Memphis, TN on March 25, 2010. public (starting at 3:45 p.m.). to section 10(a)(2) of the Federal Phillip J. Braden, An agenda will be posted on the FAA Advisory Committee Act (Pub. L. 92– Manager, Memphis Airports District Office, Web site at http://www.faa.gov/go/ast. 463, 5 U.S.C., Appendix 2), notice is Southern Region. For specific information concerning the hereby given for a EUROCAE WG–72: [FR Doc. 2010–7416 Filed 4–1–10; 8:45 am] times and locations of the COMSTAC RTCA Special Committee 216: working group meetings, contact the BILLING CODE P Aeronautical Systems Security (Joint Contact Person listed below. Meeting) meeting. The meeting is Individuals who plan to attend and expected to start at 9 on the first day DEPARTMENT OF TRANSPORTATION need special assistance, such as sign and to finish by 17:00 each day. It will language interpretation or other finish at the latest by 13:00 on the last Federal Aviation Administration reasonable accommodations, should day. inform the Contact Person listed below The main purpose of the meeting is to Commercial Space Transportation in advance of the meeting. determine potential joint Subgroup Advisory Committee—Open Meeting FOR FURTHER INFORMATION CONTACT: work based on the new SC–216 TOR, AGENCY: Federal Aviation Susan Lender (AST–100), Office of develop agreement between both groups Administration (FAA), DOT. Commercial Space Transportation on the roadmap to potentially jointly ACTION: Notice of Commercial Space (AST), 800 Independence Avenue, SW., publish documents, continue the Transportation Advisory Committee Room 331, Washington, DC 20591, specification work and strengthening of Open meeting. telephone (202) 267–8029; E-mail links to the Civil Aviation Authorities. [email protected]. Complete Please inform jean- SUMMARY: Pursuant to section 10(a)(2) of information regarding COMSTAC is [email protected] and the Federal Advisory Committee Act available on the FAA website at: [email protected] of your (Pub. L. 92–463, 5 U.S.C. App. 2), notice http://www.faa.gov/about/office_org/ intention to attend the meeting. is hereby given of the meetings of the headquarters_offices/ast/ The agenda will include: _ Commercial Space Transportation advisory committee/. Day 1 Advisory Committee (COMSTAC). The Issued in Washington, DC, March 25, 2010. • meetings will take place on Tuesday 09h00 to 09h20: Introduction/ George C. Nield, and Wednesday, May 18 and 19, 2010, review of the previous MoM/Report starting at 8 a.m. at the National Associate Administrator for Commercial about publications/Approval of the Space Transportation. meeting agenda. Housing Center, 1201 15th Street NW., • Washington, DC 20005. [FR Doc. 2010–7399 Filed 4–1–10; 8:45 am] 09h20 to 09h40: WG72 and Group The proposed agenda for these BILLING CODE 4910–13–P (ED20x) activities status discussion of meetings will feature discussions on: implications on joint work. • 09h40 to 10h00: SC–216 and —The impact of the President’s DEPARTMENT OF TRANSPORTATION Subgroup activities status and proposed budget on commercial space discussion of implications on joint transportation; Federal Aviation Administration —The issues the working groups work. • 10h00 to 10h45: Mapping of SC216 propose to address; and Thirteenth Meeting: EUROCAE WG–72: SG’s to WG72 ED 20x Documents: —The proposed by-laws for the RTCA Special Committee 216: • COMSTAC. Discuss joint SG work plan and Aeronautical Systems Security (Joint schedule based on document(s) chart. There will also be briefings on the 2010 Meeting) • 10h45 to 11h00: Break. Commercial Space Transportation • 11h00 to 11h45: Develop agreement Market Forecasts and discussions and AGENCY: Federal Aviation Administration (FAA), DOT. on: activity reports by the chairpersons of • Either continuing as per previous the COMSTAC working groups. ACTION: Notice of EUROCAE WG–72: mode of cooperation. Interested members of the public may RTCA Special Committee 216: • Or create a firm joint work plan for submit relevant written statements for Aeronautical Systems Security (Joint mutual document development. the COMSTAC members to consider Meeting). • Publication Plan: Roadmap and under the advisory process. Statements Document layout, discuss implications. may concern the issues and agenda SUMMARY: The FAA is issuing this notice • 11h45 to 12h00: Discussion options items mentioned above or additional to advise the public of a meeting of to strengthen ties with CAA’s (EASA issues that may be relevant for the U.S. EUROCAE WG–72: RTCA Special and others). commercial space transportation Committee 216: Aeronautical Systems • Discuss Response to White Paper: industry. Interested parties wishing to Security (Joint Meeting). Vision to Lawmakers. submit written statements should DATES: The meeting will be held April • 12h00 to 13h15: Lunch Break. contact Susan Lender, DFO, (the Contact 20–23, 2010 starting at 9 a.m. on the • 13h15 to 14h30: Status of ED201, Person listed below) in writing (mail or first day and ending by 13:00 on the last ED202/ED203, ED204 or equivalent e-mail) by April 30,2010, so that the day. documents.

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• 14h15 to 17h00: Split-up sessions. CONTACT section. Members of the public Avionics Systems Harmonization • ED201: Include transversal topics may present a written statement to the Working Group. extracted from other parts; coordinate committee at any time. The Task details with other parts. • Issued in Washington, DC on March 29, ED202/203–SG2: Discussion of 2010. ARAC is initially tasked with providing information that will be used differences with SC216/SG2; identify Meredith Gibbs, specific terms and glossary concerns; to develop standards and guidance RTCA Advisory Committee. establish common basis for material for low speed alerting systems. collaboration or joint work. [FR Doc. 2010–7546 Filed 4–1–10; 8:45 am] This information may result in • ED204–SG4: Review the SOW of BILLING CODE 4910–13–P standards that complement existing stall both groups, determine if full or partly warning requirements. The working joint work with one resulting document group will be expected to provide a DEPARTMENT OF TRANSPORTATION is possible, identify parts, that can’t be report that addresses the following low joint. Federal Aviation Administration speed alerting technical questions, relative to new aircraft designs (Phase 1 Days 2 and 3 Aviation Rulemaking Advisory task—new Part 25 standards), and • 09h00 to 17h00: Split-up sessions. Committee; Transport Airplane and provides the rationale for their • Continuation of work for all Engine Issue Area—New Task responses. If there is disagreement documents. within the working group, those items AGENCY: Federal Aviation Day 4 should be documented, including the Administration (FAA), DOT. rationale from each party and the • 09h00 to 13h00: Plenary Session: reasons for the disagreement. • ACTION: Notice of new task assignment 09:00 to 09:20: Review Status of for the Aviation Rulemaking Advisory • How much time is needed to alert ED201 session work—What has been Committee (ARAC). the crew in order to avoid stall warning added/modified? Which elements will or excessive deviation below the be dealt with in 2010, which in a later SUMMARY: The FAA assigned the intended operating speed? issue? What is the status of the EFB Aviation Rulemaking Advisory • What would make the alerting analysis? Committee (ARAC) a new task to instantly recognizable, clear, and • 09:20 to 10:00: Review Status of identify and develop recommendations unambiguous to the flightcrew? ED202/ED203–SG2 session work—What on additional requirements for low • How could nuisance alerts be is the status of the documents? Is it speed alerting in new transport category minimized? reasonable to expect termination of airplanes. This task is the first phase of • Could the alerting operate under all ED202/DO–TBD work in 2010? an overall effort to examine new operating conditions, configurations, • 10:00 to 10:30: Review Status of standards, as well as possible retrofit and phases of flight, including icing ED204–SG4 session work—Is the target standards. This notice is to inform the conditions? audience clear and limited, for which public of this ARAC activity. • Could the alerting operate during the document is to be established? Are manual and autoflight? FOR FURTHER INFORMATION CONTACT: Joe the expectations of the audience well • Could the system reliability be Jacobsen, Airplane & Flight Crew understood? How will the work made consistent with existing Interface Branch, ANM–111, Transport progress, fully joint, partly joint, regulations and guidance for stall Airplane Directorate, Federal Aviation coordinated w/two separate documents? warning systems? • 10:30 to 11:00: Discussion of Administration, 1601 Lind Ave SW, • Are there any regulations or Glossary: Content and Publication Renton, Washington, 98057; telephone guidance material that might conflict (separate in ED210 or integrated). (425) 227–2011, facsimile (425) 227– with new standards? • 11:00 to 11:15: Break. 1149; e-mail [email protected]. • What recommended guidance • 11:15 to 11:30: Discuss SUPPLEMENTARY INFORMATION: material is needed? • After reviewing airworthiness, collaboration and associated topics with Background other organisations (Arinc, DSWG, safety, cost, and other relevant factors, ICAO, etc.). The FAA established ARAC to including recent certification and fleet • 11:30 to 12:00: Summarize the provide advice and recommendations to experience, are there any additional official Eurocae and RTCA release/ the FAA Administrator on the FAA’s considerations that should be taken into review processes in relation to the rulemaking activities with respect to account? planned releases for this year/early aviation-related issues. With respect to • Is coordination necessary with next—verify publication schedule. low speed alerting, the FAA previously other harmonization working groups • 12:00 to 12:30: Future meeting dates revised regulations in the area of flight (e.g., Human Factors)? (if yes, and locations; Expertise to be included; guidance (autopilot) and performance coordinate and report on that Action Item review. and handling qualities in icing coordination) • 12:30 to 12:45: Wrap-up of Meeting, conditions to improve transport airplane The working group will be also be Agreement on Conclusions and Main standards for low speed protection (in expected to provide a report that Events, Main messages to be the case of icing, stall warning standards addresses the following low speed disseminated. were enhanced). However, as a result of alerting technical questions, relative to Attendance is open to the interested several recent loss-of-control accidents existing aircraft designs (as a lead-in to public but limited to space availability. and incidents, the FAA has identified a the Phase 2 task—retrofit standards), With the approval of the chairmen, need for additional low speed and provides the rationale for their members of the public may present oral safeguards, in addition to the regulatory responses. If there is disagreement statements at the meeting. Persons actions that have already been taken. within the working group, those items wishing to present statements or obtain The committee will address the first should be documented, including the information should contact the person task under the Transport Airplane and rationale from each party and the listed in the FOR FURTHER INFORMATION Engine Issues, under the existing reasons for the disagreement.

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• How timely is the airplane in rationale supporting such a plan for will not be open to the public, except alerting the crew of flight below the consideration at the next meeting of the to the extent individuals with an intended operating speed? How timely ARAC on Transport Airplane and interest and expertise are selected to relative to stall warning? Engine Issues held following participate. The FAA will make no • Is alerting instantly recognizable, publication of this notice. public announcement of working group clear, and unambiguous to the 2. Give a detailed conceptual meetings. flightcrew? presentation of the proposed • Issued in Washington, DC, on March 29, How are nuisance alerts recommendations prior to proceeding 2010. minimized? with the work stated in item 3 below. Pamela Hamilton-Powell, • 3. Draft the appropriate documents Does the alerting operate under all Executive Director, Aviation Rulemaking operating conditions, configurations, and required analyses and/or any other Advisory Committee. related materials or documents. and phases of flight, including icing [FR Doc. 2010–7402 Filed 4–1–10; 8:45 am] conditions? 4. Provide a status report at each • Does the alerting operate during meeting of the ARAC held to consider BILLING CODE 4910–13–P manual and autoflight? Transport Airplane and Engine Issues. • After reviewing airworthiness, Participation in the Working Group DEPARTMENT OF TRANSPORTATION safety, cost, and other relevant factors, including recent certification and fleet The Avionics Systems Harmonization Federal Aviation Administration experience, are there any additional Working Group is composed of considerations that should be taken into technical experts having an interest in Public Notice for Waiver of account? the assigned task. A working group Aeronautical Land-Use Assurance • Is coordination necessary with member need not be a representative or Dayton-Wright Brothers Airport; other harmonization working groups a member of the full committee. Dayton, OH (e.g., Human Factors)? If you have expertise in the subject AGENCY: Federal Aviation • If improvements are needed for low matter and wish to become a member of Administration, DOT. speed alerting in the existing fleet, the working group, write to the person should the FAA adopt a design approval listed under the caption FOR FURTHER ACTION: Notice of intent of waiver with holder (part 26) requirement to mandate INFORMATION CONTACT expressing that respect to land. desire. Describe your interest in the task development of design changes, or SUMMARY: The Federal Aviation and state the expertise you would bring would an operational rule be sufficient? Administration (FAA) is considering a to the working group. We must receive In responding, the working group proposal to change a portion of the all requests by May 3, 2010. The should address the factors set forth in airport from aeronautical use to non- assistant chair, the assistant executive ‘‘FAA Policy Statement: Safety—A aeronautical use and to authorize the director, and the working group co- Shared Responsibility—New Direction release of 10.829 acres of airport chairs will review the requests and for Addressing Airworthiness Issues for property for permanent public roadway advise you whether or not your request Transport Airplanes’’ (70 FR 40166, July use. The land consists of portions of 4 is approved. 12, 2005). original airport acquired parcels. These The ARAC working group should If you are chosen for membership on the working group, you must represent parcels were acquired under grants 5– provide information that could lead to 39–0030–01, 5–39–0030–02, 5–39– standards for low speed alerting that can your aviation community segment and actively participate in the working 0030–03, 5–39–0030–04, 5–39–0030–05, be satisfied with practical design and 3–39–0030–01. There are no approaches. group by attending all meetings and providing written comments when impacts to the airport by allowing the Schedule requested to do so. You must devote the City of Dayton to sell the property. The land is not needed for aeronautical use. The required completion date is 9 resources necessary to support the working group in meeting any assigned Approval does not constitute a months after the FAA publishes the task commitment by the FAA to financially in the Federal Register. deadlines. You must keep your management chain and those you may assist in the sale of the subject airport ARAC Acceptance of Task represent advised of working group property nor a determination of ARAC accepted the task and assigned activities and decisions to ensure that eligibility for grant-in-aid funding from it to the existing Avionics Systems the proposed technical solutions do not the FAA. The disposition of proceeds Harmonization Working Group in the conflict with your sponsoring from the sale of the airport property will Transport Airplane and Engine Issue organization’s position when the subject be in accordance with FAA’s Policy and Area. The working group serves as staff being negotiated is presented to ARAC Procedures Concerning the Use of to ARAC and assists in the analysis of for approval. Once the working group Airport Revenue, published in the assigned tasks. ARAC must review and has begun deliberations, members will Federal Register on February 16, 1999. approve the working group’s not be added or substituted without the In accordance with section 47107(h) of recommendations. If ARAC accepts the approval of the assistant chair, the title 49, United States Code, this notice working group’s recommendations, it assistant executive director, and the is required to be published in the will forward them to the FAA. working group co-chairs. Federal Register 30 days before The Secretary of Transportation modifying the land-use assurance that Working Group Activity determined that the formation and use requires the property to be used for an The Avionics Systems Harmonization of the ARAC is necessary and in the aeronautical purpose. Working Group must comply with the public interest in connection with the DATES: Comments must be received on procedures adopted by ARAC. As part performance of duties imposed on the or before May 3, 2010. of the procedures, the working group FAA by law. ADDRESSES: Written comments on the must: Meetings of the ARAC are open to the Sponsor’s request must be delivered or 1. Recommend a work plan for public. Meetings of the Avionics mailed to: Irene R. Porter, Program completion of the task, including the Systems Harmonization Working Group Manager, Detroit Airports District

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Office, 11677 South Wayne Road, Suite located 21.45 feet left of Austin Centerline of Construction Station 107, Romulus, MI 48174. Boulevard Centerline of Construction 190+41.43; FOR FURTHER INFORMATION CONTACT: Station 213+50.09; Thence the following two (2) courses Irene R. Porter, Program Manager, 4. S 83°49′00″ W, a distance of 722.77 and distances along said south lines of Federal Aviation Administration, Great feet, and along said south line of the Parcel 126–WDV: Lakes Region, Detroit Airports District 68.065 acre tract, to a point at the 1. N 76°48′01″ E, a distance of 200.25 Office, DET ADO–607, 11677 South common corner of said 68.065 acre tract feet, to a point. Said point being located Wayne Road, Suite 107, Romulus, and the 23.744 acre tract of land 66.00 feet right of Austin Boulevard Michigan 48174. Telephone Number conveyed to The City of Dayton, Ohio in Centerline of Construction Station (734–229–2915)/FAX Number (734– Deed M.F. 83–011B03. Said point being 192+31.49; 229–2950). located 76.02 feet right of Austin 2. N 84°57′40″ E, a distance of 211.92 Documents reflecting this FAA action Boulevard Centerline of Construction feet, to the point of true beginning. may be reviewed at this same location Station 206+30.88; The above described area contains a or at Dayton Wright Brothers Airport, 5. Continue S 83°49′00″ W, a distance total of 0.069 acres, within the Dayton, Ohio. of 22.67 feet, and along the south line Montgomery County Auditor’s Parcel SUPPLEMENTARY INFORMATION: of said 23.744 acre tract, to a point at the Number K45 02602 0015, which northeast corner of the aforesaid includes 0.000 acres in the present road Parcel 6–SH1 Grantor’s 57.720 acre tract. Said point occupied. being located 78.95 feet right of Austin Situated in the Township of Miami, Parcel 6–SH2 County of Montgomery, State of Ohio Boulevard Centerline of Construction and being a part of a 57.720 acre tract Station 206+08.10; Situated in the Township of Miami, of land as conveyed to The City of 6. S 89°17′39″ W, a distance of 673.03 County of Montgomery, State of Ohio Dayton, Ohio, and described in Deed feet, and along the south line of said and being a part of a 57.720 acre tract M.F. 74–023D06 and lying in Section 23.744 acre tract and north line said of land as conveyed to The City of 10, Township 2, Range 5, M.Rs., and Grantor’s 57.720 acre tract, to a railroad Dayton, Ohio, and described in Deed being a parcel of land lying on the Right spike found at the common corner of M.F. 74–023D06 and lying in Section side of the Centerline of Construction of said 23.744 acre tract and the aforesaid 10, Township 2, Range 5, M.Rs., and Austin Boulevard, as shown on Plat 68.065 (Total) acre tract, said point being a parcel of land lying on the Right Book 212, Pages 34 and 34A as surveyed being located 60.27 feet right of Austin side of the Centerline of Construction, by Burgess & Niple for the Montgomery Boulevard Centerline of Construction Austin Boulevard, as shown on Plat County Engineer’s Office and being Station 199+26.65; Book 212, Pages 34 and 34A as surveyed more particularly described as follows: 7. S 89°16′51″ W, a distance of 141.77 by Burgess & Niple for the Montgomery Beginning for reference at a brass disk feet, and along the south line of said County Engineer’s Office and being found in a highway monument box 68.065 (Total) acre tract and north line more particularly described as follows: stamped ‘‘Montgomery County said Grantor’s 57.720 acre tract, to a Beginning for reference at a brass disk Engineer’s Dayton’’, located in the point at the northeast corner of Parcel found in a highway monument box existing centerline of Right-of-Way of 126–WDV of proposed Right-of-Way to stamped ‘‘Montgomery County Austin Pike at the southeast corner of be acquired by ODOT Project MOT– Engineer’s Dayton’’, located in the the Villages of Miami-South, Section 750.75, Phase Three, PID 77246, as existing centerline of Right-of-Way of Seven, as shown in Plat Book 192, Page shown upon the Right-of-Way plans Austin Pike at the southeast corner of 33. Said disk being located 15.31 left of thereof. Said point being located 46.21 the Villages of Miami-South, Section Austin Boulevard Centerline of feet right of Austin Boulevard Seven, as shown in Plat Book 192, Page Construction Station 225+55.84; Centerline of Construction Station 33. Said disk being located 15.31 left of Thence the following seven (7) 197+84.25; Austin Boulevard Centerline of courses and distances along said Thence the following three (3) courses Construction Station 225+55.84; existing centerline of Right-of-Way of and distances along said Parcel 126– Thence the following five (5) courses Austin Pike: WDV: and distances along said existing 1. S 83°01′58″ W, a distance of 670.76 1. S 00°43′10″ E, a distance of 24.12 centerline of Right-of-Way of Austin feet and along the south line of said feet, to a point being located 70.18 feet Pike: Villages of Miami-South, Section Seven, right of Austin Boulevard Centerline of 1. S 83°01′58″ W, a distance of 670.76 to an angle point being located 15.93 Construction Station 197+81.53; feet, and along the south line of said feet left of Austin Boulevard Centerline 2. S 55°11′45″ W, a distance of 72.45 Villages of Miami-South, Section Seven, of Construction Station 218+85.08; feet, to a point being located 103.43 feet to an angle point being located 15.93 2. S 83°46′58″ W, a distance of 160.64 right of Austin Boulevard Centerline of feet left of Austin Boulevard Centerline feet, and along said south line of the Construction Station 197+16.18; of Construction Station 218+85.08; Villages of Miami-South, Section Seven, 3. S 84°57′40″ W, a distance of 273.40 2. S 83°46′58″ W, a distance of 160.64 to an angle point at the common corner feet, to an iron pin set. Said iron pin feet, and along said south line of the of said Villages of Miami-South, Section being the point of true beginning and Villages of Miami-South, Section Seven, Seven, and the 68.065 acre tract of land located 83.63 feet right of Austin to an angle point at the common corner conveyed to the Board of Trustees Boulevard Centerline of Construction of said Villages of Miami-South, Section Miami Township, Montgomery County, Station 194+38.94; Seven, and the 68.065 acre tract of land Ohio in Deed M.F. 95–248D05. Said Thence S 80°59′47″ W, a distance of conveyed to the Board of Trustees point being located 18.18 feet left of 411.13 feet along the proposed south Miami Township, Montgomery County, Austin Boulevard Centerline of right-of-way across aforesaid Grantor’s Ohio, by deed of record in Deed M.F. Construction Station 217+24.46; 57.720 acre tract, to an iron pin set in 95–248D05. Said point being located 3. S 83°46′26″ W, a distance of 373.41 the aforesaid south line of Parcel 126– 18.18 feet left of Austin Boulevard feet, and along the south line of said WDV. Said iron pin being located 95.76 Centerline of Construction Station 68.065 acre tract, to an angle point being feet right of Austin Boulevard 217+24.46;

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3. S 83°46′26″ W, a distance of 373.41 Thence the following two (2) courses 3. S 83°46′26″ W, a distance of 373.41 feet, and along the south line of said and distances along said existing feet, and along the south line of said 68.065 acre tract, to an angle point being centerline of Right-of-Way of Austin 68.065 acre tract, to an angle point being located 21.45 feet left of Austin Pike and north line of Grantor’s 57.720 located 21.45 feet left of Austin Boulevard Centerline of Construction acre tract: Boulevard Centerline of Construction Station 213+50.09; 1. N 89°16′51″ E, a distance of 141.77 Station 213+50.09; 4. S 83°49′00″ W, a distance of 722.77 feet, to a railroad spike found. Said 4. S 83°49′00″ W, a distance of 722.77 feet, and along said south line of the spike being located 60.27 feet right of feet, and along said south line of the 68.065 acre tract, to a point at the Austin Boulevard Centerline of 68.065 acre tract, to a point at the common corner of said 68.065 acre tract Construction Station 199+26.65; common corner of said 68.065 acre tract ° ′ ″ and the 23.744 acre tract of land 2. N 89 17 39 E, a distance of 673.03 and aforesaid Grantor’s 23.744 acre conveyed to The City of Dayton, Ohio feet, to the point of true beginning. tract. Said point being the point of true by deed of record in Deed M.F. 83– The above described area contains a beginning and located 76.02 feet right of 011B03. Said point being located 76.02 total of 0.481 acres within the Austin Boulevard Centerline of feet right of Austin Boulevard Montgomery County Auditor’s Parcel Construction Station 206+30.88; ° ′ ″ Centerline of Construction Station Number K45 02602 0015, of which Thence continue S 83 49 00 W, a 206+30.88; 0.461 acres are in the present road distance of 22.67 feet, and along the 5. Continue S 83°49′00″ W, a distance occupied. south line of said Grantor’s 23.744 acre tract, to a point at the northeast corner of 22.67 feet, and along the south line Parcel 6–SH3 of said 23.744 acre tract, to a point at the of the 57.720 acre tract conveyed to THE Situated in the Township of Miami, northeast corner of the aforesaid CITY OF DAYTON, OHIO, and County of Montgomery, State of Ohio Grantor’s 57.720 acre tract. Said point described in Deed M.F. 74–023D06. and being a part of the 23.744 acre tract being the point of true beginning and Said point being located 78.95 feet right of land as conveyed to The City of located 78.95 feet right of Austin of Austin Boulevard Centerline of Dayton, Ohio and described in Deed Boulevard Centerline of Construction Construction Station 206+08.10; M.F. 83–011B03, and lying in Section Thence S 89°17′39″ W, a distance of Station 206+08.10; 10, Township 2, Range 5, M.Rs., and 673.03 feet, and along the south line of Thence S 05°07′29″ W, a distance of being a parcel of land lying on the Left said Grantor’s 23.744 acre tract and 24.88 feet along the east line of said and Right sides of the Centerline of north line of said 57.720 acre tract to a Grantor’s 57.720 acre tract, to an iron Construction, Austin Boulevard, as railroad spike found at the common pin set in the existing southerly Right- shown on Plat Book 212, Pages 34 and corner of said Grantor’s 23.744 acre tract of-Way line of Austin Pike. Said iron 34A as surveyed by Burgess & Niple for and the aforesaid 68.065 (Total) acre pin being located 103.76 feet right of the Montgomery County Engineer’s tract conveyed to Board Of Trustees of Austin Boulevard Centerline of Office and being more particularly Miami Township, Montgomery County, Construction Station 206+06.33; described as follows: Ohio, said spike being located 60.27 feet Thence S 89°17′39″ W, a distance of Beginning for reference at a brass disk right of Austin Boulevard Centerline of 670.50 feet along said existing southerly found in a highway monument box Construction Station 199+26.65; Right-of-Way line of Austin Pike, to an stamped ‘‘Montgomery County Thence N 14°46′48″ E, a distance of iron pin set. Said iron pin being located Engineer’s Dayton’’, located in the 160.12 feet, along the line common to 84.93 feet right of Austin Boulevard existing centerline of Right-of-Way of said Grantor’s 23.744 acre tract and said Centerline of Construction Station Austin Pike at the southeast corner of 68.065 (Total) acre tract, to an iron pin 199+24.46; the Villages of Miami-South Section ° ′ ″ set in the proposed north Right-of-Way. Thence S 85 14 06 W, a distance of Seven as shown in Plat Book 192, Page Said iron pin being located 90.00 feet 159.75 feet, along the proposed south 33. Said disk being located 15.31 left of left of Austin Boulevard Centerline of right-of-way across said Grantor’s Austin Boulevard Centerline of Construction Station 199+81.81; 57.720 acre tract, to an iron pin set in Construction Station 225+55.84; Thence the following three (3) courses the easterly line of Parcel 126–WDV, as Thence the following four (4) courses and distances along the proposed north delineated on ODOT Project MOT–75– and distances along said existing Right-of-way across said Grantor’s 0.75, Phase Three, PID 77246, Right-of- centerline of Right-of-Way of Austin 23.744 acre tract: Way plans. Said iron pin being located Pike: 1. Easterly along arc of said curve to 80.00 feet right of Austin Boulevard 1. S 83°01′58″ W, a distance of 670.76 the right (and non tangent to the Centerline of Construction Station feet, and along the south line of said previous course), having a radius of 197+62.45; Villages of Miami-South, Section Seven, 5819.58 feet, a central angle of Thence the following two (2) courses to an angle point being located 15.93 04°10′55″, and a chord bearing N and distances along the easterly lines of feet left of Austin Boulevard Centerline 86°56′32″ E, a chord distance of 424.67 said Parcel 126–WDV: of Construction Station 218+85.08; feet, for an arc distance of 424.76 feet, 1. N 55°11′45″ E, a distance of 21.23 2. S 83°46′58″ W, a distance of 160.64 to an iron pin set. Said iron pin being feet, to an angle point. Said point being feet, and along said south line of the located 90.00 feet left of Austin located 70.18 feet right of Austin Villages of Miami-South, Section Seven, Boulevard Centerline of Construction Boulevard Centerline of Construction to an angle point at the common corner Station 204+00.00; Station 197+81.53; of said Villages of Miami-South, Section 2. S 82°03′20″ E (and non tangent to 2. N 00°43′10″ W, a distance of 24.12 Seven, and the 68.065 acre tract of land the previous course), a distance of feet, to a point in the aforesaid existing conveyed to the Board Of Trustees 102.54 feet, to an iron pin set. Said iron centerline of Right-of-Way of Austin Miami Township, Montgomery County, pin being located 75.00 feet left of Pike and north line of Grantor’s 57.720 Ohio, by deed of record in Deed M.F. Austin Boulevard Centerline of acre tract. Said point being located 95–248D05. Said point being located construction Station 205+00.00; 46.21 feet right of Austin Boulevard 18.18 feet left of Austin Boulevard 3. Easterly along arc of said curve to Centerline of Construction Station Centerline of Construction Station the right (and non tangent to the 197+84.25; 217+24.46; previous course), having a radius of

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5804.58 feet, a central angle of 18.18 feet left of Austin Boulevard Construction, Austin Boulevard, as 02°10′52″, and a chord bearing S Centerline of Construction Station shown on Plat Book 212, Pages 34 and 88°52′34″ E, a chord distance of 220.96 217+24.46; 34A as surveyed by Burgess & Niple for feet, for an arc distance of 220.97 feet, 3. S 83°46′26″ W, a distance of 373.41 the Montgomery County Engineer’s to an iron pin set in the line common feet, and along the south line of said Office and being more particularly to said Grantor’s 23.744 acre tract and 68.065 acre tract, to an angle point at the described as follows: the aforesaid 68.065 (Total) acre tract. common corner of the 54.423 acre tract BEGINNING at a brass disk found in Said iron pin being located 75.00 feet conveyed to The City of Dayton, Ohio a highway monument box stamped left of Austin Boulevard Centerline of and described in Deed M.F. 86–547C10 ‘‘Montgomery County Engineer’s Construction Station 207+18.12; and the aforesaid Grantor’s 16.700 acre Dayton’’, located in the existing Thence S 31°47′17″ W, a distance of tract. Said point being the TRUE POINT centerline of Right-of-Way of Austin 174.40 feet, along the line common to OF BEGINNING and located 21.45 feet Pike and north line of said Grantor’s said Grantor’s 23.744 acre tract and left of Austin Boulevard Centerline of 54.423 acre tract, at the southeast corner aforesaid 68.065 (Total) acre tract, to the Construction Station 213+50.09; of the Villages of Miami-South, Section point of true beginning. Thence S 05°08′40″ W, a distance of Seven, as shown in Plat Book 192, Page The above described area contains a 103.51 feet, along the line common to 33. Said disk being located 15.31 left of total of 2.685 acres, within the said 54.423 acre tract and Grantor’s Austin Boulevard Centerline of Montgomery County Auditor’s Parcel 16.700 acre tract, to an iron pin set. Said Construction Station 225+55.84; Number K45 02602 0058, which iron pin being located 80.69 feet right of Thence N 82°58′02″ E, a distance of includes 0.398 acres in the present road Austin Boulevard Centerline of 697.56 feet, along said existing occupied. Construction Station 213+33.55; centerline of Right-of-Way of Austin Parcel 6–SH4 Thence the following two (2) courses Pike and north line of Grantor’s 54.423 and distances along the proposed south acre tract, to a PK Nail set at the Situated in the Township of Miami, Right-of-Way across said Grantor’s common corner of said Grantor’s 54.423 County of Montgomery, State of Ohio 16.700 acre tract: acre tract and the 118.930 acre tract and being a part of the 16.700 acre tract 1. S 82°58′46″ W, a distance of 71.69 conveyed to The City of Dayton, Ohio of land as conveyed to The City of feet, to an iron pin set. Said iron pin and described in Deed M.F. 86–547C12. Dayton, Ohio and described in Deed being located 85.82 feet right of Austin Said PK Nail being located 64.72 feet M.F. 74–023D06 and lying in Section Boulevard Centerline of Construction left of Austin Boulevard Centerline of 10, Township 2, Range 5, M.Rs., and Station 212+65.03; Construction Station 232+44.54; being a parcel of land lying on the Left 2. N 89°24′50″ W, a distance of 662.93 Thence S 05°35′05″ W, a distance of and Right sides of the Centerline of feet, to an iron pin set in the line 201.00 feet, along the line common to Construction, Austin Boulevard, as common to said Grantor’s 16.700 acre said Grantor’s 54.423 acre tract and said shown on Plat Book 212, Pages 34 and tract and the 57.720 acre tract conveyed 118.930 acre tract to an iron pin set, said 34A as surveyed by Burgess & Niple for to The City of Dayton, Ohio, and point being located 136.13 feet right of the Montgomery County Engineer’s described in Deed M.F. 74–023D06. Austin Boulevard Centerline of Office and being more particularly Said iron pin being located 103.76 feet Construction Station 232+36.87; described as follows: right of Austin Boulevard Centerline of Thence the following six (6) courses Beginning for reference at a brass disk Construction Station 206+06.33; and distances along the proposed south found in a highway monument box Thence N 05°07′29″ E, a distance of Right-of-way across said Grantor’s stamped ‘‘Montgomery County 24.88 feet, along the line common to 54.423 acre tract: Engineer’s Dayton’’, located in the said Grantor’s 16.700 acre tract and said 1. N 80°26′56″ W, a distance of 11.54 existing centerline of Right-of-Way of 57.720 acre tract, to a point in the feet, to an iron pin set. Said iron pin Austin Pike at the southeast corner of aforesaid centerline of Austin Pike. Said being located 134.86 feet right of Austin the Villages of Miami-South, Section point being located 78.95 feet right of Boulevard Centerline of Construction Seven, as shown in Plat Book 192, Page Austin Boulevard Centerline of Station 232+24.83; 33. Said disk being located 15.31 left of Construction Station 206+08.10; 2. N 31°28′27″ W a distance of 42.22 Austin Boulevard Centerline of Thence N 83°49′00″ E, a distance of feet, to an iron pin set. Said iron pin Construction Station 225+55.84; 745.44 feet, along said centerline of being located 100.00 feet right of Austin Thence the following three (3) courses Austin Pike and north line of Grantor’s Boulevard Centerline of Construction and distances along said existing 16.700 acre tract, to the TRUE POINT Station 232+00.00; centerline of Right-of-way of Austin OF BEGINNING. 3. N 74°27′32″ W, a distance of 50.56 Pike: The above described area contains a feet, to an iron pin set. Said iron pin 1. S 83°01′58″ W, a distance of 670.76 total of 1.149 acres, within the being located 88.25 feet right of Austin feet, and along the south line of said Montgomery County Auditor’s Parcel Boulevard Centerline of Construction Villages of Miami-South, Section Seven, Number K45 02602 0023, which Station 231+49.15; to an angle point being located 15.93 includes 0.424 acres in the present road 4. N 85°46′45″ W, a distance of 145.19 feet left of Austin Boulevard Centerline occupied. feet, to an iron pin set, said iron pin of Construction Station 218+85.08; being located 77.82 feet right of Austin 2. S 83°46′58″ W, a distance of 160.64 Parcel 6–SH5 Boulevard Centerline of Construction feet, and along said south line of the Situated in the Township of Miami, Station 230+00.00; Villages of Miami-South, Section Seven, County of Montgomery, State of Ohio 5. Westerly along arc of said curve to to an angle point at the common corner and being a part of the 54.423 acre tract the left having a radius of 2786.97 feet, of said Villages of Miami-South, Section of land as conveyed to The City of a central angle of 05°37′56″, and a chord Seven, and the 68.065 acre tract of land Dayton, Ohio and described in Deed bearing S 85°47′44″ W, a chord distance conveyed to the Board Of Trustees M.F. 86–547C10 and lying in Section of 273.85 feet, for an arc distance of Miami Township, Montgomery County, 10, Township 2, Range 5, M.Rs., and 273.96 feet, to an iron pin set at the Ohio, by deed of record in Deed M.F. being a parcel of land lying on the Left point of tangency. Said iron pin being 95–248D05. Said point being located and Right sides of the Centerline of located 77.82 feet right of Austin

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Boulevard Centerline of Construction Beginning at a brass disk found in a Austin Boulevard as shown on Plat Station 227+18.39; highway monument box stamped Book 212, Pages 34 and 34A of the Plat 6. S 82°58′46″ W, a distance of ‘‘Montgomery County Engineer’s records of Montgomery County and 1389.12 feet, to an iron pin set in the Dayton’’, located at the intersection of being located within the following line common to said Grantor’s 54.423 the existing centerline of Right-of-Way described points in the boundary acre tract and the 16.700 acre tract of Austin Pike, and the line common to thereof: conveyed to The City of Dayton, Ohio Miami Township Section 10, Township Commencing at a brass disk found and described in Deed M.F. 74–023D06. 2, Range 5, and Washington Township within a highway monument box Said iron pin being located 80.69 feet Section 4, Township 2, Range 5 of the stamped ‘‘Montgomery County right of Austin Boulevard Centerline of M.Rs. Said disk being the northeast Engineer’s Dayton’’ located on the Construction Station 213+33.55; corner of said Grantor’s 118.930 acre existing centerline of Right-of-Way of Thence N 05°08′40″ E, a distance of tract and located 85.17 feet left of Austin Pike at the southeast corner of 103.51 feet, along the line common to Austin Boulevard Centerline of the Villages of Miami-South, Section said Grantor’s 54.423 acre tract and said Construction Station 233+42.34; Seven, as shown on Plat Book 192, Page ° ′ ″ 16.700 acre tract, to a point in the Thence S 05 35 01 W, a distance of 33 of the Plat records of Montgomery aforesaid existing centerline of Right-of- 230.30 feet, along said line common to County, said brass disk found being way of Austin Pike at the common Miami Township and Washington 15.31 feet left of Austin Boulevard corner of said Grantor’s 54.423 acre tract Township, and east line of Grantor’s Centerline of Construction station and said 16.700 acre tract. Said point 118.930 acre tract, to an iron pin set. 225+55.84; being located 21.45 feet left of Austin Said iron pin being located 145.13 feet Thence on the existing centerline of Boulevard Centerline of Construction right of Austin Boulevard Centerline of right of way of Austin Pike, South 83 Station 213+50.09; Construction Station 233+41.81; degrees 01 minutes 58 seconds West, ° ′ ″ 670.76 feet to an angle point, said angle Thence the following three (3) courses Thence N 80 26 56 W, a distance of point being 15.93 feet left of Austin and distances along said existing 100.19 feet along the proposed south Boulevard Centerline of Construction centerline of Right-of Way of Austin Right-of-Way across said Grantor’s 118.930 acre tract, to an iron pin set in station 218+85.08; Pike and north line of said Grantor’s Thence continuing on the existing 54.423 acre tract: the line common to said Grantor’s ° ′ ″ 118.930 acre tract, and the 54.423 acre centerline of right of way of Austin Pike, 1. N 83 46 26 E, a distance of 373.41 South 83 degrees 46 minutes 58 seconds feet, to a point at the southwest corner tract conveyed to The City of Dayton, Ohio and described in Deed M.F. 86– West, 160.64 feet to an angle point, said of aforesaid Villages of Miami South, angle point being 18.18 feet left of Section Seven. Said point being located 547C10. Said point being located 136.13 feet right of Austin Boulevard Austin Boulevard Centerline of 18.18 feet left of Austin Boulevard Construction station 217+24.46; Centerline of Construction Station Centerline of Construction Station 232+36.87; Thence continuing on the existing 217+24.46; ° ′ ″ centerline of right of way of Austin Pike, ° ′ ″ Thence N 05 35 05 E, a distance of 2. N 83 46 58 E, a distance of 160.64 201.00 feet, along said line common to South 83 degrees 46 minutes 26 seconds feet, and along the south line of said said Grantor’s 118.930 acre tract and West, 373.41 feet to an angle point, said Villages of Miami-South, Section Seven, said 54.423 acre tract, to a PK Nail Set angle point being 21.45 feet left of to a point. Said point being located in the aforesaid existing centerline of Austin Boulevard Centerline of 15.93 feet left of Austin Boulevard Right-of-way of Austin Pike, at the Construction station 213+50.09; Centerline of Construction Station northwesterly corner of said Grantor’s Thence continuing on the existing 218+85.08; centerline of right of way of Austin Pike, ° ′ ″ 118.930 acre tract. Said PK nail being 3. N 83 01 58 E, a distance of 670.76 located 64.72 feet left of Austin South 83 degrees 49 minutes 00 seconds feet, and along the south line of said Boulevard Centerline of Construction West, 745.44 feet to an angle point, said Villages of Miami-South, Section Seven, Station 232+44.54; angle point being 78.95 feet right of to the POINT OF BEGINNING. Thence N 82°58′02″ E a distance of Austin Boulevard Centerline of The above described area contains a 102.42 feet along said existing Construction station 206+08.10. Said total of 4.388 acres, within the centerline of Right-of-way of Austin angle point also being the northeast Montgomery County Auditor’s Parcel Pike and northerly line of said Grantor’s corner of the aforesaid grantor’s 57.720 Number K45 02602 0059, which 118.930 acre tract, to the true point of acre tract; includes 1.357 acres in the present road beginning. Thence South 05 degrees 07 minutes occupied. The above described area contains a 29 seconds West, 34.93 feet on the grantor’s east line to an iron pin set on Parcel 6–SH6 total of 0.495 acres, within the Montgomery County Auditor’s Parcel the south line of an existing 10 foot Situated in the Township of Miami, Number K45 02602 0011, which DP&L easement as recorded in Deed MF County of Montgomery, State of Ohio includes 0.140 acres in the present road 98–0489B07 & Deed MF 00–0735B01, and being a part of a 118.930 acre tract occupied. said iron pin being 113.79 feet right of of land as conveyed to The City of Austin Boulevard Centerline of Dayton, Ohio and described in Deed Parcel 6–SH7 Construction station 206+05.61 and also M.F. 86–547C12 and lying in Section Situated in the State of Ohio, County being the true point of beginning for the 10, Township 2, Range 5, M.Rs., and of Montgomery, Township of Miami, parcel of land herein described; being a parcel of land lying on the Left Section 10, Township 2, Range 5, M.Rs., Thence South 05 degrees 07 minutes and Right sides of the centerline of right and being a part of a 57.720 acre tract 29 seconds West, 20.10 feet continuing of way and construction Austin of land as conveyed to The City of on the grantor’s east line to an iron pin Boulevard, as shown on Plat Book 212, Dayton, Ohio, and described in Deed set on the proposed standard highway Pages 34 and 34A as surveyed by M.F. 74–023D06 and being more easement line, said iron pin being Burgess & Niple for the Montgomery particularly described as follows: 133.84 feet right of Austin Boulevard County Engineer’s Office and being Being a parcel lying on the right side Centerline of Construction station more particularly described as follows: of the Centerline of Construction of 206+04.16;

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Thence South 89 degrees 17 minutes Centerline of Construction station 33 of the Plat records of Montgomery 39 seconds West, 666.38 feet on the 190+41.75; County, said brass disk found being proposed standard highway easement Thence North 80 degrees 59 minutes 15.31 feet left of Austin Boulevard line to an iron pin set, said iron pin 47 seconds East, 411.70 feet continuing Centerline of Construction station being 114.91 feet right of Austin on said relocated 10 foot easement to an 225+55.84; Boulevard Centerline of Construction iron pin set, said iron pin being 93.62 Thence on the existing centerline of station 199+22.87; feet right of Austin Boulevard right of way of Austin Pike, South 83 Thence South 85 degrees 14 minutes Centerline of Construction station degrees 01 minutes 58 seconds West, 06 seconds West, 150.64 feet continuing 194+38.32; 670.76 feet to an angle point, said angle on the proposed standard highway Thence North 84 degrees 57 minutes point being 15.93 feet left of Austin easement line to an iron pin set, said 40 seconds East, 275.71 feet continuing Boulevard Centerline of Construction iron pin being 110.33 feet right of on said relocated 10 foot easement to an station 218+85.08; Austin Boulevard Centerline of iron pin set, said iron pin being 113.55 Thence continuing on the existing Construction station 197+69.28; feet right of Austin Boulevard centerline of right of way of Austin Pike, Thence South 55 degrees 11 minutes Centerline of Construction station South 83 degrees 46 minutes 58 seconds 45 seconds West, 51.14 feet continuing 197+18.39; West, 160.64 feet to an angle point, said on the proposed standard highway Thence North 55 degrees 11 minutes angle point being 18.18 feet left of easement line to an iron pin set, said 45 seconds East, 51.19 feet continuing Austin Boulevard Centerline of iron pin being 133.78 feet right of on said relocated 10 foot easement to an Construction station 217+24.46; Austin Boulevard Centerline of iron pin set, said iron pin being 90.11 Thence continuing on the existing Construction station 197+22.85; feet right of Austin Boulevard centerline of right of way of Austin Pike, Thence South 84 degrees 57 minutes Centerline of Construction station South 83 degrees 46 minutes 26 seconds 40 seconds West, 280.33 feet continuing 197+64.72; West, 373.41 feet to an angle point, said on the proposed standard highway Thence North 85 degrees 14 minutes angle point being 21.45 feet left of easement line to an iron pin set, said 06 seconds East, 156.71 feet continuing Austin Boulevard Centerline of iron pin being 113.59 feet right of on said relocated 10 foot easement to an Construction station 213+50.09; Austin Boulevard Centerline of iron pin set on the south line of an Thence South 05 degrees 08 minutes Construction station 194+37.08; existing 10 foot DP&L easement as 40 seconds West, 113.74 feet on the Thence South 80 degrees 59 minutes recorded in Deed MF 98–0489307 & grantor’s east line to an iron pin set on 47 seconds West, 412.84 feet continuing Deed MF 00–0735301, said iron pin the relocated 10 foot easement as on the proposed standard highway being 94.92 feet right of Austin recorded in Deed MF 98–0489B07 & easement line to an iron pin set, said Boulevard Centerline of Construction Deed MF 00–0735B01, said iron pin iron pin being 125.87 feet right of station 199+23.93; being 90.79 feet right of Austin Austin Boulevard Centerline of Thence North 89 degrees 17 minutes Boulevard Centerline of Construction Construction station 190+42.38; 39 seconds East, 669.13 feet on the station 213+32.01 and also being the Thence North 88 degrees 30 minutes south line of said existing 10 foot DP&L true point of beginning for the parcel of 19 seconds West, 497.87 feet continuing easement to the true point of beginning land herein described; on the proposed standard highway and containing 1.037 acres, of which Thence South 05 degrees 08 minutes easement line to an iron pin set, said 0.000 acres is PRO (Present Road 40 seconds West, 20.46 feet continuing iron pin being 122.42 feet right of Occupied), leaving a net take of 1.037 on the grantor’s east line to an iron pin Austin Boulevard Centerline of acres, more or less, subject to legal set on the proposed standard highway Construction station 185+51.78; highways and other easements of easement line, said iron pin being Thence South 84 degrees 42 minutes record. 111.00 feet right of Austin Boulevard 42 seconds West, 198.53 feet continuing Centerline of Construction station Parcel 6–SH8 on the proposed standard highway 213+28.97; easement line to an iron pin set, said Situated in the State of Ohio, County Thence South 82 degrees 58 minutes iron pin being 145.87 feet right of of Montgomery, Township of Miami, 46 seconds West, 67.21 feet on the Austin Boulevard Centerline of Section 10, Township 2, Range 5, M.Rs., proposed standard highway easement Construction station 183+54.64; and being a part of a 16.700 acre tract line to an iron pin set, said iron pin Thence North 01 degrees 29 minutes of land as conveyed to The City of being 115.88 feet right of Austin 41 seconds East, 20.14 feet continuing Dayton, Ohio, and described in Deed Boulevard Centerline of Construction on the proposed standard highway M.F. 74–023D06 and being more station 212+65.69; easement line to an iron pin set on the particularly described as follows: Thence North 89 degrees 24 minutes relocated 10 foot easement as recorded Being a parcel lying on the right side 50 seconds West, 664.58 feet continuing in Deed MF 98–0489B07 & Deed MF 00– of the Centerline of Construction of on the proposed standard highway 0735B01, said iron pin being 125.73 feet Austin Boulevard as shown on Plat easement line to an iron pin set, said right of Austin Boulevard Centerline of Book 212, Pages 34 and 34A of the Plat iron pin being 133.76 feet right of Construction station 183+54.64; records of Montgomery County and Austin Boulevard Centerline of Thence North 84 degrees 42 minutes being located within the following Construction station 206+06.95; 42 seconds East, 197.34 feet on said described points in the boundary Thence South 89 degrees 17 minutes relocated 10 foot easement to an iron thereof: 39 seconds West, 2.73 feet continuing pin set, said iron pin being 102.42 feet Commencing at a brass disk found on the proposed standard highway right of Austin Boulevard Centerline of within a highway monument box easement line to an iron pin set on the Construction station 185+50.59; stamped ‘‘Montgomery County grantor’s west line, said iron pin being Thence South 88 degrees 30 minutes Engineer’s Dayton’’ located on the 133.84 feet right of Austin Boulevard 19 seconds East, 497.21 feet continuing existing centerline of Right-of-Way of Centerline of Construction station on said relocated 10 foot easement to an Austin Pike at the southeast corner of 206+04.16; iron pin set, said iron pin being 105.80 the Villages of Miami-South, Section Thence North 05 degrees 07 minutes feet right of Austin Boulevard Seven, as shown on Plat Book 192, Page 29 seconds East, 20.10 feet on the

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grantor’s west line to an iron pin set on Thence continuing on the existing Original signed by: the south line of an existing 10 foot centerline of right of way of Austin Pike, Joe Hebert, DP&L easement as recorded in Deed MF South 83 degrees 46 minutes 58 seconds Acting Manager, Detroit Airports District 98–0489B07 & Deed MF 00–0735B01, West, 160.64 feet to an angle point, said Office, FAA, Great Lakes Region. said iron pin being 113.79 feet right of angle point being 18.18 feet left of [FR Doc. 2010–7079 Filed 4–1–10; 8:45 am] Austin Boulevard Centerline of Austin Boulevard Centerline of BILLING CODE 4910–13–M Construction station 206+05.61; Construction station 217+24.46; Thence North 89 degrees 17 minutes Thence South 06 degrees 58 minutes 39 seconds East, 0.91 feet on the south 02 seconds East, 96.00 feet on a line to DEPARTMENT OF THE TREASURY line of said existing 10 foot DP&L an iron pin set on the proposed right of easement to an iron pin set on the way line of Parcel 6–SH5 to be acquired Office of Foreign Assets Control relocated 10 foot easement as recorded by ODOT Project MOTCR 166–6.00, PID in Deed MF 98–0489B07 & Deed MF 00– 78696, as shown on the Right-of-Way Designation of One Individual 0735B01, said iron pin being 113.76 feet plans thereof, said iron pin being 77.82 Pursuant to Executive Order 13224 right of Austin Boulevard Centerline of feet right of Austin Boulevard Construction station 206+06.53; Centerline of Construction station AGENCY: Office of Foreign Assets Thence South 89 degrees 24 minutes 217+24.37 and also being the true point Control, Treasury. 50 seconds East, 663.48 feet on said of beginning for the parcel of land ACTION: Notice. relocated 10 foot easement to an iron herein described; SUMMARY: The Treasury Department’s pin set, said iron pin being 95.84 feet Thence South 06 degrees 58 minutes Office of Foreign Assets Control right of Austin Boulevard Centerline of 02 seconds East, 30.00 feet on the (‘‘OFAC’’) is publishing the names of one Construction station 212+65.25; proposed standard highway easement newly-designated individual whose Thence North 82 degrees 58 minutes line to an iron pin set, said iron pin property and interests in property are 46 seconds East, 70.20 feet on said being 107.82 feet right of Austin blocked pursuant to Executive Order relocated 10 foot easement to the true Boulevard Centerline of Construction 13224 of September 23, 2001, ‘‘Blocking point of beginning and containing 0.337 station 217+24.34; Property and Prohibiting Transactions acres, of which 0.000 acres is PRO Thence South 82 degrees 58 minutes With Persons Who Commit, Threaten To (Present Road Occupied), leaving a net 46 seconds West, 401.54 feet on the Commit, or Support Terrorism.’’ take of 0.337 acres, more or less, subject proposed standard highway easement to legal highways and other easements line to an iron pin set on the grantor’s DATES: The designation by the Director of record. west line, said iron pin being 111.00 feet of OFAC of the individual identified in right of Austin Boulevard Centerline of this notice, pursuant to Executive Order Parcel 6–SH9 Construction station 213+28.97; 13224, is effective on March 25, 2010. Situated in the State of Ohio, County Thence North 05 degrees 08 minutes FOR FURTHER INFORMATION CONTACT: of Montgomery, Township of Miami, 40 seconds East, 20.46 feet on the Assistant Director, Compliance Section 10, Township 2, Range 5, M.Rs., grantor’s west line to an iron pin set on Outreach & Implementation, Office of and being a part of a 54.423 acre tract the relocated 10 foot easement as Foreign Assets Control, Department of of land as conveyed to The City of recorded in Deed MF 98–0489B07 & the Treasury, Washington, DC 20220, Dayton, Ohio, and described in Deed Deed MF 00–0735B01, said iron pin tel.: 202/622–2490. M.F. 86–547C10 and being more being 90.79 feet right of Austin SUPPLEMENTARY INFORMATION: particularly described as follows: Boulevard Centerline of Construction Being a parcel lying on the right side station 213+32.01; Electronic and Facsimile Availability of the Centerline of Construction of Thence North 82 degrees 58 minutes This document and additional Austin Boulevard as shown on Plat 46 seconds East, 377.24 feet on said information concerning OFAC are Book 212, Pages 34 and 34A of the Plat relocated 10 foot easement to an iron available from OFAC’s Web site records of Montgomery County and pin set on the proposed standard (http://www.treas.gov/ofac) or via being located within the following highway easement line, said iron pin facsimile through a 24-hour fax-on- described points in the boundary being 87.82 feet right of Austin demand service, tel.: 202/622–0077. thereof: Boulevard Centerline of Construction Commencing at a brass disk found station 217+04.36; Background within a highway monument box Thence North 06 degrees 58 minutes On September 23, 2001, the President stamped ‘‘Montgomery County 02 seconds West, 10.00 feet on the issued Executive Order 13224 (the Engineer’s Dayton’’ located on the proposed standard highway easement ‘‘Order’’) pursuant to the International existing centerline of Right-of-Way of line to an iron pin set on said Parcel 6– Emergency Economic Powers Act, 50 Austin Pike at the southeast corner of SH5, said iron pin being 77.82 feet right U.S.C. 1701–1706, and the United the Villages of Miami-South, Section of Austin Boulevard Centerline of Nations Participation Act of 1945, 22 Seven, as shown on Plat Book 192, Page Construction station 217+04.37; U.S.C. 287c. In the Order, the President 33 of the Plat records of Montgomery Thence North 82. degrees 58 minutes declared a national emergency to County, said brass disk found being 46 seconds East, 20.00 feet on the address grave acts of terrorism and 15.31 feet left of Austin Boulevard proposed right of way line of said Parcel threats of terrorism committed by Centerline of Construction station 6–SH5 to the true point of beginning foreign terrorists, including the 225+55.84; and containing 0.188 acres, of which September 11, 2001, terrorist attacks in Thence on the existing centerline of 0.000 acres is PRO (Present Road New York, Pennsylvania, and at the right of way of Austin Pike, South 83 Occupied), leaving a net take of 0.188 Pentagon. The Order imposes economic degrees 01 minutes 58 seconds West, acres, more or less, subject to legal sanctions on persons who have 670.76 feet to an angle point, said angle highways and other easements of committed, pose a significant risk of point being 15.93 feet left of Austin record. committing, or support acts of terrorism. Boulevard Centerline of Construction Issued in Romulus, Michigan, on March 5, The President identified in the Annex to station 218+85.08; 2010. the Order, as amended by Executive

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Order 13268 of July 2, 2002, 13 Harith Sulayman; a.k.a. AL DARI, Dr. issues. Membership is balanced to individuals and 16 entities as subject to Muthanna; a.k.a. AL DARI, Muthana include representation from the tax the economic sanctions. The Order was Harith; a.k.a. AL–DARI AL–ZAWBA’I, professional community, businesses, further amended by Executive Order Muthanna Harith Sulayman; a.k.a. AL– banks, insurance companies, state tax 13284 of January 23, 2003, to reflect the DARI AL–ZOBAI, Muthanna Harith administration, colleges and creation of the Department of Homeland Sulayman; a.k.a. AL–DARI, Muthanna universities, securities, payroll, foreign Security. Harith Sulayman; a.k.a. AL–DHARI, financial institutions and other Section 1 of the Order blocks, with Muthana Haris; a.k.a. AL–DHARI, industries. certain exceptions, all property and Muthanna Hareth; a.k.a. AL–DHARI, DATES: interests in property that are in or Written nominations must be Muthanna Harith Sulayman), Egypt; received on or before May 28, 2010. hereafter come within the United States Amman, Jordan; Khan Dari, Iraq; Asas or the possession or control of United Village, Abu Ghurayb, Iraq; DOB 16 Jun ADDRESSES: Nominations should be sent States persons, of: (1) Foreign persons 1969; citizen Iraq; nationality Iraq to: Ms. Caryl Grant, National Public listed in the Annex to the Order; (2) (individual) [SDGT]. Liaison, CL:NPL:SRM, Room 7559 IR, foreign persons determined by the 1111 Constitution Avenue, NW., Dated: March 25, 2010. Secretary of State, in consultation with Washington, DC 20224, Attn: IRPAC the Secretary of the Treasury, the Barbara C. Hammerle, Nominations. Applications may also be Secretary of the Department of Acting Director, Office of Foreign Assets submitted via fax to 202–622–8345. Homeland Security and the Attorney Control. Application packages are available on General, to have committed, or to pose [FR Doc. 2010–7423 Filed 4–1–10; 8:45 am] the Tax Professional’s Page of the IRS a significant risk of committing, acts of BILLING CODE 4810–AL–P Web site at http://www.irs.gov/taxpros/ terrorism that threaten the security of index.html. Application packages may U.S. nationals or the national security, also be requested by telephone from foreign policy, or economy of the United DEPARTMENT OF THE TREASURY National Public Liaison, 202–927–3641 States; (3) persons determined by the (not a toll-free number). Internal Revenue Service Director of OFAC, in consultation with FOR FURTHER INFORMATION CONTACT: Ms. the Departments of State, Homeland Information Reporting Program Caryl Grant at 202–927–3641 (not a toll- Security and Justice, to be owned or Advisory Committee (IRPAC); free number) or controlled by, or to act for or on behalf Nominations *[email protected]. of those persons listed in the Annex to SUPPLEMENTARY INFORMATION: the Order or those persons determined AGENCY: Internal Revenue Service, to be subject to subsection 1(b), 1(c), or Department of Treasury. Established in 1991 in response to an administrative recommendation in the 1(d)(i) of the Order; and (4) except as ACTION: Request for nominations. provided in section 5 of the Order and final Conference Report of the Omnibus after such consultation, if any, with SUMMARY: The Internal Revenue Service Budget Reconciliation Act of 1989, the foreign authorities as the Secretary of (IRS) requests nominations of IRPAC works closely with the IRS to State, in consultation with the Secretary individuals for selection to the provide recommendations on a wide of the Treasury, the Secretary of the Information Reporting Program range of issues intended to improve the Department of Homeland Security and Advisory Committee (IRPAC). information reporting program and the Attorney General, deems Nominations should describe and achieve fairness to taxpayers. Conveying appropriate in the exercise of his document the proposed member’s the public’s perception of IRS activities discretion, persons determined by the qualifications for IRPAC membership, to the Commissioner, the IRPAC is Director of OFAC, in consultation with including the applicant’s past or current comprised of individuals who bring the Departments of State, Homeland affiliations and dealings with the substantial, disparate experience and Security and Justice, to assist in, particular tax segment or segments of diverse backgrounds to the Committee’s sponsor, or provide financial, material, the community that he or she wishes to activities. or technological support for, or financial represent on the committee. In addition The IRPAC members are nominated or other services to or in support of, to individual nominations, the IRS is by the Commissioner with the such acts of terrorism or those persons soliciting nominations from professional concurrence of the Secretary of Treasury listed in the Annex to the Order or and public interest groups that wish to to serve a three-year term. Working determined to be subject to the Order or have representatives on the IRPAC. The groups address policies and to be otherwise associated with those IRPAC is comprised of no more than 35 administration issues specific to persons listed in the Annex to the Order members. There are ten positions open information reporting. Members are not or those persons determined to be for calendar year 2011. It is important paid for their services. However, travel subject to subsection 1(b), 1(c), or 1(d)(i) that IRPAC continue to represent a expenses for working sessions, public of the Order. diverse taxpayer and stakeholder base. meetings and orientation sessions, such On March 25, 2010 the Director of Accordingly, to maintain membership as airfare, per diem, and transportation OFAC, in consultation with the diversity, selection is based on the are reimbursed within prescribed Departments of State, Homeland applicant’s qualifications as well as the federal travel limitations. Security, Justice and other relevant taxpayer or stakeholder base he/she Receipt of applications will be agencies, designated, pursuant to one or represents. acknowledged, and all individuals will more of the criteria set forth in The IRPAC advises the IRS on be notified when selections have been subsections 1(b), 1(c) or 1(d) of the information reporting issues of mutual made. In accordance with Department of Order, one individual whose property concern to the private sector and the Treasury Directive 21–03, a clearance and interests in property are blocked federal government. The committee process including, fingerprints, annual pursuant to Executive Order 13224. works with the IRS Commissioner and tax checks, a Federal Bureau of The designee is as follows: other IRS leadership to provide Investigation criminal check, and a AL–DARI, Muthanna Harith (a.k.a. AL recommendations on a wide range of practitioner check with the Office of DARI AL–ZAWBA’, Doctor Muthanna information reporting administration Professional Responsibility will be

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conducted. Federally registered hearing will be Co-chaired by ACTION: Notice. lobbyists cannot be members of the Commissioners William A. Reinsch and IRPAC. Dennis C. Shea. SUMMARY: The Veterans Benefits Equal opportunity practices will be Any interested party may file a Administration (VBA), Department of followed for all appointments to the written statement by April 8, 2010, by Veterans Affairs (VA), is announcing an IRPAC in accordance with the mailing to the contact below. On April opportunity for public comment on the Department of Treasury and IRS 8, the hearing will be held in two proposed collection of certain policies. To ensure that the IRPAC sessions, one in the morning and one in information by the agency. Under the recommendations take into account the the afternoon. A portion of each panel Paperwork Reduction Act (PRA) of needs of the diverse groups served by will include a question and answer 1995, Federal agencies are required to the IRS, membership shall include, to period between the Commissioners and publish notice in the Federal Register the extent practicable, individuals who the witnesses. concerning each proposed collection of demonstrate the ability to represent Transcripts of past Commission information, including each proposed minorities, women, and persons with public hearings may be obtained from extension of a currently approved disabilities. the USCC Web Site http:// collection, and allow 60 days for public Dated: March 24, 2010. www.uscc.gov. comment in response to the notice. This Date and Time: Thursday, April 8, notice solicits comments on information Mark Kirbabas, 2010, 8:55 a.m. to 2:25 p.m. Eastern needed to authorize advance payment of Designated Federal Official, National Public Daylight Time. A detailed agenda for the educational assistance benefits. Liaison. hearing will be posted to the DATES: Written comments and [FR Doc. 2010–7422 Filed 4–1–10; 8:45 am] Commission’s Web site at http:// BILLING CODE 4830–01–P recommendations on the proposed www.uscc.gov as soon as available. collection of information should be ADDRESSES: The hearing will be held on received on or before June 1, 2010. Capitol Hill in Room 562 of the Dirksen U.S.-CHINA ECONOMIC AND ADDRESSES: Submit written comments Senate Office Building located at First SECURITY REVIEW COMMISSION on the collection of information through Street and Constitution Avenue, NE., Federal Docket Management System Washington, DC 20510. Public seating is Notice of Open Public Hearing (FDMS) at http://www.Regulations.gov limited to about 50 people on a first or to Nancy J. Kessinger, Veterans AGENCY: U.S.-China Economic and come, first served basis. Advance Benefits Administration (20M35), Security Review Commission. reservations are not required. Department of Veterans Affairs, 810 ACTION: Notice of open public hearing— FOR FURTHER INFORMATION CONTACT: Any Vermont Avenue, NW., Washington, DC April 8, 2010, Washington, DC. member of the public wishing further 20420 or e-mail information concerning the hearing SUMMARY: Notice is hereby given of the [email protected]. Please refer to should contact Kathy Michels, Associate following hearing of the U.S.-China ‘‘OMB Control No. 2900–0325’’ in any Director for the U.S.-China Economic Economic and Security Review correspondence. During the comment and Security Review Commission, 444 Commission. This is the correct version period, comments may be viewed online North Capitol Street, NW., Suite 602, of the hearing notice originally through the FDMS. Washington DC 20001; phone: 202–624– published in 75 FR 15493. FOR FURTHER INFORMATION CONTACT: Name: Daniel M. Slane, Chairman of 1409, or via e-mail at [email protected]. Nancy J. Kessinger at (202) 461–9769 or the U.S.-China Economic and Security FAX (202) 275–5947. Review Commission. Authority: Congress created the U.S.- The Commission is mandated by China Economic and Security Review SUPPLEMENTARY INFORMATION: Under the Congress to investigate, assess, and Commission in 2000 in the National Defense PRA of 1995 (Pub. L. 104–13; 44 U.S.C. report to Congress annually on ‘‘the Authorization Act (Pub. L. 106–398), as 3501–3521), Federal agencies must national security implications of the amended by Division P of the Consolidated obtain approval from the Office of Appropriations Resolution, 2003 (Pub. L. economic relationship between the Management and Budget (OMB) for each 108–7), as amended by Public Law 109–108 collection of information they conduct United States and the People’s Republic (November 22, 2005). of China.’’ or sponsor. This request for comment is Pursuant to this mandate, the Dated: March 30, 2010. being made pursuant to Section Commission will hold a public hearing Kathleen J. Michels, 3506(c)(2)(A) of the PRA. in Washington, DC on April 8, 2010, to Associate Director, U.S.-China Economic and With respect to the following address ‘‘China’s Green Energy and Security Review Commission. collection of information, VBA invites Environmental Policies.’’ [FR Doc. 2010–7433 Filed 4–1–10; 8:45 am] comments on: (1) Whether the proposed BILLING CODE 1137–00–P collection of information is necessary Background for the proper performance of VBA’s This is the fourth public hearing the functions, including whether the Commission will hold during its 2010 DEPARTMENT OF VETERANS information will have practical utility; report cycle to collect input from AFFAIRS (2) the accuracy of VBA’s estimate of the leading academic, industry, and burden of the proposed collection of government experts on national security [OMB Control No. 2900–0325] information; (3) ways to enhance the implications of the U.S. bilateral trade Proposed Information Collection quality, utility, and clarity of the and economic relationship with China. (Certificate of Delivery of Advance information to be collected; and (4) The April 8 hearing will examine Payment and Enrollment) Activity: ways to minimize the burden of the China’s domestic and international Comment Request collection of information on clean energy policies and the potential respondents, including through the use for cooperation between the United AGENCY: Veterans Benefits of automated collection techniques or States and China on climate change and Administration, Department of Veterans the use of other forms of information clean energy technologies. The April 8 Affairs. technology.

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Title: Certificate of Delivery of DEPARTMENT OF VETERANS SUPPLEMENTARY INFORMATION: Under the Advance Payment and Enrollment, VA AFFAIRS PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Form 22–1999V. 3501–3521), Federal agencies must [OMB Control No. 2900–New (VA Form 10– OMB Control Number: 2900–0325. obtain approval from the Office of 0503)] Management and Budget (OMB) for each Type of Review: Extension of a collection of information they conduct Proposed Information Collection currently approved collection. or sponsor. This request for comment is (Dental Patient Satisfaction Survey) being made pursuant to Section Abstract: VA will make payments of Activity: Comment Request educational assistance in advance when 3506(c)(2)(A) of the PRA. the veteran, servivcemember, reservist, AGENCY: Veterans Health With respect to the following or eligible person has specifically Administration, Department of Veterans collection of information, VHA invites requested such payment. The school in Affairs. comments on: (1) Whether the proposed which a student is accepted or enrolled ACTION: Notice. collection of information is necessary delivers the advance payment to the for the proper performance of VHA’s student and is required to certify the SUMMARY: The Veterans Health functions, including whether the deliveries to VA. VA Form 22–1999V Administration (VHA), Department of information will have practical utility; serves as the certificate of delivery of Veterans Affairs (VA), is announcing an (2) the accuracy of VHA’s estimate of the burden of the proposed collection of advance payment and to report any opportunity for public comment on the information; (3) ways to enhance the changes in a student’s training status. proposed collection of certain information by the agency. Under the quality, utility, and clarity of the Schools are required to report when a Paperwork Reduction Act (PRA) of information to be collected; and (4) student fails to enroll; has an 1995, Federal agencies are required to ways to minimize the burden of the interruption or termination of publish notice in the Federal Register collection of information on attendance; or unsatisfactory concerning each proposed collection of respondents, including through the use attendance, conduct or progress to VA. information, including each proposed of automated collection techniques or Affected Public: State, Local or Tribal new collection, and allow 60 days for the use of other forms of information Government. public comment in response to the technology. Estimated Annual Burden: 35 hours. notice. This notice solicits comments for Title: Survey of Healthcare information needed to measure patients’ Experiences, Dental Patient Satisfaction Estimated Average Burden per satisfaction with VA’s dental services. Survey, VA Form 10–0503. Respondent: 5 minutes. DATES: Written comments and OMB Control Number: 2900–New (VA Frequency of Response: On occasion. recommendations on the proposed Form 10–0503). Estimated Number of Respondents: collection of information should be Type of Review: New collection. 64. received on or before June 1, 2010. Abstract: VA Form 10–0503 will be used to obtain information needed to ADDRESSES: Submit written comments Estimated Total Number of identify problem areas in dental health on the collection of information through Responses: 425. care services. the Federal Docket Management System Affected Public: Individuals or By direction of the Secretary. (FDMS) at http://www.Regulations.gov; households. Denise McLamb, or to Mary Stout, Veterans Health Estimated Annual Burden: 36,585. Administration (193E1), Department of Program Analyst, Enterprise Records Service. Estimated Average Burden per Veterans Affairs, 810 Vermont Avenue, [FR Doc. 2010–7472 Filed 4–1–10; 8:45 am] Respondent: 15 minutes. NW., Washington, DC 20420 or e-mail: BILLING CODE 8320–01–P Frequency of Response: On occasion. [email protected]. Please refer to ‘‘OMB Estimated Number of Respondents: Control No. 2900–New (VA Form 10– 9,146. 0503)’’ in any correspondence. During the comment period, comments may be By direction of the Secretary. viewed online through FDMS. Denise McLamb, FOR FURTHER INFORMATION CONTACT: Program Analyst, Enterprise Records Service. Mary Stout at (202) 461–5867 or FAX [FR Doc. 2010–7473 Filed 4–1–10; 8:45 am] (202) 273–9381. BILLING CODE 8320–01–P

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Part II

Department of Energy Federal Energy Regulatory Commission

18 CFR Part 40 Transmission Relay Loadability Reliability Standard; Final Rule

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DEPARTMENT OF ENERGY Transmission Relay Loadability specific concerns identified by the Reliability Standard (PRC–023–1), Commission. Federal Energy Regulatory developed by the North American DATES: Effective Date: This rule will Commission Electric Reliability Corporation (NERC). become effective May 17, 2010. Reliability Standard PRC–023–1 18 CFR Part 40 requires transmission owners, generator FOR FURTHER INFORMATION CONTACT: owners, and distribution providers to Cynthia Pointer (Technical [Docket No. RM08–13–000; Order No. 733] set load-responsive phase protection Information), Office of Electric relays according to specific criteria in Reliability, Division of Reliability Transmission Relay Loadability Standards, Federal Energy Regulatory Reliability Standard order to ensure that the relays reliably detect and protect the electric network Commission, 888 First Street, NE., March 18, 2010. from all fault conditions, but do not Washington, DC 20426. (202) 502– AGENCY: Federal Energy Regulatory limit transmission loadability or 6069. Commission. interfere with system operators’ ability Joshua Konecni (Legal Information), Office of the General Counsel, Federal ACTION: Final rule. to protect system reliability. In addition, pursuant to section 215(d)(5) of the Energy Regulatory Commission, 888 SUMMARY: Pursuant to section 215 of the Federal Power Act, the Commission First Street, NE., Washington, DC Federal Power Act, the Federal Energy directs NERC to develop modifications 20426. (202) 502–6291. Regulatory Commission approves the to the Reliability Standard to address SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS

Paragraph Nos.

I. Background ...... 2 II. Reliability Standard PRC–023–1 ...... 5 A. Applicability ...... 6 B. Requirements ...... 8 1. Requirement R1 ...... 9 2. Requirement R2 ...... 10 3. Requirement R3 ...... 11 III. Discussion ...... 12 A. Overview ...... 12 B. Approval of PRC–023–1 ...... 13 C. Applicability ...... 20 D. Generator Step-Up and Auxiliary Transformers ...... 98 1. Omission From the Reliability Standard ...... 98 2. Generator Step-Up Transformer Relays as Back-up Protection ...... 109 E. Need to Address Additional Issues ...... 115 1. Zone 3/Zone 2 Relays Applied as Remote Circuit Breaker Failure and Backup Protection ...... 116 2. Protective Relays Operating Unnecessarily due to Stable Power Swings ...... 130 F. Requirement R1 ...... 174 1. Sub-Requirement R1.1 ...... 175 2. Sub-Requirement R1.2 ...... 178 3. Sub-Requirement R1.10 ...... 190 4. Sub-Requirement R1.12 ...... 213 G. Requirement R2 ...... 227 H. Requirement R3 and Its Sub-Requirements ...... 230 1. Role of the Planning Coordinator ...... 231 2. Sub-Requirement R3.3 ...... 235 I. Attachment A ...... 238 1. Section 2: Evaluation of Out-of-Step Blocking Schemes ...... 239 2. Section 3: Protection Systems Excluded from the Reliability Standard ...... 249 J. Effective Date ...... 273 K. Violation Risk Factors ...... 285 L. Violation Severity Levels ...... 298 M. Miscellaneous ...... 313 1. Purpose of the Reliability Standard ...... 313 2. Transmission Facility Design Margin ...... 316 IV. Information Collection Statement ...... 318 V. Environmental Analysis ...... 329 VI. Regulatory Flexibility Act ...... 330 VII. Document Availability ...... 345 VIII. Effective Date and Congressional Notification ...... 348

Before Commissioners: Jon Wellinghoff, 1. Pursuant to section 215 of the Relay Loadability Reliability Standard Chairman; Marc Spitzer, Philip D. Moeller, Federal Power Act (FPA),1 the (PRC–023–1), developed by the North and John R. Norris. Commission approves the Transmission American Electric Reliability Corporation (NERC) in its capacity as 1 16 U.S.C. 824o. The Commission is not adding the Electric Reliability Organization any new or modified text to its regulations.

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(ERO).2 Reliability Standard PRC–023–1 and Ontario, Canada, NERC and the the scope of its review to include certain requires transmission owners, generator U.S.-Canada Power System Outage Task operationally significant facilities: owners, and distribution providers to Force (Task Force) concluded that a NERC [should] broaden the review set load-responsive phase protection substantial number of transmission lines [described in Recommendation 8A of the relays according to specific criteria in disconnected during the blackout when NERC Report] to include operationally order to ensure that the relays reliably load-responsive phase-protection significant 115 kV and 138 kV lines, e.g., detect and protect the electric network backup distance and phase relays lines that are part of monitored flowgates or from all fault conditions, but do not operated unnecessarily, i.e. under non- interfaces. Transmission owners should also limit transmission loadability or fault conditions. Although these relays look for zone 2 relays set to operate like zone 10 interfere with system operators’ ability operated according to their settings, the 3 [relays]. to protect system reliability.3 In Task Force determined that the In its petition, NERC states that PRC– addition, pursuant to section 215(d)(5) operation of these relays for non-fault 023–1 is intended to specifically of the FPA,4 the Commission directs the conditions contributed to cascading address these recommendations. ERO to develop modifications to PRC– outages at the start of the blackout and II. Reliability Standard PRC–023–1 023–1 to address specific concerns accelerated the geographic spread of the identified by the Commission and sets cascade.7 5. Reliability Standard PRC–023–1 specific deadlines for these 4. Seeking to prevent or minimize the requires transmission owners, generator modifications. scope of future blackouts, both NERC owners, and distribution providers to set load-responsive phase protection I. Background and the Task Force made recommendations to ensure that these relays according to specific criteria in 2. Protective relays are devices that types of protective relays do not order to ensure that the relays reliably detect and initiate the removal of faults contribute to future blackouts. detect and protect the electric network on an electric system.5 They are Recommendation 8A of the NERC from all fault conditions, but do not designed to read electrical Report addresses the need to evaluate operate during non-fault load measurements, such as current, voltage, load-responsive protection zone 3 conditions. and frequency, and can be set to 8 relays to determine whether they will A. Applicability recognize certain measurements as operate under extreme emergency indicating a fault. When a protective conditions: 6. As proposed by NERC, the relay detects a fault on an element of the Reliability Standard applies to relay system under its protection, it sends a All transmission owners shall, no later than September 30, 2004, evaluate the zone settings on: (1) All transmission lines signal to an interrupting device(s) (such 3 relay settings on all transmission lines and transformers with low-voltage as a circuit breaker) to disconnect the operating at 230 kV and above for the terminals operated or connected at or element from the rest of the system.6 purpose of verifying that each zone 3 relay above 200 kV; 11 and (2) those Impedance relays (also known as is not set to trip on load under extreme transmission lines and transformers distance relays) are the most common emergency conditions[ ]. In each case that a with low-voltage terminals operated or type of load-responsive phase protection zone 3 relay is set so as to trip on load under connected between 100 kV and 200 relays used to protect transmission extreme conditions, the transmission kV 12 that are designated by planning lines. Impedance relays can also provide operator shall reset, upgrade, replace, or coordinators as critical to the reliability otherwise mitigate the overreach of those backup protection and protection 13 relays as soon as possible and on a priority of the bulk electric system. against remote circuit breaker failure. basis, but no later than December 31, 2005. 10 3. Following the August 2003 Upon completing analysis of its application Final Blackout Report at 158. 11 blackout that affected parts of the of zone 3 relays, each transmission owner NERC explains in general that it decided to Midwest and Northeast United States, may no later than December 31, 2004 submit make PRC–023–1 voltage-level-specific because the definition of what is included in the ‘‘bulk electric justification to NERC for applying zone 3 system’’ varies throughout the eight Regional 2 Section 215(e)(3) of the FPA directs the relays outside of these recommended Entities and because the effects of PRC–023–1 are Commission to certify an ERO to develop parameters. The Planning Committee shall not constrained to regional boundaries. For mandatory and enforceable Reliability Standards, review such exceptions to ensure they do not example, if one Region has purely performance- subject to Commission review and approval. 16 increase the risk of widening a cascading based criteria and an adjoining Region has voltage- U.S.C. 824o(e)(3). Following a selection process, the failure of the power system.9 based criteria, these criteria may not permit Commission selected and certified NERC as the consideration of the effects of protective relay ERO. North American Electric Reliability Corp., 116 Recommendation No. 21A of the Task operation in one Region upon the behavior of FERC ¶ 61,062 (ERO Certification Order), order on facilities in the adjoining Region. NERC Petition at reh’g & compliance, 117 FERC ¶ 61,126 (ERO Force Final Blackout Report (Final Blackout Report) urges NERC to expand 18–19, 39–41. Rehearing Order) (2006), aff’d sub nom. Alcoa, Inc. 12 In this Final Rule, we occasionally use the v. FERC, 564 F.3d 1342 (DC Cir. 2009). shorthand ‘‘100 kV–200 kV facilities’’ to refer to 3 Loadability refers to the ability of protective 7 U.S.-Canada Power System Outage Task Force, transmission lines and transformers with low- relays to refrain from operating under load Final Report on the August 14, 2003 Blackout in the voltage terminals operated or connected between conditions. United States and Canada: Causes and 100 kV and 200 kV. 4 16 U.S.C. 824o(d)(5). Recommendations, at 80 (2004) (Final Blackout 13 In this Final Rule, we use the terms ‘‘bulk 5 Protective relays are one type of equipment used Report). electric system’’ and ‘‘Bulk-Power System.’’ ‘‘Bulk in protection systems. The NERC definition of 8 Multiple impedance relays are installed at each electric system’’ is defined in the NERC Glossary of protection systems also includes communication end of a transmission line, with each used to Terms Used in Reliability Standards, and generally systems associated with protective relays, voltage protect a certain percentage, or zone, of the local includes facilities operated at voltages at and above and current sensing devices, station batteries, and transmission line and remote lines. Zone 3 relays 100 kV. See NERC Glossary of Terms Used in DC control circuitry. See NERC Glossary of Terms and zone 2 relays set to operate like zone 3 relays Reliability Standards at 2. ‘‘Bulk-Power System’’ is Used in Reliability Standards at 14. (zone 3/zone 2 relays) are typically set to reach 100 defined in section 215 of the FPA, and does not 6 Coordination of protection through distance percent of the protected transmission line and more include a voltage threshold. See 16 U.S.C. settings and time delays ensures that the relay than 100 percent of the longest line (including any 824o(a)(1). In Order No. 693, the Commission closest to a fault operates before a relay farther away series elements such as transformers) that emanates explained that while it would rely on the NERC from the fault, thereby ensuring that the more from the remote buses. definition of bulk electric system during the start- distant relay does not disconnect both the up phase of the mandatory Reliability Standard transmission equipment necessary to remove the 9 August 14, 2003 Blackout: NERC Actions to regime, the statutory Bulk-Power System fault and ‘‘healthy’’ equipment that should remain Prevent and Mitigate the Impacts of Future encompasses more facilities than are included in in service. Cascading Blackouts, at 13 (2004) (NERC Report). Continued

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7. Attachment A to the Reliability R1.1 through R1.13. Requirement R2 R1.7. [On] transmission line relays applied Standard specifies which protection contains directives for entities that set at the load center terminal, remote from systems are subject to and excluded their relays according to sub- generation stations, * * * at or below 115 from the Standard’s Requirements. requirements R1.6 through R1.9, R1.12, [percent] of the maximum current flow from the load to the generation source under any Section 1 of Attachment A provides that or R1.13. Requirement R3 directs system configuration[;] the Reliability Standard applies to any planning coordinators to designate R1.8. [On] transmission line relays applied protective functions that can operate which facilities operated between 100 on the bulk system-end of transmission lines with or without time delay, on load kV and 200 kV are critical to the that serve load remote to the system[,] * * * current, including but not limited to: (1) reliability of the bulk electric system at or below 115 [percent] of the maximum Phase distance; (2) out-of-step tripping; and therefore must have their relays set current flow from the system to the load (3) switch-on-to-fault; (4) overcurrent according to one of the options in under any system configuration[;] relays; and (5) communication-aided Requirement R1. R1.9. [On] transmission line relays applied protection applications.14 Section 2 on the load-end of transmission lines that 1. Requirement R1 serve load remote to the bulk system[,] * * * states that the Reliability Standard at or below 115 [percent] of the maximum requires evaluation of out-of-step 9. Requirement R1 directs entities to current flow from the load to the system blocking schemes 15 to ensure that they set their relays according to one of under any system configuration[;] do not operate for faults during the thirteen specific settings (sub- R1.10. [On] transformer fault protection loading conditions defined in the requirements R1.1 through R1.13) relays and transmission line relays on Standard’s Requirements. Finally, intended to maximize loadability while transmission lines terminated only with a section 3 expressly excludes from the maintaining Reliable Operation of the transformer[,] * * * at or below the greater Reliability Standard’s Requirements: (1) bulk electric system for all fault of: conditions. Entities must evaluate relay [a.] 150 [percent] of the applicable Relay elements enabled only when other maximum transformer nameplate rating relays or associated systems fail (e.g., loadability at 0.85 per unit voltage and (expressed in amperes), including the forced overcurrent elements enabled only a power factor angle of 30 degrees and cooled ratings corresponding to all installed during abnormal system conditions or a set their transmission line relays so that supplemental cooling equipment[;] [or] loss of communications); (2) protection they do not operate: [b.] 115 [percent] of the highest operator relay systems intended for the detection R1.1. [A]t or below 150 [percent] of the established emergency transformer rating[;] of ground fault conditions or for highest seasonal [f]acility [r]ating of a circuit, R1.11. For transformer overload protection protection during stable power swings; for the available defined loading duration relays that do not comply with R1.10[,] [the (3) generator protection relays nearest 4 hours (expressed in amperes)[;] entity must either]. * * * [a.] Set the relays to allow the transformer susceptible to load; (4) relay elements R1.2. [A]t or below 115 [percent] of the highest seasonal 15-minute [f]acility to be operated at an overload level of at least used only for special protection systems 150 [percent] of the maximum applicable applied and approved in accordance [r]atingof a circuit (expressed in amperes)[;] 17 nameplate rating, or 115 [percent] of the with Reliability Standards PRC–012 R1.3. [A]t or below 115 [percent] of the highest operator established emergency 16 through PRC–017; (5) protection relay maximum theoretical power transfer transformer rating, whichever is greater. The systems designed to respond only in capability (using a 90-degree angle between protection must allow this overload for at time periods that allow operators 15 the sending-end and receiving-end voltages least 15 minutes to allow for the operator to minutes or longer to respond to and either reactance or complex impedance) take controlled action to relieve the overload conditions; (6) thermal of the circuit (expressed in amperes) using overload[;] [or] one of the following to perform the power [b.] Install supervision for the relays using emulation relays used in conjunction either a top oil or simulated winding hot spot with dynamic facility ratings; (7) relay transfer calculation: R1.3.1. An infinite source (zero source temperature element. The setting should be elements associated with DC line; and impedance) with a 1.00 per unit bus voltage no less than 100° C for the top oil or 140° (8) relay elements associated with DC at each end of the line[;] [or] C for the winding hot spot temperature[;] 18 converter transformers. R1.3.2. An impedance at each end of the R1.12. When the desired transmission line line, which reflects the actual system source capability is limited by the requirement to B. Requirements impedance with a 1.05 per unit voltage adequately protect the transmission line, set 8. Reliability Standard PRC–023–1 behind each source impedance[;] the transmission line distance relays to a consists of three Requirements. R1.4. [O]n series compensated maximum of 125 [percent] of the apparent Requirement R1 directs entities to set transmission lines[,] * * * at or below the impedance (at the impedance angle of the their relays according to one of the maximum power transfer capability of the transmission line) subject to the following line, determined as the greater of: constraints: options set forth in sub-requirements [a.] 115 [percent] of the highest emergency R1.12.1. Set the maximum torque angle rating of the series capacitor[;] [or] (MTA) to 90 degrees or the highest supported NERC’s definition of the bulk electric system. [b.] 115 [percent] of the maximum power by the manufacturer[;] Mandatory Reliability Standards for the Bulk-Power transfer capability of the circuit (expressed in R1.12.2. Evaluate the relay loadability in System, Order No. 693, FERC Stats. & Regs. ¶ 31,242, at P 75–76; order on reh’g, Order No. 693– amperes), calculated in accordance with amperes at the relay trip point at 0.85 per A, 120 FERC ¶ 61,053 (2007). R1.3, using the full line inductive reactance[;] unit voltage and a power factor angle of 30 14 Section 1.5 specifies that the communications R1.5. [O]n weak source systems[,] * * * at degrees[;] [and] aided applications subject to the Reliability or below 170 [percent] of the maximum end- R1.12.3. Include a relay setting component Standard include, but are not limited to: (1) of-line three-phase fault magnitude of 87 [percent] of the current calculated in Permissive overreach transfer trip; (2) permissive (expressed in amperes)[;] R1.12.2 in the [f]acility [r]ating determination under-reach transfer trip; (3) directional comparison R1.6. [On] transmission line relays applied for the circuit[;] blocking; and (4) directional comparison on transmission lines connected to R1.13. [Finally,] [w]here other situations unblocking. generation stations remote to load[,] * * * at 15 present practical limitations on circuit ‘‘Out-of-step blocking’’ refers to a protection or below 230 [percent] of the aggregated system that is capable distinguishing between a capability, [entities can] set the phase fault and a power swing. If a power swing is generation nameplate capability[;] detected, the protection system, ‘‘blocks,’’ or 18 NERC includes a footnote that states: ‘‘IEEE prevents the tripping of its associated transmission 17 NERC includes a footnote that states ‘‘[w]hen a [S]tandard C57.115, Table 3, specifies that facilities. 15-minute rating has been calculated and published transformers are to be designed to withstand a 16 The Commission has not yet acted on PRC– for use in real-time operations, the 15-minute rating winding hot spot temperature of 180 degrees C, and 012–0, PRC–013–0, or PRC–014–0 because it is can be used to establish the loadability requirement cautions that bubble formation may occur above awaiting further information from the ERO. for the protective relays.’’ 140 degrees C.’’

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protection relays so they do not operate at or separate action, pursuant to section sufficient guidance so that the ERO has an below 115 [percent] of such limitations. 215(d)(5) of the FPA, the Commission understanding of the Commission’s concerns 2. Requirement R2 proposed to direct certain modifications and an appropriate, but not necessarily to the Reliability Standard. exclusive, outcome to address those 10. Requirement R2 provides that concerns. Without such direction and entities that set their relays according to 2. Comments guidance, a Commission proposal to modify sub-requirements R1.6 through R1.9, 14. While commenters universally a Reliability Standard might be so vague that R1.12, or R1.13 must use the calculated support the Commission’s proposal to the ERO would not know how to adequately circuit capability as the circuit’s facility approve PRC–023–1,21 most respond.23 rating and must obtain the agreement of commenters oppose the majority of the the planning coordinator, transmission Commission’s proposed modifications. 18. Thus, in some instances, while we operator, and reliability coordinator Some commenters argue that the provide specific details regarding the with authority over the facility as to the Commission’s proposed modifications Commission’s expectations, we intend calculated circuit capability. violate Order No. 693 because they by doing so to provide useful guidance 3. Requirement R3 prescribe specific changes that would to assist in the Reliability Standards development process, not to impede it. 11. Requirement R3 directs planning dictate the content of the modified Reliability Standard. As we explained in Order No. 693, we coordinators to designate which find that this is consistent with statutory facilities operated between 100 kV and 3. Commission Determination language that authorizes the 200 kV are critical to the reliability of 15. Pursuant to section 215(d)(2) of Commission to order the ERO to submit the bulk electric system and therefore the FPA,22 the Commission approves a modification ‘‘that addresses a specific must have their relays set according to matter’’ if the Commission considers it one of the options in Requirement R1. PRC–023–1 as just, reasonable, not appropriate to carry out section 215 of Sub-requirement R3.1 requires planning unduly discriminatory or preferential, the FPA.24 In this Final Rule, we have coordinators to have a process to and in the public interest. The considered commenters’ concerns and, identify critical facilities. Sub- Commission finds that PRC–023–1 is a requirement R3.1.1 specifies that the significant step toward improving the where a directive for modification process must consider input from reliability of the Bulk-Power System in appears to be determinative of the adjoining planning coordinators and North America because it requires load- outcome, the Commission provides affected reliability coordinators. Sub- responsive phase protection relay flexibility by directing the ERO to requirements R3.2 and R3.3 require settings to provide essential facility address the underlying issue through planning coordinators to maintain a list protection for faults, while allowing the the Reliability Standards development of critical facilities and provide it to Bulk-Power System to be operated in process without mandating a specific reliability coordinators, transmission accordance with established facility change to PRC–023–1.25 Consequently, owners, generator owners, and ratings. consistent with Order No. 693, we distribution providers within 30 days of 16. Also, pursuant to section 215(d)(5) clarify that where the Final Rule initially establishing it, and 30 days of of the FPA, the Commission adopts identifies a concern and offers a specific any subsequent change. some of the proposed modifications in approach to address that concern, we the NOPR and thus directs certain will consider an equivalent alternative III. Discussion modifications to the Reliability approach provided that the ERO A. Overview Standard. Unless stated otherwise, the demonstrates that the alternative will Commission directs the ERO to submit 12. The Commission approves PRC– adequately address the Commission’s these modifications no later than one underlying concern or goal as efficiently 023–1, finding that it is just and year from the date of this Final Rule. We reasonable, not unduly discriminatory and effectively as the Commission’s will address each proposal and the 26 or preferential and in the public proposal. specific comments received on each interest. The Commission also directs 19. Consistent with section 215 of the proposal in the remainder of this Final the ERO to develop modifications to FPA, our regulations, and Order No. Rule. PRC–023–1 through its Reliability 693, any modification to a Reliability 17. With regard to the concerns raised Standards development process to Standard, including a modification that by some commenters about the address specific concerns identified by addresses a Commission directive, must prescriptive nature of the Commission’s the Commission and sets specific be developed and fully vetted through proposed modifications, we agree that, deadlines for these modifications. NERC’s Reliability Standards consistent with Order No. 693, a Similar to our approach in Order No. development process.27 direction for modification should not be 693,19 we view such directives as so overly prescriptive as to preclude the separate from approval, consistent with C. Applicability consideration of viable alternatives in our authority under section 215(d)(5) of the ERO’s Reliability Standards 20. As proposed by NERC, PRC–023– the FPA to direct the ERO to develop a development process. However, some 1 does not apply to any facility operated modification to a Reliability Standard. guidance is necessary, as the or connected between 100 kV and 200 B. Approval of PRC–023–1 Commission explained in Order No. kV unless the relevant planning 693: coordinator designates the facility as 1. NOPR Proposal ‘‘ ’’ [I]n identifying a specific matter to be critical to the reliability of the bulk 13. On May 21, 2009, the Commission addressed in a modification * * * it is electric system. In the NOPR, the issued a Notice of Proposed Rulemaking important that the Commission provide (NOPR) proposing to approve PRC–023– 23 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at 20 1 as mandatory and enforceable. As a 35830 (Jul. 21, 2009), FERC Stats. & Regs. ¶ 32,642 P 185. (2009) (NOPR). 24 Id. P 186. 19 See supra n.13. 21 See, e.g., NERC Comments, EEI, TAPS, APPA, 25 Id. 20 Transmission Relay Loadability Reliability NARUC, EPSA, Exelon. 26 Id. Standard, Notice of Proposed Rulemaking, 74 FR 22 16 U.S.C. 824o(d)(2). 27 Id. P 187.

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Commission described this as an ‘‘add and assessments as the Transmission facilities from the scope of the in’’ approach to applicability.28 Planning (TPL) Reliability Standards for Reliability Standard. 21. Requirement R3 of PRC–023–1 reliable operation for all categories of 2. Comments directs planning coordinators to contingencies used in transmission determine which 100 kV–200 kV planning for all operating conditions. 26. In response to the NOPR, the facilities are critical to the reliability of The Commission also stated that it Commission received comments the bulk electric system, and therefore expects a comprehensive review to addressing its remarks about the test subject to the Reliability Standard; it identify nearly every 100 kV–200 kV that planning coordinators must use to does not, however, define ‘‘critical to the facility as a critical facility. In light of implement Requirement R3 and its reliability of the bulk electric system’’ or this expectation, and coupled with its proposals to direct the ERO to adopt the provide planning coordinators with a concern about the ‘‘add in’’ approach, ‘‘rule out’’ approach for 100 kV–200 kV test to identify critical facilities. the Commission proposed to direct the facilities and the ‘‘add in’’ approach for sub-100 kV facilities. 1. NOPR Proposal ERO to adopt a ‘‘rule out’’ approach to applicability; that is, to modify PRC– a. Comments on the Test That Planning 22. In the NOPR, the Commission 023–1 so that it applies to relay settings stated that it expects planning Coordinators Must Use To Implement on all 100 kV–200 kV facilities, with the Requirement R3 coordinators to use a process to carry possibility of case-by-case exceptions out Requirement R3 that is consistent for facilities that are not critical to the 27. Commenters generally agree with across regions and robust enough to reliability of the bulk electric system the Commission that the process for identifying critical facilities pursuant to identify all facilities that should be and demonstrably would not result in Requirement R3 should include the subject to PRC–023–1. The Commission cascading outages, instability, same simulation and assessments expressed concern that, based on the uncontrolled separation, violation of required by the TPL Reliability information in NERC’s petition, the ‘‘add facility ratings, or interruption of firm Standards for all operating conditions. in’’ approach proposed by NERC would transmission service.31 fail to meet these expectations. 25. Finally, the Commission proposed However, commenters disagree with the 23. The Commission explained that to direct the ERO to adopt an ‘‘add in’’ Commission’s expectation that planning coordinators will identify nearly every since approximately 85 percent of approach to sub-100 kV facilities that 100 kV–200 kV facility as a critical circuit miles of electric transmission are Regional Entities have identified as facility. For example, Duke reports that operated at or below 253 kV, the ‘‘add critical to the reliability of the bulk it has applied the existing TPL in’’ approach could, at the outset, electric system.32 The Commission standards to its Midwest and Carolina effectively exempt from the Reliability explained that owners and operators of systems and has not identified any sub- Standard’s requirements a large such facilities are defined as 200 kV facility as a critical facility (i.e., percentage of facilities that should transmission owners/operators for the there have been no showings that the otherwise be subject to the Standard. purposes of NERC’s Compliance loss of any such facilities could result in The Commission also cited a letter from Registry,33 and that sub-100 kV facilities cascading outages, instability, or NERC to industry stakeholders can be included in regional definitions uncontrolled separation). Other discussing the results of an ‘‘add in’’ of the bulk electric system.34 The commenters maintain that the approach in the context of industry’s Commission also stated that NERC Commission’s expectation is not self-identification of Critical Cyber failed to provide a sufficient technical supported by any technical evidence Assets. According to the Commission, record to justify excluding such the letter was an acknowledgement from and depends on a circular definition between ‘‘above 100 kV’’ and ‘‘critical to NERC that the ‘‘add in’’ approach failed 31 Id. P 43. to produce a comprehensive list of 32 Id. P 45. the reliability of the bulk electric 35 Critical Cyber Assets.29 The 33 NERC’s Compliance Registry is a listing of system.’’ Commission further observed that NERC organizations subject to compliance with 28. NERC recognizes the need for failed to provide a technical basis for mandatory Reliability Standards. See NERC Rules consistent criteria across North America of Procedure, Section 500. NERC’s Statement of for identifying critical 100 kV–200 kV the ‘‘add in’’ approach, and did not Compliance Registry Criteria, which sets forth support its claim that expanded thresholds for registration, defines ‘‘transmission facilities and proposes to work through 36 application of PRC–023–1 would double owner/operator’’ as: industry to develop it. Although implementation costs and distract III.d.1 An entity that owns or operates an NERC did not propose a test in PRC– industry resources from more important integrated transmission element associated with the 023–1, in its comments it did provide bulk power system 100 kV and above, or lower the suggestions for identifying areas. The Commission added that PRC– voltage as defined by the Regional Entity necessary 023–1 was developed to prevent to provide for the reliable operation of the operationally significant 100 kV–200 kV cascading outages, and that no area has interconnected transmission grid; or facilities that the NERC System a greater impact on the reliability of the III.d.2 An entity that owns/operates a Protection and Control Task Force transmission element below 100 kV associated with provided to Regional Entities in 2004 bulk electric system than the prevention a facility that is included on a critical facilities list of cascading outages. defined by the Regional Entity. and 2005 during the voluntary Beyond 24. The Commission emphasized that See NERC Statement of Compliance Registry Zone 3 relay review and mitigation PRC–023–1 must apply to relay settings Criteria at 9. program.37 During that program, NERC on all critical facilities for it to achieve 34 NERC defines the bulk electric system as suggested that Regional Entities its intended reliability objective.30 In follows: identify: As defined by the Regional Reliability order to meet this goal, the Commission All circuits that are elements of Organization, the electrical generation resources, flowgates[38] in the Eastern Interconnection, stated that the process for identifying transmission lines, interconnections with critical 100 kV–200 kV facilities must neighboring systems, and associated equipment, 35 See, e.g., Basin, Exelon, and WECC. include the same system simulations generally operated at voltages of 100 kV or higher. Radial transmission facilities serving only load with 36 NERC Comments at 12. one transmission source are generally not included 37 For a discussion of the Beyond Zone 3 relay 28 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 40. in this definition. review and mitigation program, see infra P 34. 29 Id. See NERC Glossary of Terms Used in Reliability 38 A ‘‘flowgate’’ is a single or group of 30 Id. P 42. Standards at 2. transmission elements intended to model MW flow

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Commercially Significant Constraints in the because of preceding faults at higher and resulted in mitigation costs Texas Interconnection, or Rated Paths in the voltages. (equipment change-outs or additions) of Western Interconnection. This includes both 32. Some commenters argue that the approximately $65 million, or $111,500 the monitored and outage element for OTDF majority of facilities between 100 kV 39 per terminal. Based on a survey of [Outage Transfer Distribution Factor] sets.[ ] and 200 kV are not critical to the All circuits that are elements of system industry conducted after the NOPR, operating limits (SOLs) and interconnection reliability of the bulk electric system NERC estimates that a review and reliability operating limits (IROLs), including and are unlikely to contribute to mitigation program for all facilities both monitored and outage elements. cascading outages at higher voltages. between 100 kV and 200 kV would far All circuits that are directly related to off- APPA, EEI, and WECC state that most exceed these costs in time and money. site power supply to nuclear plants. Any wide-area bulk power transfers flow on NERC estimates that such a program circuit whose outage causes unacceptable high voltage facilities, while most sub- would entail review of approximately voltages on the off-site power bus at a nuclear 200 kV facilities support local 53,000 terminals, require close to plant must be included, regardless of its distribution service.42 SRP asserts that a proximity to the plant. 340,000 hours of labor, and cost almost malfunction on a 100 kV–200 kV line $41 million.44 Based on the results of All circuits of the first 5 limiting elements typically causes an outage only for the (monitored and outaged elements) for the previous review programs, NERC transfer interfaces[40] determined by regional load connected to the faulted part of the estimates that at least 11,400 terminals and interregional transmission reliability line, leaving the rest of the line could be out-of-compliance and that studies. If fewer than 5 limiting elements are unaffected; PG&E makes the related mitigation could take between 5 and 10 found before reaching studied transfers, all claim that the tripping of a 100 kV–200 years and cost approximately $590 should be listed. kV facility generally has a low impact million.45 In contrast, NERC estimates Other circuits determined and agreed to by on the reliability of higher voltage that the ‘‘add in’’ approach would entail the reliability authority/coordinator and the systems, even when the two systems run Regional Reliability Organizations. review of only 2,400 terminals and in parallel. APPA argues that cascading require mitigation for approximately outages at higher voltages are unlikely 29. In its comments, APPA proposes 500, roughly 240 of which would to be arrested by relay action at lower that the Commission direct NERC to require equipment replacement.46 voltages. EEI adds that many 100 kV– develop a process whereby each region 35. Some commenters argue that the can develop a specific methodology to 200 kV facilities are designed to support local distribution service and their ‘‘rule out’’ approach may adversely affect ensure consistent, verifiable reliability. Exelon is concerned that the identification of critical facilities. related protection systems are set to ensure separation, including load ‘‘rule out’’ approach may unintentionally b. Comments on the ‘‘Rule Out’’ shedding, if disturbances or system result in the over-inclusion of facilities Approach events take place. EEI asserts that these subject to PRC–023–1. Exelon believes systems ensure ‘‘controlled separation’’ that such over-inclusion will take a 30. Commenters unanimously oppose that, by definition, does not involve the known and successful backup the ‘‘rule out’’ approach. In general, they Bulk-Power System. protection scheme and make it less argue that it is unnecessary, extremely 33. Commenters also argue that the effective. Exelon explains that over- costly, and potentially detrimental to ‘‘rule out’’ approach is a costly and inclusion will increase the risk of reliability. inefficient use of limited industry certain instances of backup relaying not 31. NERC, EEI, and WECC argue that resources that will place an tripping when it should, thus allowing the cascade of 138 kV lines that unreasonable burden on small entities what would otherwise be a minor occurred during the August 2003 and require utilities to incur disturbance to expand unnecessarily.47 blackout would not have occurred if the unnecessary upfront costs, forego other Consumers Energy and Entergy argue 345 kV lines in their vicinity had not important initiatives, and direct money that the ‘‘rule out’’ approach will require tripped, and that the 345 kV lines would and personnel away from the work entities to divert scarce resources from not have tripped if PRC–023–1 had been necessary to ensure the day-to-day other duties that are essential to in effect prior to the blackout.41 EEI, reliability of the bulk electric system. reliability, thereby adversely affecting PG&E, and SRP add that whenever a 34. NERC states that it modeled PRC– reliability. Basin argues that the facility between 100 kV and 200 kV 023–1 on two post-blackout relay review complexity of integrating PRC–023–1 trips on load, it is almost always and mitigation programs (the Zone 3 with other Reliability Standards for Review and Beyond Zone 3 Review) that lower voltage lines will divert personnel impact relating to transmission limitations and focused primarily on facilities operated from more important aspects of the transmission service outage. See Final Black Report at or above 200 kV, and that these Reliability Standards and adversely at 214. Flowgates are operationally significant for the purpose of ensuring desirable system programs give it a basis for concluding affect reliability. that the costs of the ‘‘rule out’’ approach performance because an actual outage would 36. In addition to these arguments, present the modeled physical limitations on the are extremely high.43 NERC reports that commenters oppose the ‘‘rule out’’ bulk electric system. these programs took over three years to 39 approach on the grounds that it: (1) In the post-contingency configuration of a complete, required close to 150,000 system under study, Outage Transfer Distribution Fails to give due weight to the technical Factor refers to the measure of the responsiveness hours of labor, cost almost $18 million, expertise of the ERO, as required by or change (expressed in percent) in electrical section 215(d)(2) of the FPA; (2) violates loadings on transmission system facilities due to a 42 SRP and Y–WEA emphasize that this is change in electric power transfer from one area to especially true in the western interconnection, Order No. 693 because it prescribes a another with one or more system facilities removed where sub-200 kV facilities are generally used as specific change that will dictate the from service. localized means for distributing electricity to content of the modified Reliability 40 An ‘‘interface’’ is the specific set of transmission moderately sized and geographically distant load elements between two areas or between two areas centers. See also ElectriCities and NWCP. 44 comprising one or more electrical systems. See 43 The Zone 3 Review examined 10,914 terminals Id. at 13–14. NERC adds that 114 transmission Final Blackout Report at 215. An interface is operating at or above 200 kV. The Beyond Zone 3 owners operating 100 kV–200 kV lines responded operationally significant for the purpose of ensuring Review examined 12,273 terminals operating at or to the survey. desirable system performance because an outage of above 200 kV and operationally significant 45 Id. at 14. an interface would affect IROLs. terminals operating between 100 kV and 200 kV. 46 Id. at 15. 41 See, e.g., NERC Comments at 10, 16. NERC Comments at 9–16. 47 See also Ameren at 8.

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Standard; 48 (3) is inconsistent with the 40. Commenters also challenge the which entities must comply with any Commission’s statements in Order No. substance of the 5-part test, generally particular Reliability Standard, but that 672 about the cost of Reliability arguing that it requires more than a each individual Standard specifies the Standards; 49 (4) rests on the showing that a facility is unlikely to entities and the facilities that are subject unsupported assumption that planning contribute to cascading thermal outages to it. TAPS and APPA assert that a coordinators will fail to produce a and introduces more rigorous facility may be ‘‘critical’’ for the purpose comprehensive list of critical facilities; requirements than those in the TPL of inclusion on the Compliance and (5) mischaracterizes NERC’s letter Reliability Standards. Specifically, Registry, but not ‘‘operationally expressing concern about the use of an APPA, Duke, Exelon, and TAPS argue significant’’ for the purpose of avoiding ‘‘add in’’ approach in the Critical Cyber that interruption of firm transmission cascading thermal outages. For example, Assets survey.50 service and violation of facility ratings TAPS states that a sub-100 kV line that 37. In the event that the Commission do not belong as elements of the test connects to a black start unit and is adopts the ‘‘rule out’’ approach, because: (1) They do not result in designated as part of a transmission commenters argue that the Commission instability, uncontrolled separation, or operator’s restoration plan would be should immediately confirm the cascading failures, and are absent from deemed critical for Compliance Registry following exclusions: (1) Facilities that the definition of ‘‘Reliable Operation’’ in purposes, but may not be operationally are not part of a defined and routinely section 215 of the FPA; 52 (2) avoiding significant for purposes of thermal monitored flowgate; (2) radial an interruption of firm transmission cascading outages.55 transmission lines, because they are service is a business issue; (3) a 43. Several commenters request that specifically excluded from the bulk requirement specifying that the loss of the Commission confirm their electric system and are not critical to the a 138 kV line cannot result in understanding of what is required if the reliability of the bulk electric system; 51 interruption of local load goes beyond Commission adopts its proposal. ERCOT and (3) Category D Contingencies, the requirements of existing Reliability and TAPS request confirmation that the because they involve the loss of Standards; (4) the loss of a 138 kV line Reliability Standard will apply only to multiple transmission facilities caused does not show a loss of bulk electric those sub-100 kV facilities that are by the outage of transmission facilities system reliability; and (5) ‘‘violation of already in the Compliance Registry, and other than those relevant to the facility ratings’’ is unduly vague and that future registration will be subject to Reliability Standard. over-broad because it is not restricted to a case-by-case demonstration of 38. Commenters also disagree with bulk electric system facilities other than criticality. Likewise, SWTDUG is what they describe as the Commission’s the facility in question and is not concerned that the Commission’s 5-part test for case-by-case exceptions focused on violation of emergency proposal will require non-registered from the ‘‘rule out’’ approach, that is, its ratings caused by an outage of the public power entities with sub-100 kV proposal to permit exceptions for facility in question. facilities to become Registered Entities. facilities that demonstrably would not 41. Commenters also argue that NERC ERCOT also requests confirmation that result in: (1) Cascading outages; (2) should develop the test for exclusions the only required revision to the instability; (3) uncontrolled separation; and that there should be some Reliability Standard would be the (4) violation of facility ratings; or (5) mechanism for entities to challenge addition of sub-100 kV facilities to the interruption of firm transmission criticality determinations. For example, applicability section. ISO New England service. APPA argues that the Regional Entity requests confirmation that the should establish a process for entities to Commission does not intend to create 39. At the outset, commenters assert challenge criticality determinations. an enforceable obligation against that they do not understand the Regional Entities by directing them to relationship between the 5-part test for c. Comments on Proposal To Include undertake—solely for the purpose of exceptions from the ‘‘rule out’’ approach Sub-100 kV Facilities compliance with PRC–023–1—a process and the Commission’s insistence that 42. Commenters also address the to determine which sub-100 kV facilities the ‘‘add in’’ process must include the Commission’s proposal to direct the are critical to the reliability of the bulk same simulations and assessments as ERO to adopt an ‘‘add in’’ approach to electric system. ISO New England the TPL Reliability Standards. sub-100 kV facilities, with most asserts that NERC has already delegated Commenters are unsure whether the 5- objecting to what they perceive as the to Regional Entities the role of part test is in addition to, or in lieu of, Commission’s view of the Compliance designating critical sub-100 kV facilities the TPL assessments. 53 Registry. NERC argues that the as part of the Compliance Registry Commission mischaracterized the process.56 ISO New England seeks 48 See e.g., TAPS, APPA, EEI, Ameren, Manitoba nature and purpose of the Compliance Hydro, Georgia Transmission, Tri-State, CRC, EEI, clarification that the Commission’s APPA, Ameren, TANC, Fayetteville Public Works Registry by suggesting that entities on proposal merely requires the addition of Commission, and LES. the Registry must comply with all a cross-reference to previous 49 In Order No. 672, the Commission stated that Reliability Standards for all of their designations of criticality made ‘‘[a] proposed Reliability Standard does not facilities.54 NERC explains that the necessarily have to reflect the optimal method, or pursuant to the Compliance Registry ‘best practice,’ for achieving its reliability goal Compliance Registry does not specify process. without regard to implementation cost. * * * [but] 44. ITC, IRC, and IESO/Hydro One should[,] however[,] achieve its reliability goal 52 Section 215 defines ‘‘Reliable Operation’’ as support the Commission’s proposal. effectively and efficiently;’’ Rules Concerning ‘‘operating the elements of the bulk-power system Certification of the Electric Reliability Organization; within equipment and electric system thermal, These commenters argue that a and Procedures for the Establishment, Approval, voltage, and stability limits so that instability, proactive approach should be used to and Enforcement of Electric Reliability Standards, uncontrolled separation, or cascading failures of identify any facilities critical to the Order No. 672, FERC Stats. & Regs. ¶ 31,204, at P such system will not occur as a result of a sudden reliability of the bulk electric system. 328, order on reh’g, Order No. 672–A, FERC Stats. disturbance, including a cybersecurity incident, or 45. NERC and EEI oppose the & Regs. ¶ 31,212 (2006). unanticipated failure of system elements.’’ 16 U.S.C. 50 See e.g., Exelon, PG&E, EEI, Basin, and TAPS. 824o(a)(4). Commission’s proposal; however, both 51 See e.g., ElectriCities, NWCP, Palo Alto, PSEG 53 See e.g., NERC, EEI, TAPS, TANC, Ontario Companies, Pacific Northwest State Commissions, Generation, SWTDUG, and APPA. 55 TAPS at 16; see also APPA at 28. Y–WEA, and Filing Cooperatives. 54 See also TANC and Ontario Generation. 56 ISO New England at 3.

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concede that it may have merit and between 100 kV and 200 kV for it to prevented the 100 kV–200 kV lines from should be studied through the achieve its intended reliability tripping. We also disagree with Reliability Standards development objective. The Commission also stated commenters’ claim that the majority of process.57 SWTDUG and TAPS oppose that planning coordinators must use a facilities between 100 kV and 200 kV the Commission’s proposal and argue process to carry out Requirement R3 are unlikely to contribute to cascading that the Final Blackout Report does not that is consistent across regions and outages at higher voltages. support extending the Reliability robust enough to identify all facilities 52. We disagree with commenters’ that should be subject to the Reliability Standard to relay settings on sub-100 kV assertion that if PRC–023–1 had been in Standard. The Commission expressed facilities. TAPS maintains that the effect at the time of the August 2003 concern, however, that NERC’s ‘‘add in’’ Commission must give ‘‘due weight’’ to blackout, it would have prevented the approach could effectively exempt from NERC’s exclusion of sub-100 kV 345 kV lines from tripping and therefore the Reliability Standard’s Requirements facilities. prevented the 100 kV–200 kV lines from a large percentage of facilities that 46. EPSA argues that the tripping. On the day of the blackout, the Commission’s proposal lacks technical should otherwise be subject to the Standard. Since NERC did not propose Harding-Chamberlin, Hanna-Juniper, support and fails to identify a specific and Star-South Canton 345 kV lines all reliability gap. EPSA contends that the any test for the Commission to consider, tripped in a span of less than 45 Commission should use ‘‘Reliability the Commission proposed the ‘‘rule out’’ minutes. Each of these lines tripped and Engineering’’ to determine if its project approach to ensure that planning locked out because of contact with an has a technical basis. EEI argues that coordinators identify all critical overgrown tree.59 As each line failed, its few sub-100 kV facilities are critical to facilities between 100 kV and 200 kV. outage increased the load on the the reliability of the bulk electric 50. After reflecting on the rationale remaining 138 kV and 345 kV lines, system. EEI states that because it usually behind the ‘‘rule out’’ approach— including the 345 kV Sammis-Star requires multiple 69 kV lines to replace namely, the goal of ensuring that line,60 and shifted power flows to other one 138 kV line, it is highly unlikely planning coordinators identify all transmission paths. Starting at 15:39 that sub-100 kV facilities will cause a critical facilities between 100 kV and major cascade. EEI asserts that it is 200 kV—and considering the comments, EDT, the first of an eventual sixteen 138 much more likely that sub-100 kV we conclude that, from a reliability kV lines began to fail. The tripping of facilities will trip to end a cascade, as standpoint, it should not matter whether these 138 kV lines occurred because the occurred during the August 2003 PRC–023–1 employs an ‘‘add in’’ loss of the combination of the Hardin- blackout. approach or a ‘‘rule out’’ approach Chamberlin, Hanna-Juniper, and Star- because both approaches should South Canton 345 kV lines overloaded 3. Commission Determination ultimately result in the same list of the 138 kV system with electricity 47. As discussed more fully below, we critical facilities. In other words, given flowing toward the Akron and decline to direct the ERO to adopt the a uniform and robust test, the facilities Cleveland loads.61 In other words, the ‘‘rule out’’ approach for 100 kV–200 kV that would be ‘‘added in’’ under an ‘‘add cascade of 138 kV lines was precipitated facilities. However, we adopt the NOPR in’’ approach should be the same as the by faults caused by tree contact, not proposal and direct the ERO to modify facilities that would remain subject to protective relays, and would not have PRC–023–1 to apply an ‘‘add in’’ the Reliability Standard after non- been prevented if PRC–023–1 had been approach to certain sub-100 kV facilities critical facilities are ruled out under the in effect before the blackout. ‘‘rule out’’ approach. Instead of that Regional Entities have already 53. As the 138 kV lines opened, they concerning ourselves with the merits of identified or will identify in the future blacked out customers in Akron and in an ‘‘add in’’ or ‘‘rule out’’ approach, the as critical facilities for the purposes the the area west and south of Akron, Commission will focus on the test Compliance Registry.58 Finally, we ultimately dropping about 600 MW of methodology that a planning direct the ERO to modify Requirement 62 ‘‘ ’’ load. Even this load shedding was not R3 of the Reliability Standard to include coordinator uses to either add in or ‘‘ ’’ enough to offset the cumulative effect of the test that planning coordinators must rule out a facility. If that test is lacking, PRC–023–1’s reliability the 138 kV line outages on the increased use to identify sub-200 kV facilities that loadings of the 345 kV Sammis-Star are critical to the reliability of the bulk objective will not be achieved regardless of whether an ‘‘add in’’ approach or a line. The Sammis-Star line tripped at electric system. ‘‘rule out’’ approach is adopted. 16:05:57 EDT and triggered a cascade of a. ‘‘Rule Out’’ Approach Consequently, we decline to adopt the interruptions on the high voltage system, causing electrical fluctuations 48. We will not direct the ERO to NOPR proposal and will not require the ERO to adopt the ‘‘rule out’’ approach. and facility trips such that within seven adopt the ‘‘rule out’’ approach. After minutes the blackout rippled from the further consideration, we conclude that Instead, as discussed below, we direct the ERO to modify Requirement R3 of Cleveland-Akron area across much of our concerns about the ‘‘add in’’ the northeast United States.63 approach can be addressed by directing the Reliability Standard to specify the the ERO to modify Requirement R3 of test that planning coordinators must use 54. Unlike the Hardin-Chamberlin, the Reliability Standard to specify a to identify all critical facilities. Hanna-Juniper, and Star-South Canton 51. In light of our decision, we do not comprehensive and rigorous test that all lines, which tripped because of tree need to address commenters’ objections planning coordinators must use to contact, the Sammis-Star line tripped to the ‘‘rule out’’ approach or due to protective zone 3 relay action identify all critical facilities. speculation about the number of 100 49. In the NOPR, the Commission that measured low apparent impedance kV–200 kV facilities that are critical to (depressed voltage divided by explained that PRC–023–1 must apply the reliability of the Bulk-Power System. to relay settings on all critical facilities Nevertheless, we do not accept the 59 Final Blackout Report at 57–61; 63–64. claim that if PRC–023–1 had been in 60 57 NERC Comments at 18–19; EEI at 17–18. Id. at 70. 58 Examples of such facilities include black start effect at the time of the August 2003 61 Id. at 69–70. generation and the ‘‘cranking path’’ from the blackout, it would have prevented the 62 Id. at 68. generators to the bulk electric system. 345 kV lines from tripping and therefore 63 Id. at 74.

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abnormally high line current).64 There system conditions that the relays could outages at any voltage level, and not for was no fault and no major power swing experience, and without acceptable arresting cascading outages. at the time of the trip; rather, high flows margins applied to the minimum b. ‘‘Add in’’ Approach to Sub-100 kV above the line’s emergency rating voltages and power factor angles, may Facilities together with depressed voltage caused not achieve the reliability goals the overload to appear to the protective intended by PRC–023–1. 60. With respect to sub-100 kV relays as a remote fault on the system.65 57. Consequently, we believe that it is facilities, we adopt the NOPR proposal In effect, the relay could no longer not possible to conclude whether the and direct the ERO to modify PRC–023– differentiate between a remote three- Sammis-Star line would have tripped on 1 to apply an ‘‘add in’’ phase fault and an exceptionally high loadability if PRC–023–1 had been in approach to sub-100 kV facilities that loading condition. The relay operated as effect without first setting its zone 3 are owned or operated by currently- it was designed to do.66 relay pursuant to PRC–023–1 and then Registered Entities or entities that 55. To the extent that commenters’ validating the setting against the become Registered Entities in the future, argument is that PRC–023–1 would have voltages, currents, and power factor and are associated with a facility that is prevented the loss of the Sammis-Star angles that were recorded during the included on a critical facilities list 69 line, and therefore the subsequent August 2003 Blackout. In fact, it is our defined by the Regional Entity. We spread of the blackout, we do not think view that a similar process should be also direct that additions to the Regional that it is possible to definitively reach followed for the 345 kV lines in Entities’ critical facility list be tested for these conclusions on the present record. Michigan that tripped following the loss their applicability to PRC–023–1 and 56. Requirement R1 of PRC–023–1 of Sammis-Star line to determine made subject to the Reliability Standard directs entities to evaluate relay whether PRC–023–1 would have as appropriate. 61. Most of the comments opposing loadability at 0.85 per unit voltage and prevented the blackout. the Commission’s proposal regarding a power factor angle of 30 degrees. 58. We also disagree with sub-100 kV facilities relate to what Figure 6.4 of the Final Blackout Report commenters’ assertion that that majority commenters perceive to be the indicates that the power factor angle of facilities between 100 kV and 200 kV recorded at the time the Sammis-Star Commission’s view of the relationship are unlikely to contribute to cascading line tripped was about 27 degrees. between individual Reliability outages at higher voltages. Prior to the Although the system was in a Standards and the Compliance Registry. dynamic cascading stage that began marginally stable operating stage, it For example, NERC argues that the with the loss of the 345 kV Sammis-Star would not require major changes to Commission mischaracterized the line, when the system was still in a effect a further change on the loading or nature and purpose of the Compliance marginally stable operating state (albeit further increasing the power factor angle Registry by suggesting that entities on not within IROLs, as shown in Figure on this line to beyond 30 degrees. In the Registry must comply with all 5.12 in the Final Blackout Report), it other words, purely from the power Reliability Standards for all of their was the loss of several 138 kV facilities factor angle viewpoint, the Sammis-Star facilities without regard to the that contributed to the subsequent line trip may still have occurred even if applicability provisions of individual increased loading on the 345 kV the relay loadability evaluation Standards. We did not intend to create Sammis-Star line and resulted in its requirement of 30 degrees was met. In this impression. We agree with NERC tripping.68 A more recent example of a fact, in a white paper explaining the that the Compliance Registry does not cascade initiating at the 138 kV voltage engineering assumptions and rationales specify which entities must comply level and spreading to higher voltages is behind the Requirements in PRC–023–1, with any particular Reliability Standard. the Florida Power and Light 2008 the NERC System Protection and Rather, the applicability provision of blackout event. This event started at the Control Task Force specifically stated each individual Standard specifies the 138 kV level and cascaded into that: categories of entities, i.e., functions, and additional 138 kV, 230 kV, and 500 kV at times the categories of facilities that [T]he most important point to understand facilities. Because the operation of the are subject to it. [about the relay loadability evaluation protective relay is dependent on the requirement in Requirement R1] is that the 62. We also agree with TAPS and loadability recommendations are not absolute apparent impedance, i.e. voltage and APPA that it is possible, at least in system conditions. They represent a typical current quantities as measured by the theory, that a sub-100 kV facility that system operation point during an extreme relay irrespective of voltage class, has been identified by a Regional Entity system condition. The voltage at the relay application of PRC–023–1 at only the as critical for the purposes of the may be below the 0.85 per unit voltage and higher voltage would not have the power factor angle may be greater than Compliance Registry might not be prevented these events. We believe that ‘‘critical’’ with respect to PRC–023–1. 30 degrees. It is up to the relay settings only a valid assessment with an engineer to provide the necessary margin as Thus, we clarify that we do not require is done in all relay settings.67 acceptable set of test criteria could the modified Reliability Standard to determine whether 100 kV–200 kV apply to all sub-100 kV facilities that We agree with the NERC System facilities are critical facilities, and Protection and Control Task Force, and have been identified by Regional therefore whether they need to be set Entities as critical facilities, but only to caution that setting relays pursuant to pursuant to PRC–023–1 to prevent such PRC–023–1 simply based on a static and those that have been identified by undesirable system performance. Regional Entities as critical facilities typical system operation point, without 59. Finally we agree with APPA that validating the relay settings based on and are also identified by planning cascading outages at higher voltages are coordinators, pursuant to the test unlikely to be arrested by relay action at 64 Id. at 77–78. See Figure 6.4. lower voltages. Reliability Standard 69 65 Id. at 77. As mentioned above, section III.d.2 of the 66 Id. PRC–023–1 is for preventing inadvertent Statement of Compliance Registry Criteria defines tripping of Bulk-Power System facilities ‘‘transmission owner/operator’’ as: ‘‘[a]n entity that 67 NERC Planning Committee, System Protection which could then initiate cascading owns/operates a transmission element below 100 and Control Task Force, ‘‘Increase Line Loadability kV associated with a facility that is included on a by Enabling Load Encroachment Functions of critical facilities list defined by the Regional Digital Relays,’’ December 7, 2005 at A–1. 68 Final Blackout Report at 64. Entity.’’

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directed to be developed herein, as information in light of its existing Reliability Standards establish desired critical to the reliability of the Bulk- registration guidelines and system performance requirements Power System. In other words, the procedures.71 Similarly, we expect that specific to a set of contingencies under modification that we direct in this Final Regional Entities will consider this a set of base cases that cover critical Rule extends the scope of the Reliability information when determining whether system conditions of the Bulk-Power Standard to include any sub-100 kV a sub-100 kV facility should be included System, while Reliability Engineering, facility that is: (1) Owned or operated by in a regional definition of the bulk as described by EPSA, is primarily used a currently-Registered Entity or an electric system.72 in reliability-centered maintenance to entity that becomes a Registered Entity 64. With respect to ISO New assess the optimum intervals and in the future; (2) associated with a England’s request for confirmation that practices for facility maintenance. We facility that is included on a critical the Commission does not intend to strongly believe that, for the purposes of facilities list defined by the Regional create an enforceable obligation against PRC–023–1, it is appropriate to use Entity; (3) employing load-responsive Regional Entities by directing them to requirements that are specific to the phase protection relays in its protection undertake—solely for the purpose of electric industry and that are supported system(s); and (4) identified by the test compliance with PRC–023–1—a process by decades of foundational planning directed to be developed herein.70 to determine which sub-100 kV facilities and operating principles and 63. Along these same lines, ERCOT, are critical to the reliability of the Bulk- experiences and that are embedded in SWTDUG, and TAPS are concerned that Power System, it should be clear from the TPL Reliability Standards rather the Commission’s proposal will require what we have already said that we do than criteria that may be more non-registered public power entities not intend to create such an obligation. appropriate to maintenance practices. with sub-100 kV facilities to become As we have explained, our directive 67. We also reject EEI’s claim that Registered Entities. As we have said, our requires planning coordinators, not there is no technical basis for extending directive applies only to sub-100 kV Regional Entities, to determine which PRC–023–1 to sub-100 kV facilities. facilities that are owned or operated by sub-100 kV facilities should be subject Relay settings on such facilities should currently-Registered Entities or entities to the Reliability Standard. Moreover, be subject to PRC–023–1 because their that become Registered Entities in the we agree with ISO New England’s loss can also affect the reliability of the future, and are associated with a facility assertion that Regional Entities have Bulk-Power System. We also reject that is included on a critical facilities already been delegated by NERC the role TAPS’s assertion that the Commission list defined by the Regional Entity; it is of designating critical sub-100 kV must exclude sub-100 kV facilities since not intended to supplant the process facilities as part of the Compliance the Commission is required under that Regional Entities use to determine Registry process.73 section 215(d)(2) of the FPA to give ‘‘due if a sub-100 kV facility should be 65. Some commenters question the weight’’ to the technical expertise of the identified as a critical facility or if an technical basis for extending PRC–023– ERO. NERC has not provided a entity should be a Registered Entity. 1 to sub-100 kV facilities. For example, sufficient technical justification to Similarly, our purpose is not to extend EEI argues that because it usually support the exclusion of sub-100 kV the definition or the scope of the bulk requires multiple 69 kV lines to replace facilities. In its comments, NERC states electric system sub rosa; it is to ensure one 138 kV line, it is highly unlikely that extending PRC–023–1 to sub-100 that PRC–023–1 applies to all critical that sub-100 kV facilities will cause a kV facilities ‘‘may have merit’’ and facilities as identified in the major cascade and much more likely ‘‘would require further study,’’ 75 applicability section so that the that sub-100 kV facilities will trip to end indicating that it did not affirmatively Reliability Standard can achieve its a cascade, as occurred during the consider subjecting certain sub-100 kV reliability objective. Consequently, we August 2003 blackout. EPSA argues that facilities to the Reliability Standard and do not intend to require any non- the Commission should apply then reject the idea on the basis of its Registered Entity to register on account ‘‘Reliability Engineering’’ to determine technical expertise. Moreover, NERC of PRC–023–1. Nevertheless, there whether there is a technical basis for its has not offered a technical basis for might be sub-100 kV facilities that are proposal. SWTDUG and TAPS argue opposing the Commission’s proposal. owned or operated by non-Registered that the Final Blackout Report does not NERC’s comments on the Commission’s Entities that are identified by planning support extending the Reliability proposal pertain exclusively to the coordinators, pursuant to the test Standard to relay settings on sub-100 kV relationship between the Compliance directed to be developed herein, as facilities. Registry and entities’ obligations to critical facilities. While we do not 66. We will not follow EPSA’s comply with Reliability Standards. require that these entities become suggestion to use Reliability Engineering Contrary to TAPS’s assertion, NERC Registered Entities solely due to PRC– to identify critical facilities. In our view, does not offer a technical argument 023–1, if a planning coordinator it is more appropriate to identify critical against including certain sub-100 kV applying the test directed to be sub-100 kV facilities (and, for that facilities in PRC–023–1. developed herein identifies a sub-100 matter, critical 100 kV–200 kV facilities) 68. Similarly, with respect to EEI’s kV facility that belongs to a non- by using established criteria specific to and NERC’s claim that any expansion of Registered Entity as a critical facility, the electric industry.74 The TPL the Reliability Standard must be we expect that the planning coordinator developed through the Reliability will inform the Regional Entity and that 71 In general, we expect that the results of the Standards development process, we the Regional Entity will consider this planning coordinator analysis and the processes clarify that, as with our other directives used by the Regional Entities to identify critical in this Final Rule, we do not prescribe 70 Consistent with Order No. 716, we expect that facilities would have similar outcomes. sub-100 kV facilities that are needed to supply the 72 We note that the definition of the bulk electric this specific change as an exclusive auxiliary power system of a Nuclear Power plant system is subject to change. See Order No. 693, will be included in both determinations. See FERC Stats. & Regs. ¶ 31,242 at P 77. maintenance strategies for complex systems, Mandatory Reliability Standard for Nuclear Plant 73 ISO New England at 3. See also Order No. 693, including multiple failure testing, which has been Interface Coordination, Order No. 716, 125 FERC FERC Stats. & Regs. ¶ 31,242, at P 101. applied to systems such as oil pipelines and civil ¶ 61,065 (2008), at P 51–53, order on reh’g, Order 74 EPSA states that ‘‘Reliability Engineering’’ is infrastructures. EPSA at 6. No. 716–A, 126 FERC ¶ 61,122 (2009). currently used to develop modeling and 75 NERC Comments at 18.

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solution to our reliability concerns coordinators must use to determine monitored flowgates and interfaces as regarding sub-100 kV facilities. As we whether a facility is a critical facility. examples of ‘‘operationally significant’’ have stated, the ERO can propose an We conclude, therefore, that the lack of facilities. Importantly, the Task Force alternative solution that it believes is an such a mandatory test is a matter that did not recommend that NERC limit its equally effective and efficient approach must be addressed by the ERO to ensure extended review only to monitored to addressing the Commission’s that the Reliability Standard meets its flowgates and interfaces; it merely cited reliability concerns about the absence of reliability objective. Otherwise, there is monitored flowgates and interfaces as sub-100 kV facilities from PRC–023–1. no guarantee that all planning examples of ‘‘operationally significant’’ Moreover, while we expect planning coordinators will use comprehensive facilities. If a facility trips on relay coordinators to use the same test to and rigorous criteria that is consistent loadability following an initiating event identify critical sub-100 kV facilities as across regions to identify all critical sub- and contributes to undesirable system they use to identify critical 100 kV–200 200 kV facilities, leaving the Bulk- performance similar to what occurred kV facilities, the ERO is free, pursuant Power System vulnerable to similar during the August 2003 blackout (e.g., to Order No. 693, to propose a modified problems that resulted in the cascade cascading outages and loss of load) in Reliability Standard that contains a during the August 2003 blackout. the same way that the loss of monitored different test for sub-100 kV facilities, 71. Consistent with Order No. 693, we flowgates and interfaces contributed to provided that the test represents an provide ‘‘sufficient guidance so that the the August 2003 blackout, the facility is ‘‘equivalent alternative approach.’’ ERO has an understanding of the operationally significant for the Commission’s concerns and an purposes of Recommendation 21A, and c. Test for Identifying Sub-200 kV appropriate, but not necessarily therefore critical to the reliability of the Facilities exclusive, outcome to address those bulk electric system for the purposes of i. Overview concerns.’’ 78 In this way, we ensure that PRC–023–1. For example, the 138 kV the Commission’s directive is not ‘‘so 69. Finally, pursuant to section lines shown in Figure 5.12 of the Final vague that the ERO would not know 215(d)(5) of the FPA, we direct the ERO Blackout Report were not part of the how to adequately respond.’’ 79 Thus, to modify Requirement R3 of the monitored flowgate of the 345 kV below we provide guidance for the Reliability Standard to specify the test Sammis-Star line or any other flowgate development of a test to determine in FirstEnergy, but the loss of these 138 that planning coordinators must use to 80 critical facilities. kV facilities affected loading on determine whether a sub-200 kV facility 72. We first observe that PRC–023–1 is critical to the reliability of the Bulk- Sammis-Star, and the loss of Sammis- directs planning coordinators to identify Star was the point at which the blackout Power System. We direct the ERO to file ‘‘ facilities that are critical to the went into its dynamic cascading phase. its test, and the results of applying the ’’ reliability of the bulk electric system. Thus, we reject assertions, made in the test to a representative sample of In contrast, Recommendation 21A of the context of comments on the ‘‘rule out’’ utilities from each of the three Final Blackout Report refers to approach, that facilities that are not part Interconnections, for Commission ‘‘operationally significant’’ facilities. of a defined and routinely monitored approval no later than one year from the APPA, Exelon, and TAPS argue that, in 76 flowgate should automatically be date of this Final Rule. the context of the Reliability Standard, excluded from the Reliability Standard’s 70. As we explained above, the ‘‘critical to the reliability of the bulk scope. Commission proposed to direct the ERO electric system’’ and ‘‘operationally to adopt the ‘‘rule out’’ approach for 100 significant’’ carry the same meaning and ii. Guidance on the Test kV–200 kV facilities because it was describe the same facilities. Exelon adds concerned that NERC’s ‘‘add in’’ 74. Neither the Final Blackout Report that drafting history confirms that the nor the Reliability Standard establishes approach would effectively exempt a Reliability Standard drafting team large percentage of facilities that should a mandatory test for planning intended this interpretation. coordinators to use to determine if a otherwise be subject to the Reliability 73. We agree. In our view, ‘‘critical to Standard. Contrary to the suggestion of facility is ‘‘operationally significant’’ or the reliability of the bulk electric ‘‘critical to the reliability of the bulk some commenters, the Commission’s ’’ system in PRC–023–1 and electric system’’ with respect to relay concern was not based on a latent ‘‘operationally significant’’ in distrust of planning coordinators, but on settings and the prevention of cascading Recommendation 21A are intended to outages. However, in its comments on the absence of a mandatory test in the have the same meaning because PRC– Reliability Standard for planning the NOPR, NERC includes the guidance 023–1 was developed to implement for identifying operationally significant coordinators to use to identify critical Recommendation 21A. This conclusion facilities.77 Without such a test, the 100 kV–200 kV facilities that the NERC sheds some light on what facilities System Protection and Control Task Commission has no way of determining ‘‘ should be identified as critical to the Force supplied to Regional Entities whether the ‘‘add in’’ approach will reliability of the bulk electric system’’ result in a comprehensive list of critical during the voluntary Beyond Zone 3 because, in Recommendation 21A, the relay review and mitigation program. facilities. As we also explained above, Task Force listed lines that are part of because the ‘‘rule out’’ approach and the This guidance advised Regional Entities to identify: ‘‘add in’’ approach should ultimately 78 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at result in the same list of critical P 185. All circuits that are elements of flowgates facilities, the choice between them is 79 Id. in the Eastern Interconnection, Commercially less important, from a reliability 80 While the ERO is free to submit a modified Significant Constraints in the Texas standpoint, than the test that planning Reliability Standard that adopts the guidance set Interconnection, or Rated Paths in the forth below as the mandatory test, we will also Western Interconnection. This includes both consider ‘‘an equivalent alternative approach the monitored and outage element for OTDF 76 We expect that the representative samples will provided that the ERO demonstrates that the sets. include large and small, rural and metropolitan alternative will adequately address the entities reflecting various topologies. Commission’s underlying concern or goal as All circuits that are elements of system 77 NERC agrees that there must be consistent efficiently and effectively as the Commission’s operating limits (SOLs) and interconnection criteria for determining which 100 kV-200 kV proposal’’ and is consistent with our guidance. Id. reliability operating limits (IROLs), including facilities are critical facilities. Id. at 12. P 186. both monitored and outage elements.

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All circuits that are directly related to off- 77. The test for identifying event 84 results in inadvertent outage 85 site power supply to nuclear plants. Any operationally significant/critical sub- or the tripping of other non-faulted circuit whose outage causes unacceptable 200 kV facilities should identify facilities that would result in cascading voltages on the off-site power bus at a nuclear facilities that must have their relays set outages or loss of load, or violation of plant must be included, regardless of its any of the applicable criteria, these proximity to the plant. in accordance with PRC–023–1 to avoid All circuits of the first 5 limiting elements the undesirable system performance that facilities must be identified for remedial (monitored and outaged elements) for Recommendation 21A was intended to actions (such as equipment transfer interfaces determined by regional prevent. It should also describe the modifications, or a reduction in IROLs and interregional transmission reliability steady state and dynamic base cases that or SOLs) to ensure Reliable Operation. studies. If fewer than 5 limiting elements are planning coordinators must use in their We provide guidance on both features of found before reaching studied transfers, all the test below. should be listed. assessment. Other circuits determined and agreed to by 78. Recommendation 21A of the Final iii. Desirable System Performance the reliability authority/coordinator and the Blackout Report was developed to 81. During the August 2003 blackout, Regional Reliability Organizations. prevent undesirable system performance facilities (regardless of the voltage class 75. After careful review, we conclude like the undesirable performance that and whether or not they were part of that the guidance provided by the NERC occurred during the August 2003 monitored flowgates) inadvertently System Protection and Control Task blackout. During the blackout, the tripped due to loadability conditions, Force, if applied appropriately, would inadvertent tripping of facilities due to resulting in undesirable system identify some, but likely not all, critical loadability resulted in undesirable performance under the TPL Reliability sub-200 kV facilities. There are some system performance in the form of Standards in the form of exceeding SOL critical facilities that the guidance cascading outages and the loss of load. and IROL limits, cascading outages, and would not identify and would need to Since PRC–023–1 implements Final the loss of load. Consequently, identify in order for it to be a fully Blackout Recommendation No. 21A, it consistent with the TPL Reliability acceptable test and meet the reliability too must prevent the undesirable system Standards, the first component of objectives of PRC–023–1. performance that would include, among desirable system performance that the test must seek to maintain is the 76. In the Commission’s view, the other performance factors, cascading continuity of all firm load supply except NERC System Protection and Control outages and the loss of load. Task Force guidance focuses primarily for supply directly served by the faulted 79. To achieve this goal, the test to facility. In other words, it is the on identifying facilities that are determine which sub-200 kV facilities Commission’s view that the test must ‘‘operationally significant’’ between are subject to PRC–023–1 must include identify facilities necessary to achieve regions (e.g., between ECAR and SERC) or be consistent with the system the reliability performance for Category or between sub-regions (e.g., between simulations and assessments that are B and Category C contingencies—which Southern and Entergy) and would not required by the TPL Reliability would include no non-consequential necessarily identify operationally load loss (for Category B) and no significant facilities within a sub-region Standards and meet the system cascading outages (for Category B and or a company.81 In order to achieve its performance levels for all Category of Category C) for all stable operating objective, however, PRC–023–1 must Contingencies used in transmission planning. As discussed in the NOPR, conditions.86 apply to relay settings on all 82. The TPL Reliability Standards operationally significant sub-200 kV the Commission expects that the base cases used to determine the facilities address, among other things, the type of facilities that could trip on relay simulations and assessments that must loadability and contribute to cascading subject to PRC–023–1 will include various generation dispatches, be performed to ensure that reliable outages and the loss of load, including systems are developed to meet present topologies, and maintenance outages those within a sub-region or a company. and future systems needs.87 Table 1 of assumed in the planning time frame, The ERO could refine the NERC System the TPL Reliability Standards and will consider the effect of Protection and Control Task Force’s establishes the desired system guidance into an acceptable mandatory redundant and backup protection 83 performance requirements for a range of test by, among other things, revising it systems. As such, the base cases shall contingencies grouped according to the to include the assessment and bracket all stable operating conditions. number of elements forced out of identification of facilities within a 80. Thus, the ERO must develop a test service as a result of the contingency. region, sub-region, or company, whose that: (a) Defines expectations of inadvertent outage due to relay desirable system performance; and (b) 84 In power systems, an ‘‘initiating event’’ loadability could result in undesirable describes the steady state and dynamic generally refers to any event on the electric system system performance.82 that begins a series of actions. For transmission base cases that the planning coordinator planning purposes, an initiating event is usually must use in its assessments to carry out modeled as a type of fault. A ‘‘fault’’ is defined in 81 We understand that some interregional studies Requirement R3. The goal of the test the NERC Glossary of Terms used in Reliability include only a portion of all the lines with the Standards as ‘‘[a]n event occurring on an electric remaining modeled as equivalents. Such an analysis must be consistent with the general system such as a short circuit, a broken wire, or an could not possibly address the operational reliability principles embedded in the intermittent connection.’’ See NERC Glossary of significance of the lines that were modeled only as existing series of TPL, Transmission Terms used in Reliability Standards at 7. equivalents. Operations (TOP), Reliability 85 An ‘‘inadvertent outage’’ generally refers to an 82 The ERO is not limited to proposing a revised unplanned outage of a facility. For the purposes of version of the NERC System Protection and Control Coordination (IRO), and Protection and PRC–023–1, an inadvertent outage is the tripping of Task Force’s guidance as the mandatory test. It can Control (PRC) Reliability Standards. a facility due to loadability conditions. also develop a new test to identify critical sub-200 This is, in fact, good utility practice 86 In Order No. 693, the Commission explained kV facilities or refine other aspects of the System worldwide in that, if an initiating that the term ‘‘consequential load loss’’ refers to Protection and Control Task Force test. Any test ‘‘load that is directly served by the elements that are that the ERO submits, including one based on the removed from service as a result of the NERC System Protection and Control Task Force’s 83 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 43, contingency.’’ Order No. 693, FERC Stats. & Regs. guidance, must be consistent with the general n.71. A ‘‘base case’’ refers to the transmission system ¶ 31,242 at P 1794, n.461. guidelines set forth in this Final Rule. model used for performing planning studies. 87 Id. at P 1683.

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Consistent with Table 1 of the TPL iv. Steady State and Dynamic Base development of SOLs and IROLs that Reliability Standards, with the Cases will result in acceptable system exception of extreme contingency 85. With respect to the steady state responses for unplanned events. events, the system should always be and dynamic base cases that planning 87. At a minimum, the Bulk-Power stable and within both thermal and coordinators must use as part of their System is planned and operated to voltage limits for Reliable Operation.88 assessments, the Commission stated in maintain Reliable Operation for the This is the second component of single contingency loss of any the NOPR that it expects planning 94 desirable system performance that the coordinators to use base cases that transmission facility. Consequently, test must seek to determine. include various generation dispatches, the base cases that planning coordinators must use in their 83. Finally, while the curtailment of topologies, and maintenance outages, and that consider the effect of assessments for PRC–023–1 firm transfers is permitted to prepare for applicability should represent, at a the next contingency, it is generally not redundant and backup protection systems. The Commission also stated minimum, the fundamental base case the desired system performance for categories to plan for Reliable Operation single contingencies required by Table 1 that the process for identifying critical facilities must include the same system and the real-time response for Reliable of the TPL Reliability Standards. Thus, Operation. Fundamental base case continuity of all firm transfers is the simulations and assessments as the TPL Reliability Standards for all stable categories may be more extensive than third component of desirable system those that are central to meeting the performance.89 operating conditions. The TPL Reliability Standards establish the types performance requirements established 84. In sum, because the Bulk-Power of simulations and assessments that in TPL–002–0, Requirement R1 if they System is planned and operated as a must be performed to ensure that do not include all reliable operating minimum criterion to maintain Reliable reliable systems are developed to meet conditions. We believe that initiating Operation for the single contingency present and future system needs. It is events that represent all feasible types loss of any transmission facility,90 for through these simulations and and locations of faults, including Category B contingencies, desirable assessments that the planning authority evolving faults, must be simulated in system performance includes: (1) and transmission planner demonstrate each of the fundamental base case Continuity of all firm load supply that their portion of the interconnected categories to determine the performance except for supply directly served by the transmission system is planned for of the system. This is necessary for faulted facility and no cascading Reliable Operation under contingency PRC–023–1 applicability because any of outages; (2) the maintenance of all conditions. In order to produce a ‘‘valid’’ these initiating events can occur and facilities within their applicable assessment, the planning authority or must be included in determining thermal, voltage, or stability ratings transmission planner must demonstrate performance. It is also consistent with (short time ratings are applicable); and that its network can be operated to the development of valid transmission (3) the continuance of all firm supply projected customer demands and assessments required by the TPL 95 transfers.91 For Category C projected firm transmission service, at Reliability Standards. Under this contingencies, desirable system all demand levels, over the range of approach, a facility would be identified performance includes: (1) Continuity of forecast system demands, and under the as a critical facility if, during a all firm load supply except for planned contingency conditions defined in Table simulation starting with the base cases, interruptions and no cascading outages; 1.93 The Commission understands that its removal from service following an (2) the maintenance of all facilities Category B contingencies would cover initiating event would prevent desirable within their applicable thermal, voltage, most of the primary relay applications system performance, as we have defined or stability ratings (short time ratings are and Category C contingencies would it here. applicable); and (3) the continuance of cover most of the backup and remote 88. With this in mind, base case all firm transfers that are not part of circuit breaker failure relay categories in the application of a test to planned interruptions.92 applications. However, if a portion of a identify critical facilities must: (1) Represent the full range of demand system is expected to be operated and transfer levels. This is consistent 88 Extreme contingency events are the loss of two differently than the minimal TPL base with TPL–002–0, Requirement R1.3.5 or more (multiple) elements (Category D). cases, additional base cases should be 89 (which requires that all projected firm See Reliability Standard TPL–002–0. Footnote included to include all stable operating b of Table 1 allows for the interruption of firm load transfers be modeled) and TPL–002–1, conditions. for consequential load loss. This footnote is Requirement R1.3.6 (which requires that currently the subject of an order setting a deadline 86. In addition to the TPL Reliability for required revisions in RM06–16–009. Standards, the TOP Reliability all studies and simulations be 90 Reliability Standard TOP–002–0, Normal Standards are relevant to the steady performed and evaluated for selected Operations Planning, Requirement R6 establishes demand levels over the range of forecast that each balancing authority and transmission state and dynamic base cases that reliability entities must use as part of system demands); operator shall plan to meet unscheduled changes in (2) Include all stable operating syst em configuration and generation dispatch (at a their assessments. The TOP Reliability conditions and allowable topologies, minimum N–1 Contingency Planning) in Standards establish, among other things, accordance with NERC, Regional Reliability the responsibilities and decision-making Organization, sub-regional, and local reliability 94 See Reliability Standard TPL–002–0, System requirements. authority for Reliable Operation in real- Performance Following Loss of a Single BES 91 See Reliability Standard TPL–002–0. Footnote time. Reliability Standard TOP–002–0 Element. See also Reliability Standard TOP–002–0, b of Table 1 allows for the interruption of firm load establishes requirements for operation Normal Operations Planning, Requirement R6 that for consequential load loss. plans and procedures essential for establishes that each balancing authority and 92 See Reliability Standard TPL–003–0. Footnote transmission operator shall plan to meet c of Table 1 allows for the controlled interruption Reliable Operation, including unscheduled changes in system configuration and of electric supply to customers (load shedding), the generation dispatch (at a minimum N–1 planned removal from service of certain generators, 93 In order for a planning authority and Contingency Planning) in accordance with NERC, and/or the curtailment of contracted Firm (non- transmission provider to produce a ‘‘valid’’ Regional Reliability Organization, sub-regional, and recallable reserved) electric power transfers assessment, the assessment must be demonstrated local reliability requirements. necessary to maintain the overall reliability of the as satisfying each of the criteria established in TPL– 95 See Order No. 693, FERC Stats. & Regs. interconnected transmission systems. 002–0 through TPL–004–0, Requirement R1. ¶ 32,642 at P 1683.

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such as all allowable planned outages. which the contingency is applied. proposes that the Commission direct This is consistent with TPL–002–0, Similarly, for the purposes of the test NERC to develop a process whereby Requirement R1.3.12 (which requires described above, the facilities that are each region can develop a common that the planned (including not ‘‘operationally significant,’’ and region-wide approach to identifying maintenance) outage of any bulk electric therefore can be excluded from PRC– critical facilities.98 We believe that the equipment (including protection 023–1, would be those that trip due to test set forth above is best implemented systems or their components) be loadability conditions at the same time uniformly across all regions. We direct included at those demand levels for as an initiating event involving a critical a uniform approach rather than the one which planned (including maintenance) or operationally significant facility but suggested by APPA because, as NERC outages are performed); and TOP–004 do not impede desirable system comments in its petition, the effects of Requirement R4 (which requires performance. PRC–023–1 are not constrained to operating the actual system in a known 90. For the particular flowgate under regional boundaries.99 Any test to operating state); analysis by the TOP operations planner, identify critical facilities must be (3) Include the effects of the the limiting facilities are those that consistent across regions so that the protection system design and settings of result in the lowest IROL, and thus are effects of protective relay operation are the as designed protection systems with commonly referred to as critical consistent across regions. identification of those that are not facilities. All the remaining flowgate 93. Duke comments that application within the Requirements of PRC–023–1. facilities and other facilities that are not of the existing TPL standards to its This is consistent with TPL–002–0, part of the flowgate under analysis are Midwest and Carolina systems has not Requirement R1.3.8 with regard to operationally significant for two main identified any sub-200 kV facilities as existing and planned protection conditions: (i) Following a contingency critical (i.e., there have been no systems; on a binding or critical facility, they will showings that the loss of any such (4) Include the effects of the failure of not trip inadvertently and result in an facilities could result in cascading a single component within the as increase in the loadings on other outages, instability, or uncontrolled designed Protection Systems, consistent facilities and/or stable power swings separation).100 As we have explained, with TPL–002–0 Requirement R1.3.10, that could result in additional trips, however, the test that would be but with regard to backup and thereby invalidating the derived developed by the ERO and that would redundant protection systems; and IROL; 96 and (ii) the outage of these adhere to the guidance we provide in (5) Include various generation operationally significant facilities would this Final Rule would take into dispatch patterns. This is consistent reduce the IROL since the flowgate consideration both the desired system with TOP–002–0 Requirement R6 would have one less element before a performance that PRC–023–1 was (which requires that each balancing contingency on the critical facility is developed to achieve and the desired authority and transmission operator applied. Similar analysis would be system performance required by the TPL plan to meet unscheduled changes in conducted for other facilities that are Reliability Standards for Reliable system configuration and generation not part of a flowgate. Operation. dispatch (at a minimum N–1 94. We also note that some contingency planning) in accordance v. Response to Relevant Comments commenters argue that the Reliability with NERC, Regional Reliability 91. The Commission received Standard should not apply to radial Organization, sub-regional and local comments pertaining to its statements transmission lines and Category D reliability requirements). about the process for identifying critical Contingencies. With regard to radial 89. Our guidance above for 100 kV–200 kV facilities and its transmission lines, we note that the developing a test to determine proposal to permit case-by-case NERC definition of ‘‘bulk electric operationally significant facilities that exceptions for the limited number of system’’ does not include radial should be subject to PRC–023–1 is facilities that are not critical to the transmission facilities serving load with consistent with Recommendation No. reliability of the bulk electric system only one transmission source. We 21A of the Final Blackout Report and and that would not result in cascading reiterate that we do not intend to with planning and operating practices outages, instability, uncontrolled expand the applicability of PRC–023–1 for Reliable Operation of the Bulk- separation, violation of facility ratings, beyond NERC’s Statement of Registry Power System. Using a flowgate as an or interruption of firm transmission Criteria. example, to derive the IROL of a given service.97 While some comments are no 95. Additionally, we do not conclude flowgate under a given range of system longer relevant given the Commission’s that the applicability of PRC–023–1 conditions, the TOP operations planner, decision not to adopt the ‘‘rule out’’ should be determined based on Category in carrying out day-ahead reliability approach, others bear on how to D contingencies (pursuant to Table I of assessments, would simulate understand the designation ‘‘critical to the TPL Reliability Standards). We contingencies on critical facilities at a the reliability of the bulk electric understand that relay settings cannot be given loading on the flowgate, system’’ in the context of Requirement determined with great certainty for proceeding through the list of all critical R3. extreme multi-contingency conditions— and operationally significant facilities 92. For example, APPA argues that the types of conditions consistent with that form the monitored flowgates or the Commission should allow some the Category D contingencies of the TPL other facilities as determined to be diversity in regional definitions of applicable, either by actual simulation critical facilities to account for physical 98 APPA at 17, 26–27. tests or engineering judgment, to differences in network topology, design, 99 NERC Petition at 18–19, 39–41. eliminate the less critical facilities that and performance. To this end, APPA 100 Duke adds that potential revisions to the TPL Reliability Standards appear as though they will are not binding to the IROL and raise the bar in clarifying the requirements for firm facilities that are not part of that 96 In Order No. 693, the Commission explained transmission service (i.e., it appears that there will flowgate. The derived IROLs would be that ‘‘[i]n deriving SOLs and IROLs * * * the be more restrictions on loss of local load that is not functions, settings, and limitations of protection valid only if none of the remaining connected to a faulted system element), but are systems are recognized and integrated.’’ Order No. unlikely to result in many facilities under 200 kV flowgate facilities inadvertently trip 693, FERC Stats. & Regs. ¶ 31,242 at P 1435. being considered critical to bulk electric system with the binding facility or facilities on 97 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 43. reliability.

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Reliability Standards. In fact, Reliability Committee on a technical reference c. Commission Determination Standard TPL–004–0 requires that the document (Power Plant and 104. We decline to adopt the NOPR planning authority and transmission Transmission System Protection and proposal and will not direct the ERO to planner demonstrate through a valid Coordination) that addresses modify PRC–023–1 to address generator assessment and documentation that transmission protection coordination step-up and auxiliary transformer their portion of the interconnected with generation protection systems, loadability. After further consideration, electric system is evaluated only for the provides technical guidance for the we conclude that it does not matter if risks and consequences of such events. revision of PRC–001,102 and includes generator step-up and auxiliary 96. Some commenters argue that technically based loadability transformer loadability is addressed in a violation of facility ratings and requirements.103 NERC adds that separate Reliability Standard, so long as interruption of firm transmission service generator relay loadability is just a the ERO addresses the issue in a timely should not be part of the applicability single facet of the total system manner and in a way that is coordinated test. We are not persuaded by this protection coordination requirement with the Requirements and expected argument because, as previously between generators and transmission discussed, these are included in the outcomes of PRC–023–1. lines, and recommends that all 105. In light of the ERO’s statement three reliability components of desirable coordination issues between generators that within two years it expects to system performance. 97. Finally, commenters argue that and transmission lines, including submit to the Commission a proposed there should be some mechanism for generator step-up and auxiliary Reliability Standard addressing entities to challenge criticality transformer relay loadability, reside in generator relay loadability, we direct the determinations. We agree that such a PRC–001–2. ERO to submit to the Commission an mechanism is appropriate and direct the 101. Many commenters agree that updated and specific timeline ERO to develop an appeals process (or generator step-up and auxiliary explaining when it expects to develop point to a process in its existing transformer relay loadability must be and submit this proposed Standard. While we recognize that generator relay procedures) and submit it to the addressed in a timely manner, but in a loadability is a complex issue that Commission no later than one year after separate Reliability Standard from PRC– presents different challenges than the date of this Final Rule. 023–1. In general, these commenters transmission relay loadability, we note argue that properly addressing generator D. Generator Step-Up and Auxiliary that more than six years have passed step-up and auxiliary transformer relay Transformers since the August 2003 blackout and loadability requires in-depth technical there is still no Reliability Standard that 1. Omission From the Reliability analysis and careful consideration of Standard addresses generator relay loadability. related protection and coordination With this in mind, the Commission will 98. NERC stated that generator step- issues and should not be rushed to not hesitate to direct the development of up transformer relay loadability was accommodate PRC–023–1. a new Reliability Standard if the ERO intentionally omitted from PRC–023–1 102. Entergy argues that the NOPR fails to propose a Standard in a timely and would be addressed in a future appears to treat generator step-up and manner. While the ERO is developing a Reliability Standard.101 auxiliary transformers as transmission- technical reference document to a. NOPR Proposal related facilities, contrary to the facilitate the development of a 99. In the NOPR, the Commission Commission’s ratemaking precedent. Reliability Standard for generator stated that the ERO must address Entergy explains that generator step-up protection systems, only Reliability generator step-up and auxiliary and auxiliary transformers are not Standards create enforceable obligations transformer relay loadability in a timely transmission facilities, and that their under section 215 of the FPA. manner and proposed directing the ERO function is to connect generation 106. We also expect that the ERO will to modify PRC–023–1 to include these capacity to the transmission grid at develop the Reliability Standard issues. The Commission also requested appropriate voltage levels. Entergy adds addressing generator relay loadability as comments suggesting a reasonable time that when generation is off-line, neither a new Standard, with its own individual frame for the ERO to either modify PRC– generator step-up transformers nor timeline, and not as a revision to an 023–1 to address generator step-up and auxiliary transformers are required for existing Standard. While we agree that auxiliary transformer relay loadability transmission throughput. PRC–001–1 requires, among other or to develop a new Reliability Standard 103. The PSEG Companies argue that things, the coordination of generator addressing these issues. developing generator step-up and and transmission protection systems, we think that generator relay loadability, auxiliary transformer loadability b. Comments like transmission relay loadability, requirements requires a significant effort should be addressed in its own 100. NERC states that within two by NERC and generation companies, Reliability Standard if it is not to be years it expects to submit to the and once developed, may require Commission a Reliability Standard that addressed with transmission relay generation companies to conduct addresses generator relay loadability. loadability. specific engineering studies for each of NERC explains that a team under the 107. Additionally, although we do not their generator step-up transformers. NERC System Protection and Control adopt the NOPR proposal, we reject The PSEG Companies suggest that the Subcommittee is working with the Entergy’s claim that including generator Commission direct NERC to consider Institute of Electrical and Electronics and transmission relay loadability in the whether it can establish and determine Engineers (IEEE) Power System Relay same Reliability Standard would a generic rating percentage. conflict with how the Commission treats 101 The Commission notes that in its comments generator step-up transformers for the NERC refers to ‘‘generator relay loadability.’’ In the 102 The purpose of PRC–001 is to ensure that purposes of ratemaking. The context of our determination, we understand system protection is coordinated among operating ‘‘generator step-up and auxiliary transformer entities. Commission’s primary objectives in loadability’’ and ‘‘generator relay loadability’’ to 103 NERC presented a draft of the technical ratemaking differ from its central refer to the same thing. reference document at its September 2009 meeting. objectives concerning reliability

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regulation. In the ratemaking context, to provide backup protection to a Bulk-Power System transmission the Commission is concerned that transmission lines. The commenters circuit. In the NOPR, the Commission jurisdictional generator step-up and assert that because phase fault back-up explained that distance relays auxiliary transformers are classified in a protection on the low voltage side of a physically located at the generator way that ensures just and reasonable generator step-up transformer is terminal that are applied to protect rates. In the reliability context, designed to detect un-cleared faults on Bulk-Power System facilities must be addressing transmission and generator the system, with the primary function of coordinated with primary protection relay loadability in the same Reliability protecting the generator and the systems for a transmission line and be Standard facilitates the reliability goal transformer from supplying a prolonged set to see through 108 the step-up of ensuring coordination between fault current, the relays discussed by the transformer, providing backup transmission and generator protection Commission are set pursuant to IEEE protection for un-cleared faults on the systems, as required by PRC–001–1. Standard C37.102 instead of PRC–023– Bulk-Power System. Consequently, 108. Finally, the PSEG Companies 1. these relays will sense increased current suggest that the ERO consider whether flow and may trip on high load and c. Commission Determination a generic rating percentage can be therefore must also be set pursuant to established for generator step-up 112. We reiterate that the PRC–023–1. If the primary protection transformers and, if so, determine that requirements of PRC–023–1 apply to all system of the transmission line fails to percentage. Although we do not adopt protection systems as described in operate, or does not operate within a the NOPR proposal, we encourage the Attachment A that are intended to certain time, the backup protection ERO to consider the PSEG Companies’ provide protection to the facilities operates and trips Bulk-Power System suggestion in developing a Reliability defined in section 4.1.1 through 4.1.4 of elements that it is applied to protect. Standard that addresses generator relay the Reliability Standard, regardless of 114. Our statement that such relays loadability. whether the protection systems provide are subject to the Reliability Standard is primary or backup protection and not in conflict with the use of a 2. Generator Step-Up Transformer regardless of their physical location. protection system to protect the Relays as Back-Up Protection Our interpretation is based on the fact generator/step-up transformer in the a. Commission’s Statements in the that protective relays are applied to context of other industry standards, NOPR protect specific system elements and, it such as IEEE Standard C37.102,109 or 109. In describing PRC–023–1 in the is consistent with approved Reliability with the exclusion in section 3.4 of 105 NOPR, the Commission emphasized Standards, the zones of protection Attachment A to PRC–023–1 of that: principle on which relaying schemes are generator relays that are susceptible to designed,106 and NERC’s voluntary load. The relays that we referred to in [T]he requirements of PRC–023–1 apply to Beyond Zone 3 Review, which the NOPR, while they may be physically all protection systems as described in Attachment A that provide protection to the examined all primary and backup located at the generator terminal or on 107 facilities defined in sections 4.1.1 through protection systems. the low-voltage side of the generator 4.1.4 of PRC–023–1, regardless of whether the 113. We also clarify that protective step-up transformer, are applied to protection systems provide primary or relays can be applied as back-up provide backup protection for Bulk- backup protection and regardless of their protection in two different ways: They Power System elements. This physical location. * * * For example, a can be physically located at the application is different from ‘‘generator protective relay physically installed on the generator terminal on the low-voltage relays,’’ which are also physically low-voltage side of a generator step-up side of a generator step-up transformer located at the generator, but are applied transformer with the purpose of providing and provide backup protection for a backup protection to a transmission line to protect the generator. Bulk-Power System element (i.e., for a operated above 200 kV must be set in E. Need To Address Additional Issues accordance with the requirements of PRC– transmission line outside of the 023–1 because it is applied to protect a generator zone of protection), as 115. In the NOPR, the Commission facility defined in [] PRC–023–1.104 discussed in the NOPR, or provide back- identified two additional issues that the up protection for the generator and the ERO must address to ensure Reliable b. Comments step-up transformer (i.e., within the Operation of the Bulk-Power System: (1) 110. EPSA and Ontario Generation generator zone of protection), as the Zone 3/zone 2 relays applied as remote disagree with the Commission’s commenters discuss. In this Reliability circuit breaker failure and backup statements and argue that the Standard, the Commission is referring to protection; and (2) protective relays Commission’s example contains an the first type of relays; i.e., relays that operating unnecessarily due to stable error. Ontario Generation asserts that are applied to provide back-up power swings. protective relaying that does not directly protection to Bulk-Power System 1. Zone 3/Zone 2 Relays Applied as sense a current flow on a particular elements and that would sense Remote Circuit Breaker Failure and transmission circuit cannot affect its increased current flow due to a fault on Back-Up Protection loadability. In that respect, Ontario Generation argues that the Reliability 105 See, e.g., Reliability Standard PRC–001–1, a. NOPR Proposal Standard’s existing requirements Requirement R1 (requiring that ‘‘[e]ach 116. In the NOPR, the Commission correctly refer to protection systems at Transmission Operator, Balancing Authority, and Generator Operator shall be familiar with the expressed concern about the impact that specific circuit terminals. purpose and limitations of protection system 111. EPSA and Ontario Generation schemes applied in its area’’ (emphasis added)). 108 To ‘‘see through’’ refers to a protective relay also challenge the Commission’s 106 Protective relays are applied to protect specific setting where, based on the apparent impedance as implication that generator step-up elements within its zone of protection on the measured by the relay, the relay will detect faults transformer relays are subject to the electric system. The ‘‘zone of protection’’ principle beyond, i.e., ‘‘see through,’’ a bulk electric system is used to ensure that each element on the electric element. Reliability Standard if their purpose is system is provided, at most primary, and at least 109 IEEE Standard C37.102 (IEEE Guide for AC backup, protection so that there are no unprotected Generator Protection) provides generally accepted 104 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 33 areas. forms of relay protection applied to protect the (emphasis added). 107 NERC Comments at 13. synchronous generator and its excitation system.

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zone 3/zone 2 relays applied as remote for zone 3/zone 2 relays applied as within the system. Entergy asserts that circuit breaker failure and backup remote circuit breaker failure and maximum reaches are affected by the protection can have on reliability when backup protection.116 inherent capabilities of the relays, such they operate without a time delay or for as where load encroachment is present. b. Comments non-fault conditions. The Commission 122. ATC argues that the explained that if a zone 3/zone 2 relay 119. NERC and other commenters Commission’s proposal may put an detects a fault on an adjacent argue that PRC–023–1 already addresses arbitrarily low loading limit on some transmission line within its reach, and the Commission’s concerns because it transmission lines. ATC explains that the relay on the faulted line fails to establishes loadability limits based on on a short transmission line, a relay operate, the zone 3/zone 2 relay will protection-zone-specific limitations, setting of several times the line’s operate as a backup and remove the such as equipment thermal ratings and impedance would not limit the loading fault; when it does, however, it will maximum power transfer capability, for of the line, whereas on a long disconnect both the faulted all load responsive relays, independent transmission line the same impedance transmission line and ‘‘healthy’’ of their application.117 setting would limit loading. ATC argues facilities that should have remained in 120. EEI states that an entity will first that a maximum allowable reach is service. The Commission noted that develop protective relay settings that immaterial because the security of a zone 3/zone 2 relays are typically set to ensure adequate protection of its facility relay’s setting is determined by the operate after a time delay in order to or facilities and then apply Requirement relay’s load-sensitive trip point, together ensure coordination of protection and R1. EEI states that if the entity cannot with an appropriate load margin with avoid unnecessarily disconnecting satisfy Requirement R1, it must change respect to the maximum load carrying ‘‘healthy’’ facilities.110 its relay scheme to accommodate the capability of the protected transmission 117. The Commission also explained need for protection and to comply with system element. that the large reach of a zone 3/zone 2 PRC–023–1.118 EEI maintains that 123. WECC maintains that the relay makes it susceptible to operating Requirement R1 addresses the appropriate use of readily available for certain non-fault conditions, such as Commission’s concern in the NOPR technology will completely addresses very high loading and large, but stable because no exemption is given to relays the Commission’s concerns. WECC power swings, because the current and that are set to cover adjacent lines in the observes that the relay operations voltage as measured by the impedance event of breaker failure. EEI contends, identified by the Task Force and relay may fall within the very large therefore, that PRC–023–1 does not need referenced by the Commission occurred magnitude and phase setting of the to identify any maximum reach mostly with relays that used traditional relay.111 The Commission cited the Task allowable outside of the impact on mho circle characteristics.120 WECC Force’s finding that fourteen 345 kV and loadability. EEI further argues that explains that the mho relay 138 kV transmission lines disconnected issues of protective relay settings that characteristic always includes a during the August 2003 blackout over reach adjacent lines and trip with substantial resistive reach (in the because of zone 3/zone 2 relays applied insufficient delay are coordination direction of load, at least half the as remote circuit breaker failure and issues and not transmission relay reactive reach) along with the necessary backup protection,112 including several loadability issues. EEI adds that, if reactive reach (in the direction of zone 2 relays in Michigan that remote back-up relays cannot provide possible faults). WECC states that in overreached their protected lines by adequate breaker failure coverage and modern microprocessor-based relays, still comply with PRC–023–1, then local more than 200 percent and operated several different methods are available breaker failure relaying must be without a time delay.113 The to limit the relays’ resistive (load) reach applied.119 without sacrificing the ability to detect Commission noted that while these 121. BPA explains that by complying relays operated according to their remote faults (reactive reach), including with one of the sub-requirements in non-circular characteristic shapes (e.g., settings, the Task Force concluded that Requirement R1 (R1.1 through R1.13), they operated so quickly that they lens, rectangle), offset mho, blinders, entities’ zone 3/zone 2 relay settings and specific load encroachment impeded the natural ability of the will be based on the real load carrying electric system to hold together and did elements. requirements of the line to which they 124. Many commenters, including not allow time for operators to try to are applied, but will not operate for stop the cascade.114 NERC, assert that establishing a shorter allowable line loads. BPA argues that a maximum reach for zone 3/zone 2 relays 118. The Commission acknowledged blanket maximum reach limit would NERC’s claim that PRC–023–1 is silent applied as remote circuit breaker failure nullify the thirteen sub-requirements in and backup protection may adversely on the application of zone 3/zone 2 Requirement R1, prevent entities from relays as remote circuit breaker failure impact reliability. In general, these optimizing their relay settings for each commenters assert that when the level and backup protection because it situation, and unnecessarily reduce establishes requirements for any load- of backup protection is reduced, there is protection. Exelon states that PRC–023– an increased probability that faults will responsive relay regardless of its 1 allows entities to assess their relays’ 115 not be cleared and system stability will protective function. Nevertheless, loadability based on the most severe given the Task Force’s conclusions suffer. line ratings at severely depressed 125. Commenters also stress the about the role of zone 3/zone 2 relays voltage, and either includes a margin in the August 2003 blackout, the problems associated with setting a beyond these ratings or is based on the uniform maximum reach. Southern Commission proposed to direct the ERO ability of a circuit to actually carry a to develop a maximum allowable reach states that it would be difficult to load given its length and/or location establish an arbitrary maximum reach 110 that fits all system configurations NOPR, FERC Stats. & Regs. ¶ 32,642 at P 50. 116 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 53. 111 because the setting for a zone 3/zone 2 Id. P 52. 117 See Consumers Energy, Dominion, Duke, 112 Final Blackout Report at 80. Entergy, Exelon, EEI, Oncor, PG&E, SCEG, relay is based on the location of the 113 Id. Southern, TAPS. 114 Id. 118 EEI at 19. 120 ‘‘Mho-circle’’ refers to the circular operating 115 See NERC Petition at 38–39. 119 Id. at 20. characteristic of a phase distance protection relay.

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relevant relay and the structure of the comply with PRC–023–1, then local can differentiate between faults and protection scheme for the pertinent breaker failure relaying must be applied. stable power swings and phases out system. Duke argues that an arbitrary 129. We agree with NERC and EEI that protective relay systems that cannot relay reach limit would not provide the if an entity chooses to use remote meet this requirement.122 necessary protection flexibility to align breaker failure protection, it must protection needs with all primary comply with PRC–023–1 and its a. Comments protection settings, derived pursuant to system configurations and electrical 131. NERC opposes addressing stable PRC–023–1, must interact with other characteristics. EEI and ITC argue that it power swings in a modification to PRC– is not technically possible with current relevant Reliability Standards to ensure 023–1. NERC argues that while it is system configurations to enact the Reliable Operation. EEI asserts that if possible to employ protection systems Commission’s proposal and maintain remote backup relays cannot provide that are immune from stable power reliability and ensure fault detection. adequate breaker failure coverage and EEI states that the electric industry’s still comply with PRC–023–1, then local swings, the Commission should not technically preferred approach is to set breaker failure relaying must be applied. require the use of these systems at the specific fault conditions. We agree. This assertion addresses our expense of diminishing the ability of 126. The PSEG Companies speculate concern that entities would continue to protective relays to dependably trip for that the Commission’s proposal will rely on the use of remote breaker failure faults or detect unstable power swings. translate into a requirement to replace protection and simply comply with According to NERC, there are two ways zone 3 relays with expensive PRC–023–1 without ensuring whether: to prevent protective relays from communication-based schemes. The (i) it provides adequate circuit breaker operating during stable power swings: PSEG Companies state that such a failure protection coverage; and (ii) that (1) Select a protection system that will requirement would be impractical and the limitation of remote circuit breaker differentiate between faults and stable ineffective with respect to facilities failure protection and the settings so power swings, but will not trip for any below 200 kV. Nevertheless, the PSEG derived to comply with PRC–023–1 are power swing, such as current Companies support limits on the reach reflected in the derivation of IROLs and differential or phase comparison; or (2) of zone 3/zone 2 relays for circuits that SOLs that are used in real time utilize an impedance-based protection are truly critical, provided that the operations. system that relies on careful selection of circuits are identified through an open 2. Protective Relays Operating the protective relay trip characteristic, process and their designation supported Unnecessarily Due to Stable Power including shape (e.g., mho circle, lens) by a proper engineering analysis by the Swings and sensitivity, to differentiate between Regional Entity. faults, stable swings, and unstable 130. In the NOPR, the Commission c. Commission Determination swings. NERC adds that selection of the stated that the cascade during the trip characteristic requires coordination 127. We decline to adopt the NOPR August 2003 blackout was accelerated based on fault coordination and proposal and will not direct the ERO to by zone 3/zone 2 relays that operated transient stability studies between the develop a maximum zone 3/zone 2 because they could not distinguish protection system designer and the reach. After further consideration, we between a dynamic, but stable power transmission planner. agree with commenters, especially swing and an actual fault. The NERC and EEI, that PRC–023–1, which Commission observed that PRC–023–1 132. While NERC acknowledges that interacts with existing FAC, IRO, and does not address stable power swings, PRC–023–1 is designed to address the TOP Reliability Standards while and pointed out that currently available steady-state aspects of relay loadability, ensuring adequate circuit breaker failure protection applications and relays, such it also claims that PRC–023–1 has protection, sufficiently addresses the as pilot wire differential, phase positive effects in relation to relays and Commission’s concern. comparison and blinder-blocking stable power swings. Specifically, the 128. In its petition, NERC stated that applications and relays, and impedance modifications required by PRC–023–1 to the interactions between PRC–023–1 relays with non-circular operating increase steady state loadability and existing FAC, IRO, and TOP characteristics, are demonstrably less necessarily decrease the likelihood that Reliability Standards require entities susceptible to operating unnecessarily relays will trip on stable power swings. and operators to establish limits for all because of stable power swings. Given 133. NERC cautions that it must system elements, operate interconnected the availability of alternatives, the carefully study and analyze the systems within these limits, take Commission stated that the use of relationship between stable power immediate action to mitigate operation protective relay systems that cannot swings and protective relays, and outside these limits, and set protective differentiate between faults and stable consult with IEEE and other relays to refrain from operating until the power swings constitutes mis- organizations before developing a coordination of the protection system observed condition on their protected Reliability Standard addressing stable 121 and is inconsistent with entities’ element exceeds these limits. EEI power swings. NERC requests that the obligations under existing Reliability maintains that Requirement R1 Commission allow PRC–023–1 to addresses the Commission’s concern Standards. The Commission explained remain focused on steady state relay because no exemption is given to relays that a protective relay system that loadability and leave stable power that are set to cover adjacent lines in the cannot refrain from operating under swings to be specifically addressed in a event of breaker failure. EEI contends, non-fault conditions because of a different Reliability Standard. therefore, that PRC–023–1 does not need technological impediment is unable to to identify any maximum reach achieve the performance required for 134. Other commenters agree with the allowable outside of the impact on Reliable Operation. Consequently, the concerns identified by the Commission. loadability. EEI adds that, if remote Commission requested comments on None, however, think that the back-up relays cannot provide adequate whether it should direct the ERO to Commission should direct the ERO to breaker failure coverage and still develop a new Reliability Standard or a modify PRC–023–1 to address stable modification to PRC–023–1 that requires 121 NERC Petition at 15–16. the use of protective relay systems that 122 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 60.

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power swings.123 Many commenters Standards not at issue may violate the emergency ratings. TAPS argues that the agree with NERC and urge the Administrative Procedure Act.124 Commission’s proposal would reduce Commission to allow the ERO to 137. Consumers Energy disagrees with reliability because it would expose the address stable power swings in a the Commission’s assertion that stable system to longer-term outages due to different Reliability Standard, after the power swings contributed to the cascade equipment damage. TAPS also claims ERO has had the opportunity to further in the August 2003 blackout. Consumers that overloading due to multiple or study the issue. EEI and Southern argue Energy states that it extensively studied extreme contingencies can create the that PRC–023–1 addresses the steady- the events discussed in the NOPR and same safety issues the Commission state aspects of relay loadability, not concluded that communications-based discussed in the NOPR with respect to transient system conditions such as relay systems operated because of the sub-requirement R1.10. stable or unstable power swings. The extremely heavy reactive power 140. E.ON argues that the Commission PSEG Companies reflect the view of consumption of the lines, not stable may have elevated the operational many commenters when they argue that power swings. Consumers Energy states reliability of the bulk electric system issues related to stable power swings are that its studies also show that relay over public safety and the transmission too complex to be addressed in PRC– systems designed to be less susceptible asset owner’s interest in ensuring that 023–1. Dominion adds that if the to stable power swings would still have its assets remain in working order and Commission did direct the ERO to operated under these conditions, as the available for service. E.ON explains that extreme reactive power consumption address stable power swings in PRC– relay settings must ensure the appeared to both terminals of each line 023–1, the final implementation of the maintenance of minimum vertical safety as an internal fault. Reliability Standard would be clearances, and that modifying relaying 138. WECC claims that PRC–023–1 schemes to accommodate non-fault significantly delayed. TAPS argues that provides indirect, but highly effective the Commission should give due weight related transient overloads might leave protection against stable power swings. system elements exposed to excessive to NERC’s decision not to address stable WECC asserts that the real problem that power swings in PRC–023–1. APPA loading longer than is prudent. E.ON occurred during the August 2003 further explains that because asserts that the Commission can require blackout was that zone 3/zone 2 relays transmission facilities are located in only that the ERO examine the operated and disconnected facilities diverse environments, it is appropriate Commission’s concerns about stable because of high loading. WECC argues to maintain a specified vertical line power swings and cannot direct the that if those zone 3/zone 2 trips had clearance at the maximum conductor ERO to implement a specific solution. been prevented, significant system temperature for which the line is oscillations would not have occurred 135. Several commenters challenge designed to operate. E.ON states that and ‘‘healthy’’ transmission lines would the Commission’s reasoning and what the Commission described as a not have unnecessarily tripped. WECC assumptions in the NOPR. Exelon ‘‘technological impediment’’ may be a asserts that PRC–023–1 is specifically challenges the Commission’s assertion desired design feature intended to that a protective relay system that designed to prevent zone 3/zone 2 trips due to high loading. EEI argues that address unique equipment protection cannot refrain from operating under issues or public safety concerns. non-fault conditions because of a PRC–023–1 is ‘‘well suited’’ to prevent the unnecessary operation of relays 141. Exelon asserts that phasing out technological impediment is unable to step distance relays with mho circle achieve the performance required for during stable power swings because as relay loadability is increased, the proper operating characteristics could leave the reliable operation, arguing that it electric system without any reliable ignores many years of reliable and stable response to stable power swings is enhanced. backup for transmission lines with operation of mho-circle relays. Exelon failed communication or other adds that it is unaware of any instance 139. Several commenters challenge the Commission’s assumption that equipment failures, thereby exposing in the entire history of its ComEd or the system to faults that cannot be PECO operating companies when mho- preventing relays from operating due to stable power swings will improve cleared and potentially resulting in type distance relays tripped because of reliability. TAPS explains that an larger outages and/or equipment a stable power swing, and that none of important secondary function of damage. TAPS adds that the its stability studies have ever identified protective relaying is protecting Commission’s proposal would result in lines that would trip on a stable power equipment and safety in the event of the loss of zone 3/zone 2 relays as back- swing. multiple or extreme contingencies. up protection in the event of a stuck 136. ElectriCities, the MDEA Cities, TAPS states that the power system is breaker and/or a failure of a transfer trip and the Six California Cities challenge operated to account for single and scheme for a stuck breaker. the Commission’s assertion that the use double contingencies, but that extreme 142. The PSEG Companies speculate of protective relays that cannot contingencies can occur and overload that the post-blackout relay mitigation differentiate between faults and stable facilities to well beyond their programs conducted by NERC may have power swings is mis-coordination of the emergency ratings. TAPS contends that already mitigated the unexpected protection system and is inconsistent it is impractical to rely on operators to tripping of the transmission lines during with an entity’s obligations under manually operate the system beyond the August 2003 blackout. The PSEG existing Reliability Standards. In their single and double contingencies, so Companies add that it is possible that view, the Commission should not use automatic equipment is needed to the only reason the blackout stopped this proceeding to interpret existing protect the system when extreme was because these lines unexpectedly Reliability Standards to require the use contingencies occur. TAPS maintains tripped. The PSEG Companies assert of specific protection technologies and that while impedance/distance relays that the approach to stable power proscribe the use of others; ElectriCities are susceptible to operating for stable swings should be all encompassing and asserts that interpreting Reliability power swings, they are often the only include the development and protection for facilities loaded beyond implementation of ‘‘islanding’’ strategies 123 See, e.g., EEI; APPA; PG&E; ATC; Ameren; in conjunction with out-of-step blocking BPA; Duke; Oncor; and TAPS. 124 5 U.S.C. 551, et seq. (or tripping) requirements.

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143. Several commenters dispute the 146. Exelon argues that the consider the cost of compliance when virtues of the protection schemes technology identified by the developing a Reliability Standard, discussed by the Commission in the Commission may not be helpful in a provided that the Standard does not NOPR. Ameren states that, in its situation like the August 2003 blackout. reflect the ‘‘lowest common experience, many of the applications Exelon explains that experienced relay denominator.’’ TAPS argues that PRC– identified by the Commission in the protection engineers can apply the 023–1 does not reflect the ‘‘lowest NOPR are less reliable than the step technology to distinguish between common denominator.’’ distance and directional comparison stable and unstable power swings in the 149. EEI argues that the Commission’s methods used in distance relays. Duke cases of Category A, B, C and even some proposal will require the unreasonable casts doubt on manufacturers’ claims Category D contingencies as detailed in removal of a large number of that newer relay technology is able to the TPL Reliability Standards, but that electromechanical relays that effectively differentiate between stable power these are discrete contingencies that can function, and that electric utilities swings and out-of-step conditions, be simulated with a great deal of should replace electromechanical relays pointing out that much of the newer certainty. Exelon states that simulating only when necessary. Oncor argues that technology is essentially the same as the types of swings that occurred during is unnecessary to mandate a phase out traditional out-of-step relay blocking the August 2003 blackout would involve because as utilities upgrade their schemes with variable timers. Duke also many scenarios, occurring in different protection systems on a voluntary basis observes that some new protection possible sequences. Exelon claims that they will eliminate relays that cannot systems still require relays to be set to it is virtually impossible to accurately differentiate between faults and stable operate on high load conditions and predict the exact sequence of events for power swings. TAPS states that the block tripping for a fault during a stable major disturbances involving extreme Commission’s proposal, in combination power swing. EEI states that the events, and that without accurate with its proposal to eliminate the protection schemes cited by the simulations of the ‘‘right’’ disturbances, exclusions in Attachment A of PRC– Commission are prone to mis-operation replacing relays would not provide any 023–1 (particularly subsection (3.1)), due to loss of communication or timing benefit. would require redundant high speed differences in a transmit-and-receive 147. WECC and Tri-State make the protective systems for every communication path. EEI explains that related point that there were at least transmission line, even when they are on September 18, 2007, the protection fourteen line outages before the stable not needed for critical clearing time schemes identified by the Commission swings began in the August 2003 purposes. TAPS also argues that actually created a major disturbance in blackout, and that it is unlikely that the requiring the addition of new protective the MRO region due to problems with multiple contingency scenarios that relay systems runs up against the communication circuits.125 developed would ever have been prohibitions in sections 215 (a)(3) and 144. EEI argues that subject matter studied under the current TPL (i)(2) of the FPA on Reliability experts in the electric industry have Reliability Standards. WECC adds that Standards that require the enlargement found that the protection schemes cited even if the TPL Reliability Standards of facilities or the addition of generation by the Commission in the NOPR are required prior study and relay or transmission capacity. significantly more difficult to install and coordination for such extensive outages, b. Commission Determination maintain than step distance and it is entirely plausible that the power directional comparison schemes using swing blocking settings appropriate for 150. We will not direct the ERO to distance relays. EEI states, for example, a system that included 2 or 3 modify PRC–023–1 to address stable that while line differential relays have contingencies would not work power swings. However, because both been reliable when applied over fiber appropriately for the same system after NERC and the Task Force have communications systems, the necessary 14 or 40 outages. identified undesirable relay operation schemes are expensive to install. 148. Multiple commenters claim that due to stable power swings as a Ameren adds that line differential relays the Commission’s proposal would place reliability issue, we direct the ERO to are not as reliable as phase distance an undue and unnecessary financial develop a Reliability Standard that relays, which would still need to be hardship on utilities because it would requires the use of protective relay installed to backup the communications require significant expenditures and an systems that can differentiate between system. Ameren also states that exceptional amount of skilled labor faults and stable power swings and, installation of fiber optics on existing without commensurate benefits. Exelon when necessary, phases out protective transmission lines would require argues that any type of a proposed relay systems that cannot meet this lengthy construction delays, and phase-out would affect a majority of the requirement. We also direct the ERO to therefore create a reliability risk and relays in North America. With respect to file a report no later than 120 days of delay compliance with PRC–023–1. its PECO and ComEd operating this Final Rule addressing the issue of 145. EEI and Ameren also point out companies, Exelon estimates that it protective relay operation due to power the limitations of out-of-step tripping would cost PECO approximately $45 swings. The report should include an and power swing blocking. They million to comply for roughly 180 action plan and timeline that explains explain that in a 2005 report, the IEEE terminals between 230 kV and 500 kV how and when the ERO intends to Power System Relaying Committee ($250,000 per terminal) and 33 percent address this issue through its Reliability found that out-of-step tripping and more if the phase-out applied to 138 kV Standards development process. power swing blocking cannot be set lines. As for ComEd, Exelon estimates 151. According to the NERC System reliably under extreme multi- that it would cost approximately $65 Protection and Control Task Force, it is contingency conditions where the million to comply for roughly 260 a well established principle of trajectories of power swings are terminals between 345 kV and 765 kV, protection that Bulk-Power System unpredictable, because they must be set and three times more if the phase-out elements, such as generators, based on specific system contingencies applied 138 kV lines. Portland General transmission lines, transformers, and DC and the results of stability simulations. states that it would cost $6 million to transmission or shunt devices, should replace its 40 relays. TAPS points out not trip inadvertently for expected and 125 EEI at 21–22. that Order No. 672 states that NERC may potential non-fault loading conditions,

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including normal and emergency 154. We note that NERC stated in its Power System element it is protecting. loading conditions and stable power petition that PRC–023–1 interacts with Consequently, the relay may operate for swings.126 Before Congress’ directive in several existing FAC, IRO, and TOP transient conditions, even if set section 215 of the FPA to establish Reliability Standards, and that these pursuant to PRC–023–1. Thus, relay mandatory and enforceable Reliability interactions require limits to be operation because of stable power Standards, this reliability principle was established for all system elements, swings is within the scope of relay considered good utility practice and was interconnected systems to be operated loadability and must be considered documented in the voluntary NERC within these limits, operators to take when the relay is set to ensure Reliable Planning Standards as one of the System immediate action to mitigate operation Operation. and Protection and Control outside of these limits, and protective 157. Exelon states that its stability Transmission Protection Systems relays to refrain from operating until the studies for ComEd and PECO have never Guides.127 However, the ERO has not observed condition on their protected identified lines that would trip on stable yet proposed to translate this principle element exceeds these limits.130 We power swings. There are two potential into a mandatory and enforceable agree, and add that entities must also reasons why not: (1) Exelon’s protection directive by including it in a Reliability validate protection settings set pursuant systems are designed so that it is Standard. to PRC–023–1 through: (1) Using the unnecessary to establish longer reach 152. Additionally, as we explained in settings as an input into the valid settings for protective relays; or (2) its the NOPR, while zone 3/zone 2 relays assessments required for compliance electric systems consist primarily of operated during the August 2003 with the TPL Reliability Standards for short transmission lines. blackout according to their settings and contingencies; (2) including the settings 158. Initially, we note that ComEd specifications, the inability of these in the derivation of SOLs and IROLs; and PECO may have historically relays to distinguish between a and (3) complying with the TOP, IRO, adopted a good utility practice in dynamic, but stable power swing and an and FAC Reliability Standards for protection that requires two groups actual fault contributed to the Category B contingencies, and for the (both of equivalent high speed) of cascade.128 The Task Force also subset of multiple contingencies (if any) redundant and duplicated identified dynamic power swings and identified in TPL–003 that result in communications-based protection the resulting system instability as the stability limits identified by the systems for each high voltage line while 129 planning authority. These steps will relying on the use of local breaker reason why the cascade spread. Since 131 PRC–023–1 does not address relays ensure Reliable Operation until the ERO failure protection. If this were the operating unnecessarily because of develops the new Reliability Standard case, they would not need to set their stable power swings, we are concerned addressing unnecessary relay operation relays to overreach by large margins to that relays set according to PRC–023–1 due to stable power swings. provide remote circuit breaker failure and backup protection because they remain susceptible to problems like 155. Although we do not direct the designed around the problem. In those that occurred during the August ERO to modify PRC–023–1 to address addition, the high voltage lines in 2003 blackout. stable power swings, we disagree with ComEd and PECO may be relatively 153. While we recognize that those commenters who suggest that short. Electric systems comprised of addressing stable power swings is a relay performance during stable power long transmission lines are more likely complex issue, we note that more than swings is outside the scope of relay to experience larger stable power swings six years have passed since the August loadability. Reliability Standard PRC– 023–1 was developed by industry than those comprised of short 2003 blackout and there is still no experts using well thought-out transmission lines. These two factors— Reliability Standard that addresses guidelines based on static system relative short protection reach in their relays tripping due to stable power conditions. These guidelines apply only Zone 1 and Zone 2 relays due to swings. Additionally, NERC has long to the situation in which the electric application of more sophisticated identified undesirable relay operation system after a disturbance has returned protection systems and not relying on due to stable power swings as a to a steady state condition. This means the use of remote breaker failure reliability issue. Consequently, pursuant that currents and voltages on Bulk- protection, as well as, smaller stable to section 215(d)(5) of the FPA, we find Power System elements vary with a power swings due to shorter that undesirable relay operation due to large degree of predictability. Under this transmission lines—are likely to be the stable power swings is a specific matter scenario, compliance with PRC–023–1 key reasons why they have never that the ERO must address to carry out will prevent relays from inadvertently identified lines that would trip on stable the goals of section 215, and we direct tripping because of increases in static power swings. the ERO to develop a Reliability loadings; hence, the term ‘‘loadability.’’ 159. We find unpersuasive Consumers Standard addressing undesirable relay 156. However, protective relays will Energy’s claim that heavy reactive operation due to stable power swings. respond to real-time system conditions, power consumption, not stable power regardless of whether they are set for swings, contributed to the cascade 126 NERC Planning Committee, System Protection and Control Task Force, ‘‘Relay Loadability static loadings (loadability) or dynamic during the August 2003 blackout. In the Exceptions—Determination and Application of loadings, such as stable power swings. Final Blackout Report, the Task Force Practical Relaying Loadability Ratings,’’ Version 1.2, During transient conditions, a protective at 3 (Aug. 8, 2005). relay set assuming steady-state system 131 See NERC Planning Standards, Section III: 127 See NERC Planning Standards, Section III: conditions will measure the prevailing System and Protection and Control, Part A: System and Protection and Control, Part A: voltage and current quantities resulting Transmission Protection Systems, G.5 (1997) Transmission Protection Systems, G.12 (1997) (‘‘Physical and electrical separation should be (‘‘Generation and transmission protection systems from a stable power swing, and if its maintained between redundant protection systems, should avoid tripping for stable power swings on trajectory falls within the relay settings where practical, to reduce the possibility of both the interconnected transmission systems.’’). Under (reach and time delay) so derived from systems being disabled by a single event or the voluntary planning standards and operating PRC–023–1, it will operate and condition.’’). While this is considered a good utility policies, a ‘‘Guide’’ described good planning practice and used worldwide, it may not have practices and considerations. inadvertently trip the healthy Bulk- necessarily been used by other entities in the past 128 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 58. and is currently not required by any Reliability 129 See Final Blackout Report at 81–82. 130 NERC Petition at 15–16. Standard.

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addressed this issue and concluded that, swings occurred prior to system development of line ratings consistent as the cascade progressed beyond Ohio, cascade, these relays operated with FAC–008–1 (Facility Ratings it spread due not to insufficient reactive unnecessarily.134 Methodology) must include the limiting power and a voltage collapse, but 161. The PSEG Companies suggest factors, such as line design, ambient because of dynamic power swings and that NERC’s post-blackout relay conditions and system loading the resulting system instability.132 mitigation programs may have conditions. For these ratings to be valid While extreme reactive power addressed the unexpected tripping of there must be adequate clearances consumption may have resulted in the lines that occurred during the August between line conductors and operation of some communications- 2003 blackout, and that it is possible surrounding objects to prevent flashover based relays, the Final Blackout Report that the only reason the blackout in addition to maintaining adequate confirms that zone 3/zone 2 relays stopped was because these lines vertical clearance from the ground. without communications or an unexpectedly tripped. We disagree, Reliability Standard FAC–003–1 uncoordinated time delay operated based on two facts documented in the Requirement R1.2.1 also includes a unnecessarily when they recognized Final Blackout Report. First, the provision for ‘‘worker approach distance dynamic, but stable, power swings as a unexpected tripping of these lines in requirements’’ as part of the minimum fault. As the Task Force explained, this Ohio and Michigan accelerated the clearances which include vertical safety undesirable operation contributed to the geographic spread of the cascade instead clearance. Therefore, we do not see how cascade and the spread of the blackout. of stopping it.135 Second, relays on long our directive would in any way involve 160. WECC argues that PRC–023–1 lines that are not highly integrated into a tradeoff between reliability and safety provides indirect protection against the electrical network, such as the as these are addressed separately and stable power swings because it prevents Homer City-Watercure and the Homer interactively between the relevant relays from tripping due to high loading, City-Stolle Road 345-kV lines in Reliability Standards. and that this protection could have Pennsylvania, tripped quickly and split 164. Second, we do not see how the prevented the tripping of the zone 3/ the grid between the sections that Commission’s goal of avoiding zone 2 relays during the blackout and blacked out and those that recovered inadvertent tripping of non-faulted prevented the oscillations that caused without further propagating the cascade. Bulk-Power System elements due to ‘‘healthy’’ transmission lines to We also disagree with the PSEG stable power swings can be interpreted unnecessarily trip. While we agree that Companies’ assertion that NERC’s post- as requiring modifying relaying schemes increasing loadability by applying the blackout relay mitigation programs may to accommodate non-fault related settings set forth in PRC–023–1 have addressed the unexpected tripping transient overloads, as TAPS claims. In decreases the likelihood of relays of lines that occurred during the August addition to our explanation above, tripping on load, it does not necessarily 2003 blackout for two main reasons: (i) NERC stated in its petition, and we decrease the likelihood of zone 3/zone The programs did not include on a agree, that PRC–023–1 interacts with 2 relays applied as remote circuit general basis sub-200 kV facilities that existing FAC, IRO, and TOP Reliability breaker failure and backup protection are considered as critical or Standards; these interactions require tripping on stable power swings and operationally significant facilities; 136 limits to be established for all system would not have prevented the trips that and (ii) the programs did not explicitly elements, interconnected systems to be spread the August 2003 blackout. Zone address inadvertent tripping on non- operated within these limits, operators 3/zone 2 relays applied as remote circuit faulted facilities due to stable power to take immediate action to mitigate breaker failure and backup protection swings. operation outside of these limits (i.e., require large protective reach settings. 162. The PSEG Companies also assert overloads), and protective relays to The protective reach setting is that the Commission’s approach to refrain from operating until the determined by the apparent impedance stable power swings should be inclusive observed condition on their protected of the system as measured by the relay. and include ‘‘islanding’’ strategies in element exceeds these limits.137 In When the apparent impedance as conjunction with out-of-step blocking or addition, each planning authority and measured by the relay falls within the tripping requirements. We agree with transmission planner is required to setting of the relay, the relay will the PSEG Companies and direct the ERO demonstrate through a valid assessment operate after its set time delay. While a to consider ‘‘islanding’’ strategies that only that its portion of the fault typically moves through the achieve the fundamental performance interconnected electric system is characteristic of a relay reach setting for all islands in developing the new evaluated for the risks and very fast, the speed at which a power Reliability Standard addressing stable consequences of such extreme, multi- swing moves through the characteristic power swings. contingency events and for corrective of a relay reach setting is typically much 163. We also clarify that our directive actions. For these reasons, we also reject slower. When a power swing occurs, it does not in any way involve a tradeoff TAPS’s comments that the NOPR is the time that it takes the power swing between reliability and public safety as proposal would create safety issues due to pass through the characteristic of the suggested by E.ON’s concerns about the to overloading from multiple or extreme relay’s protective reach setting that maintenance of minimum vertical safety contingencies. If protection systems makes the relay susceptible to clearances and TAPS’s concerns about already respect safety issues, they will operation. As we explained in the modifying relaying schemes to not be affected by following the NOPR, the Final Blackout Report found accommodate non-fault-related transient evaluation of these extreme that several zone 2 relays applied as overloads. First, while the maintenance contingencies. remote circuit breaker failure and of minimum vertical safety clearances 165. We also disagree with backup protection were set to overreach for personnel safety consideration is commenters’ claims that our directive their protected lines by more than 200 outside of Commission jurisdiction, the could harm reliability. Exelon asserts percent without any time delay.133 that phasing out step distance relays When the dynamic, yet stable, power 134 Id. at 82. with mho circle operating 135 Id. at 80. characteristics could leave the electric 132 Final Blackout Report at 81. 136 The Beyond Zone 3 review included sub-200 133 Id. at 80. kV facilities on a limited basis. 137 NERC Petition at 15–16.

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system without any reliable backup for situation like the August 2003 blackout Reliability Standard that phases out transmission lines with failed because that event involved so many such relays where necessary if they do communication or other equipment contingencies that it would be almost not meet the reliability goal, the ERO is failures, thereby exposing the system to impossible to simulate and thus free to develop an alternative solution to faults that cannot be cleared and unlikely to be studied under the TPL our reliability concerns regarding potentially resulting in larger outages Reliability Standards. We realize that undesirable relay operation due to and/or equipment damage. TAPS adds relays cannot be set reliably under stable power swings, provided that it is that the Commission’s proposal would extreme multi-contingency conditions an equally effective and efficient result in the loss of zone 3/zone 2 relays covered by the Category D contingencies approach.139 as back-up protection in the event of a of the TPL Reliability Standards. In fact, stuck breaker and/or a failure of a Reliability Standard TPL–004–0 170. Because we direct the ERO to transfer trip scheme for a stuck breaker. requires the planning authority and develop the new Reliability Standard in 166. Exelon incorrectly interprets our transmission planner to demonstrate this Final Rule, it would be premature statement that ‘‘a protective relay system through a valid assessment that its for the Commission to now rule on that cannot refrain from operating under portion of the interconnected electric issues related to the cost of the new non-fault conditions because of a system is evaluated only for the risks Standard. In the first place, the technological impediment is unable to and consequences of such events; it Reliability Standard is not yet written; achieve the performance required for does not require corrective actions. We the ERO has not yet worked out the reliable operation’’ as a proposal for recognize that, because of the operating details of a phase-out, or even decided ‘‘leaving the electric system without any characteristic of the impedance relay, if it will propose a phase-out or some reliable backup for transmission.’’ TAPS’ regardless of whether a power swing is other equally effective and efficient similar assertion implies the same. We stable or unstable, the relay may solution to the Commission’s reliability disagree that the Commission’s proposal potentially operate under Category D concerns. It is impossible for the would result in the loss of relays as contingencies. Thus, the NOPR Commission to evaluate the costs of a back-up protection. Our statement proposed alternative protection proposal that has not yet been merely points out the fundamentals applications and relays that are less developed, let alone one that has not required for Reliable Operation under susceptible to transient or dynamic has yet been presented to the currently approved Reliability power swings. This is consistent with Commission. Entities will have the Standards. As we state in the previous Order No. 693, where the Commission opportunity to raise their cost concerns discussion, PRC–023–1 interacts with stated that it is not realistic to expect the throughout the Reliability Standards existing FAC, IRO, and TOP Reliability ERO to develop Reliability Standards development process and before the Standards to ensure Reliable Operation; that anticipate every conceivable critical Commission when NERC submits the these interactions require limits to be operating condition applicable to new Reliability Standard for established for all system elements, unknown future configurations for Commission approval. As a general interconnected systems to be operated regions with various configurations and matter, however, we repeat our 138 within these limits, operators to take operating characteristics. statement in Order No. 672: Proposed immediate action to mitigate operation 169. Some commenters oppose a new Reliability Standards must not simply outside of these limits, and protective Reliability Standard because they are reflect a compromise in the ERO’s relays to refrain from operating until the concerned that it would require the Reliability Standard development observed condition on their protected removal of a large number of electro- process based on the least effective element exceeds these limits. Protection mechanical relays that are in service relays include primary and backup and functioning today. Likewise, other North American practice—the so-called ‘‘ ’’ relays. If zone 2/zone 3 relays are used commenters argue that the cost of lowest-common denominator —if such by entities as part of their protection phasing out protection systems that practice does not adequately protect 140 systems designed to achieve the system cannot distinguish between faults and Bulk-Power System reliability. While performance, they can remain as backup stable power swings is excessive. While a Reliability Standard may take into protection as long as they do not we appreciate these concerns, they are account the size of the entity that must inadvertently trip non-faulted facilities not persuasive reasons to reconsider our comply and the costs of due to stable power swings. decision to direct the ERO to develop a implementation, the ERO should not 167. Several commenters dispute the Reliability Standard addressing propose a ‘‘lowest common virtues of the protection schemes undesirable relay operation due to denominator’’ Reliability Standard that discussed by the Commission in the stable power swings. In this Final Rule, would achieve less than excellence in NOPR. In general, these commenters we have explained why a relay’s operating system reliability solely to argue that the applications identified by inability to distinguish between actual protect against reasonable expenses for the Commission in the NOPR are less faults and stable power swings is a supporting vital national reliable than the step distance and specific matter that the ERO must infrastructure.141 The Commission has directional comparison methods used in address in order to carry out the goals also explained that the Reliability distance relays. We clarify that the of section 215 of the FPA, in part by Standard development process should protection systems discussed in the showing how such relays contributed to consider, at a high level, the potential NOPR are merely examples of systems the spread of the August 2003 blackout. costs and other risks to society of a that can differentiate between faults and The fact that many such relays are in Bulk-Power System failure if action is stable power swings. We leave it to the current use does not mitigate the threat not taken to establish and implement a ERO to determine the appropriate they pose to Reliable Operation or new or modified Reliability Standard in protection systems to be discussed in change the role they played in spreading response to previous blackouts and the the new Reliability Standard through the August 2003 blackout. Moreover, application of its technical expertise. while we direct the ERO to develop a 139 Id. P 186. 168. Some commenters argue that the 140 Order No. 672, FERC Stats. & Regs. ¶ 31,204 technology identified by the 138 See Order No. 693, FERC Stats. & Regs. ¶ at P 329. Commission may not be helpful in a 31,242 at P 1706. 141 Id. P 330.

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economic impacts associated with such Standard. We agree that this is a b. Commission Determination 142 blackouts. reasonable approach. Meanwhile, to 177. Palo Alto identifies a technical 171. We also disagree with TAPS’s maintain reliability, the Commission disagreement with sub-requirement claim that the Commission’s proposal, expects entities to continue to include R1.1. We expect such technical in combination with its proposal to the effects of protection settings in TPL disagreements to be resolved either in eliminate the exclusions in Attachment and TOP assessments for future systems the Reliability Standards development A of PRC–023–1 (particularly subsection and in the determination of IROLs and process or by the disagreeing entity 143 3.1), would require redundant high SOLs. requesting an exception from NERC. speed protective systems for every F. Requirement R1 Moreover, giving ‘‘due weight’’ to the transmission line, even when they are technical expertise of the ERO, we find 174. Requirement R1 directs each not needed for critical clearing time no reason to direct a change to sub- subject entity to set its relays according purposes. As we have explained requirement R1.1. previously in this Final Rule, the TPL to one of the criteria prescribed in sub- Reliability Standards require annual requirements R1.1 through R1.13. In the 2. Sub-Requirement R1.2 system assessments to determine if the NOPR, the Commission expressed 178. Sub-requirement R1.2 requires system meets the desired system concerns about the implementation of relays to be set not to operate at or performance requirement established by three of these criteria: sub-requirements below 115 percent of the highest the TPL Standards. This assessment R1.2, R1.10, and R1.12. In its comments, seasonal 15-minute facility rating of a includes the interaction of approved Palo Alto raised concerns about sub- circuit. A footnote attached to sub- Reliability Standards such as, PRC, IRO, requirement R1.1. requirement R1.2 provides that ‘‘[w]hen and TOP. If an entity is not able to 1. Sub-Requirement R1.1 a 15-minute rating has been calculated achieve the desired system performance, and published for use in real-time 175. Sub-requirement R1.1 specifies consistent with the TPL Reliability operations, the 15-minute rating can be transmission line relay settings based on Standards, corrective action plans must used to establish the loadability the highest seasonal facility rating using be developed and implemented. Thus, it requirement for the protective relays.’’ is left to the entity to determine how the 4-hour thermal rating of a best to meet desired system performance transmission line, plus a design margin a. NOPR Proposal when it develops its corrective action of 150 percent. 179. In the NOPR, the Commission plans; contrary to TAPS’s argument, our a. Comments expressed concern that sub-requirement directives in this Final Rule do not R1.2 might conflict with Requirement 176. Palo Alto states that, in the require entities to adopt redundant high R4 of existing Reliability Standard TOP– interest of maximum reliability, many speed protective systems for every 004–1 (Transmission Operations), municipal utilities install lines and transmission line as a specific corrective which states that ‘‘if a transmission transformers rated to handle the worst- action plan. operator enters an unknown operating case emergency load, i.e., the load 172. Finally, we reject TAPS’s state, it will be considered to be in an resulting from the failure of an adjacent assertion that requiring entities to use emergency and shall restore operations line or transformer. Palo Alto explains protection systems that can distinguish to respect proven reliability power that load-sensitive overcurrent relays between faults and stable power swings system limits within 30 minutes.’’ 144 are typically set between 115 and 125 violates sections 215(a)(3) and (i)(2) of The Commission explained that the the FPA, which prohibit the percent of the highest line or equipment rating, and argues that changing these transmission operator (or any other Commission from requiring in a reliability entity affected by the facility) Reliability Standard the enlargement of settings to comply with sub-requirement R1.1 will result in longer fault clearing might conclude that it has 30 minutes facilities or the addition of generation or times and unnecessarily compromise to restore the system to normal when in transmission capacity. Replacing a line and transformer protection. Palo fact it has only 15 minutes because the protection system that does not ensure Alto adds that longer fault clearing relay settings for certain transmission Reliable Operation in this instance is times could result in increased arc flash facilities have been set to operate at the necessary to achieve the goals of the exposure. Palo Alto recommends that 15-minute rating in accordance with statute and does not equate to an the Commission direct NERC to revise sub-requirement R1.2. In order to avoid expansion of facilities or the sub-requirement R1.1 to state that confusion and protect reliability, the construction of new generation or transmission relays can be set to not Commission proposed to direct the ERO transmission capacity. operate at or below 150 percent of the to revise sub-requirement R1.2 to give 173. In sum, we adopt the NOPR transmission line/transformer rating transmission operators the same amount proposal and direct the ERO to develop instead of the highest seasonal facility of time as in Reliability Standard TOP– a new Reliability Standard that prevents rating of a circuit, or at 120 percent of 004–1; develop a new requirement that protective relays from operating the maximum expected emergency load transmission owners, generation unnecessarily due to stable power on the transmission line or transformer. owners, and distribution providers give swings by requiring the use of protective their transmission operators a list of relay systems that can differentiate 143 Requirement R1.3.10 of Reliability Standard transmission facilities that implement between faults and stable power swings TPL–002–0 requires that a valid assessment shall sub-requirement R1.2; or propose an and, when necessary, phases-out relays include, among other things, the effects of existing equally effective and efficient way to that cannot meet this requirement. and planned protection systems. Requirement R6 of avoid the potential conflict. NERC requests that the Commission Reliability Standard TOP–002–0 requires that, as a minimum criterion, the bulk electric system is b. Comments allow PRC–023–1 to remain focused on planned and operated to maintain reliable operation steady state relay loadability and leave for the single contingency loss of any transmission 180. NERC urges the Commission to stable power swings to be specifically facility. In Order No. 693, the Commission adopt sub-requirement R1.2 without explained that ‘‘[i]n deriving SOLs and IROLs, addressed in a different Reliability moreover, the functions, settings, and limitations of directing a change. NERC states that the protection systems are recognized and integrated.’’ 142 ERO Rehearing Order, 117 FERC ¶ 61,126 at Order No. 693, FERC Stats. & Regs. ¶ 31,242 at P 144 See Reliability Standard TOP–004–1, P 97. 1435. Requirement R4.

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purpose of the footnote is to inform the the 15-minute rating, sub-requirement However, we will adopt the NOPR user that, if it decides to implement sub- R1.2 specifies that relays must be set so proposal to direct the ERO to modify requirement R1.2, it must have a that they do not operate at or below 115 PRC–023–1 to require that transmission procedure that operators implement and percent of the 15- minute rating. APPA, owners, generator owners, and follow. NERC states that some system Ameren, BPA, Dominion, EEI, and distribution providers give their operators use a 15-minute rating during WECC further explain that sub- transmission operators a list of system contingencies, which is a more requirement R1.2 does not establish a transmission facilities that implement stringent requirement than that time limit before relays trip; instead, it sub-requirement R1.2. We agree with established in TOP–004–1. NERC also specifies the level of loading used to Oncor that this is a simple approach to claims that use of the 15-minute rating develop the relay’s setting. In other addressing the potential for confusion to establish loadability reflects a words, according to these commenters, identified by the Commission in the commitment on the part of the entity to the 15-minute rating does not mean that NOPR. Consistent with Order No. 693, operate to the 15-minute rating and to the relays will trip after 15 minutes. we do not prescribe this specific change respond to rating violations within the APPA clarifies that 15 minutes is the as an exclusive solution to our concerns 15 minutes because the entity can use time that the facility ratings regarding sub-requirement R1.2. As the the 15-minute rating only if it has methodology has determined the line Commission stated in Order No. 693, calculated and published it for use in can safely be loaded at that level. BPA, where, as here, ‘‘the Final Rule identifies real-time operations.145 Dominion, EEI, and WECC explain that a concern and offers a specific approach 181. Oncor states that the relays set according to sub-requirement to address the concern, we will consider Commission’s concerns seem reasonable R1.2 will not trip until loading exceeds an equivalent alternative approach and that a simple solution to the conflict 115 percent of the 15-minute rating, provided that the ERO demonstrates would be to provide system operators which will always be higher than the that the alternative will address the with a copy of those lines that have a 30-minute rating. EEI and Ameren Commission’s underlying concern or 15-minute rating along with the 30- acknowledge that using 115 percent of goal as efficiently and effectively as the minute rating of transmission lines as the highest seasonal 15-minute rating Commission’s proposal.’’ 147 As 146 described in TOP–004–1. IESO and creates more conservative relay load discussed in the NOPR, the Commission Hydro One argue that if the Commission limits, but point out that this does not is concerned that the transmission acts on its proposal, creating a new limit the operator’s response time to 15 operator (or any other reliability entity requirement is the preferred approach in minutes. affected by the facility) might conclude order to avoid having a requirement 184. TAPS and Dominion contend that it has 30 minutes to restore the specified in one Reliability Standard that the time periods identified in sub- system to normal when in fact they may actually applying to another Standard. requirement R1.2 and TOP–004–1 refer have less than 30 minutes because the 182. Some commenters maintain that to two distinct operating situations. relay settings applied to protect certain entities that use the 15-minute rating are TAPS and Dominion state that the 15- transmission facilities may have been fully capable of operating within this minute rating referenced in sub- set to operate applying a 15-minute constraint. Duke explains that requirement R1.2 refers to the time to rating in accordance with sub- transmission operators are trained to respond to a contingency in a known requirement R1.2. operate the system within the ratings state (i.e., within the emergency rating), established and communicated to them while the 30-minute period in TOP– 187. Contrary to some commenters’ pursuant to FAC–009–1, and adds that 004–1 refers to the time to respond to assertions, the Commission has not reliability coordinators, planning an unknown state (i.e., in a situation misunderstood the purpose of the 15- authorities, transmission planners, and where the operating limits are minute rating and the relay set points in transmission operators already receive unknown, typically a state that has not sub-requirement R1.2. We realize that these ratings pursuant to Requirements been studied in stability studies to the 15-minute and 4-hour ratings are the R1 and R2 of FAC–009–1. Southern identify stability limits). times that the entity’s rating states that general industry practice, 185. Duke, EEI, and the PSEG methodology has determined that a which is reflected in Reliability Companies challenge what they facility can safely be loaded at that level Standard TOP–004–1, is to return the perceive to be the Commission’s and does not correlate to the operating electric system to a normal and reliable assumption that sub-requirement R1.2 is time of the protective relay. We also state in less than 30 minutes. for overload protection. They state that realize that the protective relays on 183. Several commenters challenge overcurrent relays are designed and these facilities should not operate until the Commission’s claim that there is a applied for fault protection and not for loading on the facility exceeds the conflict between PRC–023–1 and TOP– overload protection. EEI adds that the protective relay settings, including 004–1 and that transmission operators Commission should recognize that sub- impedance or current settings and time might conclude that they have 30 requirement R1.11 is the requirement delays. Moreover, we understand that minutes to restore the system to normal addressing overload protection. The sub-requirement R1.2 is not for overload when in fact they have only 15 minutes PSEG Companies assert that it is widely protection, and we agree that entities because the relay settings for certain recognized by industry that the purpose that use the 15-minute rating are transmission facilities have been set to of PRC–023–1 is to ensure that lines expected to be capable of operating operate at the highest seasonal 15- refrain from tripping for maximum within this constraint. Our goal with minute rating in accordance with sub- loading conditions; once the maximum directing a modification to sub- requirement R1.2. As an initial matter, loading conditions are exceeded the requirement R1.2 is simply to ensure Dominion points out that the relays are free to operate for a fault. that the transmission operator has full Commission’s statement knowledge of which facilities are c. Commission Determination mischaracterizes sub-requirement R1.2; applying a 15-minute rating instead of a rather than allow for relays to operate at 186. We decline to adopt the NOPR 4-hour rating so that the transmission proposal to require the ERO to revise 145 NERC Comments at 28. sub-requirement R1.2 to mirror 147 Order No. 693, FERC Stats. & Regs. ¶ 31,242 146 Oncor at 5. Reliability Standard TOP–004–1. at P 186.

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operator can factor this information into transformer fault relays and overcurrent devices must coordinate any necessary emergency actions. transmission line relays do not operate with duration curves, and that 188. We also agree with TAPS and at or below the greater of 150 percent of minimum current stated on the curves Dominion that the 15 minutes referred the applicable maximum transformer must equal two times transformer base to in sub-requirement R1.2 is for name-plate rating (expressed in current. NERC argues that PRC–023–1 is operating to a known 15-minute limit amperes), including the forced cooled consistent with IEEE Standard C37.91– and therefore serves a purpose different ratings corresponding to all installed 2008 and IEEE Standard C57.109–1993 from the 30 minutes allowed in TOP– supplemental cooling equipment, or 115 (which is referenced in Appendix A of 004–1 for operators in an unknown percent of the highest owner-established IEEE Standard C37.91–2008) because it operating state that must return to a emergency transformer rating. requires entities that use overcurrent known operating state. However, once relays to consider loadability (a non- the relay settings of a facility that a. NOPR Proposal fault induced transformer loading), and implements sub-requirement R1.2 go 191. In the NOPR, the Commission because a setting of 150 percent of the above 115 percent of the facility’s 15- expressed concern that overloading transformer nameplate rating or 115 minute rating, the facility may trip and facilities at any time, but especially percent of the highest operator- add to the outages that the transmission during system faults, could lower established emergency rating will operator must address. Simply put, the reliability and present a safety concern. always be less than 200 percent of the Commission is directing this transformer forced-cooled nameplate The Commission explained that the 151 modification so that the requirement application of a transmission line rating. 193. TAPS describes the includes what Duke and others said terminated in a transformer enables the Commission’s assertion that a they expect would be necessary for the transmission owner to avoid installing a ‘‘Reliability Standard should not be operator to have sufficient information bus and local circuit breaker on both interpreted as requiring unsafe actions to reliably operate the system— sides of the transformer. The or designs’’ as a ‘‘jurisdictional knowledge of which facilities Commission stated that, for this bootstrap’’ that nevertheless fails to implement PRC–023–1 criteria applying topology, protective relay settings remove questions about the a 15-minute rating so that the operator implemented according to sub- Commission’s authority to require a can utilize the system for the 15 minutes requirement R1.10 would allow the modification that addresses safety that the rating allows. Therefore, the transformer to be subjected to overloads concerns. TAPS explains that section Commission agrees that, while the time higher than its established ratings for 215(i)(2) of the FPA provides that states periods identified in PRC–023–1 and unspecified periods of time. The retain jurisdiction over safety concerns, TOP–004–1 are for different purposes, Commission stated that this negatively the operator’s response time for both impacts reliability and raises safety 8.6. Protection of a transformer against damage and the consequences of inaction are concerns because transformers that have effectively the same. due to the failure to clear an external fault should been subjected to currents over their always be carefully considered. This damage 189. Mandatory Reliability Standards maximum rating have been recorded as usually manifests itself as internal, thermal, or should be clear and unambiguous failing violently, resulting in substantial mechanical damage caused by fault current flowing regarding what is required and who is through the transformer. The curves in Annex A fires. The Commission acknowledged required to comply.148 This is not the show through-fault-current duration curves to limit that safety considerations are outside of damage to the transformer. Through-faults that can case with sub-requirement R1.2. For its jurisdiction, but asserted that cause damage to the transformer include restricted example, the ERO states in its comments requirements in a Reliability Standard faults or those some distance away from the station. that entities that implement sub- The fault current, in terms of the transformer rating, should not be interpreted as requiring requirement R1.2 commit to operate to tends to be low (approximately 0.5 to 5.0 times unsafe actions or designs. The transformer rating) and the bus voltage tends to the 15-minute rating and to respond to Commission proposed, therefore, to remain at relatively high values. The fault current rating violations within the 15 direct the ERO to submit a modification will be superimposed on load current, minutes.149 While we agree with the compounding the thermal load on the transformer. that requires any entity that implements ERO, EEI and Ameren do not interpret Several factors will influence the decision as to how sub-requirement R1.10 to either verify much and what kind of backup is required for the sub-requirement R1.2 to limit the that the limiting piece of equipment is transformer under consideration. Significant factors operator’s response time to 15 minutes. capable of sustaining the anticipated are the operating experience with regard to clearing Because there are different remote faults, the cost effectiveness to provide this overload current for the longest clearing understandings with regard to the coverage considering the size and location of the time associated with the fault from the transformer, and the general protection implementation of sub-requirement facility owner or alter its protection philosophies used by the utility. R1.2, we adopt the NOPR proposal and system or topology. Section 8.6.1 states direct the ERO to develop a new 8.6.1. When overcurrent relays are used for requirement that transmission owners, b. Comments transformer backup, their sensitivity is limited generator owners, and distribution because they should be set above maximum load 192. NERC states that the primary current. Separate ground relays may be applied providers give their transmission with the phase relays to provide better sensitivity operators a list of transmission facilities source of technical information for sub- for some ground faults. Usual considerations for that implement sub-requirement R1.2. requirement R1.10 is IEEE Standard setting overcurrent relays are described in 8.3. C37.91–2008, IEEE Guide for Protecting When overcurrent relays are applied to the high- 3. Sub-Requirement R1.10 Power Transformers (specifically, voltage side of transformers with three or more windings, they should have pickup values that will 190. Sub-requirement R1.10 provides sections 8.6 and 8.6.1 and Appendix permit the transformer to carry its rated load plus 150 criteria for transformer fault relays and A). NERC explains that phase margin for overload. * * * When two or more transmission line relays on transmission transformers are operated in parallel to share a lines that terminate in a transformer. It 150 NERC explains that sections 8.6 and 8.6.1 of common load, the overcurrent relay settings should requires that relays be set so that the the Guide address the settings of transformer phase consider the short-time overloads on one overcurrent protection, and Appendix A contains transformer upon loss of the other transformer. through-fault duration curves for various size power Relays on individual transformers may require 148 Order No. 672, FERC Stats. & Regs. ¶ 31,204 transformers that provide fault current durations as pickup levels greater than twice the forced cooled at P 325. plotted against transformer base current. Section 8.6 rating of the transformer to avoid tripping. 149 NERC Comments at 28. states: 151 NERC Comments at 30.

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a point that the Commission the similar claim that the overload terminated with a transformer—not acknowledged in the NOPR. current capability required by PRC– transformer loading. Exelon states that 194. Several commenters point out 023–1 for transformers is not a safety the protection systems that protect that protective relays are designed to concern for moderate time durations. against faults are different from the protect the system from faults, not BPA explains that these setting levels protection systems that protect against overloads.152 Ameren, EEI, and Duke (or higher) have been common in the overloads. observe that other protection methods, industry to prevent relay operation on 199. Exelon claims, moreover, that the such as temperature monitors, are load. BPA acknowledges that, over Commission’s proposed modification is typically employed for thermal prolonged periods, these overload imprecise. Exelon explains that the term protection. WECC observes that sub- currents could cause overheating which ‘‘ requirement R1.11 addresses overload could reduce the life of the transformer. the longest clearing time associated protection. EEI adds that there is no BPA states, however, that protective with the fault from the facility owner’’ loadability issue if a remote breaker can relays are not intended to protect for leaves open the question of what provide adequate protection and the these currents because ample time is assumptions should be used. For asset owner can still comply with PRC– available for system operators to make example, Exelon states that it is unclear 023–1. system changes to mitigate the whether the time period to be measured 195. Consumers Energy, EEI, and transformer overload in a controlled is based on normal backup clearing time NERC argue that the mitigation of manner, which is preferable to or some other interval. Exelon contends thermal overloads is best left to operator automatic relay operation. BPA adds that without such precision, compliance response, not to automatic devices, so that there are other protective relays to with any modified requirement will be that the operator may take well- protect the transformer from internal impossible. reasoned action that best supports the faults or large through-currents due to 200. Basin agrees that the Commission Reliable Operation of the bulk electric faults outside of the transformer. has a valid concern when it comes to system while addressing the overload. 197. Several commenters argue that establishing overload limits without Consumers Energy argues that any the Commission’s proposal is regard to whether the limiting piece of entity that wishes to establish automatic unnecessary. EEI argues that the equipment is capable of sustaining the actions for overload conditions should Commission’s proposal is unnecessary overload for the longest clearing time apply devices designed specifically for because zone 2 time-delayed relays are associated with the fault. Basin argues, that purpose, with response times typically set to operate in less than one however, that the Commission’s mixture appropriate for overload, or should second, while IEEE Standard C57.109– of terminologies in the NOPR (e.g., develop and install a special protection 1993 establishes the thermal damage system in accordance PRC–012–0 to curve for transformers above 30 MVA thermal ratings, fault current, load detect and take actions to relieve the and allows 25 times rated transformer current and faults) is misleading in overload. EEI maintains that any current for two seconds. EEI also states terms of cause and effect and risk transformer requiring overload that all transformers have an overload management. Basin requests, therefore, protection should have it specifically capability that has been covered by that the Commission direct NERC to applied regardless of transmission line system dispatcher action regardless of make the change using language that is protection, or system configuration. its connection method. EEI points out clear and consistent. Ameren and EEI contend that providing that sub-requirement R1.10 requires 201. Basin argues, however, that the adequate transformer protection is in load responsive transformer relays to be Commission should not impose any the best interest of the asset owner. The set to carry at least 150 percent of the additional requirements on lines PSEG Companies argue that the transformer nameplate rating, and that terminating in transformers. Basin Commission’s proposal is beyond the system dispatcher response time is explains that while this equipment is scope of PRC–023–1 because it is based on the degree of overload, not the susceptible to damage from overloads, responsibility of the protection system connection method. EEI states that sub- other equipment also is subject to designer to employ good engineering requirement R1.10 allows conservative overload-related damage and the practice to ensure protection for faulted line protection, which improves the Commission should not address this systems. Similarly, the PSEG Companies setting at which relays can be set to issue on a piecemeal basis. Basin argue that system operations groups are sense fault conditions. Duke adds that contends that the safety issue related to responsible for ensuring that equipment facility ratings, including transformer lines terminating in transformers merits is properly protected and loaded within facility ratings, are established and unique consideration and is outside the limits. communicated to reliability scope of this proceeding. Basin argues, 196. NERC states that overcurrent coordinators, planning authorities, therefore, that the Commission should relays are typically used only for backup transmission planners, and transmission not direct any specific actions with detection of through-faults outside of operators in accordance with FAC–009– respect to such equipment in this the primary protective zone. NERC 1, Requirements R1 and R2, and that docket. maintains that a transformer subjected each transmission operator is trained to to a through-fault for an extended operate the system within the ratings 202. Tri-State agrees with the period of time may compromise its that are established and communicated Commission that it is prudent to ensure design, but that if an entity wishes to to it pursuant to FAC–009–1. that relays operate before the provide overload protection for its 198. Exelon claims that the appropriate transformer damage curve is transformer, such protection should be Commission’s description of sub- intersected. Tri-State adds that it finds provided by devices designed for that requirement R1.10 is inaccurate. Exelon little difference in the proposed purpose and have response times maintains that sub-requirement R1.10 allowable current sensing settings used appropriate for overload protection (e.g., will not allow transformers to be in sub-requirements R1.10 and R1.11 several seconds and longer). BPA makes subjected to overloads higher than their except for the use of the term ‘‘fault ratings for unspecified periods. Exelon protection’’ in sub-requirement R1.10 152 See, e.g., Ameren, BPA, Duke, EEI, Exelon, claims that sub-requirement R1.10 and ‘‘overload protection’’ in sub- NERC, and WECC. addresses fault protection for lines requirement R1.11.

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c. Commission Determination of the transformer nameplate rating or statement applies only to the specific 203. We adopt the NOPR proposal 115 percent of the highest operator configuration where ‘‘two or more and direct the ERO to modify sub- established emergency transformer transformers are operated in parallel to requirement R1.10 so that it requires rating may be set too high to operate for share a common load,’’ which may not entities to verify that the limiting piece faults on the low-voltage side of the be the configuration for every of equipment is capable of sustaining transformer. Consequently, delayed transformer on the Bulk-Power System. the anticipated overload for the longest clearing of faults (i.e., the longest We also note that section 8.6.1 further clearing time associated with the clearing time associated with the faults) states that ‘‘[r]elays on individual fault.153 As with our other directives in from the high-voltage side of the transformers may require pickup levels this Final Rule, we do not prescribe this transformer may occur and subject the greater than twice the force cooled specific change as an exclusive solution transformer to overloads, i.e., through- rating of the transformer to avoid to our reliability concerns regarding currents higher than the transformer’s tripping.’’ Since Requirement R1.10 sub-requirement R1.10. As we have rating. Overcurrent relays used for applies to any topology, it must be stated, the ERO can propose an transformer protection have a limited robust enough to address the reliability alternative solution that it believes is an ability to detect these types of faults issues of any topology. Section 8.6.1 of equally effective and efficient approach because they are set above the IEEE Standard C37.91 applies only to to addressing the Commission’s concern maximum load current 155 for entities two or more transformers that are that entities respect facility limits when that set these relays following the IEEE operated in parallel. Consequently, we implementing sub-requirement R1.10. Standards. It is for this reason that the reject NERC’s assertion that it is not 204. At the outset, we acknowledge ability of the transformer to sustain possible to exceed the rating of a single that section 215 of the FPA does not overloads, i.e., through-currents, for the transformer. authorize the Commission to set and longest clearing time associated with the 210. Adopting the NOPR proposal to enforce compliance with standards for fault must be verified. require entities that implement sub- the safety of electric facilities or 207. NERC and others state that sub- requirement R1.10 to verify that the services.154 While the NOPR identified requirement R1.10 is consistent with limiting piece of equipment is capable a potential safety issue with sub- IEEE Standards C37.91–2008 and of sustaining the anticipated overload requirement R1.10, we clarify that we C57.109–1993. While the Commission current for the longest clearing time do not rest our decision to adopt the has approved Reliability Standards that associated with the fault would address NOPR proposal on safety concerns and reference other industry standards,156 the Commission’s reliability concerns. reject TAPS’s contrary assertion. Reliability Standard PRC–023–1 does Applying protection systems that do not 205. We also clarify that the not reference either IEEE Standard. respect the actual or verified capability Commission’s use of the term ‘‘overload’’ Thus, neither IEEE Standard is of the limiting facility will result in a in the NOPR refers to the combination mandatory and enforceable under degradation of system reliability. In this of load and fault current external to the section 215 of the FPA. instance, applying sub-requirement transformer zone of protection (through- 208. Moreover, we have several R1.10 without regard to the topology current) that can flow through the concerns about relying on the IEEE and capability of each transformer could transformer. These overload currents Standards to address the reliability issue cause the transformer to fail. Failure of can be higher than the transformer’s we have identified. First, an entity the transformer may not be limited to established ratings, subjecting the could provide a facility rating that was only the affected transformer, but may transformer to possible thermal damage. just within the voluntary requirements also affect other Bulk-Power Systems As discussed in the NOPR, and as NERC in the IEEE Standards, however, when elements in its vicinity, further and Basin confirm, subjecting setting protection relays according to degrading the reliability of the Bulk- transformers to overloads over their sub-requirement R1.10, the transformer Power System. maximum rating compromises their could be subject to currents above its 211. While NERC explains that sub- design and subjects the transformer to capability as previously described. requirement R1.10 is intended for overload-related damage. Thus, we Second, the IEEE Standards may not specific transformer fault protection reject Exelon’s assertion that sub- apply to transformers manufactured relays that are set to protect for fault requirement R1.10 will not allow before 1993 because the guidelines conditions and not excessive load conditions, sub-requirement R1.10 does transformers to be subjected to through- established in C57.109–1993 do not not identify that intent.157 Additionally, currents that would overload the apply to transformers manufactured sub-requirement R1.11 of PRC–023–1 transformer. before 1993. 206. Since sub-requirement R1.10 209. We are not persuaded by the establishes criteria for transformer applies to the topology where there is ERO’s statement that ‘‘a setting of 150 overload protection relays that do not no breaker installed on the high-voltage percent of the transformer nameplate comply with sub-requirement R1.10. side of the transformer, faults within the rating or 115 percent of the highest Because sub-requirement R1.11 transformer or at the low-voltage side of operator established emergency rating establishes that the protection must the transformer are cleared by tripping will always be less than 200 percent of allow an overload for 15 minutes, we the remote breaker on the transmission the transformer forced-cooled nameplate disagree with WECC that sub- line and the transformer low-voltage rating.’’ Referring to section 8.6.1 of IEEE requirement R1.11 addresses the breaker. Because faults on the low- Standard C37.91, we point out that this Commission’s reliability concern with voltage side of the transformer will overloads. 212. We acknowledge that relays can generally be lower in magnitude as 155 Section 8.6.1 of IEEE Standard C37.91–2008 measured at the remote breaker due to states that ‘‘[w]hen overcurrent relays are used for be set to protect for faults as well as the large impedance of the transformer, transformer backup, their sensitivity is limited overloads and that the operation of fault protection relays set at 150 percent because they should be set above maximum load relays for fault conditions is much faster current.’’ than for overload conditions. This is 156 E.g., Reliability Standard FAC–003–1, 153 Order No. 693, FERC Stats. & Regs. ¶ 31,242 Transmission Vegetation Management Program, because faults need to be removed at P 186. Footnote 1 (reference to ANSI A300, Tree Care 154 16 U.S.C. 824o(i)(2). Operations). 157 NERC Petition at 11.

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quickly from the Bulk-Power System to obligations. Consequently, the full potential in response to sudden limit the severity and spread of system Commission requested comments on increases in line loadings or power disturbances and prevent possible whether the use of such a protection swings, it maximizes loadability to the damage to protected elements, while system is consistent with the Reliability extent possible without compromising overload relays are designed to operate Standard’s objectives, and whether it the primary zone of protection. more slowly, and when applicable, should direct a modification that would 218. Commenters also claim that sub- allow time for operators to implement require entities that employ such a requirement R1.12 is intended to operator control actions to mitigate the protection system to use a different provide acceptable protection for overloaded facility. Nevertheless, both system. uncommon configurations.162 EEI, fault and overload relays are load- WECC, and Consumers Energy speculate responsive relays. Thus, we agree with b. Comments that sub-requirement R1.12 will most those commenters that state that manual 215. NERC opposes the Commission’s commonly apply to lines with three or mitigation of thermal overloads is best proposal and disagrees with the more terminals, which usually require left to system operators, who can take Commission’s assertion that sub- larger zone 2 settings than two-terminal appropriate actions to support Reliable requirement R1.12 allows entities to lines. Consumers Energy states that such Operation of the Bulk-Power System. comply with the Reliability Standard configurations are actually selected for Moreover, because both types of relays without achieving its purpose. NERC reliability, not cost, such that removal of are load-responsive relays, we disagree states that the Reliability Standard’s a line will simultaneously remove other with PSEG that the Commission’s objectives include ensuring reliable components that could not be reliably proposal is beyond the scope of PRC– detection of all network faults and served in the absence of that line. Oncor 023–1. preventing undesired protective relay states that the purpose of sub- requirement R1.12 is to handle those 4. Sub-Requirement R1.12 operation that interferes with the system operator’s ability to take remedial less common system configurations 213. Sub-requirement R1.12 action. NERC explains that use of sub- where operating the system at the establishes relay loadability criteria requirement R1.12 is restricted to cases maximum capacity of the equipment in when the desired transmission line where adequate line protection cannot the configuration is within the operating capability is limited by the requirement be achieved without restricting the range of the protective relay settings to to adequately protect the transmission loadability of the protected transmission detect and clear all faults in the line. In these cases, the line distance element. protected configuration. relays are still required to provide 216. NERC and Consumers Energy 219. Some commenters argue that adequate protection, but the argue that sub-requirement R1.12 could utilities should have the flexibility to implemented relay settings will limit have helped mitigate the August 2003 decide what is necessary for their the desired loading capability of the blackout. NERC and Consumers Energy systems. For example, South Carolina circuit. In its petition, NERC stated that explain that many of the lines that E&G maintains that utilities should be if an essential fault protection imposes tripped during the blackout were below allowed to either restrict line loadability a more constraining limit on the system, their emergency rating and tripped for protection or use a different the limit imposed by the fault protection because of loading limitations imposed protection system appropriate for the is reflected within the facility rating.158 by relay settings. NERC and Consumers particular situation. TVA argues that a NERC also stated that PRC–023–1 Energy state that these lines tripped utility should be able to establish should cause no undue negative effect without warning to system operators, facility ratings based on thermal or relay on competition or restrict the grid who were unaware of loading limits, and that as long as facility ratings beyond what is necessary for limitations imposed by relay settings. are applied in system studies correctly reliability.159 NERC and Consumers Energy note that (and such studies show no violations), a. NOPR Proposal sub-requirement R1.12 mandates that a utility should not be required to facility ratings reflect relay loadability change its protective schemes to allow 214. In the NOPR, the Commission limitations and speculate that, if this a higher facility rating based on thermal expressed concern that sub-requirement had been the case on the day of the limits. R1.12 allows entities to technically blackout, system operators would have 220. TAPS describes sub-requirement comply with the Reliability Standard known that they were approaching the R1.12 as an example of NERC and without achieving its stated purpose. relay loadability limitation and could industry experts properly exercising The Commission explained that because have taken mitigating action.160 flexibility to balance a number of entities can set their relays to limit the 217. Other commenters share NERC’s reliability factors, including cost, as the load carrying capability of a view that sub-requirement R1.12 is Commission recognized is appropriate transmission line, any line with relays consistent with the Reliability in Order No. 672. TAPS reiterates that set according to sub-requirement R1.12 Standard’s purpose.161 Ameren argues in Order No. 672 the Commission stated will not be utilized to its full potential that sub-requirement R1.12 that a proposed Reliability Standard in response to sudden increases in line appropriately recognizes that priority need not reflect the optimal method, or loadings or power swings. The must be given to fault detection over ‘‘best practice,’’ for achieving its Commission stated this will make the loadability because undetected faults reliability goal without regard to natural response of the Bulk-Power can result in generation and load implementation cost or historical System less robust in the case of system instability, outages, and increased regional infrastructure design.163 TAPS disturbances. The Commission added damage and repair time. Basin states argues that in assessing whether the that an entity that uses a protection that while sub-requirement R1.12 may Reliability Standard achieves its system that requires it to set its relays lead to relay settings that limit a line’s reliability goal efficiently and pursuant to sub-requirement R1.12 may effectively, the Commission should give not be able to satisfy its reliability 160 Consumers Energy at 12–13; NERC Comments at 32. 162 See, e.g., Consumers Energy, EEI, and Oncor. 158 Id. at 14. 161 See also Ameren, Basin, EEI, McDonald, and 163 TAPS at 26 (citing Order No. 672, FERC Stats. 159 Id. at 27. WECC. & Regs. ¶ 31,204 at P 328).

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due weight to NERC’s balancing of employ other load limiting relay circuit breaker failure and backup competing factors. TAPS also claims features. EEI and WECC argue that even protection. As discussed previously, the that the Commission’s proposal to with this single possible limitation, this Commission proposed to establish a require a broad change of equipment is loadability method is consistent with maximum allowable reach for such expensive and ‘‘run[s] afoul’’ of sections the Reliability Standard’s objectives. relays because that their large reaches 215(a)(3) 164 and (i)(2) of the FPA, which make the relays susceptible to tripping c. Commission Determination limit Reliability Standards that require from load. expansion of facilities. 224. We decline to adopt the NOPR 221. APPA states that the proposal. After further consideration, G. Requirement R2 Commission’s proposal appears to we think that it is incumbent on entities 227. Requirement R2 states that require NERC to prohibit protection that implement sub-requirement R1.12 entities that use a circuit with the systems that would require the use of to ensure that they implement it in a protective relay settings determined by sub-requirement R1.12, effectively manner that is consistent and the practical limitations described in writing sub-requirement R1.12 out of coordinated with the Requirements of sub-requirements R1.6 through R1.9, the Reliability Standard. APPA argues existing Reliability Standards and that R1.12, or R1.13 must use the calculated that the Commission is proposing to achieves performance results consistent circuit capability as the circuit’s facility direct NERC to adopt a specific with their obligations under existing rating. The entities also must obtain the modification that may not be the best or Standards. While we are not adopting agreement of the planning coordinator, most efficient way to address the the NOPR proposal, we direct the ERO transmission operator, and reliability Commission’s concerns. APPA states to document, subject to audit by the coordinator as to the calculated circuit that it agrees with the Commission Commission, and to make available for capability. The Commission did not raising the issue to the extent that the review to users, owners and operators of make any proposal regarding Commission is concerned about the the Bulk-Power System, by request, a Requirement R2. adverse impact of sub-requirement list of those facilities that have 1. Comments R1.12 on Available Transfer Capability. protective relays set pursuant to sub- APPA contends, however, that having requirement R1.12. We believe that this 228. ERCOT and IRC state that the raised the issue, the Commission should transparency will allow users, owners, Commission should clarify that the ‘‘ ’’ direct NERC as the ERO to develop and operators of the Bulk-Power System agreement contemplated in solutions rather than dictate a solution to know which facilities have protective Requirement R2 only means that the in the first instance. relay settings, implementing R1.12, that entity calculating the circuit capability 222. The PSEG Companies argue that limit the facility’s capability. is required to provide the circuit it is impractical to require entities to 225. We also disagree with capability to the relevant functional replace existing impedance relay commenters who argue that the few entities. ERCOT notes that because it is systems without evidence that their instances where a protection system the planning coordinator, transmission continued use will have a negative implements sub-requirement R1.12 are operator and reliability coordinator in reliability impact. The PSEG Companies not a threat to the reliability of the Bulk- the ERCOT region, it would be contend that protection systems should Power System unless they have been responsible for reviewing and approving be replaced only if reliability studies declared critical circuits. Protective the calculated circuit capabilities under show that the limits imposed on the relays on Bulk-Power Systems elements Requirement R2. ERCOT states that it lacks the necessary analysis tools and system by the use of sub-requirement are an integral part of Reliable data (e.g., conductor sag software and R1.12 will truly impede reliability. Operation.166 Any instance of a transmission design data to determine Oncor argues that a modification that protection system that does not ensure emergency ratings) to provide an would require entities that employ Reliable Operation is a reliability informed opinion on the circuit impedance relays to replace them with concern, not only to prevent and limit capabilities calculated by transmission a current differential or pilot wire relay the severity and spread of disturbances, owners, generator owners, or system that is immune to load or stable but also to prevent possible damage to distribution owners pursuant to power swings would eliminate the protected elements.167 Requirement R2. ERCOT argues that the valuable backup feature of the 226. We also disagree with EEI’s and entities that own the facilities are in the impedance relay and actually reduce the WECC’s assertion that sub-requirement best position to establish those limits, reliability of the grid serving the R1.12 can reasonably be interpreted as and that planning coordinators, atypical configuration. the first step in implementing the transmission operators, and reliability 223. EEI and WECC assert that sub- Commission’s proposal to limit the coordinators should not be required to requirement R1.12 can reasonably be reach of zone 3/zone 2 relays.168 Sub- approve them. ERCOT contends that interpreted as the first step in requirement R1.12 establishes planning coordinators, transmission implementing the Commission’s loadability criteria for distance relays operators, and reliability coordinators proposal to limit the reach of zone 3/ when the desired transmission line 165 should merely be made aware of the zone 2 relays. EEI and WECC explain capability is limited by the requirement limits in order to respect them while that sub-requirement R1.12 imposes a to protect the transmission line, and not executing their duties. IRC makes the maximum reach for distance relays of explicitly for the application of zone 3/ similar claim that the term ‘‘agreement’’ 125 percent of the apparent length of the zone 2 distance relays applied as remote protected line, which allows relays to in Requirement R2 requires only a data dependably detect faults. EEI and WECC 166 Order No. 693, FERC Stats. & Regs. ¶ 31,242 check or confirmation, such that add that use of sub-requirement R1.12 at P 1435. planning coordinators, transmission may prevent entities from using time- 167 Id. operators, and reliability coordinators delayed, over reaching zone 3 relays as 168 As discussed previously, the Commission has must simply agree that they will use the remote backup protection, unless they decided not to adopt the NOPR proposal for circuit capability provided by the establishing a maximum allowable reach for the application of zone 3/zone 2 relays applied as transmission owner, generator owner, or 164 16 U.S.C. 824o(a)(3). remote circuit breaker failure and backup protection distribution owner. IRC argues that this 165 EEI at 25; WECC at 5–6. upon consideration of comments. interpretation is consistent with both

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FAC–008–1, which requires establishing it, and within 30 days of modified Reliability Standard.171 transmission and generator owners to making any change to it. Consequently, Requirement R3 and its establish facility rating methodologies sub-requirements apply to ERCOT. 1. Role of the Planning Coordinator for their facilities and provide them to 2. Sub-Requirement R3.3 reliability coordinators, transmission a. Comments operators, transmission planners, and 231. ERCOT argues that the a. NOPR Proposal planning authorities, and FAC–009–0, Commission should follow the example 235. The Commission proposed to which requires transmission and of the Critical Infrastructure Protection direct the ERO to add Regional Entities generator owners to provide the (CIP) Reliability Standards and direct to the list of entities that receive the resultant facility ratings to the same the ERO to make facility owners, rather critical facilities list pursuant to sub- entities. than planning coordinators, responsible requirement R3.3. for identifying critical sub-200 kV 2. Commission Determination b. Comments facilities and for maintaining and 229. We do not agree with ERCOT and distributing the critical facilities list. 236. NERC and WECC agree with the IRC that an entity’s obligation to obtain ERCOT contends that while planning Commission that the Regional Entity the ‘‘agreement’’ of the planning coordinators and other functional should receive the critical facilities list. coordinator, transmission operator, or entities must receive all relevant EEI acknowledges that the reliability coordinator with the information about facilities in their Commission’s proposal may have merit, calculated circuit capability only means region, facility owners have the right but opposes a modification. EEI that the entity calculating the circuit and obligation to make criticality explains that the Regional Entity can capability is required to provide the determinations about their facilities. already request the data from planning circuit capability to the relevant ERCOT argues that the CIP Reliability authorities and reliability coordinators functional entities. We interpret the Standards support its position, as they at any time, and argues that it is not language ‘‘shall obtain the agreement’’ in require facility owners to identify necessary to formalize the process. Requirement R2 to require that the critical assets. c. Commission Determination entity calculating the circuit capability 232. ERCOT also requests must reach an understanding with the confirmation that sub-requirement 237. We adopt the NOPR proposal relevant functional entity that the R3.1.1 does not apply to the ERCOT and direct the ERO to modify the calculated circuit capability is capable region because it is not synchronously Reliability Standard to add the Regional of achieving the reliability goal of PRC– interconnected with any other control Entity to the list of entities that receive 023–1. Since PRC–023–1 is intended to area and because ERCOT is the only the critical facilities list. The Regional ensure that protective relay settings do planning coordinator and reliability Entity must know which facilities in its not limit transmission loadability or coordinator within the region. area have been identified as interfere with system operators’ ability operationally significant and could b. Commission Determination to take remedial action to protect system contribute to cascading outages and the reliability, and to ensure that relays 233. We disagree with ERCOT and loss of load. Additionally, providing reliably detect all fault conditions and will not direct the ERO to make facility Regional Entities with the critical protect the electrical network from these owners responsible for identifying facilities list will aid in the overall faults, we expect the agreement to critical sub-200 kV facilities or for coordination of planning and center around achieving these purposes. maintaining and distributing the critical operational studies among planning facilities list. We also reject ERCOT’s coordinators, transmission owners, H. Requirement R3 and Its Sub- comparison between PRC–023–1 and generator owners, distribution Requirements the CIP Reliability Standards. Facility providers, and Regional Entities. As 230. Requirement R3 directs planning owners are responsible for maintaining with our other directives in this Final coordinators to identify which sub-200 only their own facilities. Planning Rule, we do not prescribe this specific kV facilities are critical to the reliability coordinators, on the other hand, are change as an exclusive solution to our of the bulk electric system and therefore charged with assessing the long-term reliability concerns regarding sub- subject to Requirement R1.169 Sub- reliability of their planning authority requirement R3.3. As we have stated, requirement R3.1 directs planning areas.170 Consequently, planning the ERO can propose an alternative coordinators to have a process to coordinators are better prepared and solution that it believes is an equally identify critical facilities. Sub- equipped to make the comprehensive effective and efficient approach to requirement R3.1.1 specifies that the criticality determinations for their areas addressing the Commission’s reliability process must consider input from for the purposes of PRC–023–1. We thus concerns.172 adjoining planning coordinators and agree with the ERO that planning affected reliability coordinators. Sub- coordinators are better suited to make I. Attachment A requirements R3.2 and R3.3 direct the criticality determinations for the 238. Attachment A of the Reliability planning coordinators to maintain a list purposes of PRC–023–1. Standard contains three sections: (1) A of critical facilities and provide it to 234. Finally, while we acknowledge non-exhaustive list of load-responsive reliability coordinators, transmission that ERCOT is not synchronously relays subject to the Standard; (2) a owners, generator owners, and interconnected with any other control statement that out-of-step blocking distribution providers within 30 days of area and that it is the only planning protective schemes are subject to the coordinator and reliability coordinator Standard and shall be evaluated to 169 As proposed by NERC, Requirement R3 directs in its region, we clarify that any request ensure that they do not block trip for planning coordinators to identify the 100 kV–200 for a regional exemption from PRC–023– fault during the loading conditions kV facilities that should be subject to Requirement 1 is an applicability matter that must be defined within the Standard’s R1. As we have explained, in this Final Rule we raised in the Reliability Standards direct that the ERO revise Requirement R3 so that planning coordinators also identify sub-100 kV development process and included in a 171 Order No. 693, FERC Stats. & Regs. ¶ 31,242 facilities that should be subject to the Reliability at P 1125. Standard. 170 See NERC Function Model, Version 3 at 14. 172 Id. P 186.

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requirements; and (3) a list of protective blocking relays are ‘‘transmission line Reliability Standard and must be set systems that are expressly excluded relays’’ addressed in Requirement R1. pursuant to Requirement R1. from the Standard’s requirements. In the Oncor argues that section 2 is already a NOPR, the Commission expressed requirement because it is in an 2. Section 3: Protection Systems concerns about sections 2 and 3. attachment instead of an appendix. Excluded From the Reliability Standard 1. Section 2: Evaluation of Out-of-Step c. Commission Determination 249. Section 3 lists certain protection Blocking Schemes systems that are excluded from the 244. We adopt the NOPR proposal requirements of PRC–023–1. These 239. Section 2 of Attachment A states and direct the ERO to include section 2 systems are specified in sections 3.1 that the ‘‘[Reliability Standard] includes of Attachment A in the modified out-of-step blocking schemes which Reliability Standard as an additional through 3.9. shall be evaluated to ensure that they do Requirement with the appropriate a. NOPR Proposal not block trip for faults during the violation risk factor and violation loading conditions defined within the severity level. 250. In the NOPR, the Commission requirements.’’ 245. EEI correctly states that stated that it could not determine a. NOPR Proposal Attachment A is a compilation of the whether the exclusions in section 3 are types of transmission line relays and justified because NERC did not provide 240. In the NOPR, the Commission relay schemes that are subject to PRC– the technical rationale behind any of the stated that since the ERO intends to 023–1, and that section 2 specifies that exclusions.174 require the evaluation of out-of-step out-of-step blocking schemes are subject 251. The Commission also raised blocking applications, language to this to it. However, section 2 also creates an effect should be included in PRC–023– specific concerns about section 3.1, obligation to evaluate out-of-step which excludes from the Reliability 1 as a Requirement. To this end, the blocking schemes to ensure that they do Standard’s requirements relay elements Commission proposed to direct the ERO not block trip for faults during the that are enabled only when other relays to add section 2 of Attachment A to loading conditions defined within the or associated systems fail, such as those PRC–023–1 as an additional Reliability Standard’s Requirements. Requirement with the appropriate This is an obligation that is not stated overcurrent elements enabled only violation risk factor and violation in, or referenced by, any Requirement in during loss of potential conditions or severity level assignments. the Reliability Standard. Consequently, elements enabled only during the loss of b. Comments this obligation is not currently communications. The Commission associated with a violation risk factor or expressed concern that section 3.1 could 241. NERC agrees that the proposed be interpreted to exclude certain modification is appropriate and violation severity level. 246. Although the obligation to protection systems that use proposes to implement it through the communications to compare current full Reliability Standards development evaluate out-of-step blocking schemes is quantities and directions at both ends of process in the next modification of currently not stated in a Requirement, it a transmission line, such as pilot wire PRC–023–1. In the meantime, NERC nevertheless remains an obligation protection or current differential requests that the Commission approve imposed on entities by PRC–023–1 protection systems supervised by fault Attachment A as currently written.173 because it is a part of Attachment A and 242. WECC asserts that the therefore a part of PRC–023–1. detector relays. The Commission Commission’s proposal is reasonable Consequently, we clarify that entities explained that if supervising fault because the obligation to evaluate out- must comply with this obligation while detector relays are not subject to the of-step blocking schemes is part of PRC– the ERO modifies PRC–023–1 to include Reliability Standard, and they are set 023–1, but carries no penalty without a it as a Requirement. below the rating of the protected violation risk factor and violation 247. We disagree with Dominion’s element, the loss of communications severity level. WECC suggests that the suggestion that the Commission direct and heavy line loading conditions that Commission take the same approach the ERO to remove section 2 from PRC– approach the line rating would cause with respect to out-of-step tripping 023–1 and include it in a Reliability them to operate and unnecessarily (section 1.2). WECC explains that Standard that addresses stable power disconnect the line; adjacent without appropriate load supervision, swings. It is appropriate to include transmission lines with similar out-of-step tripping may subject circuit section 2 as a Requirement in PRC–023– protection systems and settings would breakers to excessive over-voltages, if it 1 because out-of-step blocking schemes also operate unnecessarily, resulting in occurs at all. must be allowed to trip for faults during cascading outages. The Commission 243. Dominion, EEI, and Oncor the loading conditions defined within requested comments, therefore, on disagree with the Commission’s PRC–023–1. Otherwise, faults that occur whether the exclusions in section 3 are proposal. Rather than make it a during a power swing may result in technically justified and whether it Requirement, Dominion argues that the system instability if not cleared. should direct the ERO to modify PRC– statement about out-of-step blocking 248. Finally, we will not direct the 023–1 by deleting specific sections in schemes should be removed from PRC– ERO to make section 1.2 into a section 3. The Commission also 023–1 and included in a Reliability Requirement as WECC suggests. Section requested comment on whether it Standard that addresses stable power 1 of Attachment A is a non-exhaustive should direct the ERO to modify section swings. EEI asserts that section 2 list of relays and protection systems that 3.1 to clarify that it does not exclude are subject to Attachment A; unlike appropriately appears in Attachment A from the requirements of PRC–023–1 section 2, section 1 does not create because Attachment A identifies the pilot wire protection or current types of transmission line relays and substantive obligations that are neither relay schemes that are subject to the stated in nor referenced by the 174 The exclusion of protection systems intended Reliability Standard, and out of step Requirements. Section 1.2 merely lists for the detection of ground fault conditions appears out-of-step tripping systems as one of to be unnecessary because these systems are not 173 See also Duke and IESO/Hydro One. the systems that are subject to the load-responsive.

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differential protection systems service with a level of fault protection that the Commission should not require supervised by fault detector relays.175 while the failure that required activation NERC to eliminate section 3.1. of the section 3.1 relays is repaired, and 259. In general, commenters contend b. Comments that the alternative would be to take the that the rest of the exclusions in section 252. While NERC acknowledges that lines or buses out of service.177 Ameren 3 have a sound technical basis. Basin specific justification should be included cautions that this alternative would put argues that the exclusions address for those protection systems that the system in a less reliable N–1 or N- protection systems that have no ultimately remain excluded from the many state. significant impact on the reliability of Reliability Standard’s requirements, 256. EEI adds that many long the bulk electric system, and suggests NERC opposes removing any of the transmission lines proposed to support that the Commission consider the exclusions.176 the creation of the national grid will following criteria in determining 253. With respect to section 3.1, require backup protection for the types whether a system should be subject to NERC does not share the Commission’s of failures discussed in section 3.1. EEI PRC–023–1: (1) The frequency with concern and urges it not to direct the explains that, for very long lines, the which that system is enabled; (2) the removal of supervising fault detector fault currents can be below rated probability that the system will be relays from the list of exclusions. NERC continuous capability without the 150 activated when it is enabled; and (3) the explains that section 3.1 excludes percent margin, and that simple effects that the protection system will elements that: (1) Do not respond to schemes are required for the small have on the Bulk-Power System when it load current; (2) are in use only during periods of time when the backup is activated.179 Basin argues that very short periods of time to address protection will be in-service following a protection systems that have a low short-term conditions; or (3) supervise loss of potential conditions or probability of being activated when operation of relay elements that communications. EEI contends that enabled should be excluded from the themselves are subject to the Reliability these exceptions only impact one Reliability Standard. Likewise, those Standard. NERC explains that if the facility at a time and do not present that, when activated, have an supervised relay element itself does not more risk than removing the facility. inconsequential effect on system operate in these cases, the operation of 257. Exelon, Consumers Energy, and stability should also be excluded from the supervising element should have no IESO/Hydro One also claim that the the Reliability Standard. The PSEG impact on reliability. NERC asserts that exclusions in section 3.1 are justified. Companies argue that PRC–023–1 if a communications system is lost, the Exelon asserts that the Reliability reasonably balances risks with the transmission element must be protected Standard’s goal is to address protective potential expenditure of substantial and and may need to be tripped for low relays that have a history of contributing costly changes to protection systems.180 magnitude faults approaching load to cascades, and that relays enabled 260. Exelon and Consumers Energy current. NERC argues that it is only when other relays or associated argue that section 3.2, which excludes preferable to trip one line for loss of systems fail are extremely unlikely to be relays that are designed to detect ground communications than not trip at all, a factor in a disturbance because they fault conditions, is justified because thereby causing mis-coordination and/ are enabled so infrequently. Consumers such relays have no significant history or stability problems. NERC adds that Energy cautions that the relays excluded of contributing to cascades. Consumers the failure of a communications-based in section 3.1 must be able to respond Energy claims that it would be a waste protection system is typically an to relay failures without regard to relay of resources to identify, study, and isolated event. loadability; otherwise, there is a risk document the behavior of devices 254. EEI speculates that the intent that faults will not be cleared and there intended for the detection of ground behind specifically excluding will be cascading outages. IESO/Hydro faults, when such devices are immune overcurrent elements enabled only One argue that the Commission should to tripping for load currents. during loss of potential conditions and approve section 3.1 because the relays it 261. Duke asserts that it is unclear elements enabled only during a loss of excludes are incapable of independently whether section 3.3, which excludes communications (the specific examples opening the circuit breaker; that is, they protection systems intended for listed in section 3.1) is to exclude relay require the action of other relays. protection during stable power swings, system failures that, for normal utility 258. TAPS argues that NERC should is meant for tripping or to block practice, would result in either reconsider section 3.1 because the tripping. Duke states that if the emergency call outs and repairs or next- exclusion of relay elements enabled protection is to block tripping, the day call outs and repairs. EEI concludes only when other relays or associated exclusion is in conflict with section 2 of that these failures are rare enough to systems fail depends on the successful Attachment A, as many relays use the have a limited impact on the Bulk- operation of a potential source same logic to block for out-of-step Power System. (potential transformer or capacitor conditions and for stable power swings. 255. EEI and Ameren support section coupled voltage transformer (CCVT)) or 262. Exelon states that the relays 3.1 as technically justified because it a communication system.178 TAPS identified in section 3.5, which allows transmission lines to remain in- explains that the TPL Reliability excludes relays used for special Standards require planners to plan the protection systems applied and 175 The Commission also noted that section 3.5 system as if a potential source or approved in accordance with Reliability excludes from the requirements of PRC–023–1 communication system has failed (e.g., Standards PRC–012 through PRC–017, ‘‘relay elements used only for [s]pecial [p]rotection TPL–003–0). Although potential sources are designed along with specific relay [s]ystems applied and approved in accordance with NERC Reliability Standards PRC–012 through PRC– and communication systems fail settings to assure that a given power 017.’’ Since PRC–012–0, PRC–013–0 and PRC–014– infrequently, TAPS states that it might system meets NERC performance 0 are currently proposed Reliability Standards be consistent with the TPL Standards requirements. Consumers Energy asserts pending before the Commission, the particular relay for NERC to reconsider the balance of that these relay systems are intended for elements they involve remain subject to PRC–023– 1 until the relevant Standards are approved by the these factors. TAPS argues, however, a specific set of conditions and already Commission. Order No. 693–A, 120 FERC ¶ 61,053 at P 138. 177 EEI at 27–28; Ameren at 15. 179 Basin at 12–13. 176 NERC Comments at 35. 178 TAPS, Attachment 1 at 17. 180 PSEG Companies at 12.

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undergo a stringent review, such that the other protection system because the Reliability Standard, and are set below additional review under PRC–023–1 is supervising relay will already have the rating of the protected element, the unnecessary and creates the risk that a registered that it should operate. At that loss of communications and heavy line special protection system approved point, the supervising relay will be loading conditions that approach the under PRC–012 through PRC–017 may waiting for the supervised relay to line rating would cause them to operate be found non-compliant under PRC– become energized before tripping the and unnecessarily disconnect the 023–1. Dominion adds that relay protected facility.184 line.185 A more recent example is an elements used only for special 266. For example, current differential event that occurred on June 27, 2007 protection systems applied and protection systems use communication where 138 kV transmission lines in the approved in accordance with PRC–012 systems to transmit and compare NPCC region resulted in sequential through PRC–017 do not present a risk information between relays located at tripping of the four 138 kV cable- to the reliability of the grid because the both terminals and to initiate the high- circuits. The event resulted in the instances in which they operate are rare speed tripping of a facility when the interruption of service to about 137,000 events that are addressed and corrected difference of currents at the sending end customers as well as the loss of five in a timely manner.181 and receiving end exceeds a threshold generators and six 138 kV transmission 263. TAPS argues that the exclusions setting usually set at a small fraction of lines. This event is the type of situation in sections 3.2 through 3.8 are designed the normal line loading. Since these that PRC–023–1 is intended to prevent, to ensure that PRC–023–1 applies where protection systems are dependent on and illustrates why we must direct the it is needed to address loadability communication systems, the protected ERO to modify Attachment A to include concerns, but does not interfere with facility will trip if communication is supervising relays. relays that are not tripped by load lost, even when the line continues to 269. Although we do not direct the current. TAPS adds that section 3.9, carry its normal load current, because ERO to remove section 3.1 from the list which excludes relay elements the difference of the currents as seen at of excluded protection systems, we find associated with DC converter either end will be the load current it necessary to address some comments transformers, is justified because the which is much larger than the threshold made in the context of the output of generators and DC line setting. Consequently, overcurrent Commission’s proposal. For example, converters is not changed significantly relays are typically used as supervising we disagree with those commenters that with the loss of other facilities.182 relays to prevent the protected facility suggest that the Commission should from tripping if communication is lost. approve section 3.1 because it excludes c. Commission Determination However, if the supervising relays are from the Reliability Standard’s scope 264. After further consideration, and energized due to loading conditions, relays and protection systems that rarely in light of the comments, we will not and then communication is lost, the operate. These commenters appear to direct the ERO to remove any exclusion current differential protection system suggest that protection systems that from section 3, except for the exclusion will operate in the absence of a fault and rarely operate do not pose a risk to the of supervising relay elements in section the protected facility will trip. reliability of the Bulk-Power System. 3.1. Consequently, we direct the ERO to 267. NERC asserts that it is preferable We disagree. A protective relay, as an revise section 1 of Attachment A to to trip one line for loss of integral part of the Bulk-Power System, include supervising relay elements on communications than not trip at all, must be dependable and secure; it must the list of relays and protection systems thereby causing mis-coordination and/ operate correctly when required to clear that are specifically subject to the or stability problems. We disagree. a fault and refrain from operating Reliability Standard. As with our other Protective relays should not operate unnecessarily, i.e., during non-fault directives in this Final Rule, we do not during non-fault conditions. The conditions or for faults outside of its prescribe this specific change as an tripping of facilities for non-fault zone of protection, regardless of how exclusive solution to our reliability conditions, like NERC describes, or in many times the relay must actually concerns regarding the exclusion of the case of the August 2003 blackout is operate.186 Relays must meet this supervising relay elements. As we have not desirable system performance. expectation to contribute to ensuring stated, the ERO can propose an 268. We also disagree with IESO/ Reliable Operation of the Bulk-Power alternative solution that it believes is an Hydro One’s assertion that the exclusion System. Consequently, the notion that equally effective and efficient approach of supervising relays from PRC–023–1 is any specific relay should be excluded to addressing the Commission’s appropriate because such relays are not from the Reliability Standard’s scope reliability concerns.183 capable of independently opening the because it may operate only on rare 265. Supervising elements ensure that circuit breaker. While a supervising occasions is inconsistent with the a protection system is secure and does relay is not designed to independently fundamental principles that make not operate when it should not operate. trip a facility by initiating the opening protective relays an integral part of When a supervising relay is in place, it of the circuit breaker, if that relay is ensuring Reliable Operation. acts as a check on the supervised picked up and energized during non- 270. We also disagree with Ameren’s protection system because both must fault conditions, it is no longer capable assertion that removing section 3.1 from operate to trip a facility. If a supervising of ensuring the security of a protection the list of exclusions would put the relay is set below the rating of the line, system and may result in the Bulk-Power System in a ‘‘less reliable high loading conditions will cause it to unnecessary tripping of the facility it is N–1state.’’ As we discuss above, if be ‘‘picked-up,’’ i.e., continuously protecting. As we explained, if supervising relays that are used in energized and ready to operate. When supervising relays are not subject to the this occurs, the supervising relay will 185 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 79. no longer be able to act as a check on 184 It works like an ‘‘and’’ condition (0 + 0 = no 186 These fundamental objectives for protection trip line, 1 + 1 = trip line, 1 + 0 = no trip line). systems are consistent if not identical with the ones For a supervising relay like a fault detector to be stated in NERC Planning Standards III: System 181 Dominion at 8. always ‘‘picked up’’ means that the relay is Protection and Control, at 43: Dependability—a 182 TAPS at 27–28. energized (it is always a ‘‘1’’) and is waiting for measure of certainty to operate when required, 183 Order No. 693, FERC Stats. & Regs. ¶ 31,242 another relay to also become energized before Security—a measure of certainty not to operate at P 186. tripping a facility. falsely.

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current differential schemes are schemes; 187 and (3) 24 months from approach.190 Commenters generally excluded from PRC–023–1 and set much notification by the planning coordinator argue that the Commission should adopt below the line rating, they will trip the that, pursuant to the ‘‘add in’’ approach, NERC’s proposal of an effective date of protected lines inadvertently following a facility has been added to the planning the beginning of the first calendar the loss of communication system coordinator’s list of critical facilities. quarter 39 months after applicable forming part of the protection system. For Requirement R3, NERC proposed an regulatory approvals for 100 kV-200 kV 271. Finally, Duke asserts that section effective date of 18 months following facilities. 3.3 is ambiguous with respect to applicable regulatory approvals. 277. NERC argues that planning coordinators will require at least 18 whether it excludes protection meant 274. NERC also proposed to include a months to identify the 100 kV-200 kV for tripping or to block tripping, and footnote (exceptions footnote) to the facilities that should be subject to the that if it excludes protection meant to ‘‘ ’’ Effective Dates section honoring Reliability Standard, and possibly an block tripping, it is in conflict with temporary exceptions from enforcement additional 18 to 24 months to complete section 2 because many relays use the actions approved by the NERC Planning any design and construction changes same logic to block for out-of-step Committee before NERC proposed the necessary to comply with the Standard. 188 conditions and for stable power swings. Reliability Standard. Consumers Energy, EEI, and Oncor offer We clarify that we do not find a conflict 1. NOPR Proposal similar estimates. between section 3.3, which excludes 278. APPA argues that NERC’s from the Reliability Standard’s scope 275. In the NOPR, the Commission implementation plan gives planning any protection system intended for proposed to approve NERC’s coordinators the time necessary to protection during stable power swings, implementation plan for facilities perform in-depth studies to identify and section 2, which ensures that out- operated at and above 200 kV. In light which facilities are critical to the of-step blocking schemes do not block of its applicability proposals, the reliability of the bulk electric system, tripping during the loading conditions Commission proposed to reject the rest and gives affected entities the time to defined within PRC–023–1. of NERC’s implementation plan and make any necessary costly upgrades. 272. Out-of-step schemes, blocking require, for all sub-200 kV facilities, an APPA adds that only a limited number and tripping, are generally associated effective date of 18 months following of experienced industry experts and with power swing protection applicable regulatory approvals. The consultants will be available to assist applications. Out-of-step tripping Commission also proposed to direct entities in complying with the schemes allow controlled tripping NERC to remove the exceptions Reliability Standard, and speculates that during loss of synchronism during footnote, explaining that discussions their time will be in high demand. unstable power swings while out-of-step about potential enforcement actions are 279. TAPS observes that Order No. blocking schemes block tripping during best left out of a Reliability Standard 672 recognizes that implementation stable power swings. Because out-of- and instead handled by NERC’s timelines must balance any urgency in step tripping relays are supervised by compliance and enforcement the need to implement a Reliability load-responsive overcurrent relays, its program.189 Standard with the reasonableness of the applicability to the requirements of time allowed for those who must PRC–023–1 is appropriate. Because the 2. Comments on Effective Date comply to develop the necessary reliability objective of Requirement R1 Proposals procedures, software, facilities, staffing or other relevant capability.191 TAPS is to set protective relays while 276. In general, commenters support ‘‘maintaining reliable protection of the argues that the Commission should give the Commission’s proposal to adopt the due weight to NERC’s expert assessment bulk-electric system for all fault effective date proposed by NERC for conditions,’’ as previously determined, of that balance and adopt the effective facilities operated at and above 200 kV, dates proposed by NERC. out-of-step blocking schemes must but overwhelmingly oppose the allow tripping for faults during the Commission’s proposal for an 18 month 3. Comments on Exceptions Footnote loading conditions defined within PRC– effective date for sub-200 kV facilities, 280. EEI argues that the Commission’s 023–1. Thus, the reliability goal of the regardless of whether the Commission proposal to direct the ERO to remove two schemes for the purposes of PRC– directs the ERO to adopt the ‘‘rule out’’ the exceptions footnote is too 023–1 is different, and consequently, we approach or approves NERC’s ‘‘add in’’ prescriptive given the Commission’s find no conflict within the Standard. statutory role in the Reliability Standard J. Effective Date 187 ‘‘Switch-on-to-fault schemes’’ are protection development process. EEI argues that systems designed to trip a transmission line breaker the Commission has gone much farther 273. NERC proposed the following when the breaker is closed into a fault. Because the current fault detectors for these systems must be set than identifying its concern because its effective dates for Requirements R1 and low enough to detect ‘‘zero-voltage’’ faults, i.e., proposal does not allow for the ERO to R2: (1) The beginning of the first close-in, three-phase faults, these systems may be develop equally effective alternatives.192 calendar quarter following applicable susceptible to operate on load. 281. Oncor and Consumers Energy regulatory approvals for all transmission 188 The footnote states: agree with the Commission’s proposal. Temporary Exceptions that have already been lines and transformers with low-voltage approved by the NERC Planning Committee via the Oncor argues that the need for the terminals operated/connected at and NERC System and Protection and Control Task temporary exemption has expired and above 200 kV, except for switch-on-to Force prior to the approval of this [Reliability therefore should be removed from the fault-schemes; (2) the beginning of the Standard] shall not result in either findings of non- Reliability Standard. compliance or sanctions if all of the following first calendar quarter 39 months after apply: (1) The approved requests for Temporary applicable regulatory approvals for all Exceptions include a mitigation plan (including 190 Commenters argue that a ‘‘rule out’’ approach transmission lines and transformers schedule) to come into full compliance, and (2) the would require a much longer implementation non-conforming relay settings are mitigated period, with estimates of up to 12 years. with low-voltage terminals operated/ 191 connected between 100 kV and 200 kV, according to the approved mitigation plan. TAPS at 29 (citing Order No. 672, FERC Stats. 189 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 85– & Regs. ¶ 31,204 at P 333). including switch-on-to fault- 86. 192 EEI at 28.

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4. Commission Determination Requirement R1.193 NERC assigned commenters point out that each sub- Requirement R3 a ‘‘medium’’ violation requirement is intended to address a 282. We decline to fully adopt the risk factor. different operating condition or system NOPR proposal and approve all of design condition and that, for any 1. NOPR Proposal NERC’s proposed effective dates, specific circuit, entities will set their including its proposal of 39 months 288. In the NOPR, the Commission relays pursuant to only one of the sub- from the beginning of the first calendar listed the five guidelines that it uses to requirements. NERC adds that its quarter after applicable regulatory evaluate proposed violation risk factor proposal to assign violation risk factors approvals for 100 kV–200 kV facilities. assignments (Violation Risk Factor only to Requirement R1 is consistent In light of our decision to approve the Guidelines). According to these with its informational filing in Docket ‘‘add in’’ approach for 100 kV–200 kV Guidelines, violation risk factor No. RM08–11–000, where it described facilities, and after consideration of the assignments should be consistent: (1) more fully its plans for a new, comments, we agree with NERC that With the conclusions of the Final comprehensive approach to assigning this is an appropriate effective date. Blackout Report; (2) within a Reliability violation risk factors.195 283. Additionally, in light of our Standard; (3) among Reliability 292. An individual commenter, directive to the ERO to expand the Standards with similar Requirements; Michael McDonald, argues that Reliability Standard’s scope to include and (4) with NERC’s definition of the Requirement R1 should have a sub-100 kV facilities that Regional violation risk factor level; the ‘‘medium’’ violation risk factor, rather Entities have already identified as Commission also stated that (5) the than a ‘‘high’’ violation risk factor, necessary to the reliability of the Bulk- violation risk factor levels for because actions taken since the August Power System through inclusion in the Requirements that co-mingle a higher 2003 blackout have reduced the Compliance Registry, we direct the ERO risk reliability objective and a lower risk likelihood that a relay loadability issue to modify the Reliability Standard to reliability objective must not be watered will cause a cascading outage. include an implementation plan for sub- down to reflect the lower risk level 100 kV facilities. associated with the less important 3. Commission Determination 284. We also direct the ERO to remove reliability objective.194 293. We approve NERC’s assignment the exceptions footnote from the 289. The Commission agreed with of a ‘‘high’’ violation risk factor to ‘‘Effective Dates’’ section. As the NERC that Requirement R1 should be Requirement R1 and a ‘‘medium’’ Commission stated in the NOPR, the assigned a ‘‘high’’ violation risk factor. violation risk factor to Requirement R2. exceptions footnote is addressed to The Commission added, however, that These violation risk factor assignments potential enforcement actions, and is violation of any of the criteria in sub- are consistent with the Violation Risk therefore best left out of the Reliability requirements R1.1 through R1.13 Factor Guidelines. Standard and addressed in NERC’s present the same reliability risk as a 294. We disagree with Michael compliance and enforcement program. violation of Requirement R1 because McDonald, who argues that Moreover, we agree with Oncor that the they set forth the options for compliance Requirement R1 should have a ‘‘ ’’ need for the temporary exemption has with Requirement R1. Consequently, the medium violation risk factor rather ‘‘ ’’ expired and therefore should be Commission proposed to direct the ERO than a high violation risk factor. removed from the Reliability Standard. to assign a ‘‘high’’ violation risk factor to Violation risk factor assignments We add that entities are free to request each sub-requirement. represent the risk a violation of a 290. The Commission also proposed Requirement presents to the Bulk-Power exceptions through NERC’s existing to direct the ERO to modify the System.196 Although the Commission, process, subject to Commission review violation risk factor assigned to the ERO, and industry have taken and approval. Requirement R3 and its sub- actions since the August 2003 blackout K. Violation Risk Factors requirements to reflect the to reduce the likelihood that relay Commission’s applicability proposals. outages will cause cascading outages, 285. Requirement R1 directs entities these actions do not mitigate the risk of to set their relays according to one of the 2. Comments non-compliance with Requirement R1. options set forth in sub-requirements 291. NERC and other commenters In our view, a violation of Requirement R1.1 through R1.13. NERC assigned oppose the Commission’s proposal to R1 has the potential to put the Bulk- ‘‘ ’’ Requirement R1 a high violation risk assign a separate violation risk factor to Power System at the risk of cascading factor, but did not assign violation risk sub-requirements R1.1 through R1.13. outages like those that occurred during factors to sub-requirements R1.1 These commenters argue that the sub- the August 2003 blackout. through R1.13. requirements are alternative ways to Consequently, we agree with the ERO 286. Requirement R2 provides that comply with Requirement R1, not that Requirement R1 should be assigned entities that set their relays according to separate Requirements that must be a ‘‘high’’ violation risk factor. sub-requirements R1.6 through R1.9, complied with in their own right. The 295. We will not require the ERO to R1.12, or R1.13 must use the calculated assign a violation risk factor to each sub- circuit capability as the circuit’s facility 193 As proposed by NERC, Requirement R3 directs requirement of Requirement R1 because rating and must obtain the agreement of planning coordinators to identify the 100 kV–200 we agree with the ERO that the sub- the planning coordinator, transmission kV facilities that should be subject to Requirement R1. As we have explained, in this Final Rule we requirements are alternative ways, based operator, and reliability coordinator as direct that the ERO revise Requirement R3 so that on different operating or design to the calculated circuit capability. planning coordinators also identify sub-100 kV configurations, of complying with NERC assigned Requirement R2 a facilities that should be subject to the Reliability Requirement R1. Consequently, an Standard. ‘‘medium’’ violation risk factor. entity’s failure to appropriately apply 194 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 88. 287. Requirement R3 requires For a complete discussion of each guideline, see planning coordinators to determine North American Electric Reliability Corp., 119 FERC 195 In its informational filing, NERC indicates that which sub-200 kV facilities are critical ¶ 61,145, P 19–36 (Violation Risk Factor Order), NERC drafting teams will develop ‘‘rolled up’’ to the reliability of the bulk electric order on reh’g and compliance filing, 120 FERC violation risk factors and violation severity levels. ¶ 61,145 (2007) (Violation Risk Factor Rehearing 196 North American Electric Reliability Corp., 121 system and therefore subject to Order). FERC ¶ 61,179, at P 38 (2007).

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one of the sub-requirements of identified by the planning coordinator approved Reliability Standards in the Requirement R1 to a specific operating pursuant to Requirement R3 are determination of penalties; 201 (3) be design or configuration is, as a violation required to meet Requirement R1, we consistent with the corresponding of Requirement R1, subject to a ‘‘high’’ conclude that the reliability risk to the Requirement; and (4) be based on a violation risk factor. While the Bulk-Power System of a violation of single violation, not on a cumulative Commission generally expects that the Requirement R3 is the same as a number of violations. ERO will assign a violation risk factor to violation of Requirement R1. We direct 303. The Commission observed that each Requirement and sub-requirement the ERO to file the new violation risk the violation severity levels assigned to of a Reliability Standard, we will accept factor no later than 30 days after the Requirements R1 and R2 appear to be the ERO’s proposal not to assign date of this Final Rule. inconsistent with Violation Severity violation risk factors to sub- Level Guideline 3. The Commission L. Violation Severity Levels requirements R1.1 through R1.13 as an noted that the two violation severity exception to our current policy because 298. NERC proposed violation levels proposed for Requirement R1 we are satisfied that the sub- severity levels for Requirements R1, R2, address both: (1) The severity of a requirements do not constitute and R3, but not for sub-requirements violation (i.e., the fact that relay settings independent compliance requirements R1.1 through R1.13 or R3.1 through do not comply with Requirement R1); separate from Requirement R1.197 R3.3. and (2) facts necessarily associated with 296. We also agree with the ERO’s 299. For Requirement R1, NERC evaluating compliance (i.e., the decision to assign Requirement R2 a proposed: (1) A ‘‘moderate’’ violation existence of evidence that relay settings ‘‘medium’’ violation risk factor. severity level when an entity complies comply with Requirement R1). The Requirement R2 comprises two with a sub-requirement of Requirement Commission explained that reliability obligations: (1) The required R1, but has incomplete or incorrect Requirement R1 does not require use of the calculated circuit capability evidence of compliance; and (2) a evidence of compliance, only as the facility rating of the circuit for ‘‘severe’’ violation severity level when compliance. Similarly, the Commission entities that set their relays according to an entity fails to comply with a sub- stated that the single violation severity sub-requirements R1.6 through R1.9, requirement of Requirement R1, or level proposed for Requirement R2 does R1.12, or R1.13; and (2) the entities’ when the entity lacks any evidence of not reflect the severity of a violation of obligation to obtain the agreement of the compliance. Requirement R2, but the severity of planning coordinator, transmission 300. NERC designated Requirement lacking evidence of compliance with operator, and reliability coordinator as R2 as a ‘‘binary’’ Requirement and Requirement R2. Consequently, the to the calculated circuit capability. proposed a ‘‘lower’’ violation severity Commission proposed to direct the ERO Requirement R2 co-mingles more than level when an entity sets its relays to: (1) Adopt a binary approach to one reliability obligation and, consistent pursuant to sub-requirements R1.6 Requirement R1; i.e., assign a violation with Violation Risk Factor Guideline 5, through R1.9, R1.12, or R1.13, but lacks severity level based on whether or not the assigned violation risk factor reflects evidence that it obtained the agreement the entity complies with Requirement the reliability risk of a violation of the of the planning coordinator, R1; and (2) assign a violation severity higher reliability obligation (i.e., the transmission operator, and reliability level for Requirement R2 that addresses requirement to use the calculated circuit coordinator as to the calculated circuit an entity’s failure to comply with the capability as the facility rating of the capability.199 entire Requirement; i.e., its failure to calculate circuit capability as the facility circuit). 301. For Requirement R3, NERC rating and obtain agreement on that 297. Finally, we direct the ERO to proposed: (1) A ‘‘severe’’ violation rating with the required entities. The assign a ‘‘high’’ violation risk factor to severity level when an entity lacks a Commission also proposed to direct the Requirement R3. The Commission process to identify critical facilities; and ERO to assign a single violation severity expects consistency between violation (2) ‘‘moderate’’ and ‘‘high’’ violation level to each sub-requirement in risk factors assigned to Requirements severity levels based on the number of Requirement R1. that address similar reliability goals.198 days that a planning coordinator is late NERC assigned a ‘‘high’’ violation risk in providing the critical facilities list to 201 In the Violation Severity Level Order, the factor to Requirement R1, which the entities that must receive it. Commission identified two specific concerns with requires entities to set their relays 1. NOPR Proposal the uniformity and consistency of the violation according to one of the criteria in sub- severity level assignments then under review: (a) 302. In the NOPR, the Commission The single violation severity levels assigned to requirements R1.1 through R1.13. individual binary requirements were not consistent; Requirement R3 directs planning listed the four guidelines that it uses to and (b) the violation severity level assignments coordinators to determine which sub- evaluate proposed violation severity contained ambiguous language. With respect to 200 kV facilities will be subject to levels (Violation Severity Level concern identified in (a), which the Commission Guidelines).200 According to these referred to as ‘‘Guideline 2a,’’ the Commission Requirement R1. Since the facilities explained that NERC assigned different violation Guidelines, violation severity levels severity levels to different binary Requirements (i.e. 197 NERC’s assignment of violation risk factors in should: (1) Avoid the unintended pass/fail Requirements) without justifying the Reliability Standard PRC–023–1 appears to be consequence of lowering the current different assignments or explaining how they were consistent with the approach to assigning violation level of compliance; (2) ensure consistent with the application of a basic pass/fail risk factors set forth in NERC’s informational filing test. The Commission directed NERC to modify the in Docket No. RM08–11–000. At NERC’s request, uniformity and consistency among all violation severity levels by either: (1) Consistently the Commission has not acted on the informational applying the same severity level to each binary filing. The Commission understands, however, that 199 ‘‘Binary’’ Requirements are Requirements Requirement; or (2) changing from a binary NERC anticipates formally filing a comprehensive where compliance is defined in terms of ‘‘pass’’ or approach to a gradated approach. Violation Severity ‘‘roll up’’ plan in the second quarter of 2010. ‘‘fail.’’ Level Order 123 FERC ¶ 61,284 at P 23–27, 45–47. Consequently, we direct the ERO to re-file the 200 For a complete discussion of each guideline, In its compliance filing, NERC chose the first option violation risk factors associated with the see North American Electric Reliability Corporation, and proposed to apply a ‘‘severe’’ violation severity Requirements of PRC–023–1 when it submits its 123 FERC ¶ 61,284, at P 19–36 (Violation Severity level to each of the binary Requirements. The comprehensive plan. Level Order), order on reh’g and compliance filing, Commission agreed with this approach. North 198 Violation Risk Factor Order, 119 FERC 125 FERC ¶ 61,212 (2008) (Violation Severity Level American Electric Reliability Corporation, 127 ¶ 61,145 at P 25. Rehearing Order). FERC ¶ 61,293, at P 5, 11 (2009).

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304. The Commission also stated that violation severity level of ‘‘severe’’ for our discussion no later than 30 days the single violation severity level violations of Requirement R1. after the date of this Final Rule. assigned to Requirement R2 appears to 309. While we adopt the NOPR be inconsistent with NERC’s Guideline proposal with respect to Requirement M. Miscellaneous 2a compliance filing in Docket No. R1, we do not adopt the NOPR proposal 1. Purpose of the Reliability Standard RR08–4–004.202 The Commission to direct the ERO to assign individual explained that, in that docket, NERC violation severity levels to the sub- 313. The Reliability Standard’s stated assigned ‘‘severe’’ violation severity requirements of Requirement R1. As we purpose is to ‘‘require[] certain levels to binary Requirements. The explained with respect to the violation transmission owners, generator owners, Commission added that it expects the risk factors, we will make an exception and distribution providers to set violation severity levels assigned to to our general policy because we are protective relays according to specific binary requirements to be consistent, satisfied that the sub-requirements of criteria in order to ensure that the relays and proposed to direct the ERO to revise Requirement R1 do not constitute reliably detect and protect the electric the violation severity level assigned to independent compliance requirements network from all fault conditions, but Requirement R2 to be consistent with separate from Requirement R1.204 do not limit transmission loadability or Guideline 2a. 310. We also adopt the NOPR interfere with system operators’ ability 305. Finally, in light of its proposals proposal with respect to the violation to protect system reliability.’’ to direct the ERO to modify severity level assigned to Requirement Requirement R3 and its sub- R2. As the Commission pointed out in a. Comments requirements, the Commission proposed the NOPR, the single violation severity 314. BPA argues that the Commission to direct the ERO to assign new level assigned to Requirement R2 suffers should direct the ERO to revise the violation severity levels to Requirement from the same problem as the two Reliability Standard’s stated purpose R3 and its sub-requirements, consistent violation severity levels assigned to with the Violation Severity Level Requirement R1; namely, it is based in because the Standard requires only that Guidelines. part on whether an entity has evidence certain protective relays refrain from of compliance with the Requirement, operating during permissible load 2. Comments even though the Requirement itself does conditions and does not require that 306. NERC agrees with the not require an entity to have evidence protective relays reliably detect and Commission’s proposal to review the of compliance. Additionally, protect the electric network from all violation severity levels in accordance Requirement R2 is a binary fault conditions. BPA asserts that sub- with the Violation Severity Level Requirement, and NERC’s assignment of requirement R1.12 touches on the Guidelines.203 Other commenters a ‘‘lower’’ violation severity level rather subject of adequately detecting faults by oppose the Commission’s proposal to than a ‘‘severe’’ violation severity level is allowing the loadability requirements of assign a violation severity level to each inconsistent with its Guideline 2a relay settings to be relaxed in order to sub-requirement in Requirement R1 for compliance filing in Docket No. RR08– allow adequate protection, but adds that the same reasons that they oppose 4–004. In that filing, NERC assigned a neither sub-requirement R1.12 nor any assigning a violation risk factor to each ‘‘severe’’ violation severity level to other sub-requirement requires relays to sub-requirement in Requirement R1. binary Requirements. As the be set to reliably detect ‘‘all’’ fault 307. Consumers Energy makes the Commission stated when discussing conditions and protect the electrical general argument that ‘‘evidence’’ should Guideline 2a in the Violation Severity network from these faults. BPA argues be included in Requirements only when Level Order, single violation severity that the class of relays covered by the the compliance monitor (e.g., the levels assigned to binary requirements Reliability Standard is not even capable Regional Entity or NERC) uses it for a should be consistent. Accordingly, we of detecting ‘‘all’’ fault conditions. BPA reliability purpose. Consumers Energy direct the ERO to change the violation requests, therefore, that the Commission argues that if evidence is used only to severity level assigned to Requirement direct the ERO to revise the Reliability determine whether an entity is in R2 from ‘‘lower’’ to ‘‘severe’’ to be Standard’s stated purpose to be: ‘‘[t]o compliance with a Reliability Standard, consistent with Guideline 2a. prevent certain protective relays from the evidence should be instead 311. Finally, we direct the ERO to operating under permissible ‘‘ ’’ represented in a Measure as reflected in assign a severe violation severity level transmission line and equipment PRC–023–1. to Requirement R3. Requirement R3 loads.’’ 205 directs planning coordinators to identify 3. Commission Determination the critical sub-200 kV facilities that are b. Commission Determination 308. We adopt the NOPR proposals subject to the Reliability Standard. 315. We disagree with BPA. with respect to the violation severity Similar to our determination for levels assigned to Requirements R1 and Requirement R2, it is our view that Requirement R1 directs entities to set R2. As we explained in the NOPR, the Requirement R3 is a binary requirement; their relays according to one of its sub- violation severity levels assigned to either the planning coordinator requirements (R1.1 through R1.13), Requirement R1 are inconsistent with identified critical facilities or it did not. based on their transmission Violation Severity Guideline 3 because Consequently, we find that Requirement configurations. No matter what setting they are based in part on the amount of R3 must have a single violation severity entities choose, they are required to evidence of compliance that an entity level of ‘‘severe.’’ apply it while ‘‘maintaining reliable can produce, even though Requirement 312. We direct the ERO to file the new protection of the bulk electric system for R1 does not require entities to have violation severity levels described in all fault conditions.’’ Thus, any sub- evidence of compliance. Consequently, requirement that an entity implements we direct the ERO to assign a single 204 Consistent with our treatment of violation risk must protect the electric network from factors, we direct the ERO to re-file the violation all fault conditions. severity factors associated with the Requirements of 202 See supra n. 202. PRC–023–1 when it submits its comprehensive 203 NERC Comments at 40. plan. 205 BPA at 1–2.

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2. Transmission Facility Design Margin and Analysis (MOD) Reliability information collection number cannot a. Comments Standards. be displayed. In the case of information collections published in regulations, the IV. Information Collection Statement 316. Basin interprets the control number is to be published in the Commission’s statement in the NOPR 318. The Office of Management and Federal Register. that ‘‘[s]ub-requirement R1.1 specifies Budget (OMB) regulations require that 320. Public Reporting Burden: In the transmission line relay settings based on OMB approve certain reporting and the highest seasonal facility rating using NOPR, the Commission based its recordkeeping (collections of estimate of the Public Reporting Burden the 4-hour thermal rating of a line, plus information) imposed by an agency.207 a design margin of 150 percent’’ to on the NERC Compliance Registry, as of The information collection requirements March 3, 2009, and on NERC’s July 30, suggest that the Commission incorrectly in this Final Rule are identified under assumed that relay margins include an 2008 petition for approval of PRC–023– the Commission data collection, FERC– additional transmission facility design 1. The Commission stated that, as of 725G ‘‘Transmission Relay Loadability margin, and that additional Total March 3, 2009, NERC had registered in Mandatory Reliability Standard for the Transfer Capability (TTC) can be its Compliance Registry: (1) 568 Bulk Power System.’’ Under section achieved with different relay settings. distribution providers; (2) 825 generator 3507(d) of the Paperwork Reduction Act Basin states that relay operations do not owners; (3) 324 transmission owners; of 1995,208 the proposed reporting affect the calculation of TTC because and (4) 79 planning authorities. The requirements in the subject rulemaking relay settings are established above the Commission also noted that the will be submitted to OMB for review. level of standard operation of the system Reliability Standard does not apply to Interested persons may obtain and will not operate when facilities are all transmission owners, generator loaded at their maximum ratings. information on the reporting owners, and distribution providers, but b. Commission Determination requirements by contacting the Federal only to those with load-responsive 317. We clarify that the Commission Energy Regulatory Commission, 888 phase protection systems as described did not assume that ‘‘design margin,’’ as First Street, NE., Washington, DC 20426 in Attachment A of the Standard, it is used in the context of the (Attention: Michael Miller, Office of the applied to all transmission lines and Reliability Standard, equates to Executive Director, 202–502–8415) or transformers with low-voltage terminals additional TTC on the transmission from the Office of Management and operated or connected at 200 kV and facility. The statement in the NOPR that Budget (Attention: Desk Officer for the above and between 100 kV and 200 kV Basin refers to is a direct quote from Federal Energy Regulatory Commission, as identified by the planning NERC where NERC describes ‘‘design fax: 202–395–7285, e-mail: coordinator as critical to the reliability margin’’ in the context of the margin [email protected]). of the bulk electric system. The (percentage) over the 4-hour facility 319. The ‘‘public protection’’ Commission further noted that some rating protective relay setting criteria for provisions of the Paperwork Reduction entities are registered for multiple sub-requirement R1.1.206 The ‘‘design Act of 1995 requires each agency to functions, so there is some overlap margin’’ described in this requirement is display a currently valid control number between the entities registered as different than the ‘‘transmission and inform respondents that a response distribution providers, transmission reliability margin’’ that accounts for the is not required unless the information owners, and generator owners. Given inherent uncertainty in bulk electric collection displays a valid OMB control these parameters, the Commission system conditions in the calculation of number on each information collection estimated the Public Reporting Burden TTC established in the Modeling, Data, or provides a justification as to why the as follows:

Number of Number of Data collection respondents responses Hours per respondent Total annual hours

FERC–725G: M1—TOs, GOs and DPs must ‘‘have evidence’’ to 450 1 Reporting: 0 ...... Reporting: 0. show that each of its transmission relays are set ac- cording to Requirement R1. Recordkeeping: 100 ...... Recordkeeping: 45,000. M2—Certain TOs, GOs and DPs must have evidence 166 1 Reporting: 0 ...... Reporting: 0. that a facility rating was agreed to by PA, TOP and RC. Recordkeeping: 10 ...... Recordkeeping: 1,660. M3—PC must document process for determining crit- 79 1 175...... 13,825. ical facilities and (2) a current list of such facilities.

Total ...... 60,485.

Based on the available information for collection (reporting and 321. Several commenters express from the compliance registry, the recordkeeping) and that the average concern with the burden to be imposed Commission estimated that 525 entities annualized cost of compliance would be by the Reliability Standard. Some of would be responsible for compliance $2,419,400 ($40/hour for 60,485 hours; these comments address the Reliability with the Reliability Standard.209 The the Commission based the $40/hour Standard’s potential impact on small Commission also estimated that it estimate on $17/hour for a file/record entities; because these comments are would require 60,485 total annual hours clerk and $23/hour for a supervisor).210 also the subject of the analysis

206 NERC Petition at 9. 208 44 U.S.C. 3507(d). 210 BPA notes that the NOPR erroneously showed 207 5 CFR 1320.11. 209 NOPR, FERC Stats. & Regs. ¶ 32,642 at P 117. this figure as $241,940 rather than $2,419,400.

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performed under the Regulatory of the Reliability Standard to comply with PRC–023–1. Therefore, we Flexibility Act, the Commission has $4,838,800. BPA also questions the have revised estimates as indicated provided a response under that section estimate of 100 hours annually for each below: of this rulemaking. Other comments respondent to comply with Requirement • Number of line terminals to be question the Commission’s initial R1. BPA states that it could take reviewed: 53,000. burden estimate. thousands of hours for larger utilities. • Number of hours per terminal: 6.4. 322. APPA argues that the 325. EEI argues that the Commission’s • Hourly rate for review by engineers: Commission has grossly underestimated estimate of hours for reporting and $120. the Public Reporting Burden and recordkeeping substantially Total Cost for review = (terminals to be requests that the Commission develop a underestimates the actual cost, in both reviewed × hours per terminal) × hourly more accurate estimate. APPA notes that time and money, required to comply rate for review by engineers = (53,000 × the Commission provided a breakdown with the Commission’s modifications. 6.4) × ($120/hour) = 339,200 hours × by category of registered entities for a EEI reports that one smaller investor- 120/hour = $40,704,000. total of 1,717 entities, but then asserts owned utility has estimated that it that only 525 entities will be subject to would take 4–8 hours of engineering Sources PRC–023–1 as proposed by NERC. time, per relay terminal, to review the • Title: FERC–725–G ‘‘Mandatory APPA states that it cannot assess how more than 850 line terminals on its Reliability Standard for Transmission the Commission came up with this system operated between 100 kV and Relay Loadability.’’ lower number, as the Commission 200 kV. EEI states that it would take an • Action: Proposed Collection of provided no explanation of its additional 6–12 hours of engineering Information. methodology or the data it used to reach time per terminal if, as the utility • OMB Control No: [To be this conclusion. APPA states that the expects, about one third of its line determined.] Commission’s initial estimate appears to terminals require mitigation, and • Respondents: Business or other for be based on the Reliability Standard as another 6–12 hours of operations and profit, and/or not for profit institutions. proposed by NERC, and therefore fails maintenance staff hours to implement • Frequency of Responses: On to account for the Commission’s relay settings for terminals requiring Occasion. proposals to expand the Standard’s mitigation. • Necessity of the Information: The 326. EEI asserts that it could cost applicability. APPA argues that the Transmission Relay Loadability $40,000 to replace each terminal in Commission must assess the Public Reliability Standard, if adopted, would Reporting Burden created by its order to comply with the Commission’s implement the Congressional mandate proposals. modifications. EEI states that there are of the Energy Policy Act of 2005 to 323. APPA also claims that the more than 100,000 line terminals in the Commission’s estimate of labor costs is U.S. on facilities between 100 kV and develop mandatory and enforceable so low as to be completely erroneous for 200 kV that would have to be checked Reliability Standards to better ensure burden evaluation purposes. Based on if the Commission adopts a ‘‘rule out’’ the reliability of the nation’s Bulk- an informal survey of its members that approach. EEI estimates that this review Power System. Specifically, the own or operate transmission facilities could take 1.5 million labor hours, and proposed Reliability Standard would above 100 kV, APPA states that 21 out another 750,000 hours if just one-half of ensure that protective relays are set of nearly 300 registered public power the terminals must be replaced. EEI according to specific criteria to ensure utilities would need to evaluate 791 states that the aggregate cost to replace that relays reliably detect and protect terminals to comply with the these terminals could exceed $2.4 the electric network from all fault Commission’s proposals. At an billion. conditions, but do not limit estimated cost of between $500 and 327. Given the Commission’s decision transmission loadability or interfere $1,200 per location, APPA estimates not to adopt the ‘‘rule out’’ approach, with system operator’s ability to protect that the cost of compliance for these 21 most of these comments are no longer system reliability. members would be between $395,500 relevant. However, in response to the 328. Interested persons may obtain and $949,200; the Commission comments that remain relevant, and information on the reporting estimated $2,419,400 for the entire upon further review, we have revised requirements by contacting: Federal industry. APPA adds that entities will our initial estimates as reflected below. Energy Regulatory Commission, 888 need seasoned and expensive electrical Information Collection Costs: The First Street, NE., Washington, DC 20426 engineers and outside consultants to Commission sought comments about the [Attention: Michael Miller, Office of the comply with the Commission’s information collection costs needed to Executive Director, Phone: (202) 502– proposals, not file/record clerks who are comply with PRC–023–1. Since many of 8415, fax: (202) 273–0873, e-mail: paid $17 per hour or supervisory the comments the Commission received [email protected]]. Comments on personnel who are paid $23 per hour. estimated costs based on the ‘‘rule out’’ the requirements of the proposed rule APPA reports that one of its members approach, they are no longer applicable may also be sent to the Office of estimates that it would have to use given our decision in this Final Rule not Information and Regulatory Affairs, engineers, managers and even director- to require the ‘‘rule out’’ approach. Office of Management and Budget, level personnel to carry out the required However, some commenters argue, apart Washington, DC 20503 [Attention: Desk tasks, at an estimated cost of $55–$75 from the ‘‘rule out’’ approach, that the Officer for the Federal Energy per hour. APPA expects that the cost of NOPR underestimated the hours Regulatory Commission], e-mail: external consultants could reach $200 required to comply and the estimated [email protected]. per hour. cost of labor. After further V. Environmental Analysis 324. BPA states that the loaded cost consideration, with respect to the costs for an engineer is approximately $80 per of labor, we agree that the $40/hour 329. The Commission is required to hour, twice the $40 per hour the estimate for file/record clerks and prepare an Environmental Assessment Commission estimated for a file clerk supervisory employees is not correct. or an Environmental Impact Statement and a supervisor. BPA observes that this We also agree with commenters that for any action that may have a would double the estimated annual cost electrical engineers will be required to significant adverse effect on the human

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environment.211 The Commission has certification or Final Analysis.218 An Initial Analysis that lays the proper categorically excluded certain actions agency must file a Final Analysis foundation for eliciting comments and from this requirement as not having a demonstrating a ‘‘reasonable, good-faith seeking information. APPA argues that significant effect on the human effort’’ to carry out the RFA mandate.219 the Commission’s Initial Analysis is environment. The actions proposed here However, the RFA is a procedural, not flawed and fails to: (1) Assess the effect fall within the categorical exclusion in a substantive, mandate. An agency is the regulation will have on small the Commission’s regulations for rules only required to demonstrate a entities; (2) analyze effective that are clarifying, corrective or reasonable, good faith effort to review alternatives that might minimize the procedural, for information gathering, the impact the proposed rule would regulation’s impact; and (3) make such analysis, and dissemination.212 place on small entities, any alternatives an analysis available for public Accordingly, neither an environmental that would address the agency’s and comment. impact statement nor environmental small entities’ concerns and their 338. APPA and NRECA also argue assessment is required. impact, provide small entities the that the Commission failed to: (1) opportunity to comment on the Provide its basis for claiming that only VI. Regulatory Flexibility Act proposals, and review and address 525 entities from the NERC Compliance 330. The Regulatory Flexibility Act of comments. An agency is not required to Registry will be required to comply with 1980 (RFA) 213 generally requires a adopt the least burdensome rule. the Reliability Standard; (2) justify its description and analysis of any final Further, the RFA does not require an assertion that the majority of the rule that will have significant economic agency to assess the impact of a rule on expected 525 entities required to impact on a substantial number of small all small entities that may be affected by comply do not qualify as small entities entities. The RFA does not mandate any the rule, only on those entities that the under the Small Business Act; (3) state particular outcome in a rulemaking, but agency directly regulates and that are how many of the 525 affected entities rather requires consideration of subject to the requirements of the are small entities; and (4) identify the alternatives that are less burdensome to rule.220 registered entities that are required to comply. APPA argues that the small entities and an agency A. NOPR Proposal explanation of why alternatives were Commission’s expectation that 525 rejected. 335. In the NOPR, the Commission facilities will be required to comply 331. In drafting a rule, an agency is asserted that most of the entities, i.e., with the Reliability Standard is based required to: (1) Assess the effect that its transmission owners, generator owners, on the Reliability Standard as proposed ‘‘ regulation will have on small entities; distribution providers, and planning by NERC, and does not account for the ’’ ‘‘ (2) analyze effective alternatives that coordinators, or alternatively planning Commission’s potentially broader authorities,’’ to which the requirements may minimize a regulation’s impact; applicability proposals. APPA states of this rule will apply, do not fall within and (3) make the analyses available for that 261 of its members are registered the applicable definition of ‘‘small public comment.214 In its NOPR, the entities and qualify as small entities. entities.’’ The Commission also stated agency must either include an Initial NRECA adds that a substantial majority that, based on available information Regulatory Flexibility Act Analysis of its approximately 930 rural electric regarding NERC’s compliance registry, (Initial Analysis) 215 or certify that the cooperative members are small entities approximately 525 entities will be proposed rule will not have a that would be adversely impacted by the responsible for compliance with the ‘‘significant impact on a substantial proposed rule. new Reliability Standard. Consequently, 339. TAPS argues that the ‘‘rule out’’ number of small entities.’’216 the Commission certified that the approach will increase the burden on 332. If, in preparing the NOPR, an Reliability Standard will not have a small systems and may force the agency determines that the proposal significant adverse impact on a Commission to depart from the could have a significant impact on a substantial number of small entities and Compliance Registry criteria that formed substantial number of small entities, the that no RFA analysis was required. the basis for its RFA certification in agency shall ensure that small entities Order No. 693. TAPS explains that if the B. Comments will have an opportunity to participate ‘‘rule out’’ approach will make all 100 217 in the rulemaking procedure. 336. APPA, TAPS, NRECA, and kV facilities subject to the Reliability 333. In its Final Rule, the agency must SWTDUG argue that the ‘‘rule out’’ Standard, including radial transmission also either prepare a Final Regulatory approach for 100 kV–200 kV facilities lines, then the Standard will apply to Flexibility Act Analysis (Final Analysis) and the ‘‘add in’’ approach for sub-100 unregistered small entities that have not or make the requisite certification. kV facilities will cause the Reliability previously been considered part of the Based on the comments the agency Standard to have a significant adverse bulk electric system and therefore do receives on the NOPR, it can alter its impact on a substantial number of small not appear on the Compliance Registry original position as expressed in the entities. that served as the basis for the NOPR but it is not required to make any 337. NRECA argues that the Commission’s small entity impacts substantive changes to the proposed Commission’s Initial Analysis is analysis. regulation. inadequate and its conclusion 334. The statute provides for judicial premature given the Commission’s C. Commission Determination review of an agency’s final RFA proposals to expand the Reliability 340. As discussed previously in this Standard’s applicability. NRECA argues Final Rule, the Commission will not 211 Order No. 486, Regulations Implementing the that the Commission cannot develop an adopt the NOPR proposal to make PRC– National Environmental Policy Act, 52 FR 47,897 adequate Final Analysis without an 023 applicable to all facilities operated (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987). ‘‘ ’’ 212 at or above 100 kV, ruling out those 18 CFR 380.4(a)(5) (2009). 218 5 U.S.C. 611. 213 facilities that would not demonstrably 5 U.S.C. 601–612. 219 United Cellular Corp. v. FCC, 254 F.3d 78, 88 214 result in cascading outages, instability, 5 U.S.C. 601–604. (DC Cir. 2001); Alenco Commc’ns, Inc. v. FCC, 201 215 5 U.S.C. 603(a). F.3d 608, 625 (5th Cir. 2000). uncontrolled separation, violation of 216 5 U.S.C. 605(b). 220 Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d facility ratings, or interruption of firm 217 5 U.S.C. 609(a). 327 (DC Cir. 1985). transmission service. Accordingly, to

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the extent that the Commission has up and auxiliary power transformers to 5 p.m. Eastern time) at 888 First decided to abandon the ‘‘rule out’’ have low-voltage windings well below Street, NE., Room 2A, Washington, DC approach in favor of an ‘‘add-in’’ 200 kV, PRC–023–1 excludes generators 20426. approach, as discussed in previous and all generator step-up and auxiliary 346. From FERC’s Home Page on the portions of this Final Rule, the transformers. Therefore, no generator Internet, this information is available on Commission expects that many of the owner that is not also a transmission eLibrary. The full text of this document concerns and impact estimates owner and/or a distribution provider is available on eLibrary in PDF and submitted by commenters are moot or will be subject to PRC–023–1. Microsoft Word format for viewing, no longer accurate. Accordingly, the Commission calculates printing, and/or downloading. To access 341. Nonetheless, the Commission that the potential applicability of the this document in eLibrary, type the does find it appropriate to address Final Rule may be reduced by 623, docket number excluding the last three commenters’ concern regarding the which is the total number of entities digits of this document in the docket number of entities that the Commission registered solely as a generator owner. number field. estimates will be subject to PRC–023–1 Thus, the Commission anticipates that 347. User assistance is available for as proposed by NERC. Based on the the Final Rule will apply to eLibrary and the FERC’s Web site during Compliance Registry dated November 222 approximately 678 entities overall. normal business hours from FERC 30, 2009, there are 573 entities 343. According to the Department of Online Support at 202–502–6652 (toll registered as Distribution Providers, 821 Energy’s Energy Information free at 1–866–208–3676) or e-mail at entities registered as Generator Owners, Administration (EIA), there were 3271 323 entities registered as Transmission electric utility companies in the United [email protected], or the Owners, and 80 entities registered as States in 2007,223 and approximately Public Reference Room at (202) 502– Planning Authorities. However, the 3012 of these electric utilities qualify as 8371, TTY (202) 502–8659. E-mail the Commission notes that some entities are small entities under the Small Business Public Reference Room at registered for multiple functions, and Act (SBA) definition.224 Of those 3012 [email protected]. therefore recognizes that there is some small entities, only 80 entities also VIII. Effective Date and Congressional overlap between the entities registered appear in the NERC Compliance Notification as a Distribution Provider, Transmission Registry. Accordingly, the Commission Owner, Generator Owner, and/or estimates that the Reliability Standard 348. These regulations are effective 45 Planning Authority. Therefore, after will affect a maximum of 80 SBUs, or days from publication in Federal eliminating any duplicative approximately 12 percent of those Register for non-major rules and 60 days registrations, the Commission finds that entities estimated to be subject to the from the later of the date Congress there are 1301 entities that are registered requirements of the Final Rule. receives the agency notice or the date as engaging in one or more of the 344. Based upon on this revised the rule is published in the Federal applicable functions within the scope of analysis, we certify that this Final Rule Register. The Commission has PRC–023–1. will not have a significant economic determined, with the concurrence of the 342. Reliability Standard PRC–023–1 impact on a substantial number of small Administrator of the Office of applies to Transmission Owners, entities. Accordingly, no further RFA Information and Regulatory Affairs of Generator Owners, and Distribution analysis is required. OMB, that this rule is not a ‘‘major rule’’ Providers with load-responsive phase as defined in section 351 of the Small protection systems as described in VII. Document Availability Business Regulatory Enforcement Attachment A of the Reliability 345. In addition to publishing the full Fairness Act of 1996. Standard, applied to facilities defined in text of this document in the Federal List of Subjects in 18 CFR Part 40 requirements 4.1.1 through 4.1.4.221 The Register, the Commission provides all Reliability Standard applies to facilities interested persons an opportunity to By the Commission. 100 kV and above and to transformers view and/or print the contents of this Kimberly D. Bose, with low-voltage terminals 200 kV and document via the Internet through above. Because there are no commercial FERC’s Home Page (http://www.ferc.gov) Secretary. generators with a terminal voltage as and in FERC’s Public Reference Room Note: The following Appendix will not high as 100 kV and all generator step- during normal business hours (8:30 a.m. appear in the Code of Federal Regulations.

APPENDIX A—COMMENTERS

Abbreviation Commenter

Alcoa ...... Alcoa, Inc. Ameren ...... Ameren Services Company. APPA ...... American Public Power Association. ATC ...... American Transmission Company, LLC. Austin Energy ...... City of Austin, Texas. Basin ...... Basin Electric Cooperative. BPA ...... Bonneville Power Administration. California Commission ...... Public Utilities Commission of the State of California. City Utilities of Springfield ...... City Utilities of Springfield, Missouri.

221 As proposed, the Commission notes PRC–023– 222 The Commission derives this result by using 223 See U.S. Energy Information Administration, 1 is applicable to Generator Owners with load- the following equation: 1301 applicable entities Form EIA–861, Dept. of Energy (2007), available at responsive phase protection systems as described in (entities registered as one of more of the following http://www.eia.doe.gov/cneaf/electricity/page/ Attachment A, applied to facilities defined in 4.1.1 functions: Distribution Provider, Transmission eia861.html. through 4.1.4., however, excludes generator Owner, Generator Owner, and Planning 224 According to the SBA, a small electric utility protection relays that are susceptible to load in Authority)—623 entities registered solely as a is defined as one that has a total electric output of Section (3) of Attachment A. Generator Owner = 678. less than four million MWh in the preceeding year.

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APPENDIX A—COMMENTERS—Continued

Abbreviation Commenter

Consumers Energy ...... Consumers Energy Company. CRC ...... Colorado River Commission of Nevada. Dominion ...... Dominion Resources, Inc. Duke ...... Duke Energy Corporation. EEI ...... Edison Electric Institute. ElectriCities ...... ElectriCities of North Carolina, Inc. Entergy ...... Entergy Services, Inc. E.ON ...... E.ON U.S. LLC. EPSA ...... Electric Power Supply Association. ERCOT ...... Electric Reliability Council of Texas, Inc. Exelon ...... Exelon Corporation. Fayetteville Public Works Commission ...... Fayetteville Public Works Commission. Filing Cooperatives ...... Mohave Electric Cooperative, Inc., Trico Electric Cooperative, inc., Navopache Electric Coopera- tive, Inc., and Sulphur Springs Valley Electric Cooperative, Inc. Georgia Transmission ...... Georgia Transmission Corporation. IESO/Hydro One ...... Independent Electricity System Operator and Hydro One Networks Inc. IRC ...... The ISO/RTO Council. ISO New England ...... ISO New England Inc. ITC ...... International Transmission Company. Joint Commenters ...... Independent Electricity System Operator, PJM Interconnection L.L.C., Southwest Power Pool, and Midwest Independent Transmission Operator. LES ...... Lincoln Electric System. Manitoba Hydro ...... Manitoba Hydro. McDonald ...... Michael McDonald. MDEA Cities ...... Mississippi Delta Energy Agency, Clarksdale Public Utilities Commission of the City of Clarks- dale, Mississippi, and the Public Service Commission of Yazoo City of the City of Yazoo City, Mississippi. MEAG ...... Municipal Electric Authority of Georgia. NARUC ...... National Association of Regulatory Utility Commissioners. NERC ...... North American Electric Reliability Corporation. New York Commission ...... New York State Public Service Commission. NRECA ...... National Rural Electric Cooperative Association. NV Energy ...... NV Energy. NWCP ...... Northern Wasco County People’s Utility District. Oncor ...... Oncor Electric Delivery Company LLC. Ontario Generation ...... Ontario Power Generation Inc. PacifiCorp ...... PacifiCorp. Pacific Northwest State Commissions ...... Washington Utilities and Transportation Commission, Idaho Public Utilities Commission, Public Utility Commission of Oregon, and Montana Public Service Commission. Palo Alto ...... City of Palo Alto, California. PG&E ...... Pacific Gas & Electric Company. Portland General ...... Portland General Electric Company. PSEG Companies ...... Public Service Electric & Gas Company, PSEG Energy Resources & Trade LLC, PSEG Power LLC. Public Power Council ...... Public Power Council. Seattle City Light ...... Seattle City Light. Six California Cities ...... Cities of Anaheim, Azusa, Banning, Colton, Pasadena, and Riverside, California. SoCalEd ...... Southern California Edison Company. South Carolina E&G ...... South Carolina Electric & Gas Company. Southern ...... Southern Company Services, Inc. SRP ...... Salt River Project Agricultural Improvement and Power District. SWTDUG ...... Southwest Transmission Dependent Utility Group. TANC ...... Transmission Agency of Northern California. TAPS ...... Transmission Access Policy Study Group. Tri-State ...... Tri-State Generation & Transmission Association. TVA ...... Tennessee Valley Authority. WAPA–RMR ...... Western Area Power Administration-Rocky Mountain Region. WECC ...... Western Electricity Coordinating Council Relay Work Group. Y–WEA ...... Y–W Electric Association, Inc.

[FR Doc. 2010–6568 Filed 4–1–10; 8:45 am] BILLING CODE 6717–01–P

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Part III

Department of Energy 10 CFR Part 430 Energy Conservation Program: Test Procedures for Battery Chargers and External Power Supplies; Proposed Rule

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DEPARTMENT OF ENERGY Brenda Edwards at (202) 586–2945. Office of General Counsel, contact Mr. Please note that foreign nationals Michael Kido, U.S. Department of 10 CFR Part 430 participating in the public meeting are Energy, Office of the General Counsel, [Docket No. EERE–2009–BT–TP–0019] subject to advance security screening GC–72, 1000 Independence Avenue, procedures, requiring a 30-day advance SW., Washington, DC 20585. Telephone: RIN 1904–AC03 notice. If a foreign national wishes to (202) 586–9507. E-mail: participate in the workshop, please [email protected]. Energy Conservation Program: Test inform DOE of this fact as soon as For additional information on how to Procedures for Battery Chargers and possible by contacting Ms. Brenda submit or review public comments and External Power Supplies Edwards at (202) 586–2945 so that the on how to participate in the public AGENCY: Office of Energy Efficiency and necessary procedures can be completed. meeting, contact Ms. Brenda Edwards, Renewable Energy, Department of Any comments submitted must U.S. Department of Energy, Office of Energy. identify the Battery Charger Active Energy Efficiency and Renewable ACTION: Notice of proposed rulemaking Mode Test Procedure NOPR, and Energy, Building Technologies Program, and public meeting. provide the docket number EERE–2009– EE–2J, 1000 Independence Avenue, BT–TP–0019 and/or Regulation SW., Washington, DC 20585–0121. SUMMARY: The U.S. Department of Identifier Number (RIN) 1904–AC03. Telephone: (202) 586–2945. E-mail: Energy (DOE) proposes major revisions Comments may be submitted using any [email protected]. to its test procedures for battery chargers of the following methods: SUPPLEMENTARY INFORMATION: and external power supplies. In • Federal eRulemaking Portal: http:// particular, DOE proposes to insert a new www.regulations.gov. Follow the Table of Contents active mode energy consumption test instructions for submitting comments. • I. Authority and Background procedure for battery chargers, to assist E-mail: II. Summary of the Proposal in the development of energy [email protected]. Include A. Battery Charger Active Mode Test conservation standards as directed by the docket number EERE–2009–BT–TP– Procedure the Energy Independence and Security 0019 and/or RIN 1904–AC03 in the B. Review of Battery Charger and External Act of 2007. DOE also proposes to subject line of the message. Power Supply Standby Mode and Off amend portions of its existing standby • Postal Mail: Ms. Brenda Edwards, Mode Test Procedures and off mode battery charger test U.S. Department of Energy, Building C. Review of Single-Voltage External Power procedure to shorten the measurement Technologies Program, Mailstop EE–2J, Supply Test Procedure time. DOE is also considering amending D. Multiple-Voltage External Power Supply 1000 Independence Avenue, SW., Test Procedure its existing active mode single-voltage Washington, DC 20585–0121. Please III. Discussion external power supply test procedure to submit one signed paper original. A. Effective Date for the Amended Test permit testing of certain types of • Hand Delivery/Courier: Ms. Brenda Procedures external power supplies that the Edwards, U.S. Department of Energy, B. Battery Charger Active Mode Test existing test procedure may be unable to Building Technologies Program, 6th Procedure test. Additionally, DOE proposes to Floor, 950 L’Enfant Plaza, SW., 1. Summary of the CEC Test Procedure insert a new procedure to address Washington, DC 20024. Telephone: 2. Scope multiple-voltage external power (202) 586–2945. Please submit one 3. Definitions supplies, which are not covered under signed paper original. (a) Deletions of Existing Definitions (b) Revisions to Existing Definitions the current single-voltage external For detailed instructions on (c) Additions of New Definitions power supply test procedure. Finally, submitting comments and additional 4. Test Apparatus and General Instructions DOE is announcing a public meeting to information on the rulemaking process, (a) Confidence Intervals receive comment on the issues see section V., ‘‘Public Participation,’’ of (b) Temperature presented in this notice of proposed this document. (c) AC Input Voltage and Frequency rulemaking. Docket: For access to the docket to (d) Charge Rate Selection read background documents or (e) Battery Selection DATES: DOE will hold a public meeting (f) Non-Battery Charging Functions in Washington, DC on Friday, May 7, comments received, visit the U.S. Department of Energy, 6th Floor, 950 (g) Determining the Charge Capacity of 2010, beginning at 9 a.m. DOE must Batteries With No Rating receive requests to speak at the meeting L’Enfant Plaza, SW., Washington, DC 5. Test Measurement before 4 p.m., Friday, April 23, 2010. 20024, (202) 586–2945, between 9 a.m. (a) Removing Inactive Mode Energy DOE must receive a signed original and and 4 p.m., Monday through Friday, Consumption Test Apparatus and an electronic copy of statements to be except Federal holidays. Please call Ms. Measurement given at the public meeting before 4 Brenda Edwards at (202) 586–2945 for (b) Charge Test Duration p.m., Friday, April 30, 2010. additional information regarding (c) Battery Conditioning visiting the Resource Room. Please note: (d) Battery Preparation DOE will accept comments, data, and (e) Reversed Testing Order information regarding this notice of DOE’s Freedom of Information Reading Room no longer houses rulemaking (f) End of Discharge for Other Chemistries proposed rulemaking (NOPR) before or C. Review of Battery Charger and External after the public meeting, but no later materials. Power Supply Standby and Off Mode than June 16, 2010. See Section V, FOR FURTHER INFORMATION CONTACT: Mr. Test Procedures ‘‘Public Participation,’’ of this NOPR for Victor Petrolati, U.S. Department of D. Review of the Single-Voltage External details. Energy, Office of Energy Efficiency and Power Supply Test Procedure 1. EPSs That Communicate With Their ADDRESSES: The public meeting will be Renewable Energy, Building Loads held at the U.S. Department of Energy, Technologies Program, EE–2J, 1000 2. EPSs With Output Current Limiting Forrestal Building, Room 8E–089, 1000 Independence Avenue, SW., 3. High-Power EPSs Independence Avenue, SW., Washington, DC 20585–0121. 4. Active Power Definition Washington, DC 20585–0121. To attend Telephone: (202) 586–4549. E-mail: E. Multiple-Voltage External Power Supply the public meeting, please notify Ms. [email protected]. In the Test Procedure

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F. Test Procedure Amendments Not parts: Testing, labeling, and Federal 430 (‘‘Uniform Test Method for Proposed in this Notice energy conservation standards. The Measuring the Energy Consumption of 1. Accelerating the Test Procedure testing requirements consist of External Power Supplies’’; hereafter Schedule procedures that manufacturers of ‘‘ ’’ 2. Incorporating Usage Profiles referred to as appendix Z ). 3. Measuring Charger Output Energy covered products must use to certify to On December 19, 2007, the Energy 4. Alternative Depth-of-Discharge the U.S. Department of Energy (DOE) Independence and Security Act of 2007 Measurement that their products comply with EPCA (EISA 2007), Public Law 110–140, IV. Regulatory Review energy conservation standards and to further amended sections 321, 323, and A. Executive Order 12866 quantify the efficiency of their products. 325 of EPCA, prompting DOE to propose B. National Environmental Policy Act Also, these test procedures must be used and promulgate amendments to its test C. Regulatory Flexibility Act whenever testing is required in an procedures for BCs and EPSs. D. Paperwork Reduction Act enforcement action to determine E. Unfunded Mandates Reform Act of 1995 Section 301 of EISA 2007 amended F. Treasury and General Government whether covered products comply with section 321 of EPCA by modifying Appropriations Act, 1999 EPCA standards. definitions concerning EPSs. EPACT G. Executive Order 13132 Section 323 of EPCA (42 U.S.C. 6293) had amended EPCA to define an EPS as H. Executive Order 12988 sets forth generally applicable criteria ‘‘an external power supply circuit that is I. Treasury and General Government and procedures for DOE’s adoption and used to convert household electric Appropriations Act, 2001 amendment of such test procedures. It current into DC current or lower-voltage J. Executive Order 13211 states, for example, that test procedures K. Executive Order 12630 AC current to operate a consumer for covered products should measure 1 L. Section 32 of the Federal Energy product.’’ (42 U.S.C. 6291(36)(A)) Administration Act of 1974 energy use, energy efficiency, or annual Section 301 of EISA 2007 further V. Public Participation operating cost during a period that is amended this definition by creating a A. Attendance at Public Meeting representative of typical use. The test subset of EPSs called Class A EPSs. B. Procedure for Submitting Requests To procedure should not be ‘‘unduly EISA 2007 defined this subset as those Speak burdensome.’’ (42 U.S.C. 6293(b)(3)) In EPSs that, in addition to meeting several C. Conduct of Public Meeting addition, consistent with 42 U.S.C. other requirements common to all EPSs, D. Submission of Comments 6293(b)(2) and Executive Order 12899, E. Issues on Which DOE Seeks Comment are ‘‘able to convert to only 1 AC or DC 58 FR 69681 (Dec. 30, 1993), if DOE output voltage at a time’’ and have 1. BC Active Mode determines that a test procedure 2. Limiting the Scope of the Test Procedure ‘‘nameplate output power that is less 3. BCs for Golf Carts and Other Consumer amendment is warranted, it must than or equal to 250 watts.’’ 2 (42 U.S.C. Motive Equipment publish proposed test procedures and 6291(36)(C)(i)) 4. Amendments to definitions offer the public an opportunity to Section 301 also amended EPCA to 5. Selecting the Charge Rate for Testing present oral and written comments on establish minimum standards for these 6. Selecting the Batteries for Testing them, with a comment period of not less products, which became effective on 7. Non-Battery Charging Functions than 75 days. Finally, in any rulemaking 8. Procedure for Determining the Charge July 1, 2008 (42 U.S.C. 6295(u)(3)(A)), to amend a test procedure, DOE must and directed DOE to publish a final rule Capacity of Batteries With No Rating ‘‘ determine to what extent the proposed by July 1, 2011, to determine whether to 9. Deletion of the Inactive Mode Energy test procedure would alter the measured Consumption Test Procedure amend these standards. (42 U.S.C. energy efficiency as determined under 10. Shortening the BC Charge and 6295(u)(3)(D)) Section 301 further the existing test procedure.’’ (42 U.S.C. Maintenance Mode Test directed DOE to issue a final rule that 6293(e)(1)) If DOE determines that the 11. Reversing Testing Order prescribes energy conservation amended test procedure would alter the 12. End-of-Discharge Voltages for Novel standards for BCs or determine that no Chemistries measured efficiency of a covered ‘‘standard is technically feasible or 13. Standby Mode and Off Mode Duration product, DOE must amend the economically justified.’’ (42 U.S.C. 14. Single-Voltage EPS Test Procedure applicable energy conservation standard 6295(u)(1)(E)(i)(II)) Amendments To Accommodate EPSs accordingly. (42 U.S.C. 6293(e)(2)) that Communicate With Their Loads Relevant to today’s notice, section 135 In satisfaction of this requirement, 15. Further Single-Voltage EPS Test of the Energy Policy Act of 2005 DOE is bundling BCs and Class A EPSs Procedure Amendments together in a single rulemaking 16. Loading Conditions for Multiple- (EPACT), Public Law 109–58, amended sections 321 and 325 of EPCA by proceeding to consider appropriate Voltage EPSs energy conservation standards for these VI. Approval of the Office of the Secretary providing definitions for BCs and EPSs and directing the Secretary to prescribe products. DOE published a notice of I. Authority and Background ‘‘definitions and test procedures for the Public Meeting and Availability of Title III of the Energy Policy and power use of battery chargers and Framework Document for Battery Conservation Act (42 U.S.C. 6291 et external power supplies.’’ (42 U.S.C. Chargers and External Power Supplies seq.; EPCA or the Act) sets forth a 6295(u)(1)(A)) DOE complied with this on June 4, 2009. 74 FR 26816. DOE then variety of provisions designed to requirement by publishing a test 1 improve energy efficiency. Part A of title The terms ‘‘AC’’ and ‘‘DC’’ refer to the polarity procedure final rule, 71 FR 71340, on (i.e., direction) and amplitude of current and III (42 U.S.C. 6291–6309) establishes the December 8, 2006 (EPACT 2005 En voltage associated with electrical power. For ‘‘Energy Conservation Program for Masse final rule). In that notice, DOE example, a household wall socket supplies Consumer Products Other Than codified the test procedure for BCs in alternating current (AC), which varies in amplitude Automobiles,’’ which covers consumer appendix Y to subpart B of part 430 in and reverses polarity. In contrast, a battery or solar cell supplies direct current (DC), which is constant products and certain commercial title 10 of the Code of Federal in both amplitude and polarity. products (all of which are referred to Regulations (CFR) (‘‘Uniform Test 2 EISA 2007 defines a Class A EPS as an EPS that below as ‘‘covered products’’), including Method for Measuring the Energy converts AC line voltage to only 1 lower AC or DC battery chargers (BCs) and external Consumption of Battery Chargers’’; output, is intended to be used with an end-use ‘‘ ’’ product, is in a different enclosure from the end- power supplies (EPSs). hereafter referred to as appendix Y ) use product, is wired to the end-use product, and Under EPCA, the overall program and the test procedure for EPSs in has rated output power that is less than 250 watts. consists essentially of the following appendix Z to subpart B of 10 CFR part (42 U.S.C. 6291(36)(C)(i)).

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held a public meeting to receive scope of the current Class A standards, adopting these proposals in a timely comment on the framework document 3 e.g., multiple-voltage EPSs. manner. In this case, DOE would expect on July 16, 2009 (hereafter referred to as Finally, section 310 of EISA 2007 this rulemaking to satisfy the 7-year the framework document public amended section 325 of EPCA to review requirement and would not meeting). During this public meeting, establish definitions for active mode, expect any further review of the test DOE also received comments on the BC standby mode, and off mode. (42 U.S.C. procedures until 7 years after the active mode test procedure and other 6295(gg)(1)(A)) This section also effective date of the proposals in this test procedure issues, some of which directed DOE to amend its existing test notice—i.e., no sooner than 2017. will be discussed in today’s notice. procedures by December 31, 2008, to To the extent that DOE receives Under Section 302 of EISA, Congress measure the energy consumed in comments on issues beyond those instructed DOE to review its test standby mode and off mode for both discussed in today’s notice, DOE may procedures every seven (7) years. As BCs and EPSs. (42 U.S.C. address these comments in a separate needed, DOE must either amend the test 6295(gg)(2)(B)(i)) Further, it authorized test procedure rulemaking, which procedure to (1) Improve its DOE to amend, by rule, any of the would allow DOE to finalize today’s measurement representativeness or definitions for active, standby, and off proposed BC active mode test procedure accuracy or (2) reduce its burden, or (3) mode (42 U.S.C. 6295(gg)(2)(A)) The in time to support the corresponding determine that such amendments are Department presented its then-proposed standards rulemaking but allow unnecessary. DOE considers this amendments during a public meeting on sufficient time to take into consideration rulemaking to constitute a 7-year review September 12, 2008 (hereafter referred all comments from interested parties as for both BC and EPS test procedures as to as the standby and off mode test required by the 7-year review provisions required under EPCA, as modified by procedure public meeting) and of 42 U.S.C. 6293(b)(1)(A). published them in the Test Procedures section 302 of EISA. (42 U.S.C. II. Summary of the Proposal 6293(b)(1)(A)) Because DOE’s existing for Battery Chargers and External Power Supplies (Standby Mode and Off Mode) test procedures for BCs and EPSs were In this notice of proposed rulemaking Final Rule on March 27, 2009. 74 FR in place on December 19, 2007, when (NOPR), DOE proposes to: 13318. (1) Insert a new test procedure to the 7-year test procedure review Today’s notice proposes (1) the measure the energy consumption of BCs provisions of EPCA were enacted (42 adoption of new test procedures for the in active mode to assist in the U.S.C. 6293(b)(1)(A)), DOE would have active mode of BCs and all modes of development of energy conservation to review these test procedures by multiple-voltage EPSs and (2) the standards; December 2014. But because DOE is modification of existing parts of the BC conducting this rulemaking, the and EPS test procedures (e.g., BC (2) Amend the BC test procedure to Department has satisfied this review standby and off mode test duration). In decrease the testing time of BCs in requirement in advance of this date. doing so, it proposes to amend both standby and off modes; Section 309 of EISA further amended appendices Y and Z in multiple places. (3) Potentially amend the single- section 325(u)(1)(E) of EPCA, instructing Furthermore, although DOE proposes to voltage EPSs test procedure to DOE to issue no later than two years retain the current language of certain accommodate EPSs with Universal after EISA’s enactment a final rule ‘‘that sections of appendices Y and Z, in Serial Bus (USB) outputs and others that determines whether energy conservation selecting proposed amendments for may not currently be tested in standards shall be issued for external inclusion in today’s notice, DOE accordance with the test procedure; and power supplies or classes of external considered all aspects of the existing BC (4) Insert a new test procedure for power supplies.’’ (42 U.S.C. and EPS test procedures. Nonetheless, multiple-voltage EPSs, a type of non- 6295(u)(1)(E)(i)(I)) However, as section DOE seeks comment on the entirety of Class A EPS that DOE will evaluate in 301 of EISA simultaneously set the BC and EPS test procedure to ensure the non-Class A determination analysis. standards for Class A external power that no additional amendments are Table 1 lists the sections of 10 CFR supplies, DOE interprets sections 301 needed at this time to further improve part 430 potentially affected by the and 309 jointly as a requirement to the procedures’ representativeness or amendments proposed in this NOPR. determine, no later than two years after reduce its burden. The left-hand column in the table cites EISA’s enactment, whether additional In the absence of comments on issues the locations of the potentially affected energy conservation standards shall be beyond those discussed in today’s CFR provisions, while the right-hand issued for EPSs that are outside the notice, DOE expects to issue a final rule column lists the proposed changes.

TABLE 1—SUMMARY OF PROPOSED CHANGES AND AFFECTED SECTIONS OF 10 CFR PART 430

Existing section in 10 CFR Part 430 Summary of proposed modifications

Section 430.23 of Subpart B—Test procedures for the measurement of • Modify ‘(aa) battery charger’ to include energy consumption in active energy and water consumption. mode. Appendix Y to Subpart B of Part 430—Uniform Test Method for Meas- • Renumber the existing sections to ease referencing and use by test- uring the Energy Consumption of Battery Chargers. ing technicians. 1. Scope ...... • Limit scope to only include BCs intended for operation in the United States.

3 ‘‘Energy Conservation Standards Rulemaking for May 2009. Available at: http:// appliance_standards/residential/pdfs/ Battery Chargers and External Power Supplies.’’ www1.eere.energy.gov/buildings/ bceps_frameworkdocument.pdf.

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TABLE 1—SUMMARY OF PROPOSED CHANGES AND AFFECTED SECTIONS OF 10 CFR PART 430—Continued

Existing section in 10 CFR Part 430 Summary of proposed modifications

2. Definitions ...... • Add definitions for: Æ Active power or real power (P). Æ Ambient temperature. Æ Apparent power (S). Æ Batch charger. Æ Battery rest period. Æ C-rate. Æ Crest factor. Æ Equalization. Æ Instructions or manufacturer’s instructions. Æ Measured charge capacity. Æ Power factor. Æ Rated battery voltage. Æ Rated charge capacity. Æ Rated energy capacity. Æ Total harmonic distortion (THD). Æ Unit under test (UUT). • Remove definitions for: Æ Accumulated nonactive energy. Æ Energy ratio or nonactive energy ratio. • Modify definitions for: Æ Active mode. Æ Multi-port charger. Æ Multi-voltage a la carte charger. Æ Standby mode. 3. Test Apparatus and General Instructions ...... • Insert apparatus and instructions to measure energy consumption in active mode. 4. Test Measurement ...... • Insert procedures to measure energy consumption in active mode. • Modify 4(c) to change standby mode measurement time. • Modify 4(d) to change off mode measurement time. Appendix Z to Subpart B of Part 430—Uniform Test Method for Meas- uring the Energy Consumption of External Power Supplies. 1. Scope ...... • No change. 2. Definitions ...... • Modify definition of active power. 3. Test Apparatus and General Instructions ...... • Modify 3(b) to accommodate multiple-voltage EPSs. 4. Test Measurement ...... • Potentially modify 4(a) to accommodate EPSs that communicate with the load, perform current limiting, or have output power greater than 250 watts. • Modify 4(b) to accommodate multiple-voltage EPSs.

In developing today’s proposed test (used to test compliance with Class A representative of typical use, the procedure amendments, DOE EPS standards) would affect the measured efficiency of these EPSs considered comments received from measured efficiency of EPSs with USB would likely increase. Nonetheless, interested parties following the standby output and others that communicate DOE does not expect any commensurate and off mode test procedure and with their loads—the subset of Class A increase in the standards level for these framework document public meetings. EPSs to which these amendments would EPSs. EPSs that communicate with their Numerous comments dealt with testing apply.4 As described in section III.D., loads should be held to the same new modes. In order to incorporate such these amendments are presented in standard as the remainder of EPSs, changes, DOE reviewed the existing test today’s notice because of DOE’s concern which do not communicate with their procedures for BCs and EPSs, and found that the current single-voltage EPS test loads, as long as they are measured in that, with some modifications, they procedure may not measure the a representative fashion. could be used as a basis for updating efficiency of these EPSs in a manner The remaining amendments included representative of their typical use, DOE’s test procedures. This issue is in today’s notice, if adopted, would resulting in a lower measured efficiency discussed in greater detail later in this have the following impacts on measured than achievable under typical operating notice. energy consumption or efficiency: DOE also examined whether the conditions. Because the single voltage proposed amendments to its test test procedure amendments discussed (1) The BC active mode test procedure procedures would significantly change in section III.D. would modify the test amendment would change the measured the measured energy consumption or conditions to make them more energy consumption of BCs by efficiency of the BC or EPS. This eliminating the nonactive energy ratio question is particularly important for 4 The term ‘‘communicating’’ with a load refers to metric and replacing it with a new Class A EPSs, which are subject to the an EPS’s ability to identify or otherwise exchange metric that measures energy information with its load (i.e., the end-use product consumption in active mode; EISA minimum efficiency standard that to which it is connected). While most EPSs provide took effect on July 1, 2008. (42 U.S.C. power at a fixed output voltage regardless of what (2) The standby and off mode test 6295(u)(3)(A)) load is connected to their outputs, some EPSs will procedure amendment would not only provide power once they have The amendments under consideration ‘‘communicated’’ with the load and identified it as change the measured energy to the single-voltage EPS test procedure the intended load. consumption of BCs or EPSs; and

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(3) The multiple-voltage EPS updated definitions into appendices Y USB port. In contrast to most EPSs, amendment would insert a new test and Z. which only provide one pair of output procedure for these products, In today’s notice, DOE proposes conductors (for power), the USB amending the BC test procedure to interface provides two pairs—for data A. Battery Charger Active Mode Test require the use of a 30-minute warm-up and power, respectively. Although Procedure period followed by a 10-minute DOE’s current single-voltage EPS test The current DOE BC test procedure, measurement period. Currently, the procedure accommodates testing single- first created by the EPACT 2005 En DOE test procedure requires a 1-hour voltage EPSs that have more than one Masse final rule, 71 FR 71340, and measurement period. This amendment pair of output conductors, it may not amended by the standby and off mode would harmonize DOE’s standby and off result in measurements representative of final rule, 74 FR 13318, does not mode measurement for BCs with that typical use if the other pairs of measure BC energy consumption in all contained in section IV of part 1 of the conductors are necessary for the modes. Instead, it excludes the energy CEC BC test procedure. DOE anticipates specified operation of the EPS. consumed by the BC while charging a that harmonizing its procedure with the battery. The procedure measures energy CEC BC test procedure will produce a EPSs That Communicate With Loads consumption only in maintenance, test procedure that decreases the testing In addition to USB-based EPSs, other standby (no battery), and off modes, burden on manufacturers while EPSs exist that also communicate with when the battery has either been fully preserving testing accuracy. No changes loads (e.g., notebook computers) using charged or removed from the BC. are proposed to the standby and off proprietary protocols. To address these The BC active mode test procedure mode test procedures for EPSs. Detailed designs, DOE is considering amending proposal in today’s notice, if adopted, discussion of the changes under the single-voltage EPS test procedure to would remove the inactive mode consideration can be found in section permit communication between the EPS measurement (section 4(a) of appendix III.C., below. and the load during testing. Any Y—which is a composite of different C. Review of Single-Voltage External changes to the EPS test procedure to operational modes that would be Power Supply Test Procedure address this issue would affect only measured separately under today’s DOE is also considering amending the USB-compliant EPSs and other EPSs proposal), add active mode that cannot operate in a representative measurement to section 4(b), amend the test procedure for single-voltage EPSs to accommodate several classes of EPSs fashion without communication with scope, definitions, and test apparatus the load. Additional details regarding and general instructions (sections 1, 2, that cannot be tested in a representative or repeatable manner under the current this possible change are presented in and 3) in support of the new active section III.D.1., below. mode test procedure, as well as test procedure. These EPSs include (1) rearrange and renumber the sections to Those that communicate with their Output Current Limiting EPSs loads through USB and other protocols,6 ease referencing and use by testing Similarly, DOE has encountered EPSs technicians. The active mode (2) limit their output current below the maximum listed on their nameplate, that may not be tested due to ‘‘output amendment is based on the optional current limiting,’’ i.e., a mode of battery charger system test procedure and (3) have output power in excess of 250 watts. However, because these EPSs operation in which the EPS significantly adopted by the California Energy lowers its output voltage once an 5 do not exist in significant numbers in Commission (CEC), but has been internal limit on the output current has modified to decrease testing burden the market, DOE has not been able to analyze them in depth and develop a been exceeded. Although all EPSs limit (e.g., by considering a shorter test period their output current to provide and more efficient use of equipment) general approach to testing them under the single-voltage EPS test procedure. additional safety during short-circuit and increase clarity (e.g., by dividing Therefore, DOE will only be presenting conditions, some EPSs have been found complex procedures into discrete steps). the general outline of the test procedure to limit current to a value below the These and other details of the proposal changes under consideration, and will maximum specified on their nameplate. are discussed further in section III.B. proceed in developing and Because DOE’s single-voltage EPS test B. Review of Battery Charger and promulgating a procedure covering procedure does not provide for this External Power Supply Standby Mode these EPSs if it receives comments from possibility, DOE is considering adding and Off Mode Test Procedures interested parties verifying the language specifying the correct loading points in this case. The changes under DOE addressed the EPCA approaches presented (e.g., custom test consideration are detailed in section requirements to prescribe definitions fixtures in the case of EPSs that III.D.2. and test procedures for measuring the communicate with their loads). The energy consumption of EPSs and BCs in three types of EPSs that could be EPS with Nameplate Output Exceeding standby and off modes (42 U.S.C. affected are briefly described below, 250 Watts 6298(gg)(A) and (B)) in the Test while the test procedure changes under Finally, the current DOE single- Procedures for Battery Chargers and consideration can be found in section III.D. voltage EPS test procedure may not External Power Supplies (Standby Mode sufficiently accommodate the testing of and Off Mode) Final Rule. 74 FR 13318. USB-Based EPSs single-voltage EPSs with nameplate This final rule incorporated standby and USB EPSs typically power portable output power greater than 250 watts. In off mode measurements as well as electronic products such as cellular contrast to EPSs with output power less telephones and portable media players than 250 watts, high-power EPSs may 5 Ecos Consulting, Electric Power Research that frequently receive power and data Institute (EPRI) Solutions, Southern California have several maximum output currents, Edison (SCE). ‘‘Energy Efficiency Battery Charger from a personal computer through its something the test procedure does not System Test Procedure.’’ Version 2.2. November 12, take into consideration. DOE is therefore 2008. http://www.energy.ca.gov/appliances/2008 6 Some EPSs feature circuitry that allows them to considering clarifying the current rulemaking/2008-AAER-1B/2008-11- communicate with their loads. This is used to tailor 19_BATTERY_CHARGER_SYS operation to the needs of the load as well as prevent regulatory language to account for this TEM_TEST_PROCEDURE.PDF. use with incompatible loads. configuration. The changes under

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consideration are detailed in section EPS test procedure would be binding the measurement of BC energy III.D.3. after the effective date, since DOE does consumption in charging (active), not yet have standards for non-Class A maintenance, no-battery (standby), and D. Multiple-Voltage External Power EPSs or BCs. DOE has initiated work on off modes. The test procedure was Supply Test Procedure standards for non-Class A EPSs and incorporated by reference into section Section 309 of EISA amended section BCs, with a framework document 1604(w) of title 20 of the California 325 of EPCA by directing DOE to published on June 4, 2009. The Code of Regulations,11 alongside the conduct a determination analysis for amendments to the BC and non-Class A DOE test procedure from appendix Y. EPSs such as those EPSs equipped with test procedures would become binding In its framework document, DOE multiple simultaneous output voltages. following publication of a final rule that mentioned its desire to amend the BC DOE is not aware of any existing test establishes these standards. test procedure in appendix Y to measure procedure developed specifically to energy consumption in each of the measure the efficiency or energy B. Battery Charger Active Mode Test modes of operation of a BC (including consumption of multiple-voltage EPSs. Procedure active mode). During and after the To develop such a procedure, DOE The BC test procedure was inserted framework document public meeting, reviewed related test procedures into appendix Y by the EPACT 2005 En interested parties expressed their currently in use and proposed a test Masse final rule, 71 FR 71368, and general desire for DOE to adopt the CEC procedure for multiple-voltage EPSs amended by the standby and off mode test procedure as the Federal test based on the Environmental Protection final rule 74 FR 13334. It is composed procedure for measuring the active Agency (EPA) single-voltage EPS 7 and of four parts: (1) Scope, (2) definitions, mode energy consumption of BCs. In internal power supply (IPS) 8 test (3) test apparatus and general particular, Pacific Gas and Electric procedures. 73 FR 48054. In today’s instructions, and (4) test measurement. (PG&E), CEC, and Appliance Standards notice, DOE is proposing a test The test measurement section is further Awareness Project (ASAP) commented procedure generally consistent with its subdivided into: that DOE should expedite the August 2008 proposal, but with some (a) Inactive mode energy consumption rulemaking for an active mode test changes to accommodate the concerns measurement,9 which incorporates by procedure, harmonizing with the CEC of interested parties. reference section 5 of the EPA ENERGY BC test procedure. (Pub. Mtg. Tr., No. 14 Incorporating this amendment into STAR BC test procedure 10; at pp. 40–41,12 PG&E et al., No. 20 at p. the EPS test procedure would enable (b) Active mode energy consumption 7,13 CEC et al., No. 19 at p. 1 14). The DOE to evaluate power consumption for measurement, which is currently multiple-voltage EPSs in all modes of reserved; 11 California Energy Commission (CEC), ‘‘2009 operation: active, standby (i.e., no-load), (c) Standby mode energy Appliance Efficiency Regulations,’’ August 2009. and off. A detailed discussion of DOE’s consumption measurement; and 12 A notation in the form ‘‘Pub. Mtg. Tr., No. 14 proposed test procedure for multiple- at pp. 40–41’’ identifies an oral comment that DOE (d) Off mode energy consumption received during the July 16, 2009, framework voltage EPSs can be found in section measurement. document public meeting. This comment was III.E., below. During the standby and off mode test recorded in the public meeting transcript in the procedure rulemaking, numerous docket of the BC and EPS energy conservation III. Discussion standards rulemaking (Docket No. EERE–2008–BT– interested parties commented that the STD–0005, RIN 1904–AB57), maintained in the A. Effective Date for the Amended Test current DOE test procedure is Resource Room of the Building Technologies Procedures insufficient as a basis for the Program and available at http:// development of energy conservation www1.eere.energy.gov/buildings/ If adopted, the amendments proposed appliance_standards/residential/pdfs/ today would become effective 30 days standards, as it does not measure energy bceps_standards_meeting_transcript.pdf. This after the publication of the final rule. As consumption during active (charge) particular notation refers to a comment (1) recorded of this effective date, manufacturers mode. Many of these interested parties in document number 14, which is the public also recommended that DOE adopt the meeting transcript filed in the docket, and (2) (and DOE) would be required to use the appearing on pages 40–41 of document number 14. amended appendices when testing to optional BC test procedure then under 13 A notation in the form ‘‘PG&E et al., No. 20 at determine if BCs and EPSs comply with consideration in draft form at the CEC. p. 7’’ identifies a written comment that DOE has energy conservation standards. In As mentioned in the standby and off received and included in the docket of the BC and mode test procedure final rule, DOE was EPS energy conservation standards rulemaking addition, any representations made (Docket No. EERE–2008–BT–STD–0005, RIN 1904– regarding energy use or the cost of unable to act on these comments, as it AB57). This comment was submitted by Pacific Gas energy use for such products had not proposed any active mode and Electric Company, Southern California Edison manufactured on or after the effective changes in the standby and off mode Design & Engineering Services, Southern California test procedure NOPR, 73 FR 48054 Gas Company San Diego Gas and Electric Company, date would have to be based on the Appliance Standards Awareness Project, and amended test procedures in appendices (August 15, 2008). 74 FR 13322. American Council for an Energy-Efficient Economy. Y and Z. On December 3, 2008, CEC adopted For referencing purposes, throughout this notice, However, absent new standards, only version 2.2 of the test procedure comments submitted from these groups will be developed by Ecos, EPRI Solutions, and referred to as ‘‘PG&E et al.’’ This particular notation the amendments to the single-voltage refers to (1) A comment submitted by Pacific Gas SCE, as an optional test procedure for and Electric (PG&E) et al., (2) in document number 7 ‘‘Test Method for Calculating the Energy 20 in the docket, and (3) appearing on page 7 of Efficiency of Single-Voltage External Ac-Dc and Ac- 9 The inactive mode energy consumption consists document number 20. Ac Power Supplies,’’ August 11, 2004, previously of the energy measured over 36 hours in 14 This comment was submitted by California incorporated by reference into appendix Y. http:// maintenance mode, followed by 12 hours in Energy Commission, Pacific Gas and Electric www.energystar.gov/ia/partners/ standby (no-battery) mode, with the possibility of Company, Southern California Edison Design & prod_development/downloads/power_supplies/ abbreviating the measurement to 6 hours and 1 Engineering Services, Southern California Gas EPSupplyEffic_TestMethod_0804.pdf. hour, respectively. Company, San Diego Gas and Electric Company, 8 ‘‘Proposed Test Protocol for Calculating the 10 Environmental Protection Agency (EPA). ‘‘Test American Council for an Energy-Efficient Economy, Energy Efficiency of Internal Ac-Dc Power Supplies, Methodology For Determining the Energy Appliance Standards Awareness Project, Consumer Rev. 6.4.3,’’ October 26, 2009. http:// Performance of Battery Charging Systems.’’ Federation of America, National Consumer Law efficientpowersupplies.epri.com/pages/ December 2005. http://www.energystar.gov/ia/ Center, on behalf of its low-income clients, Midwest Latest_Protocol/Generalized_Internal_Power_ partners/prod_development/downloads/ Energy Efficiency Alliance, Northwest Power and Supply_Efficiency_Test_Protocol_R6.4.3.pdf. Battery_Chargers_Test_Method.pdf. Continued

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Association of Home Appliance full spectrum of consumer battery the battery charger when recharging a Manufacturers (AHAM) similarly chargers, regardless of input voltage (AC battery that had previously been requested that DOE harmonize its test or DC), battery chemistry, and battery conditioned (if necessary) and procedure for battery chargers with type (detachable or integral). PG&E discharged to a specified depth. (Part 2 other jurisdictions, but consider changes provided test results from the also requires measurement of the in methodology where appropriate. application of the test procedure to over charger output energy.) Both parts of the (AHAM, No. 16 at p. 2) 142 consumer BCs (PG&E, No. 13 at p. test procedure then require DOE researched existing worldwide 6).17 measurement of the energy recoverable test procedures for measuring BC energy DOE has conducted further tests using from the battery during discharge. consumption in active mode and found this procedure and considers its Finally, the test procedure requires that there are currently three test measurement metrics, accuracy, and measurement of the charger input power procedures for measuring the energy variability to be appropriate for the with (1) The battery fully charged and consumption of consumer battery product being tested. Consequently, connected to the charger (maintenance chargers: (1) The EPA ENERGY STAR DOE is proposing to adopt part 1 of the mode), (2) the battery removed from the BC test procedure, (2) the Canadian CEC test procedure (for consumer charger (standby mode), and (3) the Standards Association (CSA) C381.2 test products with input power under 2 battery removed from the charger and procedure,15 and (3) the CEC test kilowatts) to measure (1) BC energy the charger turned off, if a manual on- procedure.5 No energy efficiency consumption in active and maintenance off switch is present (off mode). The standards-setting or promoting modes and (2) the amount of energy number of tests, their duration, and organizations in Europe, Australia, or recovered from the battery during other specifics vary between the two China have developed or adopted discharge. DOE would, however, make parts and also from charger to charger, additional BC test procedures. several modifications to constrain its depending on its capabilities. The EPA ENERGY STAR test application to BCs sold in the United The test procedure provides a set of procedure was adopted by ENERGY States, improve its clarity, and decrease definitions needed to test a wide variety STAR in 2005 and has remained its testing burden. DOE expects the of BCs. While some of these definitions unchanged since then. This is the same resulting test procedure, explained in are necessary for testing the larger test procedure incorporated by reference detail below, to produce equivalent industrial chargers, others are used in by DOE into sections 3 and 4(a) of results as the test procedure adopted by both parts of the test procedure and appendix Y by the EPACT 2005 En the CEC, while reducing the required provide additional specificity beyond Masse final rule, 71 FR 71340. Although technician and equipment time to the definitions currently incorporated in it has been used to test numerous BCs perform the tests. section 2 of appendix Y. (over 135 BCs qualified for the ENERGY Finally, although part 1 of the CEC Part 1 of the test procedure continues STAR mark following testing in test procedure also contains instructions with specification of the test conditions accordance with the test procedure),16 for measuring energy consumption in in section I. Like the test conditions this test procedure does not measure standby and off modes, DOE previously section of the EPA BC test procedure energy consumption of these products adopted standby and off mode test (which is incorporated into section 3 of in active mode. procedures in its March 2009 final rule. appendix Y), this section of the CEC test Similarly, the CSA 381.2 test 74 FR 13334. Today’s proposal retains procedure sets a variety of requirements, procedure, adopted in 2008, does not these test procedures, which would be including limits on the input voltage to measure BC active mode consumption. incorporated into sections 4(c) and 4(d) the charger, the speed and temperature Instead, the procedure relies on the of appendix Y, and be modified as of the air surrounding the unit under same inactive mode energy described in section III.B, in lieu of test (UUT), and measurement precision and accuracy. The AC input voltage consumption measurement as the EPA adopting their equivalents from the CEC waveform characteristics and ambient ENERGY STAR BC test procedure and test procedure (part 1, section IV). A airspeed and temperature requirements the current DOE test procedure. summary of the CEC test procedure of the CEC test procedure are equivalent The CEC test procedure, in contrast, follows, along with specific to those of the EPA test procedure. The includes active mode energy modifications that DOE would make remaining requirements are stricter, consumption through its 24-hour active prior to incorporation in appendix Y. As however, specifying tighter limits on and maintenance mode test. This test with all other sections in this proposal, some parameters (e.g., measurement procedure was developed over six years DOE seeks comment regarding all resolution, etc.) and limits on additional through a collaborative process between aspects of its proposed approach. energy efficiency advocates and parameters that may affect measurement industry experts, including multiple 1. Summary of the CEC Test Procedure results (e.g., uncertainty, materials on meetings and revisions (PG&E, No. 13 at The lengthy stakeholder consultation which the BC may rest, characteristic of p. 2). The result, according to PG&E, has process conducted by the CEC led to the input voltage waveform for DC chargers, been a test procedure that applies to the development of a test procedure for etc.). These tighter specifications on measuring the energy consumption of testing conditions should result in a more repeatable test procedure. Conservation Council, Southeast Energy Efficiency both consumer (part 1) and industrial Following the test condition section, Alliance, and Southwest Energy Efficiency Project. (part 2) chargers.18 Both parts of the test For referencing purposes, throughout this notice, the CEC test procedure proceeds to comments submitted from these groups will be procedure measure the input energy to specify the selection and setup of the referred to as ‘‘CEC et al.’’ battery and charger in section II. The age 15 Canadian Standards Association (CSA). 17 The above discussion applies to part 1 of the C381.2–08. ‘‘Test Method for Determining the CEC test procedure; in addition, the test procedure of the UUT is specified, as in the EPA Energy Efficiency of Battery-Charging Systems.’’ also includes a part 2, which applies to larger test procedure. However, the CEC test November 2008. (greater than 2000 watt output) BCs intended for procedure also specifies the mode of 16 EPA ENERGY STAR. ‘‘Qualified Product (QP) transport and industrial applications. operation of the BC for chargers with List for ENERGY STAR Qualified Battery Charging 18 Part 2 of the CEC test procedure also applies Systems .’’ October 1, 2009. Available at: http:// to BCs for golf carts and other motive equipment several charge modes and/or additional www.energystar.gov/ia/products/prod_lists/ that DOE considers to be consumer products. This functionality. Finally, the CEC test BCS_prod_list.pdf. issue is discussed further in section III.B.2. procedure specifies which batteries

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should be used for the test, how to longer, as required by the manufacturer presented in more detail in the access their terminals, and how to or as determined by the tester through subsequent sections. estimate the energy capacity (used later observation of the charger (see section 2. Scope in the test procedure to calculate the II.E of the part 1). Although BCs work discharge rate) of the battery in case the at different rates, the CEC test procedure The scope of the current DOE test battery is not labeled. The battery subjects them all to a full 24-hour procedure encompasses all BCs,19 selection procedure is particularly charge and maintenance test. This is regardless of input voltage. However, helpful when testing BCs not packaged done to (1) obtain a uniform metric for following the framework document with batteries. Again, these additional comparisons and (2) increase the public meeting, a member company of specifications allow the test procedure likelihood that the input power to the the Information Technology Industry to return repeatable results when testing charger measured at the end of the 24- (ITI) Council submitted a comment a wider variety of BCs beyond those hour period is representative of the requesting that DOE limit testing to U.S. included in the EPA ENERGY STAR maintenance-mode power usage that a line-voltage AC input (115 volts at 60 program. user will encounter when he or she hertz).20 (ITI member,21 No. 17 at p. 1) Once the BC has been set to the leaves a battery connected to the charger Limiting the scope of the test correct mode or modes and the test for an extended period of time, which procedure to encompass BCs with DC or battery or batteries have been identified, is the case for BCs used in handheld U.S. line-voltage AC input would ensure the measurements can begin. The vacuum cleaners and cordless that all consumer battery chargers measurement instructions are contained telephones, among others. While DOE intended for use in the U.S. will be in section III of part 1, and specify how believes these procedural requirements covered, while preventing unnecessary to condition, prepare, rest, charge, and have merit, DOE seeks comment from testing of industrial BCs or consumer discharge the battery, as well as which interested parties on whether it is BCs intended for use outside of the U.S. quantities to measure during each of possible to shorten the measurement Such a modification to the scope would these steps. Section III.A requires the period that the CEC procedure currently also be consistent with DOE’s treatment tester to condition nickel-based batteries requires while preserving the accuracy of EPSs, which are not only defined as that have not been previously tested by and completeness of that procedure’s a circuit ‘‘used to convert household charging them three times and measurements. This method is [line-voltage AC] electric current’’ in the discharging twice. This step is necessary described further in section III.B.5.(b) of statute (42 U.S.C. 6291(36)), but are also because nickel-based batteries must be this notice. tested at 115 volts at 60 hertz, as cycled several times before their Finally, section IV of part 1 of the CEC specified in section 3 of appendix Z part capacity stabilizes and the test results test procedure describes the no-battery 430 of title 10 of the CFR. become representative of typical use. (standby) and off mode tests, while This limitation on input voltage The next step, preparation, consists of a section V specifies the reporting would differentiate the proposed scope controlled discharge to the end-of- requirements. Because DOE has already from that in the CEC BC test procedure. discharge voltage. This step ensures that adopted standby and off mode test The proposed scope further differs from the battery has been fully discharged procedures for battery chargers, and the CEC BC test procedure by including and that the energy consumed by the because it specifies reporting only BCs for consumer products. (42 charger as it takes the battery from a requirements separately in section U.S.C. 6291(32)) The CEC BC test fully discharged to a fully charged state 430.22, it is not proposing today to procedure, on the other hand, covers not can be compared to the energy incorporate these sections of the CEC only BCs for consumer products, but recovered from the battery. Finally, the test procedure into appendix Y. also BCs for commercial and industrial battery is rested, allowing it to return to Part 2 of the CEC test procedure applications such as forklifts and follows a similar structure to part 1, but the ambient temperature. Since many emergency egress lighting. adds requirements to measure the battery parameters depend on Even though the CEC test procedure output of the charger, test the charger temperature, this step further improves covers BCs for applications from all with the battery at three different the repeatability of the test procedure. market segments, it is divided by input depths-of-discharge, and ensure charger- All three of these initial steps are and output parameters and intended test battery compatibility, among others. required for ensuring the repeatability of application, among other criteria. For These requirements may be needed to the test procedure, and are incorporated example, part 1 of the CEC BC test into today’s proposal, with the minor fully characterize the energy procedure applies to consumer chargers modifications presented in sections consumption of large lead-acid BCs for with input power under 2 kilowatts, III.B.5.(c) and III.B.5.(d) of this notice. industrial applications; however, Section III of part 1 of the CEC test because DOE’s current scope covers while part 2 applies primarily to larger procedure requires measuring the chargers for consumer products, DOE industrial chargers and chargers for golf energy consumed by the charger (as an focused primarily on part 1, though the carts and other consumer motive integral of input power samples) when differences between the two parts are equipment. recharging the fully discharged and discussed in further detail in III.B.2. of 19 ‘‘The term ‘battery charger’ means a device that rested battery, but with any special this notice. charges batteries for consumer products, including charging functions (e.g., equalization) As the above summary shows, the battery chargers embedded in other consumer turned off. This requirement is a CEC test procedure is a complete and products. (42 U.S.C. 6291(32)) significant departure from the EPA test detailed energy efficiency test procedure 20 AC line voltage in the U.S. is nominally 120 procedure because the EPA procedure that can serve as a basis for a DOE test volts at 60 hertz. However, several international test procedures specify testing at 115 volts, as that test does not record the energy consumed procedure. The steps outlined above condition will also be applicable to devices used in during charging. The CEC test procedure contribute to the accurate measurement several South and Central American countries, also requires testers to record further of the energy efficiency of battery where the AC line voltage is nominally 110 volts parameters such as temperature, power chargers and have been incorporated at 60 hertz. 21 ITI submitted comments on behalf of one of its factor, and current crest factor. into today’s proposal, except where a member companies, who wishes to remain The CEC test procedure also specifies less burdensome or more accurate anonymous. The comments submitted do not reflect that the test must run for 24 hours or alternative exists. These departures are the opinion of ITI.

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Chargers for golf carts and other BCs were later separated into the two modify the definitions of ‘‘active mode,’’ motive equipment were covered by part parts of the test procedure, an integrated ‘‘multi-port charger,’’ ‘‘multi-voltage a la 2 of the CEC test procedure due to their test procedure remains valid for testing carte charger,’’ and ‘‘standby mode.’’ similarity to large industrial BCs—both the efficiency of both classes of BCs. Finally, DOE proposes to add typically charge flooded lead-acid Therefore, rather than proposing a definitions for ‘‘active power or real batteries. Part 2 addresses the particular separate procedure that would cover power (P),’’ ‘‘ambient temperature,’’ concerns of testing these flooded lead- only a single class of BCs (consumer ‘‘apparent power (S),’’ ‘‘batch charger,’’ acid systems, such as different charger motive equipment), DOE proposes to ‘‘battery rest period,’’ ‘‘rated energy and battery manufacturers, high charger follow approach 1 above and include capacity,’’ ‘‘C-rate,’’ ‘‘crest factor,’’ efficiency (necessary due to high output consumer motive equipment chargers ‘‘equalization,’’ ‘‘instructions or power), and an unsealed battery under a general test procedure for all manufacturer’s instructions,’’ ‘‘measured construction permitting measurements consumer products. The particulars of charge capacity’’ ‘‘power factor,’’ ‘‘rated of the temperature and specific gravity this proposed test procedure are battery voltage,’’ ‘‘rated charge capacity,’’ of the acid electrolyte to determine discussed at length in the remainder of ‘‘total harmonic distortion (THD),’’ and battery state. this section. ‘‘unit under test (UUT).’’ By amending, While these test procedure provisions For the reasons stated above, DOE deleting, and incorporating new may be necessary to accurately measure proposes to amend section 1 of definitions, DOE aims to improve the the energy efficiency of large industrial appendix Y to read as set out in the clarity and utility of its test procedure BCs, chargers for golf carts and other regulatory text of this NOPR. for BCs. types of consumer motive equipment Nonetheless, DOE is also considering (collectively, consumer motive approach 2—adopting an additional test (a) Deletions of Existing Definitions equipment) fall at the low-power end of procedure for consumer motive DOE is proposing to delete the the lead-acid BC range, where the need equipment chargers based on part 2 of definitions of ‘‘accumulated nonactive for a specialized test procedure is not as the CEC test procedure—given sufficient energy’’ and ‘‘energy ratio or nonactive clear. For example, high-power comment and supporting data from energy ratio.’’ These definitions are no industrial chargers are already highly interested parties. DOE invites longer useful since they relate only to efficient, so part 2 requires a series of interested parties to comment on both the inactive energy consumption tests under various conditions to detect approaches. In particular, DOE seeks measurement (section 4(b)), which DOE any differences in energy consumption. comment on the applicability of part 1 is proposing to remove from appendix Y On the other hand, there is sufficient of the CEC test procedure, and today’s in today’s notice. proposed test procedure, to BCs for golf efficiency variation in the consumer (b) Revisions to Existing Definitions motive equipment BC market such that carts and other consumer motive a less burdensome test procedure will equipment and the testing burden of DOE is proposing to update some of suffice for energy consumption part 2 of the CEC test procedure the definitions codified in appendix Y measurements. To accommodate compared to part 1 of the CEC test by the EPACT 2005 En Masse final rule, consumer motive equipment within the procedure and today’s proposed test 71 FR 71368, to avoid confusion in their BC test procedure, DOE has two options: procedure. DOE also seeks comment application to the proposed BC active (1) Include BCs for consumer motive generally on the completeness of the mode test procedure. Specifically, DOE equipment batteries with those for all battery chemistries included in its proposes to modify the definition of other consumer products, in a single test proposal. ‘‘active mode’’ by adding the alternative procedure based on part 1 of the CEC BC term ‘‘charge mode’’ to the definition. As 3. Definitions test procedure; or these two terms are often used (2) Include BCs for consumer motive DOE is proposing to incorporate interchangeably, DOE believes that this equipment in one test procedure based elements of the CEC test procedure into change will reduce the confusion on part 2 of the CEC BC test procedure, the current version of appendix Y. For between the two terms. while including BCs for all other example, some of the CEC definitions Also, DOE proposes to modify the consumer products in a second test differed slightly from those in section 2 definition of ‘‘multi-port charger’’ and procedure based on part 1 of the CEC BC of appendix Y, while other terms used ‘‘multi-voltage a la carte charger.’’ The test procedure. in the CEC test procedure were definitions of ‘‘multi-port charger’’ and Approach 2, above, would result in an undefined in appendix Y. Because of ‘‘multi-voltage a la carte charger’’ additional DOE test procedure based on these discrepancies, DOE is proposing included in appendix Y did not part 2 of the CEC test procedure. to amend section 2 of appendix Y previously specify that they However, because DOE’s scope does not (definitions) by amending, deleting, and encompassed a batch charger (see extend to large industrial chargers, this incorporating new definitions to prevent section III.B.3. (c)). As both the additional test procedure would only potential confusion with respect to proposed BC active mode test procedure cover chargers for golf carts and other today’s proposal. Finally, DOE is and the CEC test procedure upon which consumer motive equipment. Under this proposing to remove definitions used it is based rely on the characteristics of approach, separate test setup and only in section 4(a) of appendix Y the charger when specifying the measurement requirements would need (inactive mode energy consumption batteries to be used for the test, DOE is to be established to test a class of measurement), which DOE also proposing to replace the current products with few models and limited proposes to remove (see section III.B.5. definitions in appendix Y with those in shipments. (a) of this notice). the CEC test procedure to ensure that However, a previous draft of the CEC The specific changes proposed in battery selection for these types of BCs test procedure included consumer today’s notice consist of a series of will be performed in the same manner. motive equipment together with smaller deletions, amendments and additions. Finally, DOE proposes to modify the consumer BCs, simplifying the testing First, DOE proposes to remove the definition of BC ‘‘standby mode,’’ which requirements. Although the testing definitions of ‘‘accumulated nonactive is synonymous with ‘‘no-battery mode.’’ requirements for consumer motive energy’’ and ‘‘energy ratio or nonactive These two terms are already included in equipment and the remaining consumer energy ratio.’’ Second, DOE proposes to the definition; however, DOE proposes

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to remove the parenthetical and simply period. DOE believes that the approach definition be adopted verbatim. DOE is present both terms for consistency with of IEEE Standard 1515–2000 is proposing to define this term in its other definitions. DOE is proposing preferable because it is clearer and, as appendix Y, section 2.5 as set out in the to redefine this term in section 2.24 of the industry standard, more widely regulatory text of this NOPR. appendix Y, as set out in the regulatory accepted. Accordingly, DOE is DOE is proposing to include a text of this NOPR. proposing to define this term in definition for ‘‘battery rest period’’ in the test procedure, adopted verbatim from (c) Additions of New Definitions appendix Y, section 2.2, as set out in the regulatory text of this NOPR. the CEC test procedure. ‘‘Battery rest Although the EPACT 2005 En Masse DOE proposes to include a definition period’’ is the period between preparing final rule inserted numerous definitions for ‘‘ambient temperature’’ in its test the battery and the battery discharge into appendix Y, 71 FR 71368, the procedure based on the CEC definition test, as well as the period between the expansion of the BC test procedure to except for the addition of the word battery discharge test and the charge include active mode requires DOE to ‘‘immediately.’’ The primary reason for and maintenance mode test. DOE is propose additional definitions in this change is to make the proposed proposing to define this term in today’s notice. These proposed DOE definition in appendix Y appendix Y, section 2.9 as set out in the definitions (as well as the proposed consistent with appendix Z and IEEE regulatory text of this NOPR. procedure) are based on those used by standard 1515–2000. Furthermore, the The proposed ‘‘C-rate’’ definition is the CEC and help clarify the proposed inclusion of the word ‘‘immediately’’ based on the CEC test procedure, but active mode test procedure. limits the definition to only the volume has been modified to remove the Nonetheless, these definitions have of air within close proximity to the unit example C-rate calculation, retaining broader applicability, as they are based under test. It is the temperature of this only the definition. C-rate is used in the in large part on established international particular volume of air, and not of that test procedure to describe the rate of standards (e.g., International elsewhere in the test room—that could charge and discharge during testing. Electrotechnical Commission (IEC) potentially impact the test results.22 DOE is proposing to define this term in standard 62301, Household Electrical DOE is proposing to define this term as appendix Y, section 2.10 as set out in Appliances—Measurement of Standby set out in the regulatory text of this the regulatory text of this NOPR. ‘‘ Power, or Institute of Electrical and NOPR. The proposed definition for crest Electronics Engineers standard 1515– DOE notes that although it is not factor’’ is based on the definition in the 2000, Recommended Practice for proposing to set a specified distance CEC test procedure. Crest factor, which Electronic Power Subsystems: Parameter within which this temperature measure refers to the ratio of the peak Definitions, Test Conditions, and Test must be taken (e.g., 5 feet from the unit instantaneous value of a quantity to its Methods). Furthermore, some of these under test in all directions), it is root-mean-square (RMS) value, is recorded when performing the charge definitions had previously been considering the inclusion of such a mode and battery maintenance mode incorporated into the DOE EPS test requirement in order to minimize the test. IEEE standard 1515–2000 and IEC procedure in appendix Z. 74 FR 13335. risks of potential gaming during By adopting the following definitions, standard 62301 both define this term in compliance certification testing. DOE hopes to avoid confusion or a manner similar to CEC. DOE is Comments from the public on this inconsistency in the application of its proposing to adopt the definition from particular issue are also sought. proposed test procedure. Accordingly, the two industry standards, as that To achieve consistency with the DOE is proposing to incorporate version is more concise. DOE is proposed definition of active mode, definitions that are consistent with the proposing to define this term in DOE proposes to include a definition for CEC test procedure for the following appendix Y, section 2.12 as set out in ‘‘apparent power (S)’’ in its test terms in section 2 of appendix Y: ‘‘batch the regulatory text of this NOPR. procedure that would incorporate charger,’’ ‘‘battery rest period,’’ The proposed definition for ‘‘equalization,’’ ‘‘power factor,’’ ‘‘rated language from the CEC test procedure ‘‘equalization’’ has been taken verbatim energy capacity,’’ and ‘‘rated battery (which is the same as that in appendix from the CEC test procedure. The voltage.’’ The Department is also Z and IEEE standard 1515–2000), with equalization charge is not tested under proposing new definitions for ‘‘active the sole exception of specifying that the the proposed test procedure, since it is power or real power (P),’’ ‘‘ambient measurement be expressed in volt- considered one of the ‘‘special charge temperature,’’ ‘‘apparent power (S),’’ ‘‘C- amperes. This change achieves cycles that are recommended only for rate,’’ ‘‘crest factor,’’ ‘‘instructions or consistency with the active mode occasional use to preserve battery manufacturer’s instructions,’’ ‘‘measured because that definition also specifies the health.’’ DOE is proposing to define this charge capacity,’’ ‘‘rated charge units of measurement. Apparent power term in appendix Y, section 2.13 as set capacity,’’ ‘‘total harmonic distortion is used in the power factor definition out in the regulatory text of this NOPR. (THD),’’ and ‘‘unit under test (UUT).’’ and is included for consistency with the The proposed definition for The proposed definitions are detailed CEC test procedure, which includes a ‘‘instructions or manufacturer’s below. similar definition. DOE is proposing to instructions’’ is based on the DOE is proposing to define ‘‘active define this term in appendix Y, section ‘‘instructions’’ definition from the CEC power or real power (P)’’ using the 2.4 as set out in the regulatory text of test procedure, which states that definition found in IEEE standard 1515– this NOPR. ‘‘ ‘instructions’ includes any information 2000, rather than the definition in the DOE is also proposing a definition of on the packaging or on the product itself CEC test procedure. The CEC test ‘‘batch charger’’ based on the CEC * * * ‘Instructions’ also includes any procedure defines active power as the definition. DOE believes that the CEC service manuals or data sheets that the average of instantaneous power taken definition for ‘‘batch charger’’ is clear manufacturer offers for sale to over one or more periods of time. In and concise, and is proposing that the independent service technicians, contrast, IEEE Standard 1515–2000 whether printed or in electronic form.’’ 22 The efficiency of BCs is dependent on defines active power as the integral over temperature. Therefore, the test procedure specifies DOE is proposing to expand the scope one period of the product of the voltage the ambient temperature to ensure consistent of this definition by also including and current waveforms divided by the results between tests. information about the product that is

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available on the manufacturer’s website. parallel,’’ ‘‘batch’’ with ‘‘batteries,’’ and appendix Y, section 2.26 as set out in These instructions, which only include ‘‘times’’ with ‘‘multiplied by.’’ The rated the regulatory text of this NOPR. those materials available at the time of charge capacity is used in the proposed 4. Test Apparatus and General the test, must be followed when setting test procedure to select the battery used Instructions up the battery charging system, except for testing when there are no batteries when in conflict with the requirements packaged with the charger and there are Appendix Y, section 3 currently of this test procedure. DOE is proposing multiple batteries with the lowest rated specifies that the test apparatus, this change in the definition because the voltage. DOE is proposing to define this standard testing conditions, and test procedure must be representative of term in appendix Y, section 2.22 as set instructions for testing battery chargers typical use, and users will only be out in the regulatory text of this NOPR. shall conform to the requirements influenced by instructions publicly The proposed definition for ‘‘rated specified in section 4, ‘‘Standard Testing available at the time of the test. DOE is energy capacity’’ has been taken Conditions,’’ of the EPA’s ‘‘Test proposing to define this term in verbatim from the ‘‘calculated energy Methodology for Determining the appendix Y, section 2.14 as set out in capacity’’ definition in the CEC test Energy Performance of Battery Charging the regulatory text of this NOPR. procedure. DOE changed the word Systems.’’ As described below, DOE is The proposed definition for ‘‘calculated’’ to ‘‘rated’’ to emphasize that proposing to remove the existing test ‘‘measured charge capacity’’ is based on the value is computed using only rated apparatus and general instruction, and the ‘‘measured charge capacity’’ values. The definition is proposed to include sections I and II (the standard definition from the CEC test procedure, avoid confusion with the term test conditions and battery charger but replaces the term ‘‘rate’’ with ‘‘measured charge capacity.’’ DOE is system set up) of part 1 of the CEC test ‘‘current’’ and ‘‘final’’ with ‘‘specified proposing to define this term in procedure, with minor revisions to end-of-discharge.’’ These changes were appendix Y, section 2.23 as set out in improve the procedure’s clarity. made to clarify the definition by the regulatory text of this NOPR. (a) Confidence Intervals replacing general words with words that DOE also proposes defining ‘‘total are more specific. In the proposed test harmonic distortion (THD),’’ clarifying The CEC test procedure specifies that ‘‘ procedure, the measured charge the input voltage requirements of the all [m]easurements of active power of capacity must be calculated for those 0.5 W or greater shall be made with an proposed test procedure. A variation of ≤ batteries that do not have a rated charge the definition (with an associated uncertainty of 2%. Measurements of capacity. DOE is proposing to define equation) is also present in IEEE active power of less than 0.5 W shall be ≤ ’’ this term in Y, section 2.15, as set out standard 1515–2000 as well as in made with an uncertainty of 0.01 W. in the regulatory text of this NOPR. appendix Z. The inclusion of a THD However, the CEC test procedure does The proposed definition for ‘‘power requirement ensures the presence of a not specify any confidence levels to factor’’ has been taken verbatim from the sufficiently sinusoidal input voltage which these uncertainty measurements ‘‘power factor’’ definition in the CEC test waveform, which is necessary for must adhere. The proposed uncertainty procedure. This definition is also repeatability. This factor is important requirements for testing equipment present in IEEE standard 1515–2000 as when measuring the energy use of these specified are equivalent to those in the ‘‘power factor (true).’’ The power factor products because the energy current CEC test procedure, with the is recorded when performing the charge consumption of BCs depends on the addition of an explicit confidence mode and battery maintenance mode shape of the input voltage waveform. qualifier. This qualifier, which is test. DOE is proposing to define this The THD of the input voltage is required necessary when expressing uncertainty term in appendix Y, section 2.20 as set to be ≤ 2%, up to and including the 13th in measurement, is the 95 percent out in the regulatory text of this NOPR. confidence level customarily employed harmonic.23 The proposed definition for The proposed definition for ‘‘rated in experimental work, which accounts this term would appear in appendix Z, battery voltage’’ is based on the ‘‘rated for errors that fall within two standard section 2.25 and reads as set out in the battery voltage’’ definition from the CEC deviations of the mean of a normal test procedure. The definition varies regulatory text of this NOPR. DOE proposes defining the term ‘‘unit distribution. The proposed uncertainty from the CEC definition in that it under test (UUT)’’ in its battery charger requirements would make the test replaces the phrase ‘‘a batch of batteries test procedure based on the CEC test procedure consistent with standard includes series connections’’ with ‘‘there procedure definition, to clarify the term. engineering practice. are multiple batteries that are connected ‘‘ ’’ in series,’’ replaces ‘‘batch’’ with The abbreviation UUT is defined in (b) Temperature ‘‘batteries,’’ and replaces ‘‘times’’ with IEEE standard 1515–2000 and used The temperature range currently ‘‘multiplied by.’’ The rated battery throughout the proposed test procedure specified in the CEC test procedure is 20 ‘‘ ’’ voltage is recorded before testing and is in place of the terms battery charger °C ± 5 °C. However, this low ‘‘ ’’ used to calculate rated energy capacity. and test battery. This proposed change temperature range is difficult to DOE is proposing to define this term in would simplify the test procedure text. maintain while testing in warmer appendix Y, section 2.21 as set out in DOE is proposing to define this term in climates. DOE is proposing raising the the regulatory text of this NOPR. temperature specifications to 25 °C ± ‘‘ 23 Any periodic signal can be decomposed into a ° The proposed definition for rated sum of sine waves at integer multiples of its 5 C to create a testing environment that charge capacity’’ is based on the ‘‘rated fundamental frequency (the inverse of the period of is achievable across diverse climates. charge capacity’’ definition from the repetition). The signal can be represented by a sine All of the consumer BC tests conducted CEC test procedure. DOE is proposing to wave at the same frequency as the original, plus a to date by parties other than DOE 24 and ‘‘ second sine wave at twice the frequency, plus a add the clause the manufacturer states third sine wave at three times the frequency, and mentioned at the framework document the battery can store under specified test so on. These sine waves are known as ‘‘harmonics.’’ conditions,’’ to clarify the definition. Although the number of harmonics are infinite in 24 BC efficiency test data submitted by Pacific Gas DOE is also proposing to replace the number, their amplitude tends to decrease and Electric (collected by its technical consultant ‘‘ precipitously with each subsequent harmonic, such Ecos) are available on DOE’s website. Please see: phrase a batch of batteries included that it is reasonable to stop the measurement at a http://www1.eere.energy.gov/buildings/ parallel connections’’ with ‘‘there are particular harmonic, and the 13th has been found appliance_standards/residential/ multiple batteries that are connected in to be sufficient in practice. battery_external_std_2008.html.

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public meeting (PG&E, No. 13 at p. 6) still maintaining its representativeness, capacity battery; (2) the highest voltage, were performed at temperatures DOE is proposing that, if the battery lowest capacity battery; and (3) the between 20 and 27 degrees Celsius, charger has user controls to select from highest total energy capacity battery, as which would be covered by the higher two or more charge rates, the test shall applicable. In each case, the term temperature range proposed in today’s be conducted at the fastest charge rate ‘‘battery’’ refers to one or more cells in notice. By adjusting the temperature that is recommended by the one or more separate enclosures. control within the test room in this manufacturer for everyday use. The proposed battery selection manner, the testing burden will be procedure described above for chargers (e) Battery Selection lessened without sacrificing the packaged either with multiple or no accuracy and repeatability of the test Section II.C of part 1 of the CEC test batteries is consistent with section II.C procedure. procedure requires that multi-voltage, of part 1 of the CEC test procedure. multi-port, and/or multi-capacity Because this procedure may result in (c) AC Input Voltage and Frequency chargers be tested numerous times, with multiple tests spanning several days for The CEC test procedure requires, a variety of batteries. Again, since each a single charger, DOE is also considering when possible, the testing of units that test takes over 24 hours, following this an alternative battery selection accept AC line-voltage input at two aspect of the CEC procedure will result procedure that would require that the voltage and frequency combinations, in more than three days of testing for BC only be tested with the most typical 115 volts at 60 hertz and 230 volts at 50 some BCs. Interested parties also battery intended for use with the BC. hertz. As mentioned in section III.B.2., acknowledge the issue: an ITI member This alternative approach would above, an ITI member company suggested that in cases where a battery attempt to reduce the testing burden commented that testing should be charger offers multiple outputs, but one while measuring ‘‘a representative limited to the U.S. line voltage (115 output is the primary intended scenario, average use cycle,’’ as required by volts, 60 hertz) (ITI member, No. 17 at the BC should only be tested using that statute. (42 U.S.C. 6293(b)(3)) p. 1). output. (ITI member, No. 17 at p. 1) Nonetheless, due to insufficient Since DOE’s scope of coverage Since any BC is a ‘‘multi-capacity’’ information regarding the typical extends only to consumer BCs operating charger,25 this burden is not limited to batteries used with chargers that are in the United States, DOE is proposing just a few specialty BCs. Manufacturers packaged with multiple batteries or to require that BCs only be tested at the of products with user-replaceable packaged without batteries, DOE is U.S. AC line voltage, 115V at 60Hz, batteries (e.g., cellular telephones, unable to ensure that tests limited to even if they can also be operated at power tools, etc.) tend to sell high- just one battery (e.g., the lowest capacity other voltages and frequencies (for capacity add-on batteries, and the battery) would be representative of worldwide use). This change will capacity of the replacement batteries typical use. Therefore, DOE welcomes harmonize the DOE BC test procedure increases gradually as battery comments from interested parties on (1) with the current EPS test procedure, technology improves with time. As a the typical use of chargers for standard- which also specifies that ‘‘[t]he UUT result, many BCs would need to be sized, AA and AAA batteries and 12 shall be tested at 115 V [volts] at 60 Hz tested twice (once with the lowest and volt lead-acid batteries, which are used [hertz].’’ Since DOE is already proposing once with the highest capacity battery), with a variety of batteries, and (2) the to limit the scope of its test procedure which is a step included in the CEC test likely burden due to the proposed to cover BCs intended for operation at procedure. Furthermore, these BCs may battery selection method, which is U.S. AC line voltage—whether or not require re-testing as new higher-capacity based on the CEC test procedure. they are also capable of operation at batteries are released after the (f) Non-Battery Charging Functions other voltages—limiting the testing to manufacture of the original product. To the U.S. input voltage and frequency reduce the number of tests, DOE is The proposed active mode BC test should reduce the testing burden by half focusing on the typical usage scenario— procedure retains the instructions for BCs with universal input voltage i.e., testing with the battery packaged concerning additional functionality (i.e., capable of operating at both 115 with the charger. Since most users will from section II.D of part 1 of the CEC and 230 volts) without impacting the not purchase the additional higher- test procedure, which requires the tester representativeness of the test procedure. capacity battery, the proposed DOE test to turn off any user-controlled functions and disconnect all auxiliary electrical (d) Charge Rate Selection procedure would require testing using only the battery packaged with the connections to the BC. These Section II.A (general setup) of part 1 charger. instructions address the two types of of the CEC test procedure requires that, If multiple batteries or no batteries are additional functionality typically ‘‘If the battery charger has user controls packaged with the charger, DOE included with battery chargers, i.e., to select from two or more charge rates proposes selecting batteries for testing connections with other systems (e.g., (such as regular or fast charge) or from those recommended for use with cordless telephone base) and user different charge currents, the test shall the BC by the manufacturer. In the interaction (e.g., power tool charger be conducted with each of the possible absence of any recommendation, the radio). choices.’’ However, this option presents batteries for test would be selected from The first type of additional a large burden on manufacturers as each any suitable for use with the charger. If functionality is exemplified by cordless test can take over 24 hours to complete, these batteries vary in voltage or telephone bases that monitor the state of which could take a manufacturer several capacity, the charger would be tested the telephone line and/or store days to complete testing of a single unit. with (1) The lowest voltage, lowest voicemail messages. These types of DOE believes that, given a choice, devices provide an added utility users will opt for the fastest charge that 25 Unless controlled by a timer, a BC designed for through connection with other systems, does not impact the battery’s long term a specific voltage, chemistry, and physical package e.g., the telephone line. Because the health, as evidenced by the popularity can charge all batteries of the same voltage, additional functionality relies on the chemistry, and physical package, regardless of of successively faster chargers in the capacity. The only difference will be the charge connection to other parts of the system, market. In light of this observation, to time, which will increase with battery charge manufacturers can use a physical limit the test procedure burden while capacity. disconnection (required by the proposed

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BC active mode test procedure) as a proposing to: (1) Remove the existing requires charge of at least 16 hours, signal to the device to disable the inactive mode energy consumption cautioning that if the active charge additional functionality and reduce measurement in section 4(a); (2) retain window were shortened, only a portion power consumption to the level of a BC sections 4(c) and 4(d), which contain of the charge energy would be captured that is not equipped with that additional the standby and off mode test by the measurement. (Pub. Mtg. Tr., No. functionality. procedures; and (3) insert section III of 14 at p. 190) Ecos also indicated that The second type of additional part 1 of the CEC test procedure, although charge indicator lights are functionality is exemplified by a power ‘‘Measuring the Battery Charger System reliable determinants of active mode tool charger radio that provides an Efficiency,’’ into section 4(b) with minor duration, they are only included in interface for operation by the user. revisions for clarity and the following roughly one-third of chargers and Because this type of device already substantive modifications. Finally, DOE therefore cannot be relied on to shorten relies on users to operate it, a proposes renumbering the resulting the measurement period in all cases. manufacturer should be able to add or section 4 for ease of reference and use (Pub. Mtg. Tr., No. 14 at p. 193) repurpose one of the interface elements by testing technicians. Although a shortened test period to allow a user (and tester) to turn off (a) Removing Inactive Mode Energy would reduce the burden on the additional functionality of the Consumption Test Apparatus and manufacturers, the 24-hour charge device. Doing so would reduce the Measurement energy metric provides uniformity device’s power consumption to a level The inactive mode energy between tests and enables BCs for comparable with BCs and EPSs without consumption measurement in section cellular telephones to be easily the additional functionality. In either 4(a) of appendix Y requires integrating compared with BCs for cordless case, the energy consumption of the the input power to the BC over telephones, regardless of how long each additional functionality can be numerous hours in maintenance and no- BC spends actually charging a battery. substantially reduced, if not eliminated, battery modes and dividing it by the In today’s notice, DOE is proposing which would reduce the energy battery energy measured during using a 24-hour charge and maintenance consumption of the BC to the level of discharge, resulting in a non-active energy measurement consistent with the energy ratio. The standby and off mode similar BCs equipped without CEC test procedure, but is inviting test procedure final rule added a additional functionality. interested parties to comment on requirement to measure standby (no- If adopted, the instructions in section incorporating an optional, shorter test battery) and off mode energy 4.4 of the proposed test procedure period, described below. would allow the BC to decrease the consumption, 74 FR 13334, while today’s proposal includes requirements To accommodate the comments of energy consumption of any additional interested parties, DOE is proposing to functionality to a negligible level. to measure active (charge) and maintenance modes. Because these test retain the 24-hour test period but seeks Therefore, DOE does not expect to make comment on possibly supplementing it any allowances for energy consumption procedure updates would collectively result in a BC test procedure that with an optional shortened test period due to additional functionality in the that can be used when feasible. The corresponding energy conservation measures battery charger energy consumption in all four modes—active proposal outlines scenarios where a standard. Nonetheless, DOE welcomes shorter test period would be suggestions from interested parties on (charge), maintenance, standby (no- battery), and off—there is no longer a appropriate. These scenarios would how it should address additional require that a testing technician must functionality. continued need for the inactive mode test procedure adopted on December 8, determine that the BC is in steady-state (g) Determining the Charge Capacity of 2006. Therefore, in today’s notice, DOE operation in maintenance mode, at Batteries with No Rating proposes to strike the inactive mode which point the input power no longer changes. In other words, continuing the Section II.G of the CEC test procedure energy consumption measurement from test past this point under this scenario requires the use of trial-and-error to section 4(a). would not yield any new information estimate the charge capacity 26 of (b) Charge Test Duration regarding the energy consumption batteries when it is not provided by the characteristics of the tested unit. manufacturer. Reaching results in this During the 2009 public meeting, DOE manner would likely not be repeatable. sought comment on shortening the 24- In the shortened test procedure, the Therefore, the method that DOE is hour test period specified in the CEC BC would undergo an initial charging proposing today explicitly lays out the procedure. The Power Tool Institute period with a duration determined by iterative steps required to measure the (PTI) saw no problem in shortening the the state of a charge indicator light, battery capacity, providing a clear maintenance mode test period (Pub. manufacturers’ instructions, or, in the process which will likely limit the time Mtg. Tr., No. 14 at p. 190), whereas absence of the above, a minimum of 4 required to determine the charge AHAM and Wahl Clipper Corporation hours. Following this, the technician capacity and produce a more repeatable (Wahl) commented that a 24-hour would inspect the input power to the result than the trial-and-error method. charge cycle should be used as the basis BC, and the BC would be in a steady for measuring active mode energy state if its input power does not vary by 5. Test Measurement consumption. (AHAM, No. 16 at p. 2; more than 2 percent over a 1-hour Appendix Y, section 4 is currently Wahl, No. 23 at p. 1) Ecos Consulting period. A relatively constant input divided into sections (a), (b), (c), and (Ecos) added that a shorter test period power over a significant length of time (d), as discussed above. DOE is was considered during the development indicates that the BC has finished of the CEC procedure but explained that charging the battery and entered 26 This parameter corresponds to the amount of it was not feasible to incorporate a maintenance mode. Since, absent user charge a battery can store and is a function of the shorter test period since many batteries interaction, the BC is expected to size and chemical composition of the battery. The have a much longer charge time. (Pub. remain in this mode for all future time, testing technician must obtain this parameter to calculate the discharge current necessary to Mtg. Tr., No. 14 at p. 191–92) PTI it should be possible to stop the test measure the battery energy during the discharge specifically cited nickel-cadmium as an early and extrapolate the energy test. example of a battery chemistry that measurement to the full 24-hour period.

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This extrapolation is done by taking the BC entered steady-state operation the remaining number of hours in the the energy consumption from the and adding it to the steady-state test. This procedure is shown in detail beginning of the test to the point when maintenance mode power multiplied by in Eq. 1, below.

= EE=+t 0 P×−()24hEq.t 1 24 EXTRAPOLATED CHARGE tSTEADY-STATE MAINT.STEADY-STATTE STEADY-STATE

Where: chargers may also result in an batteries, with the exception of lead- E24 EXTRAPOLATED is the 24-hour energy extrapolated 24-hour energy acid or lithium-based batteries. Battery estimate calculated through consumption that differs widely from conditioning is the process by which the extrapolation; the measured 24-hour energy. For battery is cycled several times prior to tSTEADY-STATE is the time at which the charger example, when the above test method testing to permit the battery to reach its entered steady-state operation; specified capacity. By conditioning the | t=0 was applied to nine slow chargers for E CHARGE is the energy consumption tSTEADY-STATE nickel-metal hydride and lead-acid battery in this manner, any taken from the beginning of the test to the point measurement will be representative of when the BC entered steady-state operation batteries, the extrapolated 24-hour and the test was interrupted; energy consumption differs by 11.2 typical use. DOE’s proposed active mode test procedure requires that the PMAINT.STEADY-STATE is the maintenance power percent from the measured 24-hour measured in steady state. energy on average. battery undergo two full charges In general, the input power to the BC followed by two full discharges, ending In this manner, the testing time for during charging decreases with time, on a discharge. The third charge present some BCs may be shortened, freeing stopping the test early and extrapolating in section III.A of the CEC test valuable laboratory equipment without over the full 24 hours will tend to result procedure has been removed from the impacting the uniformity of the 24-hour in a higher calculated 24-hour energy proposal pursuant to the reversed metric. DOE evaluated the results of consumption unless the BC has entered testing order described in section III.B.5. ‘‘ ’’ shortening the test method for six fast steady state.27 Therefore, it is not in the (e), below. battery chargers (e.g., lithium-ion manufacturer’s interest to abuse this (d) Battery Preparation battery chargers for notebook computer method and shorten the test and DVD player applications) by inappropriately, as doing so will Section III.B of the CEC test procedure utilizing data from 24-hour tests. DOE typically result in worse measured has a provision that requires preparing had simulated the effects of shortening performance.28 Furthermore, any DOE the battery for testing by performing a the test period according to the enforcement testing will be performed controlled discharge to a specified end- proposed method described above, from using only the full 24-hour test of-discharge voltage. This preparatory 24 hours to an average of 5.7 hours, procedure as the method to determine step ensures that the BC test begins and resulting in a time savings of 18.3 hours compliance with the standard. ends with the battery at the same known on average. Using only data obtained Because of the potential for significant state—namely, fully discharged—such during these shortened test periods DOE discrepancies in results between the that all the energy consumed during the then extrapolated 24-hour energy shortened and full, 24-hour charge test can be fairly compared to the consumption. The calculated 24-hour measurement methods, DOE is not energy obtained from the battery during energy consumption differed from the proposing to depart from the 24-hour the discharge test. DOE’s proposed measured 24-hour energy consumption method currently in the CEC test active mode test procedure would by an average of ¥1.1 percent, but with likewise prepare the battery by bringing ¥ procedure. Nonetheless, DOE would a range of 0.1 to +6.5 percent. like to invite interested parties to it to a known state prior to starting the The 24-hour energy consumption of comment on allowing the shortened test test. However, the battery preparation the fast BC with the greatest variation method for units that meet the steady would consist of charging the battery was calculated to be 6.5 percent lower state criteria described above. After instead of discharging due to the with the shortened test method than reviewing the comments DOE will proposed reversed testing order that measured with the full 24-hour test consider incorporating this latter test described below. method. This BC met the steady state method into the test procedure in the (e) Reversed Testing Order criteria (meaning the unit was in final rule. In particular, DOE would be maintenance mode) that allowed the interested in (1) a comparison of testing In DOE’s proposed BC active mode shortened test period to be used. burden for the shortened and full testing test procedure, the discharge test would However, once in maintenance mode, methods, as well as (2) an assessment of be performed prior to the charge test, in the BC would periodically ‘‘wake up,’’ the measurement variability between reverse order of the CEC test procedure: presumably to provide pulses energy to the two methods across a wide range of The battery would be (1) Conditioned, if the battery to counteract any self- BCs. necessary; (2) charged until full by the discharge. Since these pluses happened BC under test, in preparation for the once the unit was in maintenance mode, (c) Battery Conditioning measurement; (3) discharged; and (4) they were not captured by the shortened Section III.A of part 1 of the CEC test recharged by the BC under test. The test procedure (which would have procedure specifies that battery discharge energy in step (3) and the terminated the test soon after the BC conditioning must be performed on all input power to the BC in step (4), above, had entered maintenance mode). would be measured. The proposed Therefore, the extrapolated 24-hour 27 Of the nine slow chargers mentioned above, all reversal of the test order will have no energy consumption was lower than the had higher extrapolated than measured 24-hour impact on the measured charge or measured 24-hour energy consumption. energy consumption, some by as much as 30 discharge energy because the BC-battery percent. Furthermore, DOE realizes that using 28 This generalization does not apply to chargers system is deterministic and will behave the above method to shorten the such as the fast charge mentioned above, which in the same manner given the same measurement period for some ‘‘slow’’ periodically wake up during maintenance mode. inputs and environmental conditions.

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The energy recovered from the battery BC standby and off mode tests, based on reference the no-load measurement in during discharge will be the same the abbreviated test method in the EPA’s the EPA single-voltage EPS test whether it is measured once or many ‘‘Test Methodology for Determining the procedure. DOE seeks comment on the times (ignoring the long-term effects of Energy Performance of Battery Charging merits of this aspect of today’s proposal. storage or cycling), as will the charge Systems, December 2005,’’ previously D. Review of the Single-Voltage External energy consumed by the charger. incorporated by reference into appendix Therefore, the order in which these Y. 74 FR 13335. However, during the Power Supply Test Procedure steps are performed does not matter, as 2008 standby and off mode public While DOE is interested in applying long as the measurement encompasses meeting, interested parties suggested its single-voltage EPS test procedure the entirety of a charge-discharge or that the proposed 1-hour testing period (appendix Z to subpart B of 10 CFR part discharge-charge cycle and all the be shortened further. Nonetheless, as 430) to all single-voltage EPSs subject to energy consumed by the charger is mentioned in the March 2009 final rule, current or potential future standards, accounted for during discharge, and the BC standby mode test procedure DOE recognizes that some EPSs may not vice-versa. must take into account equipment warm be testable under the existing test While reversing the testing order such up and low-frequency pulsed operation procedure in a representative or that the discharge is performed prior to to produce accurate and repeatable repeatable manner. In particular, the the charge would have no impact on the measurement results. 74 FR 13324. following devices may pose issues for measurement results, it would allow the In today’s notice, DOE proposes the current procedure: (1) EPSs that preparatory step to be a charge rather amending the test period to a 30-minute communicate with their loads; (2) EPSs than a discharge. This distinction is warm up period followed by a 10- that limit their output current below important because it allows preparation minute measurement period. This that specified on the nameplate; and (3) to be conducted in the UUT, rather than proposed modification would high-power EPSs that do not display a a battery analyzer, and require less test harmonize DOE’s standby and off mode clear maximum output power on their equipment time. Thus, the proposed test measurement procedures with sections nameplates. A discussion of these three procedure would further decrease IV.B and IV.C in part 1 of the optional types of EPSs follows, along with test testing burden without impacting CEC BC test procedure. Abbreviating the procedure changes necessary to accuracy. measurement period from 1 hour to 10 accommodate them. DOE is considering minutes will not affect the accuracy of (f) End of Discharge for Other adopting these changes pending the test because the amended test Chemistries comment from interested parties. DOE is procedures would retain a 30-minute also proposing to redefine ‘‘active Table D in part 1 of the CEC test warm up period. Variations in power’’ for consistency with appendix Y procedure instructs that the end-of- component efficiency due to and industry standards. discharge voltage for any battery temperature are the most common chemistry not listed explicitly in the reason for changes in BC energy 1. EPSs That Communicate With Their table be found ‘‘Per appropriate IEC consumption in standby and off modes, Loads standard.’’ However, DOE cannot and the 30-minute warm up period Some EPSs used for powering cellular incorporate in its test procedure an would be sufficient to permit the input telephones, notebook computers, and open-ended reference to a non-existent power of most BCs to stabilize. DOE other consumer electronic products use standard. To address this concern, DOE recognizes that further instabilities USB and other protocols that require spoke with members of industry and (pulses) in energy consumption in communication between the EPS and its 29 reviewed the literature to identify standby and off modes may be caused load. Currently, DOE’s single-voltage which chemistries are likely to become by periodic operation of certain BC EPS test procedure incorporates by popular in the near future as well as the functions, as when a BC occasionally reference sections 4 and 5 of the CEC end-of-discharge voltages associated checks its output for the presence of the single-voltage EPS test procedure. with them. These chemistries would be battery. In general, there is always a Within these incorporated sections, the explicitly included in the table of end- potential for a limited-time test test procedure requires that ‘‘the tests of-discharge voltages in the proposed procedure to fail to capture a behavior should be conducted on the two output test procedure. The additional occurring at an arbitrary time, such that wires that supply the output power chemistries would include these pulses might be captured over a * * * [t]he other wires * * * should be nanophosphate lithium-ion and silver- 1-hour measurement period but not in a left electrically disconnected.’’ zinc. If batteries of other chemistries are 10-minute period. DOE has not, This requirement is problematic, developed in the future, they would be however, encountered any such cases in however, because it may interfere with addressed through the waiver process or practice. the operation of EPSs that require a revision to the test procedure. DOE Based on the above reasons, DOE additional output wires for invites comments on whether the believes that the shortened test communication with their loads. For battery chemistries and associated measurement will reduce testing example, the USB specification 30 discharge voltages contained in its burdens on manufacturers while requires devices to communicate over proposed list are sufficient or require providing an accurate and repeatable the data lines prior to transferring modification. test. Further, DOE is proposing to retain significant amounts of power (in excess C. Review of Battery Charger and the remainder of its BC standby and off of 1 ‘‘unit load’’ or approximately 0.5 External Power Supply Standby and Off mode test procedure. Finally, DOE is watts). DOE is concerned that by Mode Test Procedures not proposing any changes to the requiring the disconnection of data standby and off mode test procedures lines, the existing single-voltage EPS In the March 2009 final rule, DOE for EPSs. The proposed measurement adopted a 1-hour test duration for the test procedure may not test EPSs that periods for these test procedures are use interfaces such as a USB in a only as long as necessary to obtain a 29 See, for example: A123 Systems, ‘‘High Power repeatable result and would not impose Lithium Ion ANR26650M1A,’’ April 2009, http:// 30 ‘‘Universal Serial Bus Specification, Revision www.a123systems.com/cms/product/pdf/1/ an additional burden on manufacturers, 2.0,’’ April 27, 2000, p. 174. http://www.usb.org/ ANR26650M1A_Datasheet_APRIL_2009.pdf. as both are based on and incorporate by developers/docs/usb_20_122909-2.zip.

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manner that would be representative of manner according to the DOE single- 3. High-Power EPSs their power consumption when voltage EPS test procedure, due to the The scope of DOE’s single-voltage EPS operating. test procedure’s requirements that the test procedure already permits the The communication issue is not EPS be tested with a dummy load and testing of high-power EPSs, as do most limited to EPSs with multiple sets of that all additional conductors be of the test setup and test measurement conductors. In some cases (e.g., EPSs for disconnected. DOE is also seeking instructions. The only limitation that some notebook computers), the comments regarding specific changes DOE has encountered while attempting communication between an EPS and its that the procedures would need to to test high-power EPSs in accordance load can occur over the same set of permit the testing of these devices. Any with the DOE test procedure involved conductors that transfer power, using an amendments to the test procedure in nameplate output current. As AC-coupled signal. Initial evaluations this regard would only apply to EPSs mentioned above, the test procedure indicate that such communication may that must communicate with their loads requires the nameplate output current to be used to set the output voltage of an and would have no impact on existing calculate the loading points for EPS intended for use with multiple standards for Class A EPSs. efficiency measurements. However, computers made by the same some high-power EPSs do not specify manufacturer. Because these EPSs may 2. EPSs With Output Current Limiting the maximum output current on the need to identify their load prior to nameplate. operation, measurements conducted in As mentioned in section II.C., some DOE partially addressed this issue in the laboratory without the intended load EPSs limit their output current below the standby and off mode test procedure (as required by the DOE test procedure) that which is specified on their final rule by modifying the definition of may not be representative of typical use. nameplate or in manufacturer nameplate output current to include the DOE is uncertain of the extent of this datasheets. Whether due to output current provided by the problem in practice. In particular, manufacturing variation or another manufacturer ‘‘if absent from the although the cellular telephone industry cause, this situation can be problematic housing’’ of the EPS.32 74 FR 13335. is planning to adopt the USB interface because the current DOE test procedure However, when manufacturers do as a ‘‘universal charging solution’’ for all may be unable to consistently measure provide output current information, handsets by 2012,31 DOE’s analysis of the efficiency of these EPSs. The current they may specify two maximum values: EPSs for cellular applications indicates DOE single-voltage EPS test procedure one for intermittent output current and that the transition to USB-compliant incorporates by reference the CEC another for continuous output current. EPSs has not yet begun. Examination of single-voltage EPS test procedure and To enable the testing of high-power eight mobile phone EPSs with requires testing at fixed percentages (0, EPSs, DOE is considering making connectors with four or more pins 25, 50, 75, and 100 percent) of changes to the single-voltage EPS test (including mini-USB connectors) nameplate output current. However, the procedure that would detail what to do revealed that in only one case were test procedure does not specify what to in cases when more than one maximum these pins connected to any wires in the do in cases when the EPS limits output output current is specified on the output cable. Even in the single case of current as described above, such that it nameplate or provided by the multiple pairs of conductors, the EPS is unable to output 100 percent or even manufacturer. performed as specified when tested 75 percent of its nameplate output In particular, DOE welcomes according to the DOE test procedure comments from interested parties on current—which would prevent one from (i.e., with the additional wires whether the situation where both obtaining one or more efficiency disconnected), implying that no intermittent and continuous output measurements specified under the communication with the load was currents are listed on the EPS nameplate procedure. necessary for specified operation. or in manufacturer documentation may Similarly, DOE has only been able to DOE is considering several changes to cause confusion. Furthermore, DOE identify two models of EPSs for the single-voltage EPS test procedure welcomes comments from interested notebook computers that communicate that would accommodate EPSs that parties on the potential impact of this with their loads. These observations limit their output current below that confusion on the repeatability or lead DOE to believe that these products listed on the nameplate. In particular, representativeness of the single-voltage are not currently popular. DOE is considering adopting one of EPS test procedure already contained in Even though power supplies that three options: (1) Ignore the loading appendix Z. DOE is considering communicate with their loads are a points affected by output current amending the nameplate output power rarity today, DOE does foresee a need limiting when calculating the average definition to specify that the maximum for the test procedure to accommodate efficiency; (2) shift the loading points continuous current should be used as them in the future. To address this need, affected by output current limiting on a the nameplate output current when two DOE is considering amending the case-by-case basis such that they are no or more currents are provided but seeks single-voltage EPS test procedure by longer affected by current limiting (i.e., comments regarding the merits of this permitting manufacturers to supply if the EPS limits its output current to 90 approach. additional connection instructions or percent of nameplate output current, 4. Active Power Definition fixtures for testing EPSs that require calculate the active mode efficiency as communication with the load. Today’s the average of efficiencies at 25, 50, 75, As mentioned in section III.B.3. (c) of notice does not contain a specific and 90 percent load); or (3) record the this notice, DOE is proposing to define ‘‘ ’’ proposal for amending the test efficiency as 0 percent for any loading active power in section 2 of appendix procedure but solicits comments from points affected by output current Y based on the definition in IEEE interested parties on specific EPSs that standard 1515–2000. The definition in limiting. DOE welcomes comments from cannot be tested in a representative IEEE standard 1515–2000 is the widely interested parties on the prevalence of this issue as well as the above three 31 GSM Association, ‘‘Mobile Industry Unites to 32 Manufacturers typically specify the Drive Universal Charging Solution for Mobile proposed amendments under performance of an EPS through datasheets and Phones,’’ GSM World, February 17, 2009. consideration. other marketing materials.

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accepted industry definition for ‘‘active all multiple-voltage EPSs, particularly (1) Accelerating the test procedure power.’’ However, if adopted, this dedicated-use EPSs, because they do not schedule definition would differ from the one provide a representative measure of (2) Incorporating usage profiles into currently in appendix Z. To harmonize energy consumption. On the other hand, the test procedure the two definitions, DOE is proposing to when DOE presented a potential loading (3) Measuring charger output energy redefine this term in appendix Z, profile (as opposed to the previous (4) Measuring alternative depths of section 2.c, as set out in the regulatory simple average of the efficiencies discharge text of this NOPR. measured at each of the four active- 1. Accelerating the Test Procedure mode loading points) to incorporate into E. Multiple-Voltage External Power Schedule the test procedure during its framework Supply Test Procedure document public meeting, PG&E During the framework document Section 325 of EPCA, as amended by commented that multiple voltage EPSs public meeting, some interested parties section 309 of EISA, directs DOE to should be tested over their entire output requested an expedited rulemaking promulgate a final rule determining current range to represent the range of schedule for the BC active mode test whether energy conservation standards loading possible with a variety of procedure. In particular AHAM shall be issued for EPSs or ‘‘classes’’ of applications. (PG&E et al., No. 20 at p. suggested that DOE provide EPSs. (42 U.S.C. 6295(u)(1)(C)) 17) stakeholders with a revised battery Currently, DOE divides EPSs into Class Therefore, in this notice, DOE is charger test procedure, including active A and non-Class A. Under section 301 proposing measuring efficiency at no- mode, by September 30, 2009, and that of EISA, Congress required that Class A load, 25%, 50%, 75%, and 100% of DOE complete the test procedure power supplies meet specifically nameplate output, but without updates by the end of 2009 (AHAM, No. prescribed standards that became averaging the results as would have 16 at p. 2, Pub. Mtg. Tr., No. 14 at p. effective on July 1, 2008. DOE is been required under the previous 45) AHAM also expressed general examining the possibility of developing proposal. Instead, the currently concern regarding how the Department standards for the remaining, non-Class proposed test procedure would output can conduct its analyses for BCs without A EPSs that are not covered by the five separate efficiency or input power a finalized BC test procedure. (Pub. Mtg. Congressionally mandated standards. measurements, one for each loading Tr., No. 14 at p. 36) Multiple-voltage EPSs (i.e., EPSs that point. The results could then be DOE acknowledges the concerns of provide more than one output voltage weighted during the standards phase of interested parties regarding an simultaneously) have the highest the rulemaking to reflect typical usage. accelerated schedule; however, due to shipments and widest range of This multiple-voltage test procedure, process requirements, DOE will consumer product applications of the which otherwise remains unchanged continue with the current rulemaking EPSs that fall outside of Class A. from the one DOE proposed in 2008, schedule. The target date to issue the BC Because it must develop test procedures would be incorporated into sections 3(b) Active Mode Test Procedure remains either prior to (or concurrently with) the and 4(b) of appendix Z. October 31, 2010. development of an efficiency standard By removing equal weighting of 2. Incorporating Usage Profiles for a product, DOE reviewed numerous active-mode loading conditions (i.e., test procedures in 2008 to develop a averaging of efficiency results at each Battery charging systems consume standardized test procedure for these nonzero loading point) from the test different amounts of energy while they products. In the standby and off mode procedure and reporting these metrics are in different modes, and the amount NOPR, DOE proposed a multiple-voltage separately, DOE would be able to of time that the charger spends in each EPS test procedure that generally maintain a flexible and uniform test mode varies depending on the followed the structure of the CEC single- procedure. DOE would then tailor the applications of the end-use project. voltage EPS test procedure with some weightings to each product class during Some BCs, such as those for cell phones modifications specific to multiple- the standards-setting phase of the and media players, spend more time in voltage power supplies. See 73 FR rulemaking. In addition, by deciding on active mode, while others, such as those 48064–48068. However, due to the how to address the power supply for handheld vacuums and electric limited time available for review, DOE weighting during the standards shavers, remain primarily in was unable to address the comments rulemaking, DOE will be able to receive maintenance or unplugged mode. received from interested parties and additional comments from interested At the framework document public decided not to incorporate these parties on the applications that use meeting, DOE discussed incorporating elements of the proposed test procedure multiple-voltage EPSs and their BC usage profiles into the test into the March 2009 final rule until expected usage to help shape the procedure. These usage profiles would such time when DOE could provide a agency’s decision on this issue. weight the energy consumption of the greater opportunity for comment. 74 FR BC in each mode using the time spent 13322. In today’s notice, DOE proposes F. Test Procedure Amendments Not in that mode. However, interested adopting a test procedure generally Proposed in This Notice parties were opposed to the consistent with its August 2008 As mentioned above, DOE presented incorporation of usage profiles into the proposal in the standby and off mode potential modifications to the CEC test test procedure, and suggested that the NOPR. However, to accommodate the procedure during the framework consideration of usage profiles be concerns of some interested parties, document public meeting. After instead deferred to the standard. DOE is also proposing several receiving comments, and doing further Ecos and PG&E et al. did not favor the modifications to the previously analysis, DOE is no longer proposing incorporation of usage profiles. PG&E proposed approach. some of these amendments for felt that it would be difficult to During the 2008 standby and off mode incorporation into the test procedure. incorporate them because of insufficient rulemaking, interested parties Nonetheless, DOE wishes to document data to arrive at a ‘‘realistic and commented that the proposed loading these potential amendments and the creditable understanding.’’ (Pub. Mtg. conditions (25%, 50%, 75%, and 100% comments received on these and other Tr., No. 14 at p. 161, Pub. Mtg. Tr., No. of full load) may not be appropriate for issues. These include: 14 at p. 158–59; PG&E et al., No. 20 at

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p. 15) Ecos similarly stated that they are Ecos commented that battery The goal of the test procedure is to not convinced that usage profiles should variations are not significant enough to measure energy consumed by the be used, especially in the test warrant amending the CEC test battery charger during typical use, and procedure. (Pub. Mtg. Tr., No. 14 at p. procedure and added that variation in this energy can be measured directly at 182) PG&E agreed by stating that usage batteries can be averaged out the output of the charger or indirectly profiles may be feasible for future statistically. (Pub. Mtg. Tr., No. 14 at by measuring the energy recoverable rulemakings once more data have been p. 171–72) PTI admitted that even from the battery during discharge. collected. (Pub. Mtg. Tr., No. 14 at p. though battery variability may have an Measuring the discharge energy from 178) On the other hand, CEA and Wahl effect on the repeatability and the battery combines charger losses with suggested that usage profiles should not reproducibility, ‘‘some of that may be battery losses, resulting in a system- be difficult to obtain. (Pub. Mtg. Tr., No. addressed through some subsequent wide measurement that is more 14 at p. 178–79) mathematics.’’ (Pub. Mtg. Tr., No. 14 at representative of typical use. Given that The DOE BC test procedure need not p.166) AHAM, on the other hand, interested parties voiced overwhelming measure the energy consumption over a commented that manufacturers should support for system-wide measurements typical use cycle. It can, for example, not be required to test multiple units, and did not express concern about the measure the efficiency under abstract which would greatly increase testing impact of battery variability on test conditions like the EPS test burden. (Pub. Mtg. Tr., No. 14 at p. 172) measurement repeatability, the procedure. The usage profile can instead PTI provided further support for proposed test procedure does not be incorporated into the energy measuring battery output energy by incorporate measurement at the output conservation standard as part of the stating that it may be difficult to access of the BC. routine analysis that DOE applies the battery terminals, making direct 4. Alternative Depth-of-Discharge during the standards rulemaking measurements of the charger output Measurement process. Adopting a test procedure that energy impractical. (Pub. Mtg. Tr., No. At the framework document public does not contain usage profiles will 14 at p. 164–65) meeting, DOE discussed the potential allow test results to be comparable Ecos further justified measuring for testing BCs with batteries at 40 across a wider range of products and battery discharge energy by noting that percent depth-of-discharge, meaning 60 jurisdictions, as regions with diverse manufacturers choose the battery that percent full. (The term ‘‘depth-of- consumer usage of BCs would be able to they include or recommend for testing— discharge’’ refers to the extent to which use the same test procedure. Because of i.e., the battery is a design option for a battery’s usable capacity has been these considerations, DOE is not increasing efficiency. (Pub. Mtg. Tr., No. discharged.) This potential change proposing to incorporate usage profiles 14 at p. 167) PTI disagreed, stating that would model the behavior of consumers at this time. the needs of the application to a large who recharge batteries before they are extent determine the batteries used. 3. Measuring Charger Output Energy fully discharged and was inspired by (Pub. Mtg. Tr. No. 14 at pp. 174–75) part 2 of the CEC test procedure, which During the framework document However, because there is little requires that batteries be tested at 100, public meeting, DOE suggested variation between batteries once the 80, and 40 percent depth-of-discharge. measuring the charger output energy appropriate chemistry has been Interested parties provided comments rather than the battery output energy in selected, PTI also concluded that opposing the alternative depth-of- order to calculate the total energy measuring the output from the charger discharge; consequently, DOE is consumed by the BC during charging. would not be worth the added planning to continue using the 100 DOE felt that measuring at the charger difficulty. (Pub. Mtg. Tr., No. 14 at percent depth-of-discharge as the only output, thereby bypassing the battery, p. 176) condition for testing. could remove some of the variability AHAM and Wahl both recommended Ecos and PG&E opposed to the from the measurement. Interested that the battery energy be measured and incorporation of a 40 percent depth-of- parties were unified in opposition to subsequently subtracted from the 24- discharge (DOD) measurement and this change. hour cycle energy (AHAM, No. 16 at p. commented that a measurement from PG&E, Ecos, PTI, and AHAM all 4, Wahl, No. 23 at p. 1), whereas PTI additional depths-of-discharge will supported measuring the energy suggested that normalizing (i.e., complicate testing and development of obtained from the battery during dividing) the battery discharge energy standards. (Pub. Mtg. Tr., No. 14 at p. discharge (per the methods in the by the charger input energy provides a 195–96) PG&E added that a 40 percent current ENERGY STAR test procedure measurement independent of battery DOD would be a generalization that is and Part 1 of the CEC test procedure), size (which varies with the end-use difficult to substantiate. (Pub. Mtg. Tr., rather than directly measuring the application) and battery density (which No. 14 at p. 199–200; PG&E et al., No. output energy of the charger. PG&E varies with the progress of technology 20 at p. 16) Furthermore, Ecos noted further stated that although measuring over time). (Pub. Mtg. Tr., No. 14 at pp. that if a new method relying on testing the output energy of the charger would 165–66, 174) at 40 percent DOD is developed, then be more accurate and easier, it will not FRIWO and Delta-Q offered many products will need to be re-tested be ‘‘realistic or representative of how contrasting comments, with FRIWO in order to achieve sufficient data to set things work in the real world’’ and voicing general support for separate a standard. (Pub. Mtg. Tr., No. 14 at p. stressed that this portion of the CEC test testing for batteries and BCs, using a 206) AHAM agreed that establishing a procedure should not be altered (Pub. dummy load to test the BC, unless the typical depth-of-discharge is difficult; Mtg. Tr., No. 14 at pp. 162–64; PG&E et design of the product makes this however, it is not going to be 100 al., No. 20 at p. 14) An ITI member impractical (as in the case of power percent but between 2 and 80 percent. further stated that testing only be done tools) (FRIWO, No. 21 at pp. 1–2), while (Pub. Mtg. Tr., No. 14 at p. 201) with the battery supplied by the OEM, Delta-Q commented that the battery Stakeholders also commented on the not replacement batteries supplied by should be considered independent of difficulty of consistently discharging a third parties. (ITI member, No. 17 at the battery charging system during battery to an arbitrary depth. Ecos p. 1) testing. (Delta-Q, No. 15 at p. 1) further commented that cutoff voltages

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may be used rather than a percentage economic impact on a substantial Counsel for Advocacy of the Small depth-of-discharge (as in the current number of small entities. As required by Business Administration for review Part 1 CEC test procedure) to terminate Executive Order 13272, ‘‘Proper under 5 U.S.C. 605(b). the discharge. (Pub. Mtg. Tr., No. 14 at Consideration of Small Entities in D. Paperwork Reduction Act p. 206) Wahl commented that the Agency Rulemaking,’’ 67 FR 53461 appropriate cutoff voltage should (August 16, 2002), DOE published This rule contains an information depend on the battery chemistry, using procedures and policies on February 19, collection requirement subject to the IEC standards as a precedent. (Pub. Mtg. 2003, to ensure that the potential Paperwork Reduction Act (PRA) and Tr., No. 14 at p. 201–02) PTI provided impacts of its rules on small entities are which has been approved by OMB a general statement that normalizing properly considered during the DOE under control number 1910–1400. energy consumption by battery energy rulemaking process. 68 FR 7990. DOE Public reporting burden for the capacity reduces the effect of depth-of- has made its procedures and policies collection of test information and discharge on test results. (Pub. Mtg. Tr., available on the Office of the General maintenance of records on regulated No. 14 at p. 204) Counsel’s Web site: http:// EPSs based on the certification and Due to the lack of support for www.gc.doe.gov. reporting requirements is estimated to measurement of BC energy consumption DOE reviewed today’s proposed rule average 2 hours per response, including while charging batteries with different under the provisions of the Regulatory the time for reviewing instructions, depths-of-discharge, DOE is not Flexibility Act and the policies and searching existing data sources, incorporating such measurement into procedures published on February 19, gathering and maintaining the data today’s proposal. 2003. As part of this rulemaking, DOE needed, and completing and reviewing examined the existing compliance costs the collection of information. Send IV. Regulatory Review already borne by manufacturers and comments regarding this burden A. Executive Order 12866 compared them to the revised estimate, or any other aspect of this data compliance costs due to the proposed collection, including suggestions for The Office of Management and Budget amendments in this NOPR, namely, the reducing the burden, to DOE (see has determined that test procedure adoption of new test procedures for BC ADDRESSES) and by e-mail to: rulemakings do not constitute active mode and multiple-voltage EPSs [email protected]. ‘‘significant regulatory actions’’ under and the modification of existing test Notwithstanding any other provision Executive Order 12866, ‘‘Regulatory procedures for BCs operating in standby of the law, no person is required to Planning and Review,’’ 58 FR 51735 and off mode and single-voltage EPSs respond to, nor shall any person be (October 4, 1993). Accordingly, this with USB outputs. subject to a penalty for failure to comply action was not subject to review under Manufacturers are only required to with, a collection of information subject that Executive Order by the Office of test products subject to standards, and to the requirements of the PRA, unless Information and Regulatory Affairs there are currently no standards for BCs that collection of information displays a (OIRA) of the Office of Management and or multiple-voltage EPSs. Until energy currently valid OMB Control Number. Budget (OMB). conservation standards are adopted, no E. Unfunded Mandates Reform Act of B. National Environmental Policy Act entities, small or large, would be 1995 required to comply with the proposed In this proposed rule, DOE proposes BC and EPS test procedures. Therefore, Title II of the Unfunded Mandates test procedure amendments that it DOE believes that today’s proposed rule Reform Act of 1995 (UMRA) (Pub. L. expects will be used to develop and would not have a ‘‘significant economic 104–4) requires each Federal agency to implement future energy conservation impact on a substantial number of small assess the effects of Federal regulatory standards for BCs and EPSs. DOE has entities,’’ and the preparation of a actions on State, local, and Tribal determined that this rule falls into a regulatory flexibility analysis is neither governments and the private sector. For class of actions that are categorically required nor warranted at this point. proposed regulatory actions likely to excluded from review under the Class A EPSs, however, are subject to result in a rule that may cause National Environmental Policy Act of a standard, and manufacturers, expenditures by State, local, and Tribal 1969 (42 U.S.C. 4321 et seq.) (NEPA) including small entities, are required to governments, in the aggregate, or by the and DOE’s implementing regulations at perform testing in accordance with the private sector of $100 million or more 10 CFR part 1021. Specifically, this single-voltage EPS test procedure to in any one year (adjusted annually for proposed rule establishes or amends test ensure compliance with the standard. inflation), section 202 of UMRA requires procedures and does not result in any However, the amendments discussed in a Federal agency to publish estimates of environmental impacts. Thus, this section III.D. of this notice would not the resulting costs, benefits, and other rulemaking is covered by Categorical significantly change the existing test effects on the national economy. (2 Exclusion A6 under 10 CFR part 1021, procedure, amending only the testing U.S.C. 1532(a), (b)) UMRA also requires subpart D, which applies to any conditions for EPSs with USB outputs. Federal agencies to develop an effective rulemaking that is strictly procedural. DOE does not expect these amendments process to permit timely input by Accordingly, neither an environmental to impose a significant new testing and elected officers of State, local, and assessment nor an environmental compliance burden and therefore would Tribal governments on a proposed impact statement is required. have no large economic impact on a ‘‘significant intergovernmental significant number of small entities. mandate.’’ In addition, UMRA requires C. Regulatory Flexibility Act Tentatively concluding and certifying an agency plan for giving notice and The Regulatory Flexibility Act (5 that this proposed rule would not have opportunity for timely input to small U.S.C. 601 et seq.) requires preparation a significant impact on a substantial governments that may be affected before of an initial regulatory flexibility number of small entities, DOE has not establishing a requirement that might analysis for any rule that, by law, must prepared a regulatory flexibility analysis significantly or uniquely affect them. On be proposed for public comment, unless for this rulemaking. DOE will provide March 18, 1997, DOE published a the agency certifies that the rule, if its certification and supporting statement of policy on its process for promulgated, will not have a significant statement of factual basis to the Chief intergovernmental consultation under

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UMRA. 62 FR 12820. (This policy is H. Executive Order 12988 Information and Regulatory Affairs of also available at http://www.gc.doe.gov). With respect to the review of existing OMB a Statement of Energy Effects for Today’s proposed rule contains neither regulations and the promulgation of any proposed significant energy action. ‘‘ ’’ an intergovernmental mandate, nor a new regulations, section 3(a) of A significant energy action is defined mandate that may result in the Executive Order 12988, ‘‘Civil Justice as any action by an agency that promulgated or is expected to lead to expenditure of $100 million or more in Reform,’’ 61 FR 4729 (February 7, 1996), promulgation of a final rule, and that: any year, so these requirements do not imposes on Federal agencies the general (1) Is a significant regulatory action apply. duty to adhere to the following under Executive Order 12866, or any requirements: (1) Eliminate drafting F. Treasury and General Government successor order; and (2) is likely to have errors and ambiguity; (2) write Appropriations Act, 1999 a significant adverse effect on the regulations to minimize litigation; (3) supply, distribution, or use of energy; or provide a clear legal standard for Section 654 of the Treasury and (3) is designated by the Administrator of affected conduct rather than a general General Government Appropriations OIRA as a significant energy action. For standard; and (4) promote simplification Act, 1999 (Pub. L. 105–277) requires any proposed significant energy action, Federal agencies to issue a Family and burden reduction. Section 3(b) of the agency must give a detailed Policymaking Assessment for any Executive Order 12988 specifically statement of any adverse effects on proposed rule that may affect family requires that Executive agencies make energy supply, distribution, or use well-being. Today’s proposed rule every reasonable effort to ensure that the should the proposal be implemented, would not have any impact on the regulation: (1) Clearly specifies the and of reasonable alternatives to the autonomy or integrity of the family as preemptive effect, if any; (2) clearly action and their expected benefits on an institution. Accordingly, DOE has specifies any effect on existing Federal energy supply, distribution, and use. concluded that it is unnecessary to law or regulation; (3) provides a clear Today’s regulatory action is not a legal standard for affected conduct prepare a Family Policymaking significant regulatory action under while promoting simplification and Assessment. Executive Order 12866. Moreover, it burden reduction; (4) specifies the would not have a significant adverse G. Executive Order 13132 retroactive effect, if any; (5) adequately effect on the supply, distribution, or use defines key terms; and (6) addresses of energy. Therefore, it is not a ‘‘ ’’ Executive Order 13132, Federalism, other important issues affecting clarity significant energy action, and, 64 FR 43255 (August 4, 1999) imposes and general draftsmanship under any accordingly, DOE has not prepared a certain requirements on agencies guidelines issued by the Attorney Statement of Energy Effects. formulating and implementing policies General. Section 3(c) of Executive Order or regulations that preempt State law or 12988 requires Executive agencies to K. Executive Order 12630 that have Federalism implications. The review regulations in light of applicable Pursuant to Executive Order 12630, Executive Order requires agencies to standards in sections 3(a) and 3(b) to ‘‘Governmental Actions and Interference examine the constitutional and statutory determine whether they are met or it is with Constitutionally Protected Property authority supporting any action that unreasonable to meet one or more of Rights,’’ 53 FR 8859 (March 15, 1988), would limit the policymaking discretion them. DOE has completed the required DOE has determined that this rule of the States and to carefully assess the review and determined that, to the would not result in any takings that necessity for such actions. The extent permitted by law, the proposed might require compensation under the Executive Order also requires agencies rule meets the relevant standards of Fifth Amendment to the United States to have an accountable process to Executive Order 12988. Constitution. ensure meaningful and timely input by I. Treasury and General Government L. Section 32 of the Federal Energy State and local officials in the Appropriations Act, 2001 Administration Act of 1974 development of regulatory policies that Under section 301 of the Department have Federalism implications. On Section 515 of the Treasury and of Energy Organization Act (Pub. L. 95– March 14, 2000, DOE published a General Government Appropriations Act, 2001 (Pub. L. 106–554; 44 U.S.C. 91; 42 U.S.C. 7101), DOE must comply statement of policy describing the 3516 note) provides for agencies to with section 32 of the Federal Energy intergovernmental consultation process review most disseminations of Administration Act of 1974, as amended it will follow in the development of information to the public under by the Federal Energy Administration such regulations. 65 FR 13735. DOE has guidelines established by each agency Authorization Act of 1977. (15 U.S.C. examined this proposed rule and has pursuant to general guidelines issued by 788; FEAA.) Section 32 essentially determined that it would not have a OMB. OMB’s guidelines were published provides in part that, where a proposed substantial direct effect on the States, on at 67 FR 8452 (February 22, 2002), and rule authorizes or requires use of the relationship between the national DOE’s guidelines were published at 67 commercial standards, the notice of government and the States, or on the FR 62446 (October 7, 2002). DOE has proposed rulemaking must inform the distribution of power and reviewed today’s proposed rule under public of the use and background of responsibilities among the various the OMB and DOE guidelines and has such standards. In addition, section levels of government. EPCA governs and concluded that it is consistent with 32(c) requires DOE to consult with the prescribes Federal preemption of State applicable policies in those guidelines. Attorney General and the Chairman of regulations as to energy conservation for the Federal Trade Commission (FTC) the products that are the subject of J. Executive Order 13211 concerning the impact of the today’s proposed rule. States can Executive Order 13211, ‘‘Actions commercial or industry standards on petition DOE for exemption from such Concerning Regulations That competition. Because the proposed rule preemption to the extent, and based on Significantly Affect Energy Supply, does not incorporate any commercial criteria, set forth in EPCA. (42 U.S.C. Distribution, or Use,’’ 66 FR 28355 (May standards, section 32 does not apply 6297) No further action is required by 22, 2001), requires Federal agencies to here. However, consistent with its Executive Order 13132. prepare and submit to the Office of ordinary practice, DOE intends to

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provide both the Attorney General and shall not be discussion of proprietary should include the electronic signature the FTC a courtesy copy of this information, costs or prices, market of the author. Comments, data, and proposed rule. share, or other commercial matters information submitted to DOE via mail regulated by U.S. anti-trust laws. or hand delivery/courier should include V. Public Participation DOE reserves the right to schedule the one signed original paper copy. No A. Attendance at Public Meeting order of presentations and to establish telefacsimiles (faxes) will be accepted. the procedures governing the conduct of According to 10 CFR 1004.11, any The time, date and location of the the public meeting. A court reporter will person submitting information that he public meeting are listed in the DATES record the proceedings and prepare a or she believes to be confidential and and ADDRESSES sections at the beginning transcript. exempt by law from public disclosure of this NOPR. To attend the public At the public meeting, DOE will should submit two copies: one copy of meeting, please notify Ms. Brenda present summaries of comments the document including all the Edwards at (202) 586–2945. As received before the public meeting, information believed to be confidential, explained in the ADDRESSES section, allow time for presentations by and one copy of the document with the foreign nationals visiting DOE participants, and encourage all information believed to be confidential headquarters are subject to advance interested parties to share their views on deleted. DOE will make its own security screening procedures. issues affecting this rulemaking. Each determination as to the confidential B. Procedure for Submitting Requests To participant may present a prepared status of the information and treat it Speak general statement (within time limits according to its determination. determined by DOE) before the Factors of interest to DOE when Any person who has an interest in the discussion of specific topics. Other topics addressed in this notice, or who evaluating requests to treat submitted participants may comment briefly on information as confidential include: (1) is a representative of a group or class of any general statements. At the end of persons that has an interest in these A description of the items; (2) whether the prepared statements on each specific and why such items are customarily issues, may request an opportunity to topic, participants may clarify their make an oral presentation at the public treated as confidential within the statements briefly and comment on industry; (3) whether the information is meeting. Such persons may hand- statements made by others. Participants deliver requests to speak to the address generally known by or available from should be prepared to answer questions other sources; (4) whether the shown in the ADDRESSES section at the from DOE and other participants. DOE information has previously been made beginning of this notice between 9 a.m. representatives may also ask questions and 4 p.m., Monday through Friday, available to others without obligation about other matters relevant to this concerning its confidentiality; (5) an except Federal holidays. Requests may rulemaking. The official conducting the also be sent by mail or email to: Ms. explanation of the competitive injury to public meeting will accept additional the submitting person which would Brenda Edwards, U.S. Department of comments or questions from those Energy, Building Technologies Program, result from public disclosure; (6) a date attending, as time permits. The upon which such information might Mailstop EE–2J, 1000 Independence presiding official will announce any Avenue, SW., Washington, DC 20585– lose its confidential nature due to the further procedural rules or modification passage of time; and (7) why disclosure 0121, or [email protected]. of procedures needed for the proper Persons who wish to speak should of the information would be contrary to conduct of the public meeting. the public interest. include in their request a computer DOE will make the entire record of diskette or CD in WordPerfect, Microsoft this proposed rulemaking, including the E. Issues on Which DOE Seeks Comment Word, PDF, or text (ASCII) file format transcript from the public meeting, Although DOE invites comments on that briefly describes the nature of their available for inspection at the U.S. all aspects of this rulemaking, DOE is interest in this rulemaking and the Department of Energy, 6th Floor, 950 particularly interested in receiving topics they wish to discuss. Such L’Enfant Plaza, SW., Washington, DC comments and views of interested persons should also provide a daytime 20024, (202) 586–2945, between 9 a.m. parties concerning the following issues: telephone number where they can be and 4 p.m., Monday through Friday, reached. except Federal holidays. The official 1. BC Active Mode DOE requests that those persons who transcript will also be posted on the DOE seeks comment from interested are scheduled to speak submit a copy of Webpage at http:// parties on the proposed approach for their statements at least one week prior www1.eere.energy.gov/buildings/ testing BCs in active mode, in particular to the public meeting. DOE may permit appliance_standards/residential/ the adoption and modification of the any person who cannot supply an battery_external.html. Anyone may CEC test procedure. (See section III.B.) advance copy of this statement to purchase a copy of the transcript from participate, if that person has made the transcribing reporter. 2. Limiting the Scope of the Test alternative arrangements with the Procedure D. Submission of Comments Building Technologies Program in DOE seeks comment from interested advance. When necessary, the request to DOE will accept comments, data, and parties on the proposed limitation of give an oral presentation should ask for information regarding the proposed rule scope of the test procedure to such alternative arrangements. no later than the date provided at the encompass BCs with DC or U.S. line- beginning of this notice. Comments, voltage AC input. (See section III.B.1.) C. Conduct of Public Meeting data, and information submitted to DOE will designate a DOE official to DOE’s e-mail address for this 3. BCs for Golf Carts and Other preside at the public meeting and may rulemaking should be provided in Consumer Motive Equipment also employ a professional facilitator to WordPerfect, Microsoft Word, PDF, or DOE seeks comment on including BCs aid discussion. The public meeting will text (ASCII) file format. Interested for golf carts and other consumer motive be conducted in an informal, conference parties should avoid the use of special equipment batteries in a single test style. The meeting will not be a judicial characters or any form of encryption, procedure based on part 1 of the CEC BC or evidentiary public hearing and there and wherever possible, comments test procedure. (See section III.B.2.)

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4. Amendments to Definitions 11. Reversing Testing Order multiple-voltage EPSs. (See section III.E.) DOE seeks comment from interested DOE seeks comment from interested parties on the adoption of new parties on the proposed reversal of the VI. Approval of the Office of the definitions, in particular any deviation CEC test procedure order, resulting in: Secretary from those currently in the CEC test The battery being (1) conditioned (if The Secretary of Energy has approved procedure. (See section III.B.3.) necessary); (2) charged until full by the publication of this proposed rule. BC under test, in preparation for the 5. Selecting the Charge Rate for Testing measurement; (3) discharged; and (4) List of Subjects in 10 CFR Part 430 recharged by the BC under test. The DOE seeks comment from interested Administrative practice and discharge energy in step (3) and the parties on the proposed modifications to procedure, Energy conservation, input power to the BC in step (4), above, section II of the CEC test procedure Household appliances. would be measured. (See section intended to ease testing burden, and in Issued in Washington, DC, on January 29, III.B.5.(e).) particular, recommendations on which 2010. charge rates are most representative of 12. End-of-Discharge Voltages for Novel Cathy Zoi, typical use. (See section III.B.4.(d).) Chemistries Assistant Secretary, Energy Efficiency and Renewable Energy. 6. Selecting the Batteries for Testing DOE seeks comment from interested parties on the end-of-discharge voltages For the reasons stated in the DOE seeks comment from interested for the nanophosphate lithium-ion and preamble, DOE is proposing to amend parties on the batteries that are typically silver-zinc chemistries that are proposed part 430 of Chapter II of Title 10, Code used with BCs that are packaged with for inclusion in Table 5.2 in appendix of Federal Regulations as set forth multiple batteries or packaged without Y. (See section III.B.5.(f).) below: batteries (e.g., AA and AAA and 12 volt lead-acid chargers) as well as the testing 13. Standby Mode and Off Mode PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER burdens associated with testing such Duration PRODUCTS chargers multiple times under the DOE also invites comment on the battery selection method currently in proposed test method for measuring 1. The authority citation for part 430 the CEC test procedure. (See part 1, standby mode and off mode energy continues to read as follows: section III.B.4.(e).) consumption for EPSs, including Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 7. Non-Battery Charging Functions whether the duration of the 2461 note. measurement is sufficiently long. (See 2. In § 430.23 revise paragraph (aa) to DOE seeks comment from interested section III.C.) read as follows: parties on the categorization of non- 14. Single-Voltage EPS Test Procedure battery charging functions and its § 430.23 Test procedures for the Amendments To Accommodate EPSs measurement of energy and water intention not to make allowances for That Communicate With Their Loads energy consumption due to additional consumption. functionality. (See section III.B.4.(f).) DOE seeks comment on the possible * * * * * modification of the single-voltage EPS (aa) Battery Chargers. The 24-hour 8. Procedure for Determining the Charge test procedure to accommodate EPSs energy consumption of a battery charger Capacity of Batteries With No Rating that must communicate with their loads; in active and maintenance modes, expressed in watt-hours, and the power DOE seeks comment from interested in particular the prevalence of such consumption of a battery charger in parties on the proposed revision to EPSs, the need to amend the test maintenance mode, expressed in watts, section II.G of the CEC test procedure to procedure to accommodate them, and shall be measured in accordance with explicitly lay out the iterative steps suggestions on amendments. (See section III.D.1.) section 5.10 of appendix Y of this required to measure battery capacity subpart. The power consumption of a when none is provided. (See section 15. Further Single-Voltage EPS Test battery charger in standby mode and off III.B.4.(g).) Procedure Amendments mode, expressed in watts, shall be 9. Deletion of the Inactive Mode Energy DOE seeks comment on the possible measured in accordance with sections Consumption Test Procedure further modification of the single- 5.11 and 5.12, respectively, of appendix voltage EPS test procedure to Y of this subpart. DOE seeks comment from interested accommodate EPSs with output current * * * * * parties on the proposal to strike the limiting and high output power. (See 3. Appendix Y to subpart B of part inactive mode energy consumption sections III.D.2. and III.D.3.) 430 is revised to read as follows: measurement from section 4(a) of appendix Y. (See section III.B.5.(a).) 16. Loading Conditions for Multiple- Appendix Y to Subpart B of Part 430— Voltage EPSs Uniform Test Method for Measuring the 10. Shortening the BC Charge and Energy Consumption of Battery DOE seeks comments on all issues Maintenance Mode Test Chargers pertaining to testing of multiple-voltage DOE seeks comment from interested EPSs. In particular, DOE invites 1. Scope parties on the optional method of comments on reporting 5 separate This appendix covers the test requirements shortening the charge and maintenance loading conditions (no-load, 25, 50, 75, used to measure battery charger energy mode test period in the proposed active and 100 percent of nameplate output consumption for battery chargers operating at mode amendment to the BC test current) without averaging the results. either DC or United States AC line voltage procedure, in particular its impacts on Additionally, DOE seeks comment on (120V at 60Hz). testing burden and the accuracy and how it should weigh these 2. Definitions repeatability of the measurement. (See measurements in an energy The following definitions are for the section III.B.5.(b).) conservation standards rulemaking for purposes of understanding terminology

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associated with the test method for charge and discharge, during which the 2.19. Off mode is the condition, applicable measuring battery charger energy battery is resting in an open-circuit state in only to units with manual on-off switches, in consumption.1 ambient air. which the battery charger: 2.1. Active mode or charge mode is the 2.10. C-rate is the rate of charge or (1) Is connected to the main electricity state in which the battery charger system is discharge, calculated by dividing the charge supply; connected to the main electricity supply, and or discharge current by the rated charge (2) Is not connected to the battery; and the battery charger is delivering current, capacity of the battery. (3) All manual on-off switches are turned equalizing the cells, and performing other 2.11. Cradle is an electrical interface off. one-time or limited-time functions in order to between an integral battery product and the 2.20. Power factor is the ratio of the active bring the battery to a fully charged state. rest of the battery charger designed to hold power (P) consumed in watts to the apparent 2.2. Active power or real power (P) means the product between uses. power (S), drawn in volt-amperes (VA). the average power consumed by a unit. For 2.12. Crest factor for an AC or DC voltage 2.21. Rated battery voltage is specified by a two terminal device with current and or current waveform, is the ratio of the peak the manufacturer and typically printed on voltage waveforms i(t) and v(t) which are instantaneous value to the root-mean-square the label of the battery itself. If there are periodic with period T, the real or active (RMS) value. multiple batteries that are connected in power P is: 2.13. Equalization is a process whereby a series, the rated battery voltage of the battery is overcharged, beyond what would batteries is the total voltage of the series 1 T be considered ‘‘normal’’ charge return, so that configuration, that is, the rated voltage of P=∫ v()() t i t dt cells can be balanced, electrolyte mixed, and each battery multiplied by the number of T 0 plate sulfation removed. batteries connected in series. Connecting 2.14. Instructions or manufacturer’s multiple batteries in parallel does not affect 2.3. Ambient temperature is the instructions means the documentation the rated battery voltage. temperature of the ambient air immediately packaged with a product in printed or 2.22. Rated charge capacity is the capacity surrounding the unit under test. electronic form and any information about the manufacturer declares the battery can 2.4. Apparent power (S) is the product of the product listed on a Web site maintained store under specified test conditions, usually root-mean-square (RMS) voltage and RMS by the manufacturer and accessible by the given in ampere-hours (Ah) or milliampere- current in volt-amperes (VA). general public at the time of the test. hours (mAh) and typically printed on the 2.5. Batch charger is a battery charger that 2.15. Measured charge capacity of a battery label of the battery itself. If there are multiple charges two or more identical batteries batteries that are connected in parallel, the simultaneously in a series, parallel, series- is the product of the discharge current in rated charge capacity of the batteries is the parallel, or parallel-series configuration. A amperes and the time in decimal hours total charge capacity of the parallel batch charger does not have separate voltage required to reach the specified end-of- configuration, that is, the rated charge or current regulation, nor does it have any discharge voltage. capacity of each battery multiplied by the separate indicators for each battery in the 2.16. Manual on-off switch is a switch number of batteries connected in parallel. batch. When testing a batch charger, the term activated by the user to control power Connecting multiple batteries in series does ‘‘battery’’ is understood to mean, collectively, reaching the battery charger. This term does not affect the rated charge capacity. all the batteries in the batch that are charged not apply to any mechanical, optical, or 2.23. Rated energy capacity means the together. A charger can be both a batch electronic switches that automatically product (in watt-hours) of the rated battery charger and a multi-port charger or multi- disconnect main power from the battery voltage charger. charger when a battery is removed from a voltage and the rated charge capacity. 2.6. Battery or battery pack is an assembly cradle or charging base, or for products with 2.24. Standby mode or no-battery mode of one or more rechargeable cells and any non-detachable batteries that control power means the condition in which: integral protective circuitry intended to to the product itself. (1) The battery charger is connected to the provide electrical energy to a consumer 2.17. Multi-port charger means a battery main electricity supply; product, and may be in one of the following charger which charges two or more batteries (2) The battery is not connected to the forms: (a) Detachable battery: A battery that (which may be identical or different) charger; and is contained in a separate enclosure from the simultaneously. The batteries are not (3) For battery chargers with manual on-off consumer product and is intended to be connected in series or in parallel. Rather, switches, all such switches are turned on. removed or disconnected from the consumer each port has separate voltage and/or current 2.25. Total harmonic distortion (THD), product for recharging; or (b) integral battery: regulation. If the charger has status expressed as a percent, is the root mean A battery that is contained within the indicators, each port has its own indicator(s). square (RMS value of an AC signal after the consumer product and is not removed from A charger can be both a batch charger and a fundamental component is removed and the consumer product for charging purposes. multi-port charger if it is capable of charging interharmonic components are ignored, 2.7. Battery energy is the energy, in watt- two or more batches of batteries divided by the RMS value of the fundamental hours, delivered by the battery under the simultaneously and each batch has separate component. specified discharge conditions in the test regulation and/or indicator(s). 2.26. Unit under test (UUT) in this procedure. 2.18. Multi-voltage charger is a battery appendix refers to the combination of the 2.8. Battery maintenance mode or charger that, by design, can charge a variety battery charger and battery being tested. maintenance mode is the mode of operation of batteries (or batches of batteries, if also a 3. Standard Test Conditions when the battery charger is connected to the batch charger) that are of different rated main electricity supply and the battery is battery voltages. A multi-voltage charger can 3.1. General fully charged, but is still connected to the also be a multi-port charger if it can charge The values that may be measured or charger. two or more batteries simultaneously with calculated during the conduct of this test 2.9. Battery rest period is a period of time independent voltage and/or current procedure have been summarized for easy between discharge and charge or between regulation. reference in Table 3.1.

TABLE 3.1—LIST OF MEASURED OR CALCULATED VALUES

Name of measured or calculated value Reference Value

1 ...... Time required to reach end-of discharge, (tdischarge_0.5A ) ...... Section 4.6. 2 ...... Charge Capacity Estimate ...... Section 4.6.

1 For clarity on any other terminology used in the test method, please refer to IEEE Standard 1515– 2000.

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TABLE 3.1—LIST OF MEASURED OR CALCULATED VALUES—Continued

Name of measured or calculated value Reference Value

3 ...... Trial 0.2 C discharge current, (I0.2C_trial) ...... Section 4.6. 4 ...... Improved Charge Capacity Estimate (if second discharge lasts for less than 4 or more Section 4.6. than 5 hours). 5 ...... Improved 0.2 C discharge current estimate (if second discharge lasts for less than 4 or Section 4.6. more than 5 hours), (I’0.2C_trial). 6 ...... Duration of the charge and maintenance mode test ...... Section 5.2. 7 ...... Battery Discharge Energy ...... Section 4.6. 8 ...... Initial time, power (W), power factor, and crest factor of the input current of connected Section 5.8. battery. 9 ...... Power factor and crest factor of the input current during last 10 min of test ...... Section 5.8. 10 ...... Active and Maintenance Mode Energy Consumption ...... Section 5.8. 11 ...... Maintenance Mode Power ...... Section 5.9. 12 ...... 24 Hour Energy Consumption ...... Section 5.10. 12 ...... Standby Mode Power ...... Section 5.11. 13 ...... Off Mode Power ...... Section 5.12.

3.2. Verifying Accuracy and Precision of input but cannot be operated at 115 V at 60 default charge rate. If the charger has user Measuring Equipment Hz, it shall not be tested. controls for selecting special charge cycles a. Measurements of active power of 0.5 W b. If a charger is powered by a low-voltage that are recommended only for occasional or greater shall be made with an uncertainty DC or AC input, and the manufacturer use to preserve battery health, such as of ≤ 2% at the 95% confidence level. packages the charger with a wall adapter, equalization charge, removing memory, or Measurements of active power of less than sells, or recommends an optional wall battery conditioning, these modes are not 0.5 W shall be made with an uncertainty of adapter capable of providing that low voltage required to be tested. The settings of the ≤ 0.01 W at the 95% confidence level. The input, then the charger shall be tested using controls shall be listed in the report for each power measurement instrument shall. As that wall adapter and the input reference test. applicable, have a resolution of: source shall be 115 V at 60 Hz. If the wall 4.2. Selection and Treatment of the Battery (1) 0.01 W or better for measurements up adapter cannot be operated with AC input Charger voltage at 115 V at 60 Hz, the charger shall to 10 W; The UUT, including the battery charger (2) 0.1 W or better for measurements of 10 not be tested. and its associated battery, shall be new to 100 W; or c. If the UUT is intended for operation only products of the type and condition that (3) 1 W or better for measurements over on DC input voltage and does not include a would be sold to a customer. If the battery 100 W. wall adapter, it shall be tested with one of is lead-acid chemistry and the battery is to b. Measurements of energy (Wh) shall be the following input voltages: 12.0 V DC for be stored for more than 24-hours between its made with an uncertainty of ≤ 2% at the 95% products intended for automotive, initial acquisition and testing, the battery confidence level. Measurements of voltage recreational vehicle, or marine use, 5.0 V DC shall be charged before such storage. and current shall be made with an for products drawing power from a computer uncertainty of ≤ 1% at the 95% confidence USB port, or the midpoint of the rated input 4.3. Selection of Batteries To Use for Testing level. Measurements of temperature shall be voltage range for all other products. The ± a. For chargers with integral batteries, the made with an uncertainty of ≤ 2 °C at the input voltage shall be within 1% of the battery packaged with the charger shall be 95% confidence level. above specified voltage. used for testing. For chargers with detachable c. All equipment used to conduct the tests d. If the input voltage is AC, the input ± batteries, the battery or batteries to be used must be selected and calibrated to ensure that frequency shall be within 1% of the for testing will vary depending on whether measurements will meet the above specified frequency. The THD of the input there are any batteries packaged with the ≤ uncertainty requirements. For suggestions on voltage shall be 2%, up to and including battery charger. measuring low power levels, see IEC 62301, the 13th harmonic. The crest factor of the (1) If batteries are packaged with the (Reference for guidance only, see § 430.4) input voltage shall be between 1.34 and 1.49. charger, batteries for testing shall be selected especially Section 5.3.2 and Annexes B and e. If the input voltage is DC, the AC ripple from the batteries packaged with the battery D. voltage (RMS) shall be: charger, according to the procedure below. ≤ (1) 0.2 V for DC voltages up to 10 V; or (2) If no batteries are packaged with the 3.3. Setting Up the Test Room ≤ (2) 2% of the DC voltage for DC voltages charger, but the instructions specify or All tests, battery conditioning, and battery over 10 V. recommend batteries for use with the rest periods shall be carried out in a room charger, batteries for testing shall be selected with an air speed immediately surrounding 4. Unit Under Test Setup Requirements from those recommended or specified in the the UUT of ≤ 0.5 m/s. The ambient 4.1. General Setup instructions, according to the procedure temperature shall be maintained at 25 °C ± a. The battery charger system shall be below. 5 °C throughout the test. There shall be no prepared and set up in accordance with the (3) If no batteries are packaged with the intentional cooling of the UUT such as by use manufacturer’s instructions, except where charger and the instructions do not specify or of separately powered fans, air conditioners, recommend batteries for use with the or heat sinks. The UUT shall be conditioned, those instructions conflict with the rested, and tested on a thermally non- requirements of this test procedure. If no charger, batteries for testing shall be selected conductive surface. A readily available instructions are given, then factory or from any that are suitable for use with the ‘‘ ’’ material such as Styrofoam will be sufficient. default settings shall be used, or where charger, according to the procedure below. When not undergoing active testing, batteries there are no indications of such settings, the b. From the detachable batteries specified shall be stored at 25 °C ± 5 °C. UUT shall be tested as supplied. above, the technician shall use Table 4.1 to b. If the battery charger has user controls select the batteries to be used for testing 3.4. Verifying the UUT’s Input Voltage and to select from two or more charge rates (such depending on the type of charger being Input Frequency as regular or fast charge) or different charge tested. Each row in the table represents a a. If the UUT is intended for operation on currents, the test shall be conducted at the mutually exclusive charger type. The AC line-voltage input in the United States, it fastest charge rate that is recommended by technician shall find the single applicable shall be tested at 115 V at 60 Hz. If the UUT the manufacturer for everyday use, or failing row for the UUT, and test according to those is intended for operation on AC line-voltage any explicit recommendation, the factory- requirements.

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c. A charger is considered as: all configurations of the batteries have the d. The selected battery or batteries will be (1) Single-capacity if all associated same rated charge capacity. referred to as the test battery and will be used batteries have the same rated charge capacity (2) Multi-capacity if there are associated through the remainder of this test procedure. (see definition) and, if it is a batch charger, batteries or configurations of batteries that have different rated charge capacities.

TABLE 4.1—BATTERY SELECTION FOR TESTING

Type of charger Tests to perform Number Battery selection (from all configurations of all associated Multi-voltage Multi-port Multi-capacity of tests batteries)

No ...... No ...... No ...... 1 Any associated battery. No ...... No ...... Yes ...... 2 Lowest charge capacity battery. Highest charge capacity battery. No ...... Yes ...... Yes or No ...... 2 Use only one port and use the minimum number of batteries with the lowest rated charge capacity that the charger can charge. Use all ports and use the maximum number of identical batteries of the highest rated charge capacity the charger can accommodate. Yes ...... No ...... No ...... 2 Lowest voltage battery. Highest voltage battery. Yes ...... Yes to either or ...... 3 Of the batteries with the lowest voltage, use the one with the lowest both. charge capacity. Use only one port. Of the batteries with the highest voltage, use the one with the lowest charge capacity. Use only one port. Use all ports and use the battery or the configuration of batteries with the highest total calculated energy capacity.

4.4. Limiting Other Non-Battery-Charger b. All conductors used for contacting the (3) Is unable to draw current from the test Functions battery must be cleaned and burnished prior battery, then the Battery Discharge Energy a. If the battery charger or product to connecting in order to decrease voltage and the Charging and Maintenance Mode containing the battery charger does not have drops and achieve consistent results. Energy shall be reported as ‘‘Not Applicable.’’ any additional functions unrelated to battery c. Manufacturer’s instructions for disassembly shall be followed, except those 4.6. Determining Charge Capacity for charging, this subsection may be skipped. Batteries With No Rating b. Any optional functions controlled by the instructions that: user and not associated with the battery (1) Lead to any permanent alteration of the a. If the test battery has a rated charge charging process (e.g., the answering battery charger circuitry or function; capacity, this subsection may be skipped. machine in a cordless telephone charging (2) Could alter the energy consumption of Otherwise, if there is no rating for the battery the battery charger compared to that base) shall be switched off. If it is not charge capacity on the test battery or in the possible to switch such functions off, they experienced by a user during typical use, e.g., due to changes in the airflow through the instructions, then the technician shall shall be set to their lowest power-consuming estimate the battery capacity in accordance mode during the test. enclosure of the UUT; or with the following iterative procedure c. If the battery charger takes any (3) Contradict requirements of this test physically separate connectors or cables not procedure. involving two or three charge and logged required for battery charging but associated d. Care shall be taken by the technician discharge cycles. These cycles can be used in with its other functionality (such as phone during disassembly to follow appropriate lieu of the battery conditioning specified in lines, serial or USB connections, Ethernet, safety precautions. If the functionality of the section 5.3: cable TV lines, etc.), these connectors or device or its safety features is compromised, (1) The test battery shall be fully charged cables shall be left disconnected during the the product shall be discarded after testing. according to the procedure in section 5.2. e. Some products may include protective testing. (2) The test battery shall then be d. Any manual on-off switches specifically circuitry between the battery cells and the remainder of the device. In some cases, it is discharged at a rate of 0.5 amperes until its associated with the battery charging process average cell voltage under load reaches the shall be switched on for the duration of the possible that the test battery cannot be end-of-discharge voltage specified in Table charge, maintenance, and no-battery mode discharged without activating protective tests, and switched off for the off mode test. control circuitry. If the manufacturer 5.2 for the relevant battery chemistry. The provides a description for accessing time required to reach end-of-discharge shall 4.5. Accessing the Battery for the Test connections at the output of the protective be measured, and the capacity estimated by a. The technician may need to disassemble circuitry, the energy measurements shall be multiplying the 0.5 ampere discharge current the end-use product or battery charger to gain made at the terminals of the test battery, so by the discharge time. as not to include energy used by the access to the battery terminals for the Battery (3) The test battery shall again be fully Discharge Energy Test in section 5.6. If the protective control circuitry. charged, as in step a.(1), of this section. battery terminals are not clearly labeled, the f. If the technician, despite diligent effort technician shall use a voltmeter to identify and use of the manufacturer’s instructions: (4) The test battery shall then be the positive and negative terminals. These (1) Is unable to access the battery discharged at a trial 0.2 C rate based on the terminals will be the ones that give the terminals; above capacity estimate. The trial 0.2 C largest voltage difference and are able to (2) Determines that access to the battery discharge current can be calculated as deliver significant current (0.2 C) into a load. terminals destroys charger functionality; or follows:

05. A×t I = DISCHARGE _.05 A 02._C TRIAL 5 h

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Where: second discharge time is greater than 4.5 (6) Otherwise, if the second discharge time I0.2C_TRIAL = is the trial discharge current; and hours and less than 5.5 hours, the capacity measured in step a.(4), of this section, is tDISCHARGE_0.5A is the time required to determined using the above method shall be greater than 4.5 hours and less than 5.5 discharge the battery at 0.5 amperes. used as the rated charge capacity throughout hours, the capacity estimate shall be updated the remainder of this test procedure. by multiplying by the second discharge time, (5) The time required to reach end-of- Furthermore, the current calculated above and an updated trial discharge current shall discharge shall again be measured. If this shall be used as the 0.2 C rate. be calculated as follows:

× ′ It02._C TRIAL DISCHARGE _. 05 A I′ = 02._C TRIAL 5 h

Where: b. This updated capacity estimate and 5. Test Measurement _ I0.2C TRIAL is the original trial discharge updated trial discharge current shall then be The test sequence to measure the battery current; used throughout this test procedure as the charger energy consumption is summarized ′ _ I 0.2C TRIAL is the updated trial discharge rated battery capacity and the 0.2 C rate, in Table 5.1, and explained in detail below. current; respectively. Measurements shall be made under test t′DISCHARGE_0.5A is the updated discharge conditions and with the equipment specified time measured at the I0.2C_TRIAL rate. in Sections 3 and 4.

TABLE 5.1—TEST SEQUENCE

Equipment needed Battery Thermom- Step Description Data analyzer or AC eter taken? Test Charger constant- power (for flooded battery current meter lead-acid load BCs only)

1 ...... Record general data on UUT; Section 5.1 .. Yes ...... X X ...... 2 ...... Determine test duration; Section 5.2 ...... No ...... 3 ...... Battery conditioning; Section 5.3 ...... No ...... X X X ...... 4 ...... Prepare battery for ...... No ...... X X ...... discharge test; Section 5.4 ...... 5 ...... Battery rest period; Section 5.5 ...... No ...... X ...... X 6 ...... Battery Discharge Energy Test; Section 5.6 Yes ...... X ...... X ...... 7 ...... Battery Rest Period; Section 5.7 ...... No ...... X ...... X 8 ...... Conduct Charge Mode and Battery Mainte- Yes ...... X X ...... X ...... nance Mode Test; Section 5.8. 9 ...... Determining the Maintenance Mode Power; Yes ...... X X ...... X ...... Section 5.9. 10 ...... Calculating the 24–Hour Energy Consump- No ...... tion; Section 5.10. 11 ...... Standby Mode Test; Section 5.11 ...... Yes ...... X ...... X ...... 12 ...... Off Mode Test; Section 5.12 ...... Yes ...... X ...... X ......

5.1. Recording General Data on the UUT (7) The settings of the controls, if battery 19 hours of charging, the test shall continue The technician shall record: charger has user controls to select from two until 5 hours after the indication is present. or more charge rates. (1) The manufacturer and model of the (2) If there is no indicator, but the manufacturer’s instructions indicate that battery charger; 5.2. Determining the Duration of the Charge charging this battery or this capacity of (2) The presence and status of any and Maintenance Mode Test a. The charging and maintenance mode battery should be complete within 19 hours, additional functions unrelated to battery the test shall be for 24 hours. If the charging; test, section 5.8, shall be 24 hours or longer, as determined by the items below, in order instructions indicate that charging may take (3) The manufacturer, model, and number longer than 19 hours, the test shall be run for of batteries in the test battery; of preference: (1) If the battery charger has an indicator the longest estimated charge time plus 5 (4) The rated battery voltage of the test to show that the battery is fully charged, that hours. battery; indicator shall be used as follows: If the (3) If there is no indicator and no time (5) The rated charge capacity of the test indicator shows that the battery is charged estimate in the instructions, but the charging battery; and after 19 hours of charging, the test shall be current is stated on the charger or in the (6) The rated charge energy of the test terminated at 24 hours. Conversely, if the instructions, calculate the test duration as the battery. full-charge indication is not yet present after longer of 24 hours or:

RatedChargeCapacity (Ah) Duration =⋅14. + 5h ChargeCurrent (A)

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b. If none of the above applies, the duration additional energy is not to be counted in the (3) Connect the data logging equipment to of the test shall be 24 hours. battery discharge energy. the battery charger; 5.4. Preparing the Battery for Discharge d. If not available from the battery (4) Record the start time of the Testing analyzer, the battery discharge energy (in measurement period, and begin logging the watt-hours) is calculated by multiplying the input power; Following any conditioning prior to voltage (in volts), current (in amperes), and (5) Connect the test battery to the battery beginning the battery discharge test (section sample period (in hours) for each sample, charger within 3 minutes of beginning 5.6), the test battery shall be fully charged for and then summing over all sample periods logging. For integral battery products, the duration specified in section 5.2 or no until the end-of-discharge voltage is reached. connect the product to a cradle or wall longer using the UUT. 5.7. Resting the Battery adapter within 3 minutes of beginning 5.5. Resting the Battery logging; The test battery shall be rested between (6) After the test battery is connected, The test battery shall be rested between discharging and charging. The rest period preparation and the battery discharge test. record the initial time, power (W), power shall be at least one hour and not more than factor, and crest factor of the input current The rest period shall be at least one hour and 24-hours. For batteries with flooded cells, the to the UUT. These measurements shall be not exceed 24 hours. For batteries with electrolyte temperature shall be less than 33 taken within the first 10 minutes of active flooded cells, the electrolyte temperature ° C before charging, even if the rest period charging; shall be less than 33 °C before charging, even must be extended longer than 4 hours. (7) Record the input power for the duration if the rest period must be extended longer 5.8. Testing Charge Mode and Battery of the ‘‘Charging and Maintenance Mode than 24 hours. Maintenance Mode Test’’ period, as determined by 5.2. The 5.6. Battery Discharge Energy Test actual time that power is connected to the a. The Charge and Battery Maintenance ± a. If multiple batteries were charged Mode test measures the energy consumed UUT shall be within 5 minutes of the simultaneously during the preparation step, during charge mode and some time spent in specified period; the discharge energy is the sum of the the maintenance mode of the UUT. Functions (8) During the last 10 minutes of the test, discharge energies of all the batteries. required for battery conditioning that happen record the power factor and crest factor of the (1) For a multi-port charger: batteries that only with some user-selected switch or other input current to the UUT; and were charged in separate ports shall be control shall not be included in this (9) Disconnect power to the UUT, discharged independently. measurement. (The technician shall terminate data logging, and record the final (2) For a batch charger: batteries that were manually turn off any battery conditioning time. charged as a group may be discharged cycle or setting.) Regularly occurring battery 5.9. Determining the Maintenance Mode individually, as a group, or in sub-groups conditioning or maintenance functions that Power connected in series and/or parallel. The are not controlled by the user will, by a. After the measurement period is position of each battery with respect to the default, be incorporated into this complete, the technician shall determine the other batteries need not be maintained. measurement. average maintenance mode power b. During discharge, the battery voltage and b. During the measurement period, input consumption as follows. Examine the power- discharge current shall be sampled and power values to the UUT shall be recorded versus-time data, and: recorded at least once per minute. The values at least once every minute. (1) If the maintenance mode power is recorded may be average or instantaneous (1) If possible, the technician shall set the cyclic or shows periodic pulses, compute the values. data logging system to record the average average power over a time period that spans c. For this test, the technician shall follow power during the sample interval. This an integer number of cycles and includes at these steps: allows the total energy to be computed as the least the last 4 hours. (1) Ensure that the test battery has been sum of power samples (in watts) multiplied (2) Otherwise, calculate the average power charged by the UUT and rested according to by the sample interval (in hours). value over the last 4 hours. the procedures above. (2) If this setting is not possible, then the (2) Set the battery analyzer for a constant power analyzer shall be set to integrate or 5.10. Determining the 24–Hour Energy discharge current of 0.2 C and the end-of- accumulate the input power over the Consumption discharge voltage in Table 5.2 for the relevant measurement period and this result shall be a. If the charge and maintenance test battery chemistry. used as the total energy. period determined in section 5.2 was 24- (3) Connect the test battery to the analyzer c. The technician shall follow these steps: hours, either the accumulated energy or the and begin recording the voltage, current, and (1) Ensure that user-controllable device average input power, integrated over the test wattage, if available from the battery functionality not associated with battery period, shall be used to calculate 24-hour analyzer. When the end-of-discharge voltage charging and any battery conditioning cycle energy consumption. is reached or the UUT circuitry terminates or setting are turned off, as instructed in b. If the charge and maintenance test the discharge, the test battery shall be section 4.4; period was greater than 24-hours, only the returned to an open-circuit condition. If for (2) Ensure that the test battery used in this first 24-hours of the accumulated energy or any reason, current continues to be drawn test has been conditioned, prepared, the average input power, integrated over from the test battery after the end-of- discharged, and rested as described in 24-hours, shall be used to calculate the 24- discharge condition is first reached, this sections 5.3 through 5.7, above; hour energy consumption.

TABLE 5.2—REQUIRED BATTERY DISCHARGE RATES AND END-OF-DISCHARGE BATTERY VOLTAGES

End-of-discharge Battery chemistry Discharge rate voltage C Volts per cell

Valve-Regulated Lead Acid (VRLA) ...... 0.2 1.75 Flooded Lead Acid ...... 0.2 1.70 Nickel Cadmium (NiCd) ...... 0.2 1 .0 Nickel Metal Hydride (NiMH) ...... 0.2 1.0 Lithium Ion (Li-Ion) ...... 0.2 2.5 Lithium Polymer ...... 0.2 2.5 Rechargeable Alkaline ...... 0.2 0 .9 Nanophosphate Lithium Ion ...... 0.2 2 .0 Silver Zinc ...... 0.2 1 .2

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5.11. Standby Mode Energy Consumption d. Finally, if the product contains shall be maintained at 25 °C ± 5 °C Measurement integrated power conversion and charging throughout the test. There shall be no a. Conduct a measurement of standby circuitry but is powered through a non- intentional cooling of the UUT such as by use power consumption while the battery charger detachable AC power cord or plug blades, of separately powered fans, air conditioners, is connected to the power source. Disconnect then no part of the system will remain or heat sinks. The UUT shall be conditioned, the battery from the charger, allow the connected to mains, and off mode rested, and tested on a thermally non- charger to operate for at least 30 minutes, and measurement is not applicable. conductive surface. A readily available material such as Styrofoam will be sufficient. record the power (i.e., watts) consumed as 4. Amend appendix Z to subpart B of the time series integral of the power part 430 by: (iii) Verifying the UUT’s Input Voltage and consumed over a 10 minute test period, a. Revising paragraph 2(c). Input Frequency divided by the period of measurement. If the b. Revising paragraphs 3(b) and 4(b). (A) If the UUT is intended for operation on battery charger has manual on-off switches, The revisions read as follows: AC line-voltage input in the United States, it all must be turned on for the duration of the shall be tested at 115 V at 60 Hz. If the UUT standby mode test. Appendix Z to Subpart B of Part 430— is intended for operation on AC line-voltage b. Standby mode may also apply to Uniform Test Method for Measuring the input but cannot be operated at 115 V at 60 products with integral batteries. If the Energy Consumption of External Power Hz, it shall not be tested. The input voltage product uses a cradle and/or adapter for Supplies shall be within ± 1% of the above specified power conversion and charging, then voltage. ‘‘disconnecting the battery from the charger’’ * * * * * (B) If the UUT is intended for operation will require disconnection of the end-use 2. * * * only on DC input voltage, it shall be tested product, which contains the batteries. The c. Active power (P) (also real power) means with one of the following input voltages: 12.0 other enclosures of the battery charging the average power consumed by a unit. For V DC for products intended for automotive, system will remain connected to the main a two terminal device with current and recreational vehicle, or marine use; 5.0 V DC electricity supply, and standby mode power voltage waveforms i(t) and v(t) which are for products drawing power from a computer consumption will equal that of the cradle periodic with period T, the real or active USB port; or the midpoint of the rated input and/or adapter alone. power P is: voltage range for all other products. The c. If the product also contains integrated input voltage shall be within ± 1% of the power conversion and charging circuitry and 1 T above specified voltage. is powered through a detachable AC power P=∫ v()() t i t dt (C) If the input voltage is AC, the input cord, then only the cord will remain T frequency shall be within ± 1% of the 0 connected to mains, and standby mode specified frequency. The THD of the input power consumption will equal that of the AC * * * * * voltage shall be ≤ 2%, up to and including power cord (i.e., zero watts). 3. * * * the 13th harmonic. The crest factor of the d. Finally, if the product contains (b) Multiple-Voltage External Power input voltage shall be between 1.34 and 1.49. integrated power conversion and charging Supply. Unless otherwise specified, (D) If the input voltage is DC, the AC ripple circuitry but is powered through a non- measurements shall be made under test voltage (RMS) shall be: ≤ detachable AC power cord or plug blades, conditions and with equipment specified (1) 0.2 V for DC voltages up to 10 V ≤ then no part of the system will remain below. (2) 2% of the DC voltage for DC voltages connected to mains, and standby mode over 10 V. measurement is not applicable. (i) Verifying Accuracy and Precision of 4. * * * Measuring Equipment 5.12 Off Mode Energy Consumption (b) Multiple-Voltage External Power Measurement (A) Measurements of power 0.5 W or Supply—Power supplies must be tested with greater shall be made with an uncertainty of the output cord packaged with the unit for a. If the battery charger has manual on-off ≤ 2% at the 95% confidence level. sale to the consumer, as it is considered part switches, record a measurement of off mode Measurements of power less than 0.5 W shall of the unit under test. There are two options energy consumption while the battery be made with an uncertainty of ≤ 0.01 W at for connecting metering equipment to the charger is connected to the power source. the 95% confidence level. The power output of this type of power supply: Cut the Remove the battery from the charger, allow measurement instrument shall have a cord immediately adjacent to the output the charger to operate for at least 30 minutes, resolution of: connector or attach leads and measure the and record the power (i.e., watts) consumed (1) 0.01 W or better for measurements up efficiency from the output connector itself. If as the time series integral of the power to 10 W; the power supply is attached directly to the consumed over a 10-minute test period, (2) 0.1 W or better for measurements of 10 product that it is powering, cut the cord divided by the period of measurement, with to 100 W; or immediately adjacent to the powered product all manual on-off switches turned off. If the (3) 1 W or better for measurements over and connect output measurement probes at battery charger does not have manual on-off 100 W. that point. The tests should be conducted on switches, record that the off mode (B) Measurements of energy (Wh) shall be the sets of output wires that constitute the measurement is not applicable to this made with an uncertainty of ≤ 2% at the 95% output busses. If the product has additional product. confidence level. Measurements of voltage wires, these should be left electrically b. Off mode may also apply to products and current shall be made with an disconnected unless they are necessary for with integral batteries. If the product uses a uncertainty of ≤ 1% at the 95% confidence controlling the product. In this case, the cradle and/or adapter for power conversion level. Measurements of temperature shall be manufacturer shall supply a connection and charging, then ‘‘disconnecting the battery made with an uncertainty of ≤ 2 °C at the diagram or test fixture that will allow the from the charger’’ will require disconnection 95% confidence level. testing laboratory to put the unit under test of the end-use product, which contains the (C) All equipment used to conduct the tests into active mode. batteries. The other enclosures of the battery must be selected and calibrated to ensure that (i) Standby-Mode and Active-Mode charging system will remain connected to the measurements will meet the above Measurement—The measurement of the main electricity supply, and off mode power uncertainty requirements. For suggestions on multiple-voltage external power supply consumption will equal that of the cradle measuring low power levels, see IEC 62301, standby mode (also no-load-mode) energy and/or adapter alone. (Reference for guidance only, see § 430.4) consumption and active-mode efficiency c. If the product also contains integrated especially Section 5.3.2 and Annexes B and shall be as follows: power conversion and charging circuitry and D. (A) Loading conditions and testing is powered through a detachable AC power sequence. (1) If the unit under test has on- cord, then only the cord will remain (ii) Setting Up the Test Room off switches, all switches shall be placed in connected to mains, and off mode power All tests shall be carried out in a room with the ‘‘on’’ position. Loading criteria for consumption will equal that of the AC power an air speed immediately surrounding the multiple-voltage external power supplies cord (i.e., zero watts). UUT of ≤ 0.5 m/s. The ambient temperature shall be based on nameplate output current

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and not on nameplate output power because not drift by more than 1 percent from the (4) If AC input power is not stable over a output voltage might not remain constant. maximum value observed, the unit under test 5-minute period, the technician shall follow (2) The unit under test shall operate at 100 can be considered stable and measurements the guidelines established by IEC Standard percent of nameplate current output for at can be recorded at the end of the 5-minute 62301 for measuring average power or least 30 minutes immediately before period. Measurements at subsequent loading accumulated energy over time for both input conducting efficiency measurements. conditions, listed in Table 1, can then be and output. (3) After this warm-up period, the conducted under the same 5-minute stability (5) The unit under test shall be tested at technician shall monitor AC input power for guidelines. Only one warm-up period of 30 the loading conditions listed in Table 1, a period of 5 minutes to assess the stability minutes is required for each unit under test derated per the proportional allocation of the unit under test. If the power level does at the beginning of the test procedure. method presented in the following section.

TABLE 1—LOADING CONDITIONS FOR UNIT UNDER TEST

Loading Condition 1 ...... 100% of Derated Nameplate Output Current ± 2%. Loading Condition 2 ...... 75% of Derated Nameplate Output Current ± 2%. Loading Condition 3 ...... 50% of Derated Nameplate Output Current ± 2%. Loading Condition 4 ...... 25% of Derated Nameplate Output Current ± 2%. Loading Condition 5 ...... 0%.

(6) Input and output power measurements (2) If D ≥ 1, then loading every bus to its (E) Efficiency calculation. Efficiency shall shall be conducted in sequence from Loading nameplate output current does not exceed be calculated by dividing the measured Condition 1 to Loading Condition 4, as the overall nameplate output power for the active output power of the unit under test at indicated in Table 1. For Loading Condition power supply. In this case, each output bus a given loading condition by the active AC 5, the unit under test shall be placed in no- will simply be loaded to the percentages of input power measured at that loading load mode, any additional signal connections its nameplate output current listed in Table condition. Efficiency shall be calculated at to the unit under test shall be disconnected, 1. However, if D < 1, it is an indication that each Loading Condition (1, 2, 3, and 4, in and input power shall be measured. loading each bus to its nameplate output (B) Proportional allocation method for current will exceed the overall nameplate Table 1) and be recorded separately. loading multiple-voltage external power output power for the power supply. In this (F) Power consumption calculation. Power supplies. For power supplies with multiple case, and at each loading condition, each consumption of the unit under test at voltage busses, defining consistent loading output bus will be loaded to the appropriate Loading Conditions 1, 2, 3, and 4 is the criteria is difficult because each bus has its percentage of its nameplate output current difference between the active output power own nameplate output current. The sum of listed in Table 1, multiplied by the derating at that Loading Condition and the active AC the power dissipated by each bus loaded to factor D. input power at that Loading Condition. The its nameplate output current may exceed the (C) Minimum output current requirements. power consumption of Loading Condition 5 overall nameplate output power of the power Depending on their application, some (no-load) is equal to the AC active input supply. The following proportional multiple-voltage power supplies may require power at that Loading Condition. allocation method must be used to provide a minimum output current for each output (ii) Off Mode Measurement—If the consistent loading conditions for multiple- bus of the power supply for correct voltage external power supplies. For operation. In these cases, ensure that the load multiple-voltage external power supply unit additional explanation, please refer to section current for each output at Loading Condition under test incorporates any on-off switches, 6.1.1 of the California Energy Commission’s 4 in Table 1 is greater than the minimum the unit under test shall be placed in off ‘‘Proposed Test Protocol for Calculating the output current requirement. Thus, if the test mode and its power consumption in off mode Energy Efficiency of Internal Ac-Dc Power method’s calculated load current for a given measured and recorded. The measurement of Supplies Revision 6.2,’’ November 2007. voltage bus is smaller than the minimum the off mode energy consumption shall (1) Assume a multiple-voltage power output current requirement, the minimum conform to the requirements specified in supply with N output busses, and nameplate output current must be used to load the bus. paragraph 4.(b)(i) of this appendix. Note that output voltages V1, * * *, VN, corresponding This load current shall be properly recorded the only loading condition that will be output current ratings I1, * * *, IN, and a in any test report. measured for off mode is ‘‘Loading Condition nameplate output power P. Calculate the (D) Test loads. Active loads such as 5’’ in paragraph 4.(b)(i)(A) of this appendix, derating factor D by dividing the power electronic loads or passive loads such as supply nameplate output power P by the sum rheostats used for efficiency testing of the except that all manual on-off switches shall of the nameplate output powers of the unit under test shall be able to maintain the be placed in the off position for the individual output busses, equal to the required current loading set point for each measurement. product of bus nameplate output voltage and output voltage within an accuracy of ± 0.5 [FR Doc. 2010–6318 Filed 4–1–10; 8:45 am] current IiVi, as follows: percent. If electronic load banks are used, BILLING CODE 6450–01–P their settings should be adjusted such that P they provide a constant current load to the D = , unit under test. N ∑VIii i=1

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Part IV

Department of Labor Employment and Training Administration

20 CFR Part 618 Trade Adjustment Assistance; Merit Staffing of State Administration and Allocation of Training Funds to States; Final Rule

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DEPARTMENT OF LABOR I. Background 617. This rulemaking is relatively The TAA program, authorized under narrow in scope; it addresses only the Employment and Training Chapter 2 of Title II of the Trade Act (19 staffing of TAA-funded functions and Administration U.S.C. 2271 et seq.), provides the allocation of TAA training funds to adjustment assistance for workers the States. A later NPRM will propose 20 CFR Part 618 whose jobs have been adversely affected the remainder of 20 CFR part 618. RIN 1205–AB56 by international trade. TAA assistance On August 5, 2009, the Department includes training, case management and published an NPRM proposing two Trade Adjustment Assistance; Merit reemployment services, income support, actions (74 FR 39198). The first was a Staffing of State Administration and job search and relocation allowances, a requirement that, after a transition Allocation of Training Funds to States wage supplement option for older period, a State must engage only State government personnel to perform TAA- AGENCY: Employment and Training workers, and eligibility for a health coverage tax credit. There are two steps funded functions undertaken to carry Administration, Labor. out the worker adjustment assistance ACTION: Final rule. for workers to obtain program benefits. A group of workers, or specified provisions of the Trade Act, and must SUMMARY: The Employment and entities, must file with the Department apply to these personnel the standards Training Administration (ETA) of the and the State in which the jobs are for a merit system of personnel Department of Labor (Department) located a petition for certification of administration, in accordance with issues this final rule to implement eligibility to apply for TAA benefits and Office of Personnel Management (OPM) changes to the regulations for the Trade services. If the Department certifies the regulations at 5 CFR part 900, subpart F. Adjustment Assistance for Workers petition, based upon statutory criteria These OPM regulations specify the (TAA) program under the Trade Act of that test whether the group of workers merit system standards required for 1974, as amended (Trade Act). This rule was adversely affected by international certain Federal grant programs. These requires that personnel engaged in TAA- trade, then the workers may standards have always been required for funded functions undertaken to carry individually apply with the Cooperating personnel administering Unemployment out the worker adjustment assistance State Agency (CSA) for TAA benefits Insurance (UI) (section 303(a)(1) of the provisions must be State employees and services. Social Security Act) and Wagner-Peyser covered by a merit system of personnel The States administer the provision of Act—funded Employment Service (ES) administration. This rule also prescribes benefits and services in the TAA programs in the States (20 CFR 652.215), the system for allocating training funds program as agents of the United States. and were required for personnel to the States, as required by Each State does so through a State administering TAA from 1975 until amendments to the Trade Act contained agency designated as the CSA in a 2005 under the Governor-Secretary in the American Recovery and Governor-Secretary Agreement between Agreements. Reinvestment Act of 2009, commonly the State’s Governor and the United The merit system standards contained called the Recovery Act. The Recovery States Secretary of Labor (Secretary), as in the OPM regulations at 5 CFR Act included provisions which required under section 239 of the Trade 900.603 are as follows: reauthorized and significantly amended Act. The CSA may also include the State (a) Recruiting, selecting, and advancing the TAA program. Workforce Agency (if different) and employees on the basis of their relative DATES: Effective Date: This final rule is other State or local agencies that ability, knowledge, and skills, including effective May 3, 2010. open consideration of qualified applicants for cooperate in the administration of the initial appointment. FOR FURTHER INFORMATION CONTACT: Erin TAA program, as provided in the (b) Providing equitable and adequate FitzGerald, Office of Trade Adjustment Governor-Secretary Agreement. compensation. Assistance, U.S. Department of Labor, The Trade and Globalization (c) Training employees, as needed, to 200 Constitution Avenue, NW., Room Adjustment Assistance Act of 2009 assure high quality performance. N–5428, Washington, DC 20210; (TGAAA), part of the Recovery Act (d) Retaining employees on the basis of the telephone (202) 693–3560 (this is not a (Pub. L. 111–5, Div. B, Title I, Subtitle adequacy of their performance, correcting toll-free number). I, 123 Stat. 115), reauthorized and inadequate performance, and separating Individuals with hearing or speech substantially amended the TAA employees whose inadequate performance cannot be corrected. impairments may access the telephone program by revising the certification (e) Assuring fair treatment of applicants number above via TTY by calling the criteria to expand the types of workers and employees in all aspects of personnel toll-free Federal Information Relay who may be certified and by expanding administration without regard to political Service at 1–800–877–8339. the program benefits available to affiliation, race, color, national origin, sex, SUPPLEMENTARY INFORMATION: The workers who are covered by a religious creed, age or handicap and with Department issued a notice of proposed certification (adversely-affected workers proper regard for their privacy and or adversely-affected incumbent constitutional rights as citizens. This ‘‘fair rulemaking (NPRM) proposing these ’’ workers, referred to collectively in this treatment principle includes compliance TAA regulations on August 5, 2009. with the Federal equal employment This final rule takes into consideration notice as ‘‘adversely-affected workers’’). opportunity and nondiscrimination laws. all comments received on the NPRM. The TGAAA amendments generally (f) Assuring that employees are protected This rule creates a new 20 CFR part 618. apply to adversely-affected workers against coercion for partisan political The preamble to this final rule is covered under petitions for certification purposes and are prohibited from using their organized as follows: filed on or after May 18, 2009, and official authority for the purpose of before January 1, 2011. To incorporate interfering with or affecting the result of an I. Background—provides a brief description into regulations the substantial changes election or a nomination for office. of the development of the rule. to the TAA program, the Department is In the NPRM, the Department stated II. Subpart-by-Subpart Review—summarizes and discusses comments on the TAA creating a new 20 CFR part 618, which that the purpose of requiring the regulations. will implement the TAA program application of these merit principles to III. Administrative Information—sets forth regulations that will succeed the current State administration of the TAA the applicable regulatory requirements. TAA program regulations in 20 CFR part program is to promote consistency,

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efficiency, accountability, and are distributed. The Department is of developing this final rule; the transparency. allowed to reclaim unexpended training substantive issues raised by the In addition to the merit staffing funds from a given State, with the comments that are germane to the rule requirement, the second regulatory State’s agreement, and to re-obligate are responded to below. Most action proposed in the NPRM concerned such funds to other States, if the significantly, the NPRM proposed that a the methodology by which the obligation is carried out within the same State not already in compliance with the Department allocates training funds to fiscal year the funds were appropriated. merit staffing requirement must comply the States. (The TGAAA uses the term As a result, if a State is allocated FY with this requirement with respect to ‘‘apportion’’ when discussing the 2009 training funds, those funds may be the personnel responsible for dividing of training funds among the returned to the Department and employment and case management States. However, this final rule uses the provided to another State only during services under section 235 of the Trade term ‘‘allocation’’’ to avoid confusion, FY 2009. After the end of the fiscal year, by October 1, 2010. All other TAA since customarily the Office of the Department has no authority to administrative activities would have Management and Budget (OMB) redistribute any unused funds. Since had to have been merit staffed by July ‘‘apportions’’ appropriated funds to the States have three fiscal years to expend 1, 2010. The Department has decided, in Department, which then ‘‘allocates’’ the funds obligated in any fiscal year, it response to concerns raised in the them to the States.) Before fiscal year is often not apparent that a State does comments, to now apply a single, later (FY) 2004, the Department allocated not need all of the funds obligated to it transition period for the merit staffing of training funds through a request process in the fiscal year in which the funds both administration and employment on a first-come, first-served basis; all were allocated. Thus, TAA training and case management services with a distributions of TAA training funds funds that the Department obligates to compliance deadline of December 15, were made in response to a State’s States within a fiscal year but remain 2010. request. This resulted in the Department unexpended by the States after three Subpart H—Administration by distributing the majority of available years are returned directly to the U.S. Applicable State Agencies TAA training funds early in the year, Treasury. resulting in early exhaustion as TAA Section 1828(a) of the TGAAA As proposed, § 618.890, establishing training funds are subject to a statutory amended section 236(a)(2) of the Trade the merit staffing requirement, maximum annual funding level, or Act to establish an annual training contained four paragraphs. Paragraph (a) ‘‘cap.’’ Later needs were addressed funding cap of $575 million, increased set forth the merit staffing requirement. through National Emergency Grant from $220 million annually, for fiscal Paragraph (b) detailed a transition funds, provided under Section 173 of years 2009 and 2010 and $143,750,000 period for States to come into the Workforce Investment Act of 1998 for the period October 1, 2010 through compliance with this requirement. (WIA) (29 U.S.C. 2918). However, this December 31, 2010. The Conference Paragraph (c) partially exempted from process proved to be inefficient, Report on the Recovery Act makes clear this merit staffing requirement those lengthy, and cumbersome, because it that Congress increased the cap in part States whose employment service was did not provide States with a because the TGAAA amendments exempted from the merit staffing predictable level of funding. would result in more individuals being requirement under Wagner-Peyser Act Therefore, starting in fiscal year 2004, eligible for training benefits, and in part regulations. Paragraph (d) permitted a the Department issued annual guidance because in past times of high program State to outsource TAA functions that establishing a formula for distributing participation, training funding was are not inherently governmental, as TAA training funds to the States. The insufficient. H.R. Rep. No. 111–16, at defined in OMB Circular No. A–76 Department initially allocated 75 672 (2009) (Conf. Rep.). (Revised). percent of the year’s training funds, and The amended section 236(a)(2) also All 42 submissions received in held the remaining 25 percent in established a methodology for response to the NPRM included reserve, for later use by high-need distributing TAA training funds based comments on the proposed merit States. The formula included a ‘‘hold on a formula to be determined by the staffing requirement. As explained harmless’’ feature, whereby the initial Department. The Trade Act now below, in response to several comments, allocation to a State was at least 85 provides that the initial distribution of the Department revised § 618.890(b) to percent of the amount the State received training funds must equal 65 percent of reflect the adoption of a single transition in its initial allocation the prior fiscal the training funds appropriated and that deadline of December 15, 2010, for year. the remaining 35 percent will be held in merit staffing of both administrative The formula instituted in 2004 had reserve. The Department’s initial activities and employment and case some limitations. Most significant was allocation formula must be based on management services. the relative inability of the Department four factors set forth in the statute. Merit-Based State Personnel to shift TAA training funds in response Section 236(f)(1) of the Trade Act (§ 618.890(a)) to changing economic conditions. This (added by Section 1828(c) of the shortcoming was due in part to the 85 TGAAA) directs the Department to issue Paragraph (a) provides that States percent hold harmless feature, and in ‘‘such regulations as may be necessary to must engage only State government part to the details of the formula itself. carry out the [allocation] provisions’’ on personnel to perform TAA-funded This shortcoming was compounded by or before February 17, 2010. This final functions undertaken to carry out the the fact that, under the Department’s rule fulfills that statutory requirement. worker adjustment assistance provisions annual appropriations acts, of the Trade Act, and must apply to appropriated funds, including funds for II. Subpart-by-Subpart Review of the such personnel the standards for a merit TAA, must be obligated (and re- Final Rule system of personnel administration obligated) by the Department within the The Department issued a notice applicable to personnel covered under 5 fiscal year in which the funds are proposing these regulations on August CFR part 900, subpart F. Section appropriated; therefore, the Department 5, 2009, and received 42 comments. The 618.890(a) restores the longstanding has very limited authority to move Department read and carefully practice of requiring State merit staffed money between States once the funds considered each comment in the process personnel to administer the TAA

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program. From 1975 through 2005, the Department’’ the authority to enact this repudiate the Department’s Governor-Secretary Agreements under rule. One commenter suggested that if longstanding interpretation of the Trade which the States administer the TAA Congress had intended that certain TAA Act as requiring merit staffing in the program as agents of the United States functions be provided by State merit face of silence in the statute and required that all administrative staff, it would have included that ambiguity in the legislative history; and functions performed by the States in provision in the TGAAA. Congress failed to alter the Department’s carrying out the TAA program be As an initial matter, the minority State merit staffing requirement despite performed exclusively by staff subject to opinion in the House Committee Report amending the Trade Act several times the merit system standards at 5 CFR is not indicative of Congressional intent. between 1975 and 2005 when the 900.603. In 2005, the Governor- Regarding these commenters’ broader Governor-Secretary Agreement Secretary Agreements were modified to arguments, the Department expressly required merit staffing. provide that TAA program staff need acknowledges that the TGAAA did not Accordingly, only a clear, unambiguous not be merit staffed, except that incorporate provisions that had been statement from Congress would be employees who perform functions included in a bill passed by the House sufficient to prohibit the Department under both the TAA program and the UI in the previous Congress during the from exercising its discretion and and/or ES programs must be merit previous Administration that would requiring merit staffing through staffed. However, in 2009, the have statutorily mandated the use of rulemaking. Department provided advance notice in merit staff in the TAA program, but the A few commenters asserted that the Governor-Secretary Agreements that Conference Committee’s failure to section 239 of the Trade Act does not it would address merit staffing in explain its actions precludes a finding provide the Department authority to rulemaking. This rule reinstates, and that Congress clearly intended to require State use of merit staffing in codifies in regulation, what had been prohibit the Department from enacting implementing the TAA program. Some the Department’s longstanding practice such a requirement through rulemaking. of these commenters generally asserted of requiring merit staffing by the States Courts have consistently stated as a that the TGAAA does not require the in administering the TAA program. general rule that Congressional intent use of merit staffing. As discussed The Department presented several cannot be clearly understood where above, the Department is acting within rationales in the NPRM for this actions taken by a committee in its discretion in requiring merit staffing. requirement. The Department will Congress, including the Conference One of these commenters disagreed that address the comments made on each Committee, are not explained. Because sections 239(a)(4) (cooperation with the rationale. the Conference Report is silent on this Secretary and other State and Federal matter, the legislative history cited by agencies in providing payments and Authority these commenters is insufficient to services), 239(f) (advising and In the NPRM, the Department found determine what Congress intended interviewing adversely-affected authority to promulgate this rule in when it passed the TGAAA. Further workers), and 239(i) (control measures) section 239 of the Trade Act. The weakening these commenters’ assertions of the Trade Act provided the authority Department received several comments is the general rule that the opinion and for the Department to require merit on this issue. understanding of a subsequent Congress staffing. This commenter asserted that Some of the commenters questioning is a poor indicator of what a previous Congress did not intend to provide our authority asserted that requiring the Congress intended when it passed a authority to require merit staffing under use of merit staff runs counter to the specific provision of a bill. In the section 239(a)(4), an assertion it clear intent of Congress in passing the absence of any clear Congressional supported by stating that ‘‘neither the TGAAA. A small number of these intent prohibiting it, the Department statutory text itself nor the legislative commenters simply pointed out their believes that promulgation of the merit history to section 239(a)(4)’’ provide the belief that the proposed rule runs staffing rule is within the discretionary authority cited by the Department. The counter to Congress’ intent, while others authority delegated to it to interpret the commenter asserted that ‘‘neither the argued that Congress’ intent to exclude Trade Act and administer the TAA statutory text itself nor the legislative merit staffing is clear from the actions program. history to section 239(f) says anything of the Conference Committee tasked The Federal court opinion in about merit staffing,’’ and therefore the with reconciling the House and Senate Michigan v. Herman, 81 F.Supp.2d 840 Department does not have the authority bills to reauthorize and amend the (W.D. Mich. 1998), provides support for to issue such a rule. The commenter Trade Act. One commenter focused on the Department’s position. In that case additionally asserted that section 239(i) the House-passed bill, the Senate bill the court upheld the Department’s cannot be used to support this rule as introduced by Senator Max Baucus, and requirement that ES services be this section was added ‘‘at the insistence the actions of the Conference Committee provided by merit staff under the of Senate negotiators opposed to the as relevant legislative history. Another Department’s interpretation of the imposition of a [S]tate merit staffing commenter cited the minority views of Wagner-Peyser Act. In its decision, the requirement.’’ the House Committee Report from 2007 court noted that the Wagner-Peyser Act The Conference Report on section 239 (H.R. Rep. No. 110–414, pt. 1, at 119– is silent on the issue, the legislative is silent on the issue of merit staffing, 120) as relevant legislative history. One history is ambiguous on the matter, and while these provisions in section 239 commenter asserted that ‘‘because that Congress’ failure to alter the provide the Department with broad Congress specifically considered and Department’s longstanding authority to prescribe rules to govern intentionally rejected [merit staffing] in interpretation of the Wagner-Peyser Act the efficient administration of the TAA passing the TGAAA,’’ the Department indicated that Congress intended to program. In the face of legislative does not now have the authority to defer to the Department’s interpretation silence, the Department believes that promulgate such a rule. Another of the Act. Michigan, 81 F.Supp.2d at these provisions in section 239 provide commenter argued that the actions of 847–848. As in Michigan, the Trade Act it with sufficient authority to ensure the the Conference Committee ‘‘precludes does not directly address merit staffing; effective administration of the TAA an interpretation of section 239 of the the legislative history is ambiguous, and program in any manner that will meet Trade Act that would grant the for 30 years Congress did not expressly the goal of efficient and effective

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program administration. As explained discretion reposes in the grantee. The requirements and procedures that apply throughout this preamble, the Department’s broad discretion as the to State UI programs. Department’s promulgation of this rule principal provides it ample authority to The Department received several is necessary for the most effective prescribe administrative rules, comments agreeing that the integral administration of the TAA program. including a merit staffing requirement. relationship between the TAA program Finally, one commenter faulted the The fact that the principal-agent and UI programs would benefit from the Department’s reliance on ‘‘Congress’ relationship is longstanding does not requirement that TAA program funds be decision to require the provision of limit the role of the principal, just as it administered by State merit staff. Some TAA-funded employment and case did not limit that role in 2005. of these commenters cited the need for management services to TAA-eligible The TGAAA created additional State merit staff especially because, in workers as a justification for imposing’’ entitlements to benefits within that their experience, personnel who the merit staffing requirement because relationship. The TGAAA created a determine eligibility for TRA benefits ‘‘the agreement on this portion of the requirement to provide employment and must thoroughly understand UI TGAAA Act was directly linked’’ to the case management services to TAA- eligibility requirements and program compromise that included the dropping certified workers, almost tripled the complexities. of the merit staffing provision from the training funding authorization to A small number of commenters House version of the bill. As with the provide longer-term training to an disagreed. One of these commenters assertions about sections 239(a)(4), (f), expanded pool of certified workers, asserted that WIA programs have and (i), the commenter did not cite to increased by 26 the number of weeks of equally complex requirements, yet those any legislative history to support this income support for workers within a 91- programs are often effectively contention, and the Department is aware week period, added the reemployment administered by non-merit staff. Another of these commenters stated that of none. trade adjustment assistance (RTAA) the TAA program ‘‘is more closely benefit for older workers, enhanced Principal-Agent Relationship aligned with the [WIA]-funded rapid other benefits and services, and In the NPRM, the Department response and dislocated worker expanded group eligibility. The discussed the principal-agent programs,’’ because both of these Department anticipates the total funding relationship, under which the programs ‘‘address the training and for these features to virtually double, Department directs the State reemployment needs of workers affected and of course these new features add administration of the TAA program, as by a dislocation event * * *,’’ and complexity and additional challenges in support for the use of State merit staff therefore, the administration of the administering the program. It is, to administer the TAA program. The program should be designed to more Department explained that therefore, appropriate at this time for closely coordinate with WIA, which can implementing the TAA program the Department to reconsider the be done most effectively at the local requires States to make determinations minimum requirements to which States, level under the existing system. concerning the Federally-funded on behalf of the Department and the Similarly, another commenter averred services and benefits to which United States, must adhere in order to that the responsibilities of TAA staff adversely-affected workers are entitled. effectively administer the TAA program. more closely resemble WIA staff The Department received a small Further, the Department disagrees activities than those of UI and ES number of comments on this discussion. with the commenter’s assertion that in program staff. One of the commenters agreed that the order to promulgate this rule the The Department recognizes that there Department has ‘‘broad authority to Department must show how the past use are similarities between WIA and TAA, ensure that the TAA program functions of non-merit staff has undermined the and requires coordination between the in a proper and efficient manner,’’ principal-agent relationship. The two programs. However, the structure of including through implementation of a principal-agent relationship, which the TAA program, by operating within State merit staffing requirement for use existed before this rulemaking and was a principal-agent relationship, reflects of TAA funds, since States act as agents reinforced in the provisions of all of the greater Federal authority and of the United States. Another Governor-Secretary Agreements on TAA responsibility than is present in the commenter suggested that the principal- program administration, provides the grantor-grantee relationship under agent provisions have long been part of Department the authority to direct which WIA operates. Unlike TAA, WIA the Trade Act, so the Department may States as to the manner of administering participants are not entitled by law to not use that longstanding relationship as the TAA program. The Department’s program benefits, and any eligibility for a basis for implementing a new merit authority as principal is reinforced by UI payments that a WIA participant may staffing requirement at this time. This its authority to interpret and apply the have is not affected by determinations of commenter also asserted that the statute as the agency designated by eligibility to receive WIA services. In Department failed to identify any way in Congress to administer the TAA the TAA program, TRA eligibility is an which the current method of providing program. extension of UI eligibility that takes into account State and Federal eligibility services using non-merit staff has Complex Entitlement Program undermined the principal-agent criteria. Maintaining eligibility for TRA relationship. In the NPRM, the Department stated requires continuing eligibility The principal-agent relationship, that the TAA program is a complex determinations, taking into account present in all Federal UC programs, entitlement program, similar to the UI factors such as enrollment in training, invests the Department, as principal, program which is also administered by length of training, employment with broad discretion to interpret the State merit staff. The Department also decisions, and earnings. By adding statute and to prescribe the operational noted that the TAA and UI programs are employment and case management and administrative details of the TAA integrally related. For example, the TAA services as a required benefit of the program. This differs from the grantor- program’s trade readjustment allowance program, Congress recognized that the grantee relationship, found in programs (TRA) is a UI benefit payable after proper provision of these services, like WIA, in which substantial exhaustion of other forms of UI and is including quality case management, is operational and administrative subject to many of the same or similar essential to the adjustment of adversely-

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affected workers. For example, if a TAA through agreements with the States and and will not in the future impede, the case manager is not familiar with the section 235a makes provides funding for provision of services to adversely- requirements for enrollment in training States to provide those services. Section affected workers in the centers of the in order to receive TRA, or does not 239(g)(5) of the Trade Act specifically One-Stop delivery system (One-Stop possess a full understanding of the rules requires States acting under such centers) established under WIA. The setting the amount of income an agreements to provide such services TAA program will continue to be a One- adversely-affected worker may earn through other Federal programs in the Stop partner, as are other merit-staffed while still receiving TRA, an adversely- event that allocated TAA funding for programs, including UI and the ES, affected worker may be incorrectly employment and case management which are integrally related to TAA. As determined ineligible for TRA. By losing services is insufficient to make these the Governor-Secretary Agreement eligibility for TRA, the worker may lose required services available to all provides, the States will continue to use eligibility for the health coverage tax adversely-affected workers in a State. One-Stop centers as the main point of credit, and find it difficult to continue participant intake and delivery of TAA Relationship With WIA training. As one commenter noted, benefits and services. ‘‘meeting these complicated Many commenters argued for the Consistent with Trade Act section requirements requires a very continuation of a structure involving co- 239(g)(5), there is nothing in this rule specialized, highly-trained workforce enrollment and integration with WIA prohibiting the delivery, in appropriate with expertise that cannot be easily services. These commenters remarked circumstances, of employment and case outsourced or transferred to other that their State’s integrated service management services to adversely- organizations.’’ delivery system is highly efficient, affected workers by staff funded by WIA A few commenters encouraged the responsive, and consistent; has good or other Federal programs through co- Department to let each State choose its coverage throughout the State; has enrollment. As a partner in the One- own staffing strategy. According to these worked well for many years; and Stop delivery system, the TAA program comments, the Department is imposing provides the full range of ‘‘wrap-around’’ will continue to coordinate with the a ‘‘one size fits all’’ approach by services and in-depth assessments. One other partners in the system to ensure requiring State merit staffing. The commenter stated that a merit staff adversely-affected workers are provided Department is promulgating this requirement is diametrically opposed to access to a broad array of requirement because it has determined the Department’s stated goal of program comprehensive services. In light of the that nationwide consistency in the TAA integration. One commenter added that current mix of merit staffed and non- program is of paramount importance. having the WIA and TAA programs merit staffed One-Stop partners already The Department has also determined administered by two different entities participating in the One-Stop delivery that the State merit staffing requirement and staff would result in a potential loss system, the restoration of the TAA will promote program efficiency, of co-enrollment opportunities. One merit-staffing requirement will not accountability and transparency. commenter supported State practices preclude effective coordination and The important point is that adversely- that respect the principles of local integration within that system. affected workers now are entitled to governance, community-based service Under the amendments, the TAA receive a range of tailored services delivery, and system-wide program for the first time will be able under the TAA program. The accountability. to devote TAA funding to the provision Department recognizes that many Some of these commenters noted that of employment and case management adversely-affected workers receive 27 States and Puerto Rico have opted to services. These services were previously services under other programs for which allow a variety of State and local not allowable uses of funds under the they are also eligible, such as WIA, government employees and contractors TAA program. To the extent that which are not delivered by State merit- to provide services to TAA participants. adversely-affected workers received staffed personnel. In contrast, since These commenters noted that this has these services, they received them TAA is a complex entitlement program allowed for a high degree of integration through other programs, generally WIA that requires States to make substantive of the services provided through TAA or the ES. Now, dedicated TAA funds determinations of benefit entitlement, as and the One-Stop delivery system. will allow the TAA program to ensure agents of the United States, the Along the same line, other commenters that these services are provided to Department is requiring State merit- suggested that local workforce areas are adversely-affected workers in a high- staffed administration of the TAA- better poised to assist participants with quality and in-depth manner. However, funded services to which adversely- training choices and reemployment the WIA, ES and other resources and affected workers are entitled. However, services than State merit staff because of structures that were used to provide while the Department expects the awareness of demand occupations, local these services to adversely-affected primary delivery of case management resources, and the local economic workers in the past are not being services for TAA participants will be climate. One commenter added that in eliminated or dismantled. They will through TAA-funded State merit staff, some local areas, non-merit staff continue to be available to provide non-merit staff funded by partner currently providing TAA benefits show services to the dislocated workers and programs may provide those services higher job retention rates and higher adults who continue to be eligible for when, for example, TAA funds have salaries than merit staff. Several those programs, including adversely- been exhausted, when demand for commenters mentioned the requirement affected workers, and the provision of services exceeds TAA-funded staff to provide case management, and these benefits should continue to be capacity to deliver those services, or expressed concern that the proposed coordinated with the TAA program when specific services have already rule would require States to establish facilitated through the One-Stop been provided under another Federal redundant, costly, and disruptive public delivery system established under WIA. program. In fact, section 235 of the structures because the States would be Adversely-affected workers currently Trade Act requires the Secretary to prohibited from using existing local receive many services in addition to make employment and case workplace resources. case management and employment management services available to The use of merit staff in the TAA services, including supportive services adversely-affected workers directly or program has not previously impeded, and other wrap-around services, which

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are funded and provided under other easily locate the entity to hold The Department does not question programs for which adversely-affected accountable for TAA program issues. that there are local staff who have workers also qualify. The Department In contrast, several commenters effectively served the TAA program, and will continue to encourage the provision argued that non-merit staffing models understands that some local staff have of services to adversely-affected workers are equally effective. These commenters attained knowledge and experience. by such other programs in order to argued that their experience with local Indeed, this rule does nothing to disturb supplement TAA-funded services. In TAA staff is that they have provided the local delivery of TAA services. State fact, section 239(g)(5) of the Trade Act quality service to adversely-affected personnel may and do perform TAA specifically requires States to provide workers. For example, one commenter functions at the local level. Further, employment and case management noted that local staff have correctly States may hire persons who are services through other Federal applied eligibility criteria and have knowledgeable about and experienced programs, in the event that allocated effectively performed their TAA duties. in delivering TAA services consistent TAA funding for employment and case One commenter noted that agreements with State merit standards. This rule management services is insufficient to between the States and local entities simply requires that personnel engaged make these required services available can, and have, addressed some of the in TAA-funded functions, except as to all adversely-affected workers in a features attributed to State merit staff specified in § 618.890, must be State. Moreover, the Governor-Secretary such as strict government standards on employees covered by the State merit Agreements require coordination of the the use of personal information. This system of personnel administration, TAA program with activities carried out commenter also remarked that the State permitting non-merit staff to be under WIA to help ensure that a is always responsible for administering converted to State employment, if comprehensive array of services is TAA, regardless of how the program is accomplished in accordance with the available to adversely-affected workers. staffed. merit principles. The operating instructions to implement Other commenters contended that Consistency, Efficiency, Accountability the TGAAA amendments (TEGL No. 22– local staff who have been providing and Transparency 08) also affirmed the desirability of co- TAA services in recent years have In the NPRM, the Department enrollment of adversely-affected become knowledgeable about the explained that its purpose in requiring workers in WIA and other programs to program and have gained valuable State merit staffing of TAA-funded ensure comprehensive services are experience that benefits adversely- available. The commenters have not functions ‘‘is to promote consistency, affected workers. These commenters efficiency, accountability, and explained how the merit-staffing cautioned that losing that background requirement precludes co-enrollment in transparency in the administration of and expertise would harm the TAA the TAA program.’’ 74 FR 39199, Aug. other programs or effective coordination program. by TAA with the other programs, 5, 2009. The Department received There are unique advantages to using including both merit staffed and non- several comments about this purpose. the State merit personnel system for merit staffed programs, which also are Several of these agreed that requiring staffing the TAA program. State merit partners in the One-Stop delivery State merit staff personnel to administer staff employees are hired into and system under WIA. In sum, this rule the TAA program would ensure better operate within a publicly accountable does not undermine the feasibility or consistency, efficiency, transparency, organization with a State-wide importance of the co-enrollment of and accountability. Some of these perspective and are responsible to the adversely-affected workers in WIA and commenters focused on the general public. Some features of the other Federal programs. disadvantages of and inconsistencies in State merit staffing model that add value local implementation of the program. State Merit System Advantages to the TAA program are the objective One commenter expressed the belief In the NPRM, the Department nature of public personnel systems; the that the proposed rule would help described various desirable features of strict government standards governing prevent a proliferation of different State merit personnel systems. The the use of personal information; and management practices and structures Department stated that State merit staff that State agencies already address such that make accountability and equal employees are directly accountable to issues as the impartial treatment of access more difficult to achieve. In State government entities. Also, the applicants to and beneficiaries of public addition, this commenter stated that Department noted that the standards for programs, and operating with high One-Stop centers vary considerably State merit staff performance and their standards of public transparency. with respect to size, capacity, and type determinations on the use of public Further, the direct employer- of operator, and there is variation in funds require that decisions be made in employee relationship between State services and quality depending on the best interest of the public and of the merit staff and the State agency (or location. One commenter warned that population to be served. agencies) responsible for delivery of the priorities of other local programs The Department received several TAA services makes it easier for can sometimes take precedence over the comments on this topic. Some adversely-affected workers to hold their TAA program. Another commenter commenters extolled the benefits of State government accountable for the observed that ‘‘the diversified WIA using State merit staff for the TAA services to which they are entitled. structure results in a degree of program. One commenter expressed the Although it is certainly possible to hold impenetrability for service recipients opinion that it would be preferable to local and/or non-merit staff and their and policy makers,’’ and asserted that have TAA eligibility determinations employers accountable, the attenuated requiring State merit employees to made by public agency merit staff that lines of authority between State perform TAA-funded functions would are hired according to objective agencies, local entities, contactors, etc., ensure that citizens and elected officials personnel standards and are insulated creates a more amorphous web of are able to ‘‘place accountability where from political and other pressures. relationships that can make it more it belongs.’’ One commenter noted that Another commenter claimed that if difficult for adversely-affected workers staff turnover combined with State merit staffing is required, then to locate the source of TAA program inconsistency of service from one local citizens and elected officials could more responsibility. workforce board area to another is not

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conducive to an efficient operation of For example, one commenter fact how services in the Department’s the TAA program. maintained that consistency can be workforce programs—including State- One commenter provided a detailed accomplished by focusing on applying administered programs such as TAA— argument supporting the idea that policies and procedures rather than on are delivered. The merit staffing Federal benefit entitlement programs who delivers the service. Another requirement ensures that the services must be carried out by State employees commenter contended that State-wide provided locally to adversely-affected who are free from political pressures training and monitoring of local staff workers will be administered uniformly and the for-profit motives of private- can help to produce consistency. within States and across States. sector contractors. According to this Another commenter suggested that Accordingly, commenters should not be commenter, the TAA program should be technical assistance is a tool that can concerned that this rule will force a operated at the State level by personnel support consistency. ‘‘dismantling’’ of a local service delivery who have been recruited, selected, Other commenters stated that local system. In fact, the new funding stream compensated, and evaluated according delivery of TAA services is efficient. A provided under the TGAAA for case to a merit system of personnel few of these commenters argued that the management and employment services administration. This commenter local staff model is more flexible and allows resources under WIA and the ES asserted that local One-Stop centers can more nimbly respond to layoff that were previously used for that have divergent policies, which events and training opportunities than a purpose for adversely-affected workers sometimes result in significant larger bureaucracy. Some of these to be used to provide services to the variances in the treatment received by commenters contended that it would be many other dislocated workers and persons who have worked at the same inefficient and potentially confusing to adults eligible for those programs who workplace, depending on where they have merit staff TAA case managers are not eligible to apply for TAA. TAA live. Moreover, the commenter because some recipients of TAA services will continue to be provided explained that the speed and services also have WIA case managers. through the local One-Stop delivery consistency by which workers are According to one commenter, TAA and system established under WIA. determined to be eligible for benefits other Federal programs have been The Department agrees with the and may actually begin receiving effectively administered at the local comment that adversely-affected benefits can differ from worker to level by professionals who have earned workers should receive services that worker in the same One-Stop center. the trust of constituents. will help them return to work even if A few commenters maintained that Another commenter described a their first contact in the system is not performance measures, oversight, and situation where workers were denied with a merit staff employee. As a result, monitoring are tools through which eligibility for TAA benefits in a One- co-enrollment of workers in both WIA local delivery entities may be held Stop center, but the workers travelled to accountable. Another commenter and TAA programs will continue to be another One-Stop center in a different averred that accountability is ensured encouraged, as discussed more fully area and were declared eligible for TAA by the separation of program above. benefits. administration and operations, The different approaches to A commenter also expressed the regardless of whether State staff is consistency, efficiency, accountability opinion that State merit staff merit-based. and transparency described by the administration of the program would Similarly, some commenters stated various commenters illustrate that the provide the flexibility to respond to that local delivery options are States are employing a patchwork layoffs regardless of where they occur in transparent. A few commenters approach that could lead to inconsistent the State, and that well-trained ‘‘State- contended that strict government service delivery. The Department level’’ staff will bring stability and standards on the use of personal believes that consistency in the continuity to the provision of services. information and transparency have been application of eligibility criteria and the This commenter contended that the addressed in data sharing agreements treatment of workers nationally is civil service system ensures hiring and between the commenters’ State and imperative. Consistency should be the promotions are based on competence, local areas. One commenter asserted overarching design of the service rather than nepotism, political that transparency is the product of delivery system for services delivered connections, or favoritism. In addition, frequent and thorough monitoring, and with TAA funds, rather than a the commenter explained that public one commenter suggested that a merit corrective action approach that could be administration provides important due staffing requirement be used as a used if performance goals are missed. process protections for benefit corrective-action recourse based upon a Consistency is best achieved by recipients who might be subject to finding of deficiencies in State administering the TAA program through discrimination by private contractors performance. Another commenter stated merit staff who are hired, trained, and who are subject to standards different that an adversely-affected worker employed by one or two State agencies from State merit staff. should receive services required to under the same merit system, operate Some commenters, however, return to work, no matter where he or under the same personnel rules, and are disagreed with the Department’s she enters the system, and service accountable to the same State agency or assertion that State merit staff would administration should not be agencies. Non-merit staff personnel promote consistency, efficiency, differentiated by whether or not the employed outside of the State agency, transparency, and accountability in the adversely-affected worker first makes often by either local agencies or private TAA program. These commenters contact with a merit staff employee. entities, are subject to varying generally agreed that the TAA program It is clear that in many areas using procedures and work rules, and should strive for consistency, efficiency, local delivery options, significant effort different, and potentially conflicting, accountability, and transparency, but has been expended to achieve the goals obligations to their actual employers. asserted that these goals were already of consistency, efficiency, This structure is more likely to produce being achieved through the locally- accountability and transparency. The an inconsistent application of the administered approach used in their Department remains committed to the eligibility criteria for the various TAA jurisdiction. local delivery of services, which is in benefits and services.

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Similarly, placing administrative accordance with high standards of for the program has increased from $220 responsibility with the merit-staffed public transparency. These features of a million to $575 million, and an personnel of one or two State agencies State merit system are appropriate to additional amount equal to 15 percent promotes efficiency and makes it easier apply to State administration of the of the allocation to each State for to hold the State agencies accountable. TAA program. training will be allocated to the State for For example, layoff events may trigger A few commenters questioned TAA administration and employment TAA certifications covering large whether the Department has any data and case management services, as well numbers of workers who seek TAA at supporting the assertion that State merit as an additional $350,000 to each State the same time. A State agency may staff is inherently better qualified to specifically for employment and case quickly move funding and personnel to deliver TAA services than other management services. This will result in areas in the State where TAA services providers. The Department is acting on States having a considerably greater sum are most needed to advise these the experience it has gained in available for administration than under adversely-affected workers as soon as overseeing the State administration of the lower training cap. And in fact, none practicable of the TAA program benefits the TAA program under a merit staffing of the commenters provided any and services and the procedures and system that had been in place for empirical data to support the contention deadlines for applying for such benefits approximately 30 years of the TAA that the funding would be insufficient and services, as required by the program’s 35-year existence. In for this purpose. Governor-Secretary Agreement. In addition, UI, a program similar to TAA The final rule requires States to use contrast, funds allocated to local and one that actually works in merit staff to perform TAA-funded workforce boards and contractors are conjunction with TAA, is efficiently functions. Such staff may be staff new generally restricted to serve a specified administered by State merit staff. ES to TAA, or they may be staff who have area which impedes a State’s ability to also is efficiently administered by State been providing TAA services in the move funds as needs change. Focusing merit staff and works in conjunction past, including non-merit staff who are TAA administration in one or two State with TAA. Based on this experience and converted to State employment. Each agencies also reduces the number of the similarities to other programs State will comply with this rule’s merit entities responsible across a State, successfully staffed by State merit staffing requirement with the Federal thereby making it easier for the public personnel, the Department believes a funds allocated to that State for TAA to know who administers the program return to a State merit based system will administration and case management and promoting accountability and help to promote consistency, efficiency, and employment services. In that way, transparency. accountability, and transparency in the any costs incurred in implementing this On a related point, one commenter administration of the TAA program. requirement will be funded by the TAA asserted that this rule will ‘‘likely inhibit program. Commenters provided with no Costs the ability of [S]tates to comply with data that suggests that States cannot section 239(f)’’ requiring the Various comments addressed the cost comply with this rule with the available coordination of services because it will of the State merit staffing requirement. funds, and the Department is aware of lead to ‘‘duplicative staffing and One commenter noted that, given the no such data. The Department is increased inefficiency’’ in States number of TAA petitions that are available to provide assistance to any currently using non-merit staff to pending, requiring State merit staffing of State with questions about what costs provide services to both WIA and TAA TAA-funded functions would mean ‘‘the are allowable charges to TAA funds. participants. The Department disagrees [S]tate would need significantly more Transition Period (§ 618.890(b)) that this rule will lead to duplicative * * * merit staff [S]tatewide at an staffing and inefficiencies in additional annual cost of at least $10 As proposed, § 618.890(b) provided administering the program. As Million.’’ Other commenters opined that States must comply with the merit discussed throughout this preamble, the more generally that the merit staffing staffing requirement by October 1, 2010 TAA program continues to be a required requirement could result in a for employment and case management partner in the One-Stop delivery system, ‘‘substantial’’ cost increase. One services under section 235 of the Trade and co-enrollment with WIA is still commenter stated simply that it will be Act, and by July 1, 2010 for all other encouraged. In the absence of any ‘‘more’’ costly for case management TAA administrative activities that are evidence suggesting otherwise, the services to be provided by State merit required to be merit staffed. The Department reasonably believes that staff. Another commenter stated that Department received several comments requiring States to use merit staffing there would be ‘‘financial burdens on this provision. One commenter will improve the administration of the attached to staffing and additional stated that the proposed transition TAA program. staffing needs.’’ One commenter period is reasonable and provides State personnel serving under a merit suggested that this rule would result in sufficient time for States to plan system are non-partisan public officials ‘‘a system backlog’’ because of an implementation. One commenter who are directly accountable to elected insufficient number of State merit staff. generally stated that the transition officials. The standards for their Finally, one commenter argued that the period would delay, not reduce, the performance and their determinations TAA funds provided by the Department costs and disruptions to States. Other on the use of public funds require that will not be adequate to address ‘‘long commenters stated that the aggressive decisions be made in the best interest of term costs’’ of State personnel such as transition period for implementing the the public and of the population to be pension payments. merit staff requirements would make it served. The use of a State merit system The TAA allocation provided to the impossible for a State to hire and train is further intended to ensure that the States by the Department covers the an adequate number of qualified staff administrative personnel meet objective costs of the program. TAA allocations before the implementation date. One of professional qualifications, provide fair include funding for employment and these commenters specifically asserted treatment to participants, comply with case management services and that, assuming that this final rule strict government standards on the use administrative costs. Under the TGAAA, publishes in mid-February 2010, the of personal information, and perform in significantly more funding is available four and one-half month time frame to a setting where decisions are made in for the TAA program. The training cap implement merit staffing for TAA

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administrative functions by July 1 is The transition deadline falls 15 days distinctions. Once a State has converted ‘‘very aggressive.’’ This commenter before the expiration of the TGAAA to merit staff as required by this rule, argued that being unprepared at the amendments. The transition period was those staff members serve all workers, implementation date would lead to a developed taking into account the need regardless of the date a petition was loss of consistency and effectiveness of for a reasonable amount of time for filed. the program. A couple of commenters implementation, weighed against the The revised title of part 618 also more noted that their States are currently need to ensure program consistency, accurately describes these regulations. subject to hiring restrictions that could efficiency, accountability, and Although certain provisions of the impact the ability to hire and train staff transparency as quickly as possible. The TGAAA only relate to petitions filed on by the implementation deadline. One of regulatory provision requiring merit or after May 18, 2009, not all provisions these commenters also noted that the staffing is not dependent on the program of the law relate to that filing date. rule would require States to move the changes made by the TGAAA, or the Different provisions have different delivery of employment and case expiration date it provided for those effective dates, including the provisions management services to merit staff a changes. The Department’s legal relating to the formula for distribution mere three months before the TGAAA authority and rationales for requiring of the training funds, which went into amendments expire. State merit staffing for TAA-funded effect on October 1, 2009. Therefore, The Department recognizes the functions are based on the Department’s ‘‘Trade Adjustment Assistance under the concern raised by several commenters responsibility for assuring that the TAA Trade Act of 1974, As Amended’’ is a that, at least for their States, the program is properly and efficiently more appropriate title. transition period proposed in the NPRM administered. While the additional Exemptions for States With Employment was too short. Accordingly, the complexity and new entitlement created Service Operation Exemptions Department has decided to extend the by the TGAAA provide additional (§ 618.890(c)) support for the decision to require State transition period to allow States more Section 618.890(c) partially exempts time to effect this change. The deadline merit staffing, the requirement does not depend solely on the TGAAA. We note from the TAA State merit staffing for implementing the merit staffing requirement those States that have requirement for both employment and that the President’s FY 2011 Budget supports extension of the TGAAA received an exemption from the ES case management services and merit staffing requirements under the administrative services now is provisions. In the NPRM, the Department Wagner-Peyser Act. These States are December 15, 2010. Thus, paragraph (b) proposed to title part 618 ‘‘Trade Colorado, Massachusetts, and Michigan. of § 618.890 is revised to provide a new Adjustment Assistance under the Trade The Department has concluded that transition deadline of December 15, Act of 1974 For Workers Certified under allowing this limited exemption will 2010. Petitions Filed After May 17, 2009.’’ prevent complications and confusion in As for the comments regarding State However, in response to the comment these three States, thereby allowing the hiring freezes, the positions subject to concerning the TGAAA’s sunset efficient administration of the TAA the merit staffing requirement are provision, and to avoid any confusion program. The paragraph (c) exemption Federally funded positions that should that the merit staffing requirement does not apply to the administration of not be subject to State-imposed hiring applies only with respect to workers TRA, and also it applies in each of these freezes because merit staff are hired certified under petitions filed after May States only in the same scope that the using those Federal funds provided. 17 2009, the Department changes the ES merit staffing exemption applies. Unemployment Insurance Program title to ‘‘Trade Adjustment Assistance The Department received several Letter (UIPL) No. 18–09, titled under the Trade Act of 1974, As comments on the issue of these ‘‘Application of State-Wide Personnel Amended.’’ This change clarifies that exemptions. Several of these Actions, including Hiring Freezes, to the part 618 will contain all the regulations commenters expressed general support Unemployment Insurance Program’’ for administering the program operated for permitting the States of Colorado, addresses precisely this issue. It under the Trade Act, not just the Massachusetts, and Michigan to provides that any State-wide personnel regulations implementing amendments continue to use non-State and non-merit action that does not take into account specific to the TGAAA—and that the personnel to administer the TAA the needs of the State UI program is not merit staffing requirement applies with program. One commenter argued that a ‘‘method of administration’’ under respect to all workers regardless of the the challenges of implementing the section 303(a)(1) of the Social Security date of the petition under which they merit staffing requirement are as great Act for assuring the proper and prompt were certified. for its State, which is not exempted payment of UI. This principle, and thus As mentioned above, there are under paragraph (c), as they would be the UIPL, applies equally to the TAA different eligibility criteria for and for the exempted States. One commenter program under 20 CFR 617.50(f), different services available to adversely- stated that the Department does not requiring ‘‘[f]ull payment of TAA when affected workers, depending on the date possess the legal authority under TAA due * * * with the greatest promptness on which their petition was filed. to relieve any State from the that is administratively feasible.’’ Also, Workers covered by petitions filed requirement of merit staffing. Another consistent with Federal UI programs, before May 18, 2009 are subject to the commenter urged the Department to add States are required, through their requirements relating to benefits and a particular State to the exemption; agreements to administer the program as services that were contained in the similarly, a small number of agents of the Department, to use the Trade Act prior to the TGAAA, while commenters suggested that the TAA funds provided by the Department workers covered by petitions filed on or Department allow waivers from the consistent with the rules and after May 18, 2009 are subject to the merit staffing requirement. regulations in effect for the program— requirements added under the TGAAA. The legal authority to exempt States including this rule. Therefore, if a State Such variances add to program under paragraph (c) is based on the does not have merit staff it must hire complexity, as also noted above. Department’s authority to interpret the merit staff using the funds allocated by However, the requirement of merit Trade Act and administer the TAA the Federal Government. staffing transcends these programmatic program, as explained more fully above.

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The Department granted the ES training during the fiscal year; and (4) specifically for employment and case exemptions as demonstrations under the the amount of funding estimated to be management services. Wagner-Peyser Act, and decided that no necessary to provide approved training The 35 percent of the total training additional demonstrations or during the fiscal year. At present, the funds held in reserve is higher than the exemptions would be granted. See 20 Department will assign each of these previous 25 percent reserve. Subject to CFR 652.215. The Department has factors an equal weight. However, the requirement in section considered the issue of additional TAA proposed § 618.910(f)(4) provided that 236(a)(2)(B)(ii) of the Act that 90 percent exemptions, but has decided that, the Department may, after December 31, of the funds be distributed by July 15 of because of the importance of merit 2010, change the weighting of these the fiscal year, these reserve funds will, staffing, declining to permit additional factors after an opportunity for public as in the past, be available to be exemptions (or waivers) will better comment. distributed to States on an as-needed serve workers under the TAA program. For each of the four factors, the basis to provide funding to States And, whereas the ES exemptions would Department will determine the national experiencing high activity levels that result in inconsistent service delivery to total and each State’s percentage of the cannot be addressed with the funds adversely-affected workers if the three national total. Based on a State’s received in the initial allocation. exempt States were required to percentage of each of these factors, the The Department received several implement the TAA merit staffing Department will determine the comments on the proposed rules requirement, it is fully consistent and percentage that the State will receive of governing the allocation of training reasonable for States with ES State merit the amount available for initial funds to States. The majority of the staff to comply with this rule. allocations, and will adjust that comments were generally supportive of The Department makes no change to percentage to account for the hold the allocation methodology, calling it this paragraph as proposed. harmless provision. The total initial ‘‘much improved over the current allocations to the States will total 65 practice,’’ because it ‘‘faithfully executes Exceptions for Non-Inherently percent of the training funds the language of the TAA law’’ and Governmental Functions (§ 618.890(d)) appropriated, as mandated by section because ‘‘the proposed funding Proposed paragraph (d) provided that 236(a)(2)(C) of the Trade Act, as distribution would bring funding levels the merit staffing requirement would amended by the TGAAA. to a more equitable level * * * [and] not prohibit a State from outsourcing The formula will still include a ‘‘hold will allow for a more accurate TAA functions that are not inherently harmless’’ feature, but at a much lower distribution of funds.’’ One commenter governmental, as defined by OMB level than the Department has been noted that the allocation portion of the Circular No. A–76 (Revised). The using to date. Although the initial rule ‘‘will look at each [S]tate’s recent Department received no comments allocation to a State had been at least 85 TAA use, and will better allocate opposing this paragraph, but is changing percent of the amount the State received funding among [S]tates based on current this provision very slightly by adding in its initial allocation the prior fiscal realities, instead of using more stale ‘‘any supplemental OMB guidance or year, the statute now requires that a data,’’ concluding that ‘‘[s]uch open- superseding authority, and in DOL State’s initial allocation be at least 25 mindedness and ability to adapt will guidance.’’ This addition acknowledges percent of the amount the State received make for a better program.’’ The that the definition of ‘‘inherently in its initial allocation the prior fiscal Department will address the comments governmental’’ in OMB Circular No. A– year. by topic below. 76 (Revised) could be expanded upon in The Department’s practice has been subsequent guidance or superseded by that, if the formula would result in an Annual Training Cap (§ 618.900) subsequent authority and that DOL may initial allocation of less than $100,000 This section implements section issue an authoritative interpretation of to a State, then that State’s allocation 236(a)(2)(A) of the Trade Act which OMB guidance for purposes of the TAA was reallocated to the other States. caps the amount of TAA training funds program. Where a State had an initial allocation available in each fiscal year. The of less than $100,000, it could request Department received no comments on, Subpart I—Allocation of Training Funds reserve funds in order to obtain the to States and makes no change to, this section as limited TAA funding that the State proposed. In the NPRM, the Department required. The NPRM proposed to codify proposed subpart I to implement the that practice in regulations. Distribution of the Initial Allocation of funding provisions of the TGAAA. In The TGAAA amended the Trade Act Training Funds (§ 618.910) addition to increasing the funds to require the Department to make the This section implements the initial available under the training cap, the initial distribution to States ‘‘as soon as distribution of TAA training funds TGAAA prescribed a formula for practicable after the beginning of each requirements in section 236(a)(2)(B) and allocating training funds to the States. fiscal year,’’ and to require that 90 section 236(a)(C)(ii) of the Trade Act. As required by the TGAAA and percent of a fiscal year’s training funds The Department received no comments proposed in § 618.910, the initial be distributed to the States by July 15 on paragraphs (a) (initial allocation), (b) allocation of training funds is of that fiscal year. As stated above, the (timing of the distribution of the initial determined by the application of four initial allocations will equal 65 percent allocation), (d) (minimum initial factors: (1) The trend in the number of of the funds available for training. In allocation), or (e) (process of workers covered by certifications of accordance with the amendments, the determining initial allocation) of this eligibility during the most recent four Department will also provide to States section. consecutive calendar quarters for which which receive training funds, either The Department received one data is available; (2) the trend in the through an initial allocation or through comment on paragraph (c) of § 618.910, number of workers participating in a request for reserve funds, an implementing amended section training during the most recent four additional 15 percent for TAA 236(a)(2)(C)(iii) of the Trade Act. That consecutive calendar quarters for which administration and employment and section is the hold harmless provision, data is available; (3) the number of case management services, as well as an providing that the amount of the initial workers estimated to be participating in additional $350,000 to each State distribution to a State will not be less

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than 25 percent of the State’s prior year change the factor prescribed in the allocated among the States, as provided initial distribution. Paragraph (c) adopts Trade Act. To the extent that the by section 236(a)(2)(E) of the Trade Act. the minimum hold harmless, 25 commenter is discussing job search and The Department received no comments percent, permitted by the Trade Act. relocation funding, the comment is on this issue, and makes no change to This commenter argued that reducing outside the scope of this rulemaking but this section as proposed. the hold harmless to 25 percent (from the process is described in TEGL No. 9– Technical Corrections the 85 percent the Department 09. The allocation addressed in this rule previously used) ‘‘may create significant is limited to TAA training funds. The Department is making two fluctuations in yearly allocations to The second comment requested that technical corrections to the rule. The States.’’ The commenter noted that these the Department consider ‘‘such other first correction is in the title of Subpart fluctuations will extend to factors as National Emergency Grants, I as it appeared in the table of contents administrative funds as States’ demographics of the affected workforce, in the NPRM. In the table of contents, administrative allocations are a technology requirements (such as new the NPRM indicated that subpart I percentage of their total training reporting and new IT system would be titled, ‘‘Apportionment of allocations. The commenter suggested functionality), petition certification Training Funds to States.’’ However, as that instead, the Department set the volume, and funds allocated under explained above, the Department is hold harmless provision at 50 percent of WIA.’’ While additional factors to using the word ‘‘allocation’’ to describe the prior year’s allocation. determine the initial allocation may be the distribution of training funds to the The Department recognizes that the helpful at a later date, and are within States. Accordingly, the table of 25 percent hold harmless may result in the Department’s discretion to adopt, for contents in this final rule correctly a State receiving an initial allocation now, the Department will maintain only reads, ‘‘Allocation of Training Funds to that is significantly lower than the the four factors specified in the statute States.’’ State’s initial allocation in the previous and laid out in the proposed rule. The The second correction is to the title of year. And, the commenter is correct that Department needs to acquire experience § 618.890(d). In the NPRM, the States’ administrative allocations will with the four statutory factors before paragraph was titled, ‘‘Exemptions for fluctuate in sync with their initial deciding whether to add other factors, Non-inherently Governmental training allocations. However, these and may seek public comment on Functions.’’ The Department is fluctuations would occur because of an potential additional factors in the correcting the title to the more attendant fluctuation among the States’ future. technically accurate, ‘‘Exceptions for need for TAA training funds. It was The Department makes no change to Non-inherently Governmental Congress’s clear intent that the hold this section as proposed. Functions.’’ harmless percentage be set at 25 percent. See Conf. Rep. at 672–73 (‘‘[t]he Reserve Fund Distribution (§ 618.920) III. Administrative Information provision addresses these problems by This section addresses the Regulatory Flexibility Analysis, lowering the ‘‘hold harmless’’ provision distribution of the funds that remain in Executive Order 13272, Small Business to 25 percent’’). However, the reserve after the initial allocations to the Regulatory Enforcement Fairness Act Department will monitor the effects of States. As required by section the ‘‘hold harmless’’ and, if warranted, 236(a)(2)(C)(i) of the Trade Act, this The Regulatory Flexibility Act (RFA), will modify it. Further, § 618.920 will section provides that the remaining 35 5 U.S.C. Chapter 6, requires the permit a State to receive reserve funds percent of the total annual training Department to evaluate the economic should the initial allocation be funds will be held in reserve for later impact of this final rule on small insufficient to meet the State’s training distribution in response to requests by entities. The RFA defines small entities needs. States that can show need for additional to include small businesses, small The Department received two training funds. The Department received organizations, including not-for-profit comments on paragraph (f) of § 618.910 one comment in favor of the reserve organizations, and small governmental implementing section 236(a)(2)(C)(ii) of fund distribution. jurisdictions. The Department must the Trade Act. That section establishes The Department makes no change to determine whether the final rule four factors that the Department must this section as proposed. imposes a significant economic impact use in determining the amount of each on a substantial number of such small State’s initial allocation, and permits the Second Distribution (§ 618.930) entities. The Department concludes that Department to add ‘‘such other factors as This section provides that at least 90 this rule directly regulates only States [it] considers appropriate. * * *’’ percent of the total training funds for a and does not directly regulate any small Paragraph (4) explains the steps the fiscal year will be distributed to the entities; any regulatory effect on small Department will follow in determining States by July 15 of that fiscal year, as entities would be indirect. Accordingly, the initial allocation of training funds. required by section 236(a)(2)(B)(ii) of the Department has determined this rule The first comment on paragraph (f) the Trade Act. The Department received will not have a significant economic was on paragraph (1)(iv), which no comments on this issue, and makes impact on a substantial number of small describes the fourth initial allocation no change to this section as proposed. entities within the meaning of the RFA. factor: the amount of funding estimated The Department has also determined to be necessary to provide approved Insufficient Funds (§ 618.940) that this final rule is not a ‘‘major rule’’ training during the fiscal year. This This section provides that if, in a for purposes of the Small Business commenter expressed concern that the given fiscal year, the Secretary estimates Regulatory Enforcement Fairness Act of fourth factor fails to address job search that the amount of funds necessary to 1996, as amended (SBREFA), Public and relocation expenditures, and that pay for approved training will exceed Law 104–121, 110 Stat. 847. SBREFA funds for those expenditures are not the legislative cap, and therefore there requires agencies to take certain actions allocated elsewhere. To the extent that will be insufficient funds to meet the when a ‘‘major rule’’ is promulgated. this commenter has suggested variance needs of all States for the year, the SBREFA defines a ‘‘major rule’’ as one from the fourth statutory factor, the Department will decide how the funds that will have an annual effect on the Department is without discretion to remaining in reserve at that time will be economy of $100 million or more; that

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will result in a major increase in costs 9117), is currently approved by OMB In the NPRM, the Department or prices for, among others, State or under control number 1205–0275 recognized that there may be some costs local government agencies; or that will (expires February 28, 2013). to the States that have to convert some significantly and adversely affect the Because this final rule does not TAA-related staff to their merit staffing business climate. require the collection of any new system. The Department received a This final rule will not result in a information nor revises an existing small number of comments on this major increase in costs or prices for collection of information, the PRA is not matter. These commenters thought that States or local government agencies. In implicated. the Department should have gathered this instance the States, acting as agents Unfunded Mandates Reform Act data on and better assessed the costs to of the Federal Government, are States before proposing the merit administering TAA benefits and For purposes of the Unfunded staffing requirement. services to adversely-affected workers Mandates Reform Act of 1995, this final The Department provides States with while the Federal Government provides rule does not include any Federal appropriated Federal funds for TAA appropriated funds to States to operate mandate that may result in increased employment and case management the program. Nor will this rule expenditure by State, local, and Tribal services, including staff, and for significantly and adversely affect the governments in the aggregate of more administration of the TAA program. business climate. The opposite is true: than $100 million, or increased These Federal funds are intended to the TAA program provides funds to expenditures by the private sector of cover the costs of the TAA program. train adversely-affected workers for more than $100 million. State And in fact, under the TGAAA, TAA employment in positions that are in governments administer TAA as agents funds (including funds for economic demand, thereby assisting in of the United States and are provided administration) have increased meeting businesses’ needs. Finally, the appropriated Federal funds for all TAA significantly. The Department expects final rule will not have an annual effect expenses. that the amount of State dollars that will on the economy of $100 million or Executive Order 13132 be required to fund this conversion to more. State merit staffing is insubstantial. For the foregoing reasons, the Executive Order 13132 at section 6 None of the commenters provided any Department determines that the final requires Federal agencies to consult data to the contrary. As noted above, the rule is not a ‘‘major rule’’ for SBREFA with State entities when a regulation or TAA program operated successfully for purposes. policy may have a substantial direct years with merit staffing required in the effect on the States or the relationship Executive Order 12866 Governor-Secretary Agreements, and between the National Government and with less funding, so there is no reason Executive Order 12866 requires that the States, or the distribution of power to believe that the costs will be for each ‘‘significant regulatory action’’ and responsibilities among the various substantial or will exceed the available by the Department, the Department levels of government, within the amounts of administrative funds. conduct an assessment of the regulatory meaning of the Executive Order. Section Nevertheless, the Department is willing action and provide OMB with the 3(b) of the Executive Order further to work with those States that have to regulation and the requisite assessment provides that Federal agencies must convert some of their TAA-related staff prior to publishing the regulation. A implement regulations that have a to their merit staffing system to ensure significant regulatory action is defined substantial direct effect only if statutory that these States are utilizing Federal to include an action that will have an authority permits the regulation and it funds to the fullest extent possible annual effect on the economy of $100 is of national significance. Further, within allowable cost categories. In the million or more, as well as an action section 239(f) of the Trade Act requires end, though, States are responsible for that raises a novel legal or policy issue. consultation with the States in the staffing the TAA program in their State As discussed in the SBREFA analysis, coordination of the administration of at a level commensurate with their this final rule will not have an annual the provisions for employment services, Federal funding allocation. effect on the economy of $100 million training, and supplemental assistance or more. However, the rule does raise under sections 235 and 236 of the Trade Executive Order 13045 novel policy issues about the allocation Act and under title I of the WIA. Executive Order 13045 concerns the of TAA training funds. Therefore, the As the Department explained in the protection of children from Department submitted this final rule to NPRM, 74 FR 39206, because a merit environmental health risks and safety OMB for review under Executive Order staffing requirement may fall within the risks. This final rule has no impact on 12866. requirements of Section 3(b), and safety or health risks to children. because of the consultation requirement Paperwork Reduction Act in section 239(f) of the Trade Act, the Executive Order 13175 The purposes of the Paperwork Department has consulted on a variety Executive Order 13175 addresses the Reduction Act of 1995 (PRA), 44 U.S.C. of issues arising from the TGAAA unique relationship between the Federal 3501 et seq., include minimizing the amendments. These consultations have Government and Indian Tribal paperwork burden on affected entities. been with the States both directly and governments. The order requires Federal The PRA requires certain actions before through communication with the agencies to take certain actions when an agency can adopt or revise a National Association of State Workforce regulations have ‘‘Tribal implications.’’ collection of information, including Agencies, the National Association of Required actions include consulting publishing a summary of the collection Workforce Boards, and the National with Tribal governments before of information and a brief description of Governors Association, during the promulgating a regulation with Tribal the need for and proposed use of the formation of the Governor-Secretary implications and preparing a Tribal information. This final rule does not Agreements between the States and the impact statement. The order defines require the collection of any new Department. Additionally, the regulations as having Tribal information. The data collection Department has consulted with the implications when they have substantial relevant to this rule, related to the public at large through this rulemaking’s direct effects on one or more Indian Reserve Funding Request Form (ETA– notice and comment process. Tribes, on the relationship between the

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Federal Government and Indian Tribes, carefully to eliminate drafting errors and this section must comply by December or on the distribution of power and ambiguities. 15, 2010. responsibilities between the Federal (c) Exemptions for States with Executive Order 13211 Government and Indian Tribes. employment service operation This final rule addresses how the This final rule is not subject to exemptions. A State whose employment Department will allocate to the States Executive Order 13211, because it will service received an exemption from training funds under the Trade Act, and not have a significant adverse effect on merit staffing requirements from the requires that personnel engaged in TAA- the supply, distribution, or use of Secretary of Labor (Secretary) under the funded functions undertaken to carry energy. Wagner-Peyser Act will retain an out the worker adjustment assistance Plain Language exemption from the requirements of provisions must be State employees paragraph (a) of this section. The covered by the merit system of The Department drafted this rule in exemption does not apply to the State’s personnel administration. Accordingly, plain language. administration of trade readjustment the Department concludes that this final List of Subjects in 20 CFR Part 618 allowances which remain subject to the rule does not have Tribal implications. requirements of paragraph (a) of this Administrative practice and section. To the extent that a State with Environmental Impact Assessment procedure, Grant programs—Labor, an authorized ES exemption provides The Department has reviewed this Reporting and recordkeeping TAA-funded services using staff not final rule in accordance with the requirements, Trade adjustment funded under the Wagner-Peyser Act, requirements of the National assistance. the exemption in this paragraph does Environmental Policy Act (NEPA) of ■ For the reasons discussed in the not apply, and they remain subject to 1969 (42 U.S.C. 4321 et seq.), the preamble, and under authority of 19 the requirements of paragraph (a) of this regulations of the Council on U.S.C. 2320, the Department of Labor section. Environmental Quality (40 CFR part adds 20 CFR part 618 to read as follows: (d) Exceptions for non-inherently 1500), and the Department’s NEPA governmental functions. The procedures (29 CFR part 11). The final PART 618—TRADE ADJUSTMENT requirements of paragraph (a) of this rule will not have a significant impact ASSISTANCE UNDER THE TRADE ACT section do not prohibit a State from on the quality of the human OF 1974, AS AMENDED outsourcing functions that are not environment, and, thus, the Department Subpart A–G [Reserved] inherently governmental, as defined in has not prepared an environmental Office of Management and Budget assessment or an environmental impact Subpart H—Administration by Applicable (OMB) Circular No. A–76 (Revised), in statement. State Agencies any supplemental OMB guidance or Sec. superseding authority, and in DOL Assessment of Federal Regulations and 618.890 Merit staffing. guidance. Policies on Families Subpart I—Allocation of Training Funds to Section 654 of the Treasury and States Subpart I—Allocation of Training Funds to States General Government Appropriations 618.900 Annual training cap. Act, enacted as part of the Omnibus 618.910 Distribution of initial allocation of Consolidated and Emergency training funds. Authority: 19 U.S.C. 2320; 19 U.S.C. Supplemental Appropriations Act of 618.920 Reserve fund distributions. 2296(g); Secretary’s Order No. 03–2009, 74 1999 (Pub. L. 105–277, 112 Stat. 2681), 618.930 Second distribution. FR 2279, Jan. 14, 2009. 618.940 Insufficient funds. requires the Department to assess the § 618.900 Annual training cap. impact of this final rule on family well- Subpart A–G [Reserved] The total amount of payments that being. A rule that is determined to have may be made for the costs of training a negative effect on families must be Subpart H—Administration by will not exceed the cap established supported with an adequate rationale. Applicable State Agencies under section 236(a)(2)(A) of the Trade The Department has assessed this Act. final rule and determines that it will not Authority: 19 U.S.C. 2320; Secretary’s (a) For each of the fiscal years 2009 have a negative effect on families. Order No. 03–2009, 74 FR 2279, Jan. 14, and 2010, this cap is $575,000,000; and Executive Order 12630 2009. (b) For the period beginning October 1, 2010, and ending December 31, 2010, § 618.890 Merit staffing This final rule is not subject to this cap is $143,750,000. Executive Order 12630, Governmental (a) Merit-based State personnel. The Actions and Interference with State must, subject to the transition § 618.910 Distribution of initial allocation Constitutionally Protected Property period in paragraph (b) of this section, of training funds. Rights, because it does not involve engage only State government personnel (a) Initial allocation. The initial implementation of a policy with takings to perform Trade Adjustment Assistance allocation for a fiscal year will total 65 implications. (TAA)-funded functions undertaken to percent of the training funds available carry out the worker adjustment for that fiscal year. The Department of Executive Order 12988 assistance provisions of the Trade Act of Labor (Department) will announce the This final rule has been drafted and 1974, as amended, and must apply to amount of each State’s initial allocation reviewed in accordance with Executive such personnel the standards for a merit of funds in accordance with the Order 12988, Civil Justice Reform, and system of personnel administration requirements of this section at the will not unduly burden the Federal applicable to personnel covered under 5 beginning of each fiscal year. The court system. The final rule has been CFR part 900, subpart F. Department will determine this initial written to minimize litigation and (b) Transition period. A State not allocation on the basis of the full provide a clear legal standard for already in compliance with the merit amount of the training cap for that year, affected conduct, and has been reviewed system requirement of paragraph (a) of even if the full amount has not been

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appropriated to the Department at that allocations are made to those States average number of training participants time. receiving only their hold harmless for the same time period. (b) Timing of the distribution of the amounts, as described in paragraph (2) The Department may use such initial allocation. The Department will, (e)(2)(i) of this section, will be other factors that it considers as soon as practical after the beginning distributed among the States with appropriate. of each fiscal year, distribute the initial unadjusted initial allocations that were (3) The Department will assign each allocation announced under paragraph no less than their hold harmless of the factors listed in paragraphs (a) of this section. However, the amounts, as described in paragraph (f)(1)(i) through (f)(1)(iv) of this section Department will not distribute the full (e)(2)(ii) of this section (the remaining an equal weight. For each of these amount of the initial allocation until it States). The distribution of the weighted factors, the Department will receives the entire fiscal year’s remaining initial allocation funds determine the national total and each appropriation of training funds. If the among the remaining States will be State’s percentage of the national total. full year’s appropriated amount of made by reapplying the calculation in Based on a State’s percentage of each of training funds is less than the training paragraph (f) of this section. This these weighted factors, the Department cap, then the Department will distribute recalculation will disregard States will determine the percentage that the 65 percent of the amount appropriated. receiving only their hold harmless State will receive of the amount (c) Hold harmless provision. Except as amount under paragraph (e)(2)(i) of this available for initial allocations. The provided in paragraph (d) of this section, so that the combined percentages of initial allocation amounts section, in no case will the amount of percentages of the remaining States total calculated for all States combined will the initial allocation to a State in a fiscal 100 percent. total 100 percent of initial allocation year be less than 25 percent of the initial (f) Initial allocation factors. (1) In funds. allocation to that State in the preceding determining how to make the initial (4) The Department may, by fiscal year. allocation of training funds, the administrative guidance published for (d) Minimum initial allocation. If a Department will apply, as provided in comment, change the weights provided State has an adjusted initial allocation paragraph (f)(3) of this section, the in paragraphs (f)(1) and (f)(3) of this of less than $100,000, as calculated in following factors with respect to each section, or add additional factors. No accordance with paragraph (e)(2) of this State: such changes or additions will take section, that State will not receive any (i) The trend in the number of workers effect before December 31, 2010. initial allocation, and the funds that covered by certifications of eligibility otherwise would have been allocated to § 618.920 Reserve fund distributions. during the most recent four consecutive that State instead will be allocated (a) The remaining 35 percent of the calendar quarters for which data are among the other States in accordance training funds for a fiscal year will be available. The trend will be established with this section. A State that does not held by the Department as a reserve. by assigning a greater weight to the most receive an initial distribution may apply Reserve funds will be used, as needed, recent quarters, giving those quarters a under § 618.920(b) for reserve funds to for additional distributions during the larger share of the factor; obtain the training funding that it remainder of the fiscal year and for (ii) The trend in the number of requires. those States that do not receive an workers participating in training during (e) Process of determining initial initial distribution. States may not the most recent four consecutive allocation. (1) The Department will first receive reserve funds for TAA calendar quarters for which data are apply the factors described in paragraph administration or employment and case available. The trend will be established (f) of this section to determine an management services without a request by assigning a greater weight to the most unadjusted initial allocation for each for training funds. State. recent quarters, giving those quarters a (b) A State requesting reserve funds (2) The Department will then apply larger share of the factor; must demonstrate that at least 50 the hold harmless provision of (iii) The number of workers estimated percent of its training funds have been paragraph (c) of this section to the to be participating in training during the expended, or that it needs more funds unadjusted initial allocation, as follows: fiscal year. The estimate will be to meet unusual and unexpected events. (i) A State whose unadjusted initial calculated by dividing the weighted A State requesting reserve funds also allocation is less than its hold harmless average number of training participants must provide a documented estimate of amount but is $100,000 or more, will for the State determined in paragraph expected funding needs through the end have its initial allocation adjusted up to (f)(1)(ii) of this section by the sum of the of the fiscal year. That estimate must be its hold harmless amount. If a State’s weighted averages for all States and based on an analysis that includes at unadjusted allocation is less than multiplying the resulting ratio by the least the following: $100,000, the State will receive no projected national average of training (1) The average cost of training in the initial allocation, in accordance with participants for the fiscal year, using the State; paragraph (d) of this section. Those estimates underlying the Department’s (2) The expected number of funds will be shared among other States most recent budget submission or participants in training through the end as provided in paragraph (e)(3) of this update; and of the fiscal year; and section. (iv) The amount of funding estimated (3) The remaining funds the State has (ii) A State whose unadjusted initial to be necessary to provide approved available for training. allocation is no less than its hold training to such workers during the harmless threshold will receive its hold fiscal year. The estimate will be § 618.930 Second distribution. harmless amount and will also receive calculated by multiplying the estimated The Department will distribute at an adjustment equal to the State’s share number of participants in paragraph least 90 percent of the total training of the remaining initial allocation funds, (f)(1)(iii) of this section by the average funds for a fiscal year to the States no as provided in paragraph (e)(3) of this training cost for the State. The average later than July 15 of that fiscal year. The section. training cost will be calculated by Department will first fund all acceptable (3) The initial allocation funds dividing total training expenditures for requests for reserve funds filed before remaining after the adjusted initial the most recent four quarters by the June 1. If there are any funds remaining

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to be distributed after these reserve fund § 618.940 Insufficient funds. the remainder of the fiscal year. That requests are satisfied, those funds will If, during a fiscal year, the Department decision will be communicated through be distributed to those States that estimates that the amount of funds administrative notice. received an initial allocation in an necessary to pay the costs of approved Signed at Washington, DC, this 22nd day amount greater than their hold harmless training will exceed the training cap of March 2010. amount, using the methodology under § 618.900, the Department will Jane Oates, described in § 618.910. decide how the amount of available Assistant Secretary, Employment and training funds that have not been Training Administration. distributed at the time of the estimate [FR Doc. 2010–6697 Filed 4–1–10; 8:45 am] will be allocated among the States for BILLING CODE 4510–FN–P

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Part V

Environmental Protection Agency 40 CFR Parts 50, 51, 70, and 71 Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs; Final Rule

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ENVIRONMENTAL PROTECTION 5509, e-mail address: regulation’’ to include pollutants AGENCY [email protected]. ‘‘subject to either a provision in the CAA SUPPLEMENTARY INFORMATION: or regulation adopted by EPA under the 40 CFR Parts 50, 51, 70, and 71 CAA that requires actual control of I. General Information emissions of that pollutant,’’ while [EPA–HQ–OAR–2009–0597; FRL–9133–6] A. Does this action apply to me? excluding pollutants ‘‘for which EPA regulations only require monitoring or RIN 2060–AP87 Entities potentially affected by this reporting.’’ See Memo at 1. The Memo action include sources in various Reconsideration of Interpretation of was necessary after issues were raised industry groups and State, local, and Regulations That Determine Pollutants regarding the scope of pollutants that tribal governments. Covered by Clean Air Act Permitting should be addressed in PSD permitting Programs B. How is this document organized? actions following the Supreme Court’s April 2, 2007 decision in Massachusetts AGENCY: Environmental Protection This document is organized as v. EPA, 549 U.S. 497 (2007). Agency. follows: In Massachusetts v. EPA, the Supreme ACTION: Final Action on Reconsideration I. General Information Court held that GHGs, including carbon of Interpretation. II. Background dioxide (CO2), fit within the definition III. This Action of air pollutant in the CAA. The case SUMMARY: EPA has made a final decision A. Overview arose from EPA’s denial of a petition for to continue applying the Agency’s B. Analysis of Proposed and Alternative rulemaking filed by more than a dozen existing interpretation of a regulation Interpretations for Subject to Regulation 1. Actual Control Interpretation environmental, renewable energy, and that determines the scope of pollutants 2. Monitoring and Reporting Interpretation other organizations requesting that EPA subject to the Federal Prevention of 3. State Implementation Plan (SIP) control emissions of GHGs from new Significant Deterioration (PSD) program Interpretation motor vehicles under section 202(a) of under the Clean Air Act (CAA or Act). 4. Endangerment Finding Interpretation the CAA. The Court found that, in In a December 18, 2008 memorandum, 5. Section 209 Waiver Interpretation accordance with CAA section 202(a), EPA established an interpretation C. Other Issues on Which EPA Solicited EPA was required to determine whether clarifying the scope of the phrase Comment or not emissions of GHGs from new ‘‘subject to regulation’’ found within the 1. Prospective Codification of motor vehicles cause or contribute to air Interpretation definition of the term ‘‘regulated NSR pollution which may reasonably be ’’ 2. Section 821 of the Clean Air Act pollutant. After considering comments Amendments of 1990 anticipated to endanger public health or on alternate interpretations of this term, 3. Timing of When a Pollutant becomes welfare, or whether the science is too EPA has decided to continue to Subject to Regulation uncertain to make a reasoned decision.1 interpret it to include each pollutant IV. Application of PSD Interpretive Memo to On November 13, 2008, the subject to either a provision in the CAA Permitting for GHGs Environmental Appeals Board (EAB) or regulation adopted by EPA under the A. Date by Which GHGs Will Be ‘‘Subject issued a decision in a challenge to a CAA that requires actual control of to Regulation’’ PSD permit to construct a new electric emissions of that pollutant. Thus, this B. Implementation Concerns generating unit in Bonanza, Utah. In re action explains that EPA will continue C. Interim EPA Policy To Mitigate Deseret Power Electric Cooperative, PSD Concerns Regarding GHG Emissions following the interpretation in the from Construction or Modification of Appeal No. 07–03 (EAB Nov. 13, 2008) December 18, 2008 memorandum with Large Stationary Sources (‘‘Deseret’’). The permit was issued by one exception. EPA is refining its D. Transition for Pending Permit EPA Region 8 in August 2007 and did interpretation to establish that the PSD Applications not include best available control permitting requirements will not apply V. PSD Program Implementation by EPA and technology (BACT) limits for CO2. At to a newly regulated pollutant until a States the time, the Region acknowledged regulatory requirement to control VI. Application of the Title V Program to Massachusetts but found that decision emissions of that pollutant ‘‘takes Sources of GHGs alone did not require PSD permits to effect.’’ In addition, this notice addresses VII. Statutory Authority include limits on CO emissions. In VIII. Judicial Review 2 several questions regarding the briefs filed in the EAB case, EPA applicability of the PSD and Title V II. Background maintained the position that the Agency permitting programs to greenhouse On December 18, 2008, then-EPA had a binding, historic interpretation of gases (GHGs) upon the anticipated Administrator Stephen Johnson issued a the phrase ‘‘subject to regulation’’ in the promulgation of EPA regulations memorandum setting forth EPA’s Federal PSD regulations that required establishing limitations on emissions of interpretation regarding which PSD permit limits to apply only to those GHGs from vehicles under Title II of the pollutants were ‘‘subject to regulation’’ pollutants already subject to actual CAA. Collectively, these conclusions for the purposes of the Federal PSD control of emissions under other result in an EPA determination that PSD permitting program. See Memorandum provisions of the CAA. Response of EPA and Title V permitting requirements from Stephen Johnson, EPA Office of Air and Radiation and Region will not apply to GHGs until at least Administrator, to EPA Regional 8 to Briefs of Petitioner and Supporting January 2, 2011. Administrators, RE: EPA’s Interpretation Amici (filed March 21, 2008). DATES: This final action is applicable as of Regulations that Determine Pollutants Accordingly, EPA argued that the of March 29, 2010. Covered by Federal Prevention of regulations contained in 40 CFR part 75, FOR FURTHER INFORMATION CONTACT: Mr. Significant Deterioration (PSD) Permit which require monitoring of CO2 at David Svendsgaard, Air Quality Policy Program (Dec. 18, 2008) (‘‘PSD some sources, did not make CO2 subject Division (C504–03), U.S. Environmental Interpretive Memo’’ or ‘‘Memo’’); see also 1 On December 15, 2009, EPA published the final Protection Agency, Research Triangle 73 FR 80300 (Dec. 31, 2008) (public endangerment and cause or contribute findings for Park, NC 27711, telephone number: notice of Dec. 18, 2008 memo). The GHGs under section 202(a) of the CAA. See 74 FR (919) 541–2380; fax number: (919) 541– Memo interprets the phrase ‘‘subject to 66495.

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to PSD regulation. The order and reporting but to include each pollutant Memo from Sierra Club and 14 other opinion issued by the EAB remanded subject to either a provision in the Clean environmental, renewable energy, and the permit after finding that prior EPA Air Act or regulation adopted by EPA citizen organizations. See Petition for actions were insufficient to establish a under the Clean Air Act that requires Reconsideration, In the Matter of: EPA historic, binding interpretation that actual control of emissions of that Final Action Published at 73 FR 80300 ‘‘subject to regulation’’ for PSD purposes pollutant.’’ The Memo states that ‘‘EPA (Dec. 31, 2008), entitled ‘‘Clean Air Act included only those pollutants subject has not previously issued a definitive Prevention of Significant Deterioration to regulations that require actual control interpretation of the definition of (PSD) Construction Permit Program; of emissions. However, the EAB also ‘regulated NSR pollutant’ in section Interpretation of Regulations That rejected arguments that the CAA 52.21(b)(50) or an interpretation of the Determine Pollutants Covered by the compelled only one interpretation of the phrase ‘subject to regulation under the Federal PSD Permit Program.’’ phrase ‘‘subject to regulation’’ and found Act’ that addressed whether monitoring Petitioners argued that the PSD ‘‘no evidence of a Congressional intent and reporting requirements constitute Interpretive Memo ‘‘was impermissible to compel EPA to apply BACT to ‘regulation’ within the meaning of this as a matter of law, because it was issued pollutants that are subject only to phrase.’’ The Memo, however, explains in violation of the procedural monitoring and reporting requirements.’’ that the interpretation reflects the requirements of the Administrative Thus, the Board remanded the permit to ‘‘considered judgment’’ of then- Procedures [sic] Act * * * and the the Region to ‘‘reconsider whether or not Administrator Johnson regarding the Clean Air Act * * *, it directly conflicts to impose a CO2 BACT limit in light of PSD regulatory requirements and is with prior agency actions and the ‘subject to regulation’ definition consistent with both historic Agency interpretations, and it purports to under the CAA.’’ The Board encouraged practice and prior statements by Agency establish an interpretation of the Act EPA to consider ‘‘addressing the officials. See Memo at 1–2. that conflicts with the plain language of interpretation of the phrase ‘subject to The PSD Interpretive Memo is not a the statute.’’ See Petition at 2. regulation under this Act’ in the context substantive rule promulgated under Accordingly, Petitioners requested that of an action of nationwide scope, rather section 307(d) of the CAA, but rather an EPA reconsider and retract the PSD than through this specific permitting interpretation of the terms of a Interpretive Memo. Petitioners later proceeding.’’ See Deseret at 63–64. regulation at 40 CFR 52.21(b)(50).2 An amended their Petition for EPA issued the PSD Interpretive interpretive document is one that Reconsideration to include a request to Memo shortly after the Deseret decision explains or clarifies, and is consistent stay the effect of the Memo pending the with the stated purpose to ‘‘establish[ ] with, existing statutes or regulation. See outcome of the reconsideration request. an interpretation clarifying the scope of National Family Planning and Amended Petition for Reconsideration the EPA regulation that determines the Reproductive Health Ass’n v. Sullivan, (filed Jan. 6, 2009).3 pollutants subject to the Federal 979 F.2d 227, 236–37 (D.C. Cir. 1992). On February 17, 2009, EPA granted Prevention of Significant Deterioration The PSD Interpretive Memo explains the Petition for Reconsideration, on the (PSD) program under the Clean Air Act and clarifies the meaning of the basis of the authority conferred by (CAA or Act)’’ by providing EPA’s definition of ‘‘regulated NSR pollutant’’ section 553(e) of the Administrative ‘‘definitive interpretation’’ of the in section 52.21(b)(50) of the existing Procedure Act (APA), and announced definition of the term ‘‘regulated NSR NSR regulations, and does not alter the its intent to conduct a rulemaking to pollutants’’ found at 40 CFR 52.21(b)(50) meaning of the definition in any way allow for public comment on the issues and resolving ‘‘any ambiguity in subpart that is inconsistent with the terms of the raised in the Memo and on any issues ([iv]) of that paragraph, which includes regulation. As a result, EPA concluded raised by the EAB’s Deseret opinion, to ‘any pollutant that otherwise is subject that the PSD Interpretive Memo was an the extent they do not overlap with the 4 to regulation under the Act.’ ’’ See Memo interpretive rule that could be issued issues raised in the Memo. Because the at 1. As the Memo explains, the statute without a notice and comment Memo was not a substantive rule and regulation use similar language— rulemaking process. promulgated under section 307(d) of the the regulation defines a regulated NSR However, the PSD Interpretive Memo APA, the reconsideration action was not pollutant to include ‘‘[a]ny pollutant observed that the adoption of an a reconsideration under the authority of that otherwise is subject to regulation interpretation of a rule without a notice section 307(d)(7)(B) of the CAA. See under the Act’’ and requires BACT for and comment process does not preclude Letter from Lisa P. Jackson, EPA ‘‘each regulated NSR pollutant,’’ per 40 subsequent action by the Agency to Administrator, to David Bookbinder, CFR 52.21(b)(50) and (j), while the Act solicit public input on the Chief Climate Counsel at Sierra Club requires BACT for ‘‘each pollutant interpretation. Indeed, given the (Feb. 17, 2009). EPA did not stay the subject to regulation under this [Act],’’ significant public interest in the issue effectiveness of the PSD Interpretive per CAA sections 165(a)(4) and 169. The addressed in the December 18, 2008 Memo pending reconsideration, but the EAB had determined that ‘‘the meaning memorandum, EPA subsequently Agency did reiterate that the Memo of the term ‘subject to regulation under elected to seek public input on the 3 this Act’ as used in [CAA] sections 165 memorandum and alternative readings On January 15, 2009, a number of environmental and 169 is not so clear and unequivocal organizations that filed this Petition for of the regulations. Reconsideration also filed a petition challenging the as to preclude the Agency from On December 31, 2008, EPA received PSD Interpretive Memo in U.S. Court of Appeals for exercising discretion in interpreting the a petition for reconsideration of the the District of Columbia Circuit. Sierra Club v. statutory phrase’’ in implementing the position taken in the PSD Interpretive E.P.A., No. 09–1018 (D.C. Cir., filed Jan. 15, 2009). PSD program. See Deseret at 63. Thereafter, various parties moved to intervene in that action or filed similar petitions challenging the The PSD Interpretive Memo seeks to 2 The PSD Interpretive Memo also reflects EPA’s Memo. The consolidated D.C. Circuit cases have resolve the ambiguity in interpretation of sections 165(a)(4) and 169(3) of the been held in abeyance pending this reconsideration implementation of the PSD program by CAA, which use language similar to the EPA process. Id., Order (filed March 9, 2009). stating that ‘‘EPA will interpret this regulations that are based on these provisions of the 4 Because the grant of reconsideration directed definition of ‘regulated NSR pollutant’ statute. The Memo discusses the Agency’s the Agency to conduct this reconsideration using a interpretation of the CAA and concludes that the notice and comment process, the proposal did not to exclude pollutants for which EPA Agency’s interpretation of its regulations is not address the procedural challenge presented in the regulations only require monitoring or precluded by the terms of the CAA. Petition for Reconsideration.

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‘‘does not bind States issuing [PSD] Comments’’, after reviewing the terms of EPA regulations, or prior EPA permits under their own State comments, EPA has concluded that the action to apply any of the four Implementation Plans.’’ Id. at 1. ‘‘actual control interpretation’’ is a alternatives to its preferred On October 7, 2009 (74 FR 51535), permissible interpretation of the CAA interpretation described in the October EPA proposed a reconsideration of the and is the most appropriate 7, 2009 notice—monitoring and PSD Interpretive Memo that solicited interpretation to apply given the policy reporting requirement, EPA-approved comment on five possible implications. However, EPA is refining SIP, endangerment finding, or CAA interpretations of the regulatory phrase its interpretation in one respect to section 209 waiver. EPA has likewise ‘‘subject to regulation’’—the ‘‘actual establish that PSD permitting not been persuaded that all of the control’’ interpretation (adopted by the requirements apply to a newly regulated alternative interpretations are precluded Memo); the ‘‘monitoring and reporting’’ pollutant at the time a regulatory by the CAA. However, since Congress interpretation (advocated by requirement to control emissions of that has not precisely spoken to this issue, Petitioners); the inclusion of regulatory pollutant ‘‘takes effect’’ (rather than EPA has the discretion to choose among requirements for specific pollutants in upon promulgation or the legal effective the range of permissible interpretations SIPs (discussed in both the Memo and date of the regulation containing such a of the statutory language. Since EPA’s the Petition for Reconsideration); an requirement). In addition, this notice interpretation of the regulations is not EPA finding of endangerment addresses several outstanding questions precluded by the statutory language, (discussed in the Memo); and the grant regarding the applicability of the PSD EPA is electing to maintain that of a section 209 waiver interpretation and Title V permitting programs to interpretation on policy grounds. EPA (raised by commenters in another EPA GHGs upon the anticipated has concluded that the ‘‘actual control’’ action). EPA also addressed, and promulgation of EPA regulations interpretation is not only consistent requested public comment on, other establishing limitations on emissions of with decades of past practice, but issues raised in the PSD Interpretive GHGs from vehicles under Title II of the provides the most reasonable and Memo and related actions that may CAA.5 workable approach to developing an influence this reconsideration. EPA received 71 comments on the appropriate regulatory scheme to Of the five interpretations described proposed reconsideration notice address newly identified pollutants of in the proposed reconsideration notice, published on October 7, 2009 (74 FR concern. Thus, except as to the one EPA expressly favored the actual control 51535).6 Commenters represented a element that EPA proposed to modify, interpretation, which has remained in range of interests, including State EPA is reaffirming the PSD Interpretive effect since issuing the memorandum, regulatory agencies, corporations that Memo and its establishment of the notwithstanding the EPA’s grant of may need to obtain PSD permits, trade actual control interpretation as EPA’s reconsideration. The proposal explained associations representing various definitive interpretation of the phrase that the actual control interpretation industrial sectors, and environmental ‘‘subject to regulation’’ under the PSD best reflects EPA’s past policy and and public interest groups. Commenters provisions in the CAA and EPA practice, is in keeping with the structure representing States and regulated regulations. and language of the statute and entities generally expressed support for EPA has been persuaded by public regulations, and best allows for the the actual control interpretation, while comments on the proposed necessary coordination of approaches to environmental and public interest reconsideration to modify the portion of controlling emissions of newly groups generally favored the alternative its interpretation regarding the timing of identified pollutants. While the other interpretations. States and regulated when a pollutant becomes subject to interpretations may represent reasoned entities also supported EPA’s proposed regulation under the CAA and thus approaches for interpreting ‘‘subject to action to apply PSD requirements at the covered by the requirements of the PSD regulation,’’ no particular one is point in time when an actual control permitting program. Specifically, EPA is compelled by the statute, nor did the requirement becomes effective, with modifying its interpretation of 40 CFR EAB determine that any one of them many entities specifically requesting 52.21(b)(50) of its regulations, and the was so compelled. Because EPA had that EPA interpret ‘‘effective’’ to mean parallel provision in 40 CFR overarching concerns over the policy the compliance date of a rule. 51.166(b)(49), to establish that the PSD and practical application of each of the Environmental stakeholders supported requirements will not apply to a newly alternative interpretations, the Agency retaining the position in the existing regulated pollutant until a regulatory proposed to retain the actual control PSD Interpretive Memo that PSD requirement to control emissions of that ‘‘ ’’ interpretation. Nevertheless, EPA requirements apply to a pollutant upon pollutant takes effect. EPA has requested comment on all five of the the promulgation of the relevant concluded that this approach is interpretations. requirement for that pollutant. consistent with the CAA and a EPA has not been persuaded that the reasonable reading of the regulatory III. This Action Agency is compelled by the CAA, the text. Based on these final determinations, A. Overview 5 On September 28, 2009, EPA proposed a rule EPA will continue to apply the EPA has made a final decision to establishing emissions standards for new motor interpretation reflected in the PSD continue applying (with one limited vehicles, starting with Model Year 2012, that would reduce GHGs and improve fuel economy from Interpretive Memo with one refinement. refinement) the Agency’s existing motor vehicles. This proposal was a joint proposal For the reasons discussed in more detail interpretation of 40 CFR 52.21(b)(50) by EPA and the U.S. Department of Transportation below, EPA has not generally found that is articulated in the PSD (DOT), with DOT proposing to adopt corporate cause to change the discussion or average fuel economy (CAFE) standards for model Interpretive Memo. For reasons years 2012 and after. See 74 FR 49453. reasoning reflected in the Memo. As a explained below, and addressed in 6 In some cases, a commenter on the proposed result, EPA does not see a need to either further detail in the document reconsideration of the PSD Interpretive Memo withdraw or re-issue the Memo. ‘‘Reconsideration of Interpretation of addressed an issue or topic that is under However, this notice refines one Regulations that Determine Pollutants consideration in the forthcoming PSD and Title V paragraph of that memorandum to GHG Tailoring Rule. Accordingly, EPA refers the Covered by Clean Air Act Permitting reader to that rulemaking for EPA responses to reflect EPA’s current view that a Programs: EPA’s Response to Public those comments. pollutant becomes subject to regulation

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at the time the first control requirements B. Analysis of Proposed and Alternative the term as ‘‘a rule or order, having legal applicable to a pollutant take effect. Interpretations for Subject to Regulation force, usu. issued by an administrative agency or local government.’’ The Public comments raised several 1. Actual Control Interpretation questions regarding the application of primary meaning in Webster’s the PSD program and Title V permits to EPA has concluded that the ‘‘actual dictionary for the term ‘‘regulation’’ is GHGs that EPA did not specifically raise control’’ interpretation (as articulated in ‘‘the act of regulating: The state of being in the October 7, 2009 proposed notice the PSD Interpretive Memo) is regulated.’’ Merriam-Webster’s of reconsideration. Some of these permissible under the CAA and is Collegiate Dictionary 983 (10th Ed. comments raised significant issues that preferred on policy grounds. Thus, EPA 2001). Webster’s secondary meaning is will continue to interpret the definition the Agency recognizes the need to ‘‘an authoritative rule dealing with of ‘‘regulated NSR pollutant’’ in 40 CFR address at this time to ensure the details of procedure’’ or ‘‘a rule or order 52.21(b)(50) to exclude pollutants for orderly transition to the regulation of issued by an executive authority or which EPA regulations only require regulatory agency of a government and GHGs under these permitting programs. monitoring or reporting but to include having the force of law.’’ Webster’s also Thus, this notice reflects additional each pollutant subject to either a defines the term ‘‘regulate’’ and the interpretations and EPA statements of provision in the CAA or regulation inflected forms ‘‘regulated’’ and policy on topics not discussed in the promulgated by EPA under the CAA ‘‘regulating’’ (both of which are used in October 7, 2009 notice. These that requires actual control of emissions Webster’s definition of ‘‘regulation’’) as interpretations and polices have been of that pollutant. As discussed further meaning ‘‘to govern or direct according developed after careful consideration of below, EPA will also interpret section to rule’’ or to ‘‘to bring under the control the public comments submitted to EPA 51.166(b)(49) of its regulations in this of law or constituted authority.’’ Id. on this action and related matters. In manner. This interpretation is The PSD Interpretive Memo subsequent actions, EPA may address supported by the language and structure reasonably applies a common meaning additional topics raised in public of the regulations and is consistent with of the term ‘‘regulation’’ to support a comments on this action that the past practice in the PSD program and permissible interpretation that the Agency did not consider necessary to prior EPA statements regarding phrase ‘‘pollutant subject to regulation’’ address at this time. pollutants subject to the PSD program. means a pollutant subject to a provision Regarding GHGs, EPA has concluded The CAA is most effectively in the CAA or a regulation issued by implemented by making PSD emissions that PSD program requirements will EPA under the Act that requires actual limitations applicable to pollutants after apply to GHGs upon the date that the control of emissions of that pollutant. a considered judgment by EPA (or anticipated tailpipe standards for light- Public comments have not Congress) that particular pollutants ‘‘ demonstrated the dictionary meanings duty vehicles (known as the LDV should be subject to control or Rule’’) take effect. Based on the of the term ‘‘regulation’’ described in the limitation. The actual control Memo are no longer accepted meanings proposed LDV Rule, those standards interpretation promotes the orderly will take effect when the 2012 model of this term. In light of the different administration of the permitting ‘‘ ’’ year begins, which is no earlier than meanings of the term regulation, EPA program by allowing the Agency to first has not been persuaded by public January 2, 2011. While the LDV Rule assess whether there is a justification for comments that the CAA plainly and will become ‘‘effective’’ for the purposes controlling emissions of a particular unambiguously requires that EPA apply of planning for the upcoming model pollutant under relevant criteria in the any of the other interpretations years as of 60 days following Act before applying the requirements of described in the October 7, 2009 notice. publication of the rule, the emissions the PSD permitting program to a Moreover, the Memo carefully explains control requirements in the rule do not pollutant. how the actual control interpretation is ‘‘take effect’’— i.e., requiring compliance Because the term ‘‘regulation’’ is consistent with the overall context of through vehicular certification before susceptible to more than one meaning, the CAA in which sections 165(a)(4) and introducing any Model Year 2012 into there is ambiguity in the phrase ‘‘each 169(3) are found. After consideration of commerce—until Jan. 2, 2011, or pollutant subject to regulation under the public comment, EPA continues to find 8 approximately 9 months after the Act’’ that is used in both sections this discussion persuasive. The ‘‘subject planned promulgation of the LDV Rule. 165(a)(4) and 169(3) of the CAA. As to regulation’’ language appears in the Furthermore, as EPA intends to explain discussed in the Memo, the term BACT provisions of the Act, which soon in detail in the final action on the ‘‘regulation’’ can be used to describe a themselves require actual controls on PSD and Title V GHG Tailoring Rule rule contained in a legal code, such as emissions. The BACT provisions (known as the ‘‘Tailoring Rule’’),7 in the Code of Federal Regulations, or the reference the New Source Performance light of the significant administrative act or process of controlling or Standards (NSPS) and other control restricting an activity. The primary challenges presented by the application requirements under the Act, which meaning of the term ‘‘regulation’’ in of the PSD and Title V requirements for establish a floor for the BACT Black’s Law Dictionary (8th Ed.) is ‘‘the GHGs (and considering the legislative requirement. See 42 U.S.C. 7479(3). act or process of controlling by rule or intent of the PSD and Title V statutory Other provisions in the CAA that restriction.’’ However, an alternative authorize EPA to establish emissions provisions), it is necessary to defer meaning in this same dictionary defines applying the PSD and Title V provisions limitations or controls on emissions provide criteria for the exercise of EPA’s for sources that are major based only on 8 The CAA requires BACT for ‘‘each pollutant judgment to determine which pollutants emissions of GHGs until a date that subject to regulation under this Act.’’ See CAA or source categories to regulate. Thus, it extends beyond January 2, 2011. 165(a)(4), 169(3). The United States Code refers to ‘‘each pollutant regulated under this chapter,’’ follows that Congress expected that which is a reference to Chapter 85 of Title 42 of the pollutants would only be regulated for Code, where the CAA is codified. See 42 U.S.C. 7475(a)(4), 7479(3). For simplicity, this notice purposes of the PSD program after: (1) 7 The proposed ‘‘Tailoring Rule’’ can be found at generally uses ‘‘the Act’’ and the CAA section The EPA promulgated regulations 74 FR 55291 (Oct. 27, 2009). numbers rather than the U.S. Code citation. requiring control of a particular

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pollutant on the basis of considered preferences when determining which political manipulation. The commenter judgment, taking into account the interpretation to apply, so long as the further noted that the case-by-case applicable criteria in the CAA, or (2) interpretation EPA elects to follow is a BACT requirement does not EPA promulgates regulations on the permissible one. The PSD Interpretive contemplate waiting years for EPA to basis of Congressional mandate that Memo provides a persuasive conduct analyses and ‘‘develop’’ control EPA establish controls on emissions of explanation for why the interpretation options; rather, BACT must be based on a particular pollutant, or (3) Congress reflected in that memorandum is control options that are available. Then, itself directly imposes actual controls on consistent with the terms of the CAA permitting agencies are to make ‘‘case- emissions of a particular pollutant. In and Congressional intent. In this by-case’’ determinations ‘‘taking into addition, considering other sections in instance, EPA’s policy preferences are account energy, environmental, and the Act that require reasoned decision- fully consistent with that intent. As economic impacts and other costs,’’ making and authorize the collection of explained above, Congress intended for thereby ensuring that the decision is emissions data prior to establishing EPA to gather data before establishing informed by the available solutions, controls on emissions, it is also controls on emissions and to make their efficacy and costs. consistent with the Congressional reasoned decisions. While this analysis may sometimes design to require BACT limitations for EPA continues to prefer the actual take more time than the commenter pollutants after a period of data control interpretation because it ensures would prefer, a deliberative and orderly collection and study that leads to a an orderly and manageable process for approach to regulation is in the public reasoned decision to establish control incorporating new pollutants into the interest and consistent with requirements. Public commenters did PSD program after an opportunity for Congressional intent. It would be not demonstrate that it was erroneous public participation in the decision premature to impose the BACT for EPA to interpret the PSD provisions making process. Several commenters requirement on a particular pollutant if in this manner, based on the context of who supported EPA’s proposal to neither EPA nor Congress has made a the Act. continue applying the ‘‘actual control’’ considered judgment that a particular Furthermore, the actual control interpretation identified these pollutant is harmful to public health interpretation is consistent with the considerations as important reasons that and welfare and merits control. terms of the regulations EPA EPA should continue doing so. EPA Once the Agency has made a promulgated in 2002.9 EPA continues to agrees with these comments. As determination that a pollutant should be find the reasoning of the PSD discussed persuasively in the PSD controlled using one or more of the Interpretive Memo to be persuasive. The Interpretive Memo, under this regulatory tools provided in the CAA structure and language of EPA’s interpretation, EPA may first assess and those controls take effect, EPA definition of ‘‘regulated NSR pollutant’’ whether there is a justification for agrees that a BACT analysis must then at 40 CFR 52.21(b)(50) supports the controlling emissions of a particular be completed based on available actual control interpretation. The first pollutant under relevant criteria in the information. As the commenter points three parts of the definition describe Act before imposing controls on a out, the BACT process is designed to pollutants that are subject to regulatory pollutant under the PSD program. In determine the most effective control requirements that mandate control or addition, this interpretation permits the strategies achievable in each instance, limitation of the emissions of those Agency to provide notice to the public considering energy, environmental, and pollutants, which suggests that the use and an opportunity to comment when a economic impacts. Thus, EPA agrees of ‘‘otherwise subject to regulation’’ in new pollutant is proposed to be that the onset of the BACT requirement the fourth prong of the definition also regulated under one or more programs should not be delayed in order for intended some prerequisite act or in the Act. It also promotes the orderly technology or control strategies to be process of control. The definition’s use administration of the permitting developed. Furthermore, EPA agrees of ‘‘subject to regulation’’ should be read program by providing an opportunity with the commenter that delaying the in light of the primary meanings of for EPA to develop regulations to application of BACT to enable ‘‘regulation’’ described above, which manage the incorporation of a new development of guidance on control each use or incorporate the concept of pollutant into the PSD program, for strategies is not necessarily consistent control. example, by promulgating a significant with the BACT requirement. The BACT One commenter stated that EPA’s emissions rate (or de minimis level) for provisions clearly contemplate that the suggestion that its proposed the pollutant when it becomes permitting authority will develop interpretation will allow for a more regulated. See 40 CFR 52.21(b)(23). control strategies on a case-by-case practical approach to determining Furthermore, this interpretation basis. Thus, EPA is not in this final whether emissions of air pollutants preserves the Agency’s ability to gather action relying on the need to develop endanger health and human welfare data on pollutant emissions to inform guidance for BACT as a justification for amounts only to a policy preference. their judgment regarding the need to choosing to continue applying the The commenter argued that EPA’s establish controls on emissions without actual control interpretation. However, policy preference should be subordinate automatically triggering such controls. in the absence of guidance on control to statutory language and Congressional This interpretation preserves EPA’s strategies from EPA and other regulatory intent. Another commenter made authority to require control of particular agencies, the BACT process may be similar comments and stated that EPA pollutants through emissions limitations more time and resource intensive when cannot avail itself of additional, non- or other restrictions under various applied to a new pollutant. Under a statutory de facto extensions of time to provisions of the Act, which would then mature PSD permitting program, fulfill its statutory obligations. trigger the requirements of the PSD successive BACT analyses establish Where the governing statutory program for any pollutant addressed in guidelines and precedents for authority is susceptible to more than such an action. subsequent BACT determinations. one interpretation, it is not Some commenters who opposed the However, when a new pollutant is impermissible for EPA to apply policy actual control interpretation argued that regulated, the first permit applicants this deliberate approach leads to and permitting authorities that are faced 9 See 67 FR 80186–80289. ‘‘analysis paralysis’’ and is subject to with determining BACT for a new

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pollutant must invest more time and made no determination to date to necessary to conduct research or resources in making an assessment of exercise that authority under the evaluate whether to establish controls BACT under the statutory criteria. Given specific criteria provided under any on the pollutant under other parts of the the potentially large number of sources provision of the Act.’’ 10 The 1978 Act. Such a result would frustrate the that could be subject to the BACT Federal Register notice promulgating Agency’s ability to gather information requirement when EPA regulates GHGs, the initial PSD regulations stated that using section 114 and other authority the absence of guidance on BACT pollutants ‘‘subject to regulation’’ in the and make informed and reasoned determinations for GHGs presents a PSD program included ‘‘any pollutant judgments about the need to establish unique challenge for permit applicants regulated in Subchapter C of Title 40 of controls or limitations for particular and permitting authorities. EPA intends the Code of Federal Regulations.’’ pollutants. If EPA interpreted the to address this challenge in part by Commenters argue this statement requirement to establish emissions deferring, under the Tailoring Rule, the illustrates that EPA has in fact applied limitations based on BACT to apply applicability of the PSD permitting the PSD BACT requirement to any solely on the basis of a regulation that program for sources that would become pollutant subject to only a monitoring requires collecting and reporting major based solely on GHG emissions. requirement codified in this portion of emissions data, the mere act of gathering EPA is also developing guidance on the Code of Federal Regulations. information would essentially dictate BACT for GHGs. However, this comment overlooked the the result of the decision that the Several commenters expressed discussion in the PSD Interpretive information is being gathered to inform concern with EPA’s explanation that the Memo regarding the differing meanings (whether or not to require control of a actual control interpretation best reflects of the term ‘‘regulation’’ and ‘‘regulate.’’ pollutant). Many commenters EPA’s past practice. One commenter The 1978 preamble did not amplify the representing State permitting agencies argued that the Deseret decision rejects meaning of the term ‘‘regulated in.’’ and industry groups agree with the the idea that ‘‘past policy and practice’’ Thus, commenters have not policy arguments advanced by EPA and is a sufficient justification for EPA’s demonstrated that EPA had concluded others that EPA’s critical information preferred interpretation. In addition, in 1978 that monitoring requirements gathering activities will be constrained, several commenters argued that the equaled ‘‘regulation’’ within the meaning with likely adverse environmental and memorandum was in fact not consistent of sections 165(a)(4) and 169(3) of the public health consequences, if with past EPA practice, based on their CAA, nor have commenters provided monitoring requirements are necessarily interpretation of a statement made in any examples of permits issued by EPA associated with the potentially the preamble to a rule which after 1978 that demonstrate EPA’s significant implementation and promulgated PSD regulations in 1978. interpretation was inconsistent with the compliance costs and resource While the record continues to show practice described in the PSD constraints of the PSD program. that the actual control interpretation is Interpretive Memo. Commenters expressed concern that consistent with EPA’s historic practice, Therefore, EPA affirms that the actual without the ability to gather data or EPA agrees that continuity with past control interpretation expressed in the investigate unregulated pollutants, for practice alone does not justify PSD Interpretive Memo continues be the fear of triggering automatic regulation maintaining a position when there is operative statement for the EPA under the CAA, EPA will not have the good cause to change it. In this case, interpretation of the meaning of the flexibility to review the validity of however, EPA has not found cause to regulatory phrase ‘‘subject to regulation’’ controlling new pollutants. change an interpretation that is within the Federal PSD rules. EPA agrees that a monitoring and consistent with Congressional intent reporting interpretation would hamper 2. Monitoring and Reporting and supported by the policy the Agency’s ability to conduct Interpretation considerations described earlier. Thus, monitoring or reporting for investigative EPA is not retaining the actual control EPA is not persuaded that the purposes to inform future rulemakings interpretation simply to maintain monitoring and reporting interpretation involving actual emissions control or continuity with historic practice. The is compelled by the CAA, and the limits. In addition, it is not always record reflects that EPA’s past practice Agency remains concerned that possible to predict when a new was grounded in a permissible application of this approach would lead pollutant will emerge as a candidate for interpretation of the law and supported to odd results and make the PSD regulation. In such cases, the Memo’s by rational policy considerations. program difficult to administer. EPA reasoning is correct in that EPA would Commenters have not otherwise continues to find the reasoning of the be unable to promulgate any monitoring persuaded EPA to change its historic PSD Interpretive Memo persuasive. or reporting rule for such a pollutant practice in this area. The monitoring and reporting without triggering PSD under this A review of numerous Federal PSD interpretation would make the interpretation. permits shows that EPA has been substantive requirements of the PSD An environmental organization applying the actual control program applicable to particular disagreed with the proposed notice of interpretation in practice—issuing pollutants based solely on monitoring reconsideration, and commented that permits that only contained emissions and reporting requirements (contained EPA has issued monitoring and limitations for pollutants subject to in regulations established under section reporting regulations for CO2 in 40 CFR regulations requiring actual control of 114 or other authority in the Act). This part 75, promulgated pursuant to emissions under other portions of the approach would lead to the perverse section 821 of the 1990 CAA Act. Furthermore, in 1998, well after result of requiring emissions limitations Amendments. The commenter felt that promulgation of the initial CO2 under the PSD program while the these monitoring and reporting rules are monitoring regulations in 1993, EPA’s Agency is still gathering the information ‘‘regulation’’ in that they are contained General Counsel concluded that CO2 in a legal code, have the force of law, would qualify as an ‘‘air pollutant’’ that 10 Memorandum from Jonathan Z. Cannon, and bring the subject matter under the General Counsel to Carol M. Browner, EPA had the authority to regulate under Administrator, entitled EPA’s Authority to Regulate control of law and the EPA. the CAA, but the General Counsel also Pollutants Emitted by Electric Power Generation Furthermore, the commenter says that observed that ‘‘the Administrator has Sources (April 10, 1998). EPA itself has characterized these

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monitoring and reporting requirements NSPS programs, which require that EPA control of an air pollutant under the as ‘‘regulations.’’ In contrast, another make an endangerment finding before PSD program with control under other commenter argued that an agency’s establishing generally applicable CAA provisions. interpretation of a statute should focus standards such as the NSPS or motor EPA finds the logic of the PSD first on the ordinary dictionary meaning vehicle emissions standards. According Interpretive Memo more persuasive. The of the terms used and that monitoring to this commenter, BACT’s case-by-case Memo considers the full context of the emissions does not fit within any of the approach provides the dynamic CAA, including the health and welfare types of activities understood to flexibility necessary to implement an criteria that generally must be satisfied constitute ‘‘regulation’’ of those emission limitation appropriate to each to establish control requirements under emissions in the ordinary meaning of particular source. This commenter feels other parts of the Act, information that term. Each of these commenters that the PSD program’s ability to gathering provisions that contemplate focuses on only one of the two potential address potential adverse effects is data collection and study before meanings of the term ‘‘regulation’’ hindered by the position that an pollutants are controlled, and described above. endangerment determination and actual requirements for reasoned decision The commenter that favors the control limits must be first established. making. While some commenters ‘‘ ’’ monitoring and reporting EPA does not agree that the terms of presented arguments for why it might be interpretation appears to focus only on section 160 cited by the commenter possible or beneficial to apply the BACT the dictionary meanings that describe a compel EPA to read sections 165(a)(4) requirement before a control rule contained in a legal code. The and 169(3) to apply to a pollutant before requirement is established for a commenter has not demonstrated that it pollutant elsewhere under the Act, these the Agency has established control is impermissible for EPA to construe the arguments do not demonstrate that the requirements for the pollutant. Section CAA on the basis of another common contextual reading of the CAA described 160(1) describes PSD’s purpose to meaning of the term ‘‘regulation.’’ In the in the Memo is erroneous. Thus, the ‘‘protect public health and welfare from context of construing the Act, the EAB comments have at most provided any actual or potential adverse effect observed in the Deseret case that a plain another permissible reading of the Act, which in the Administrator’s judgment meaning could not be ascertained from but they do not demonstrate that EPA may reasonably be anticipated to occur looking solely at the word ‘‘regulation.’’ must require BACT limitations for from air pollution.’’ Thus, this goal The Board reached this conclusion after pollutants that are not yet controlled but contemplates an exercise of judgment by considering the dictionary definitions of only subject to data collection and the term ‘‘regulation’’ cited above. See EPA to determine that an actual or study. Deseret slip op. at 28–29. EPA continues potential adverse effect may reasonably EPA continues to believe that the to find the reasoning of the EAB and the be anticipated from air pollution. In that monitoring and reporting interpretation PSD Interpretive Memo to be sense, this goal is consistent with is inconsistent with past agency practice persuasive. The EAB found ‘‘no NAAQS and NSPS programs, which because, as the Memo notes, ‘‘EPA has evidence of Congressional intent to contemplate that regulation of a not issued PSD permits containing compel EPA to apply BACT to pollutant will not occur until a emissions limitations for pollutants that pollutants that are subject only considered judgment by EPA that a are only subject to monitoring and substance or source category merits monitoring and reporting requirements.’’ reporting requirements,’’ including CO2 See Deseret at 63. control or restriction. The commenter emissions. Further, the Memo Comments have not convincingly has not persuasively established that the determines that the monitoring and shown that Congress clearly intended to ‘‘potential adverse effect’’ language in reporting interpretation is not required use the term ‘‘regulation’’ in section section 160(1) makes this provision under the 1978 preamble language, 165(a)(4) and 169(3) to describe any markedly different than the language explaining that the preamble language type of rule in a legal code. Some used in sections 108(a)(1)(A) and could be interpreted in a variety of ways commenters presented alternative 111(b)(1)(A). All three sections use the and ‘‘did not specifically address the theories of Congressional intent phrase ‘‘may reasonably be anticipated.’’ issue of whether a monitoring or regarding the BACT provisions, but they Furthermore, section 160 contains reporting requirement makes a pollutant have not persuasively demonstrated that general goals and purposes and does not ‘regulated in’ [Subpart C of Title 40] of the interpretation of Congressional contain explicit regulatory the Code of Federal Regulations.’’ See intent based on the context of the CAA requirements. The controlling language Memo at 11–12. Commenters have not described in the PSD Interpretive Memo in the PSD provisions is the ‘‘subject to demonstrated that the Agency is erroneous. regulation’’ language in sections specifically intended, through this For example, one commenter opposed 165(a)(4) and 169(3). As discussed statement, to apply the PSD to EPA’s proposed action commented earlier, the ‘‘actual control’’ requirements to pollutants that were that the PSD Interpretive Memo ignores interpretation is based on a common covered by only a monitoring and the Congressionally-established purpose and accepted meaning of the term reporting requirement codified in this of PSD to protect public health and ‘‘regulation.’’ To the extent the goals and part of the CFR. welfare from actual and potential purpose in section 160 are instructive as One commenter questioned EPA’s adverse effects. See CAA section 160(1). to the meaning of other provisions in basis for rejecting the monitoring and Specifically, this commenter stated that Part C of the Act, section 160(1) is just reporting interpretation because they to limit application of BACT until after one of several purposes of the PSD believe EPA has not identified a control requirements are in place program that Congress specified. The pollutant other than CO2 that would be following an endangerment finding Act also instructs EPA to ensure that affected by the monitoring and reporting ignores the broad, protective purpose of economic growth occurs consistent with interpretation. However, EPA’s GHG the PSD program. The commenter said the preservation of existing clean air Reporting Rule covers six GHGs, not just that the emphasis on ‘‘potential adverse resources. See CAA section 160(3). CO2. Further, EPA has promulgated effect[s]’’ distinguishes PSD the EPA’s interpretation is consistent with regulations that require monitoring of requirement from the National Ambient this goal because it allows EPA to look oxygen (O2) in the stack of a boiler Air Quality Standards (NAAQS) and at the larger picture by coordinating under certain circumstances. See 40

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CFR 60.49Da(d). These examples help State’s implementation plan is a the PSD program nationally. In fact, demonstrate why monitoring and reflection of the air quality concerns in Congress demonstrated intent, in the reporting requirements alone should not that State, allowing a State significant language and structure of the Act, for be interpreted to trigger PSD and BACT latitude in the treatment of specific SIP requirements to have only a local or requirements. pollutants of concern (or their regional effect. For the reasons discussed above, EPA precursors) within its borders based on In section 102(a) of the CAA, Congress affirms the Memo’s rejection of the air quality, economic, and other directs EPA to encourage cooperative monitoring and reporting interpretation environmental concerns of that State. As activities among States, and the for triggering PSD requirements for a such, pollutant emissions in one State adoption of uniform State and local new pollutant. may not present the same problem for laws for the control of air pollution ‘‘as practicable in light of the varying 3. State Implementation Plan (SIP) a State a thousand miles away. As conditions and needs.’’ This language Interpretation expressed in the PSD Interpretive Memo, EPA continues to have concerns informs the issue of whether SIP In discussing the application of the that the SIP interpretation would requirements have nationwide actual control interpretation to specific improperly limit the flexibility of States applicability in two ways. First, there actions under the CAA, the PSD to develop and implement their own air would be no need for EPA to facilitate Interpretive Memo rejects an quality plans, because the act of one uniform adoption of standards in interpretation of ‘‘subject to regulation’’ State to establish regulatory different air quality control regions, if in which regulatory requirements for a requirements for a particular pollutant the regulation of an air pollutant by one particular pollutant in the EPA- would drive national policy. If EPA region would automatically cause that Approved State Implementation Plan determined that a new pollutant pollutant to be regulated in another (SIP) for a single State would ‘‘require becomes ‘‘subject to regulation’’ region. Second, Congress bounded its regulation of that pollutant under the nationally within the meaning of section desire to promote uniformity by PSD program nationally.’’ (Hereinafter, 165 based solely on the provisions of an recognizing that addressing local air referred to as the ‘‘SIP interpretation.’’) EPA-approved SIP, then all States quality concerns may preempt national In this action, EPA affirms and would be required to subject the new uniformity of regulation. supplements the rationale for rejecting pollutant to PSD permitting whether or Indeed, section 116 of the CAA grants the SIP interpretation provided in the not control of the air pollutant was States the right to adopt more stringent PSD Interpretive Memo and the relevant for improving that State’s air standards than the uniform, minimum reconsideration proposal. Since the quality. Whether one State, five States, requirements set forth by EPA. See 42 meaning of the term ‘‘subject to or 45 States make the decision that their U.S.C. 7416. The legislative history of regulation’’ is ambiguous and air quality concerns are best addressed the 1977 CAA Amendments shows that susceptible to multiple interpretations, by imposing regulations on a new Congress understood that States may the SIP interpretation is not compelled pollutant, EPA does not think those adopt different and more stringent by the structure and language of the Act. actions should trump the cooperative standards then the Federal minimum Furthermore, there would be negative federalism inherent in the CAA. While requirements. See, e.g., 122 Cong. Rec. policy implications if EPA adopted this several States may face similar air S12456 (daily ed. July 26, 1976) interpretation. quality issues and may choose (statement of Sen. Randolph) (‘‘[T]he The Memo reasons that application of regulation as the preferred approach to States are given latitude in devising the SIP interpretation would convert dealing with a particular pollutant, EPA their own approaches to air pollution EPA’s approval of regulations applicable is concerned that allowing the control within the framework of broad only in one State into a decision to regulatory choices of some number of goals. * * * The State of West Virginia regulate a pollutant on a nationwide States to impose PSD regulation on all has established more stringent scale for purposes of the PSD program. other States would do just that. requirements than those which, through The Memo explains that the Some commenters support the SIP the Environmental Protection Agency, establishment of SIPs is better read in interpretation, and fault the Agency’s are considered as adequate * * *’’); 122 light of the ‘‘cooperative federalism’’ rejection of the interpretation by stating Cong. Rec. S12458 (daily ed. July 26, underlying the Act, whereby Congress that neither the Act, nor the Memo, 1976) (statement of Sen. Scott) (‘‘The allowed individual States to create and provides a basis for a position that States have the right, however, to apply some regulations more stringently regulation by a single State is not require higher standards, and they than Federal regulations within its enough to constitute ‘‘regulation under should have under the police powers.’’) borders, without allowing individual the Act’’ on a nationwide basis for Congress could not have intended States States to set national regulations that purpose of section 165. Petitioners and to have latitude to implement their own would impose those requirements on all another commenter also assert that CO2 approaches to air pollution control, and States. See Ellis v. Gallatin Steel Co., is already ‘‘subject to regulation under simultaneously, require that air 390 F.3d 461, 467 (6th Cir. 2004). In the Act’’ and take the position that any pollutants regulated by one State rejecting the SIP interpretation, the requirement EPA adopts and approves automatically apply in all other States. Memo also explains that EPA adopted a in an implementation plan makes the Importantly, the legislative history similar position in promulgating the covered pollutant ‘‘subject to regulation also shows that Congress intended to NSR regulations for fine particulate under the Act’’ because it is approved by limit the EPA’s ability to disapprove a matter (or ‘‘PM2.5’’), without any public the EPA ‘‘under the Act,’’ and because it State’s decision to adopt more stringent comments opposing that position. See becomes enforceable by the State, by requirements in setting forth the criteria Memo at 15–16. EPA and by citizens ‘‘under the Act’’ for approving State submissions under EPA continues to believe that the upon approval. section 110. This intent is supported by CAA and EPA’s implementing EPA disagrees with the Petitioner and the following passage: regulations are intended to provide with this commenter that this reasoning State implementation plans usually States flexibility to develop and necessarily means that a pollutant contain a unified set of requirements and implement SIPs to meet the air quality regulated in one SIP approved by EPA frequently do not make distinctions between goals of their individual State. Each must automatically be regulated through the controls needed to achieve one kind of

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ambient standard or another. To try to this Act * * * which is local or stringent requirements of a neighboring separate such emission limitations and make regionally applicable may be filed only State in developing its own judgments as to which are necessary to in the United States Court of Appeals implementation plan, then by inference, achieving the national ambient air quality for the appropriate circuit.’’ 42 U.S.C. the State would also not be compelled standards assumes a greater technical capability in relating emissions to ambient 7607(b) (emphasis added). Thus, to follow the more stringent standards. air quality than actually exists. Congress set forth its intended In sum, after reconsidering the legal A federal effort to inject a judgment of this applicability of these regulations in and policy issues, EPA declines to adopt kind would be an unreasonable intrusion assigning judicial venue and clearly the SIP interpretation. into protected State authority. EPA’s role is articulated that requirements in a SIP 4. Endangerment Finding Interpretation to determine whether or not a State’s are generally ‘‘local or regionally limitations are adequate and that State applicable.’’ The PSD Interpretive Memo states implementation plans are consistent with the Even if the Act could be read to that the fourth part of the regulated NSR statute. Even if a State adopts limits which support EPA review of the national pollutant definition (‘‘[a]ny pollutant may be stricter than EPA would require, EPA that otherwise is subject to regulation’’) cannot second guess the State judgment and implications of State SIP submissions, must enforce the approved State emission such an approach would be undesirable should not be interpreted ‘‘to apply at limit.11 for policy reasons. As highlighted in the the time of an endangerment finding.’’ See Memo at 14 (hereinafter, referred to 123 Cong. Rec. S9167 (daily ed. June 8, reconsideration proposal, one practical effect of allowing State-specific as the ‘‘endangerment finding 1977) (statement of Sen. Muskie). interpretation.’’). After considering This Congressional intent is reflected concerns to create national regulation is public comments, EPA is affirming the within the statutory language. Under that EPA’s review of SIPs would likely position expressed in the PSD section 110(k)(3), the EPA be much more time-consuming, because Interpretative Memo that an Administrator ‘‘shall approve’’ a State’s EPA would have to consider each endangerment finding alone does not submittal if it meets the requirements of nuance of the SIP as a potential make the requirements of the PSD the Act, and under section 110(l) ‘‘shall statement of national policy. Thus, EPA program applicable to a pollutant. EPA not’’ approve a plan revision ‘‘if the would have heightened oversight of air maintains its view that the terms of revision would interfere with any other quality actions in all States—even those EPA’s regulations and the relevant applicable requirement of this Act.’’ regarding local and State issues that are provisions of the CAA do not compel Courts have similarly interpreted this best decided by local agencies. EPA EPA to conclude that an air pollutant language to limit EPA’s discretion to approval of SIPs would be delayed, becomes ‘‘subject to regulation’’ when approve or disapprove SIP which would in turn, delay State’s EPA finds that it endangers public requirements. See, e.g., State of progress toward improving air quality. health or welfare without Connecticut v. EPA, 656 F.2d 902, 906 And, EPA would be required to defend contemporaneously promulgating (2d. Cir. 1981) (‘‘As is illustrated by challenges to the approval of a SIP with control requirements for that pollutant. Congress’s use of the word ‘shall,’ national implications in the D.C. Circuit Court of Appeals rather than the local As explained in EPA’s Endangerment approval of an SIP revision by the EPA and Cause or Contribute Findings for Administrator is mandatory if the Circuit Court of Appeals. The potential increased burden of reviewing and GHGs under section 202(a) of the CAA, revision has been the subject of a proper there are actually two separate findings hearing and the plan as a whole approving SIPs to analyze the national implications of each SIP, and the involved in what is often referred to as continues to adhere to the requirements an endangerment finding. 74 FR 66496 of section 110(a)(2)’’) (referencing Union associated delay in improving air quality, creates a compelling policy (Dec. 15, 2009). The first finding Electric Co. v. EPA, 427 U.S. 246, 257 addresses whether air pollution may (1976); and Mission Indus., Inc. v. EPA, argument against adoption of the SIP interpretation. reasonably be anticipated to endanger 547 F.2d 123 (1st Cir. 1976)). These public health or welfare. The second provisions of the statute do not establish Petitioners also fault EPA’s reliance on Connecticut v. EPA, 656 F.2d 902 (2d finding involves an assessment of any authority or criteria for EPA to whether emissions of an air pollutant judge the approvability of a State’s Cir. 1981) and assert that this case has from the relevant source category cause submission based on the implications nothing to do with the issue of whether ‘‘ or contribute to this air pollution. In this such approval would have nationally. a pollutant is subject to regulation ’’ notice, EPA uses the phrase The absence of such authority or criteria under the Act. In the PSD Interpretive ‘‘endangerment finding’’ to refer to EPA in the applicable standard argues Memo, EPA cited Connecticut to findings on both of these questions. The against nationwide applicability of SIP support the notion that while a State is EPA interpretation described here requirements and the SIP interpretation. free to adopt air quality standards more Moreover, under section 307(b) of the stringent than required by the NAAQS applies to both findings regardless of CAA, Congress assigns review of or other Federal law provisions, whether they occur together or specific regulations promulgated by Congress precludes those stricter separately. As explained in the proposed EPA and ‘‘any other nationally requirements from applying to other reconsideration, an interpretation of applicable regulations promulgated or States. The Agency agrees with ‘‘subject to regulation’’ that does not final action taken, by the Administrator commenter that the circumstances include endangerment findings is under this Act’’ only to the U.S. Court involved in that case are not directly consistent with the first three parts of of Appeals for the District of Columbia analogous, but, nevertheless, the case the definition of ‘‘regulated NSR Circuit (‘‘D.C. Circuit’’). In contrast, ‘‘the supports the inference that EPA has pollutant’’ in section 52.21(b)(50) of Administrator’s action in approving and drawn from it. The Court concluded that ‘‘ EPA’s regulations. Unlike the first three promulgating any implementation plan [n]othing in the Act, however, indicates parts of the definition, an endangerment under Section 110 * * * or any other that a State must respect its neighbor’s finding does not itself contain any final action of the Administrator under air quality standards (or design its SIP to avoid interference therewith) if those restrictions (e.g., regarding the level of 11 Notably, the legislative record refers to ‘‘State’’ standards are more stringent than the air pollution or emissions or use). emission limit, and makes no note of this State requirements of Federal law.’’ If a State Moreover, two parts of the definition emission limitation having broader applicability. is not required to respect the more involve actions that can occur only after

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an endangerment finding of some sort 14. For example, EPA often does not regulations that would flow from an has taken place. In other words, other make a final decision regarding how to endangerment finding under that parts of the definition already bypass an identify the specific pollutant subject to section, it also has some discretion endangerment finding and apply the an NSPS standard until the NSPS is regarding the timing of the triggering of PSD trigger to a later step in the issued, which occurs after both the PSD controls that the statute requires regulatory process. endangerment finding and the source based on those section 202(a) Specifically, under the first part of category listing. regulations. EPA has reasonably that definition, PSD regulation is Public comments echoed these determined that PSD controls should triggered by promulgation of a NAAQS concerns. One commenter said that not precede any other control under CAA section 109. However, in subjecting the pollutant to PSD requirements. Some commenters cited order to promulgate NAAQS standards requirements, including imposition of Massachusetts in support of EPA’s under section 109, EPA must first list, BACT emission limits, before the position. and issue air quality criteria for a Agency has taken regulatory action to For the foregoing reasons, EPA affirms pollutant under section 108, which in establish emission controls would turn that the prerequisite act of making an turn can only happen after EPA makes the CAA process on its head. Another endangerment finding, a cause or an endangerment finding and a version commenter indicated that triggering contribute finding, or both, does not of a cause or contribute finding, in PSD review upon completion of an make a pollutant ‘‘subject to regulation’’ addition to meeting other requirements. endangerment finding, but potentially for the purposes of the PSD program. See CAA sections 108(a)(1) and before the specific control requirement This interpretation applies to both steps 109(a)(2). Thus, if EPA were to conclude that flows directly from the of the endangerment finding—the that an endangerment finding, cause or endangerment finding, clearly finding that air pollution may contribute finding, or both would make undermines the orderly process created reasonably be anticipated to endanger a pollutant ‘‘subject to regulation’’ by Congress for regulation of new air public health or welfare, and the finding within the meaning of the PSD pollutants. A third commenter added that emissions of an air pollutant from provisions, this would read all meaning that establishing controls without a particular source category causes or out of the first part of the ‘‘regulated having a standard to be achieved leads contributes to this air pollution— NSR pollutant’’ definition because a to uncertainty in the permitting regardless of whether the two findings pollutant would become subject to PSD program. occur together or separately. As permitting requirements well before the In further support of EPA’s explained above, EPA believes that promulgation of the NAAQS under interpretation that an endangerment there are strong legal and policy reasons section 109. See 40 CFR 52.21(b)(50)(i). finding does not make an air pollutant for rejecting the endangerment finding Similarly, the second part of the ‘‘subject to regulation’’ is the fact that an interpretation. definition of ‘‘regulated NSR pollutant’’ endangerment finding is not a codified includes any pollutant that is subject to regulation; it does not contain any 5. Section 209 Waiver Interpretation a standard promulgated under section regulatory text. The PSD Interpretive EPA is affirming its position that an 111 of the CAA. Section 111 requires Memo explains, and numerous Agency decision to grant a waiver to a the EPA Administrator to list a source commenters agree, that an State under section 209 of the CAA does category, if in his or her judgment, ‘‘it endangerment finding should not be not make the PSD program applicable to causes, or contributes significantly to, construed as ‘‘regulating’’ the air pollutants that may be regulated under air pollution which may reasonably be pollutant(s) at issue because there is no State authority following a grant of such anticipated to endanger public health or actual regulatory language applicable to a waiver. For the reasons discussed welfare.’’ See CAA section 111(b)(1)(A). the air pollutant at this time in the Code below, the granting of a waiver does not After EPA lists a source category, it of Federal Regulations. Rather, the make the pollutants that are regulated promulgates NSPS for that source finding is a prerequisite to issuing by a State after obtaining a section 209 category. For a source category not regulatory language that imposes control waiver into pollutants regulated under already listed, if EPA were to list it on requirements. This is true even if the the CAA. Furthermore, EPA is also the basis of its emissions of a pollutant endangerment finding is a ‘‘rule’’ for affirming the position that PSD that was not previously regulated, and purposes of administrative processes; requirements are not applicable to a such a listing made that pollutant that does not alter the fact that there is pollutant in all States when a handful ‘‘subject to regulation’’ within the no regulation or regulatory text attached of States besides the one obtaining the meaning of the PSD provisions, this to the endangerment finding itself. waiver adopt identical standards under chain of events would result in Since an endangerment finding does not section 177 of the CAA that are then triggering PSD permitting requirements establish ‘‘regulation’’ within the approved into State SIPs by EPA. for that pollutant well in advance of the common meaning of the term applied by As explained in the proposal, neither point contemplated by the second prong EPA, EPA does not believe the CAA the PSD Interpretive Memo nor the of the regulated NSR pollutant compels EPA to apply PSD Petition for Reconsideration raise the definition. See 40 CFR 52.21(b)(50)(ii). requirements to a pollutant on the basis issue of whether a decision to grant a Furthermore, as discussed in the of an endangerment finding alone. waiver under the section 209 of the Memo, waiting to apply PSD EPA’s interpretation is also consistent CAA triggers PSD requirements for a requirements at least until the actual with the Supreme Court’s decision in pollutant regulated by a State after promulgation of control requirements Massachusetts. In its decision, the Court obtaining a waiver. EPA received that follow an endangerment finding is acknowledged that EPA ‘‘has significant comments in response to the notice of sensible. The Memo explains that when latitude as to the manner, timing, an application by California for a CAA promulgating the final regulations content and coordination’’ of the section 209 waiver to the State of establishing the control requirements for regulations that would result from a California to adopt and enforce GHG a pollutant, EPA often makes decisions positive endangerment finding under emission standards for new motor that are also relevant to decisions that section 202(a). See 549 U.S. at 532. Just vehicles that suggested that arguments must be made in implementing the PSD as EPA has discretion regarding the might be made that the grant of the program for that pollutant. See Memo at timing of the section 202(a) control waiver made GHGs subject to regulation

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across the country for the purposes of pursuant to the waiver will require purposes of this subchapter,’’ but does PSD. See 74 FR 32744, 32783 (July 8, control of emissions and thus constitute not say that such State standards 2009). Those commenters requested that ‘‘regulation’’ of GHGs under the meaning actually become the Federal standards. EPA state clearly that granting the applied by EPA. However, the principal Accordingly, EPA finds the absence of California Waiver did not render GHGs issue here is whether this regulation legislative history supporting the subject to regulation under the CAA, occurs under the authority of the Clean contrary position, and the language in while others commented that the Air Act (i.e., ‘‘under the Act.’’). section 209(b)(3) instructive as Congress question of when and how GHGs should In the proposed reconsideration clearly recognized the co-existence of be addressed in the PSD program or notice, EPA explained that a waiver the Federal and State standards. This otherwise regulated under the Act granted under CAA section 209(b)(1) shows Congress did not intend that should instead be addressed in separate simply removes the prohibition found State regulations replace, or transform proceedings. At that time, EPA stated in section 209(a) that forbids States from State standards into Federal regulations that these interpretation issues were not adopting or enforcing their own ‘‘under the Act.’’ EPA agrees with a part of the waiver decision and would standards relating to control of supporting commenters’ conclusions be more appropriately addressed in emissions from new motor vehicles or summarized here, and is not persuaded another forum. new motor vehicle engines. Thus, the to change the proposed position. In the proposed reconsideration grant of the waiver does not lead to EPA has also concluded that the notice, EPA proposed to affirm the regulation ‘‘under the Act’’ because it adoption of identical standards by following position that EPA previously simply allows California to exercise the several States under section 177 does explained to Congress: ‘‘a decision to same authority to adopt and enforce not make a pollutant covered by those grant a waiver under section 209 of the State emissions standards for new motor standards ‘‘subject to regulation under Act removes the preemption of State vehicles that California could have the Act’’ in all States. Like section 209, law otherwise imposed by the Act. Such exercised without the initial prohibition section 177 only grants States authority a decision is fundamentally different in section 209(a). Several other to regulate under State authority by from the decisions to establish commenters agreed with EPA’s position removing Federal preemption. Adoption requirements under the CAA that the and reasoning. They explained that a of California standards by other States Agency and the [EAB] have considered waiver constitutes a withdrawal of does not change the fact that those in interpreting the provisions governing Federal preemption that allows a State standards are still State standards the applicability of the PSD program.’’ to develop its own State standards to enforced under State law and Federal Letter from Lisa P. Jackson, EPA regulate vehicle emissions; the waiver law is approved in a SIP. However, EPA Administrator, to Senator James M. does not transform these State standards agrees that when a State adopts alternate Inhofe (March 17, 2009). Specifically, into Federal standards. Other vehicle standards into its SIP pursuant EPA proposed to find that neither the supporting commenters also assert that to section 177, and EPA approves the CAA nor the Agency’s PSD regulations there is nothing in the legislative history SIP, these standards become enforceable make the PSD program applicable to that supports a conclusion that Congress by EPA and citizens under the CAA. pollutants that may be regulated by intended section 209 waivers to result Nonetheless, EPA does not agree that States after EPA has granted a waiver of in application of PSD requirements. The this compels an interpretation that any preemption under section 209 of the opposing comments have not pollutant included in an individual CAA. Accordingly, EPA said that the convincingly articulated a mechanism State SIP requirement becomes ‘‘subject Agency’s decision to grant a section 209 through which EPA’s action granting the to regulation’’ in all States under the waiver to the State of California to waiver in fact requires control of CAA. As discussed earlier, EPA rejects establish its own GHG emission emissions (as opposed to the States the theory that a regulation of a standards for new motor vehicles does action under State law). If EPA granted pollutant in one or more States in an not trigger PSD requirements for GHGs. the waiver alone and the State EPA-approved implementation plan Several commenters disagreed with ultimately decided not to implement its necessarily makes that pollutant subject EPA’s proposed position on the section regulation, there would be no control to regulation in all States. Such an 209 waiver provisions, and assert that requirement in effect under the CAA. approach is inconsistent with the EPA’s granting of the waiver results in As explained in the proposed fundamental principle of cooperative ‘‘actual control.’’ According to these reconsideration notice, EPA also finds it commenters, even under EPA’s instructive that enforcement of any federalism embodied in the CAA. In summary, EPA concludes that interpretation of ‘‘subject to regulation,’’ emission standard by the State after EPA neither the act of granting a section 209 CO is now subject to BACT. One of grants a section 209 waiver would occur 2 waiver of preemption for State emission these commenters argues that EPA’s pursuant to State enforcement authority, standards nor the EPA-approval of granting of a waiver is an EPA not Federal authority. EPA would standards adopted into a SIP pursuant regulatory action that ‘‘controls’’ CO by continue to enforce the Federal 2 to section 177 makes a pollutant allowing California and 10 other States emission standards EPA promulgates ‘‘subject to regulation under the Act’’ in to ‘‘regulate’’ CO2 under the Act. under section 202. EPA does not enforce Another one of these commenters states the State standard. EPA only conducts all States for the purposes of the PSD that 10 States used section 177 of the testing to determine compliance with program. CAA to adopt the California Standards the Federal standard promulgated by C. Other Issues on Which EPA Solicited into their SIPs, thus making these EPA and any enforcement would be for Comment provisions enforceable by both EPA and violation of EPA standards, not the State citizens under the CAA. See, e.g., 42 standards. As one commenter noted, 1. Prospective Codification of U.S.C. 7413; 42 U.S.C. 7604(a)(1), (f)(3). CAA section 209(b)(3) provides that Interpretation EPA has not been persuaded to change where a State has adopted standards Through the proposed reconsideration its proposed position based on these that have been granted a waiver notice, EPA requested comment on comments. ‘‘compliance with such State standards whether the Agency should codify its EPA does not disagree that the shall be treated as compliance with final interpretation of the ‘‘subject to regulations promulgated by the State applicable Federal standards for regulation’’ in the statute and regulation

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by amending the Federal PSD rules at 40 Clean Air Act. EPA indicated that the interpretation of ‘‘subject to regulation’’ CFR 52.21. EPA received a number of Agency was inclined against continuing should also more clearly identify the comments both in support of and to argue that section 821 was not a part specific date on which PSD regulatory opposing codification. of the CAA, as the Office of Air and requirements would apply. In the PSD EPA does not believe it is necessary Radiation and Region 8 had done in Interpretive Memo, EPA states that the to codify its interpretation in the briefs submitted to the EAB in the language in the definition of ‘‘regulated regulatory text. EPA feels it is important Deseret matter. This question bears on NSR pollutant’’ should be interpreted to to promptly communicate and apply the determination of whether the CO2 mean that the fourth part of the these final decisions regarding the monitoring requirements in EPA’s Part definition should ‘‘apply to a pollutant applicability of the PSD program in light 75 regulations are requirements ‘‘under upon promulgation of a regulation that of recent and upcoming actions related the Act.’’ In the proposed requires actual control of emissions.’’ to GHGs. More specifically, EPA reconsideration notice, EPA explained See Memo at 14. After evaluating the recently finalized the ‘‘Mandatory that it would be necessary to resolve underlying statutory requirement in the Reporting of Greenhouse Gases’’ rule whether or not the CO2 monitoring and CAA and the language in all parts of the (known as the ‘‘Reporting Rule’’),12 reporting regulations in Part 75 were regulatory definition more closely, EPA which added monitoring requirements promulgated ‘‘under the Act’’ if EPA proposed to modify its interpretation of for additional GHGs not covered in the adopted the monitoring and reporting the fourth part of the definition with Part 75 regulations. Further, EPA is interpretation. EPA received public respect to the timing of PSD poised to finalize by the end of March comments on both sides of this issue, applicability. The Agency proposed to 2010 the LDV Rule that will establish with one environmental organization interpret the term ‘‘subject to regulation’’ controls on GHGs that take effect in pressing EPA to drop the position that in the statute and regulation to mean Model Year 2012, which starts as early section 821 is not a part of the CAA and that PSD requirements apply when the as January 2, 2011. Thus, these actions several industry parties requesting that regulations addressing a particular make it important that EPA immediately EPA affirm it. pollutant become final and effective. apply its final interpretation of the PSD EPA has not yet made a final decision Based on public comments and other regulations on this issue (as refined in on this question, and it is not necessary considerations raised in the proposal, this action). Furthermore, even if EPA for the Agency to do so at this time. EPA has determined that it is necessary modified the text of the Federal rules, Since EPA is not adopting the to refine the portion of the PSD many States may continue to proceed monitoring and reporting interpretation, Interpretive Memo that addresses the under an interpretation of their rules. the status of section 821 is not material precise point in time when a pollutant EPA thus believes overall to the question of whether and when becomes subject to regulation for implementation of PSD permitting CO2 is ‘‘subject to regulation under the purposes of the PSD program. As a programs is facilitated by this notice Act.’’ Because there are currently no result, while the Memo is otherwise that describes how existing controls on CO2 emissions, the pollutant unchanged by the reconsideration requirements in Federal regulations at is not ‘‘subject to regulation.’’ Given that proceeding, this final notice will adjust 40 CFR 52.21 are interpreted by EPA the provisions in Part 75 do not the first paragraph of section II.F of the and how similar State provisions may ‘‘regulate’’ emissions of CO2, it is Memo (bottom of page 14) to reflect be interpreted by States. unnecessary determine whether such EPA’s conclusion that it is more Likewise, EPA does not believe it is provisions are ‘‘under the Act’’ or not to appropriate and consistent with the necessary to re-issue the PSD determine PSD applicability. reasoning of the Memo to construe EPA Interpretive Memorandum. The Agency Furthermore, the promulgation of EPA’s regulations and the CAA to make a has not identified any legal requirement Reporting Rule makes this issue even pollutant subject to PSD program for the Agency to re-issue an less material. In that rule, which became requirements when the first controls on interpretive rule after a process of effective in December 2009 and required a pollutant take effect. This refines the reconsideration. No comparable monitoring to begin in January of this approach proposed in the October 7, procedure is required after the year, EPA established monitoring and 2009 notice. reconsideration of substantive rule. In reporting requirements for CO2 and Like the PSD Interpretive the latter situation, a notice of final other GHGs under sections 114 and 208 Memorandum itself, the refinement to action is sufficient to conclude the of the CAA. Thus, there can be no EPA’s interpretation described in this reconsideration process and an Agency dispute that monitoring and reporting of final notice is an interpretation of the may simply decline to revise an existing CO2 (as well as other GHGs) is now regulation at 40 CFR 52.21 and the CAA regulation that remains in effect. EPA occurring under the CAA, regardless of provisions that provide the statutory has therefore concluded that this notice the status of section 821 of the 1990 foundation for EPA’s regulations. The of final action is sufficient to conclude amendments. At this point, the section refinement reflected in this notice the reconsideration process initiated on 821 issue would only become relevant explains, clarifies, and is consistent February 17, 2009 and that there is no if a court were to find that the with existing statutes and the text of need to re-issue the entire memorandum monitoring and reporting interpretation regulatory provisions at 40 CFR in order for EPA to continue applying is compelled by the CAA and a party 52.21(b)(50)(ii) through (iv). Some the interpretation reflected therein, as subsequently seeks to retroactively commenters argued that courts have refined in this notice. enforce such a finding against sources limited an Agency’s ability to that had not obtained a PSD permit with fundamentally change a long-standing, 2. Section 821 of the Clean Air Act any limit on CO emissions. If this definitive, and authoritative Amendments of 1990 2 situation were to arise, EPA will address interpretation of a regulation 13 without In the October 7, 2009 notice, EPA the section 821 issue as necessary. also solicited comment on the question 13 To EPA’s knowledge, no court has required a of whether section 821 of the Clean Air 3. Timing of When a Pollutant Becomes rulemaking procedure when the Agency seeks to Subject to Regulation issue or change its interpretation of a statute. Act Amendments of 1990 is part of the Nevertheless, EPA has completed this notice and The October 7, 2009 notice also comment proceeding before deciding to adopt the 12 See 74 FR 56259 (Oct. 30, 2009). solicited comment on whether the Continued

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engaging in a notice and comment In this final notice on reconsideration, described as ‘‘the date that the affected rulemaking. See, e.g., Alaska based on information provided in public person must start following the rule.’’ Id. Professional Hunters Association v. comments, EPA is refining its at 2–11. Thus, the ‘‘effective date’’ of a FAA, 177 F.3d 1030, 1033–34 (D.C. Cir. interpretation of the time the PSD regulation is commonly used to describe 1999); Paralyzed Veterans of America v. requirements will apply to a newly- the date by which a provision in the D.C. Arena L.P., 117 F.3d 579, 586 (D.C. regulated pollutant. Under the PSD Code of Federal Regulations is enacted Cir. 1997). Since EPA’s interpretation of program, EPA will henceforth interpret as law, but it is not necessarily the same the PSD program regulations is the date that a pollutant becomes as the time when provision enacted in unchanged in most respects by this subject to regulation under the Act to be the Code of Federal Regulations is action, it is not clear that the particular the point in time when a control or operative on the regulated activity or refinement to that interpretation that restriction that functions to limit entity. The latter may be described as EPA is making in this action would pollutant emissions takes effect or the ‘‘compliance,’’ ‘‘applicability,’’ or invoke the doctrine described in these becomes operative to control or restrict ‘‘takes effect’’ date. cases. Even if this refinement is viewed the regulated activity. As discussed The terms of the CAA also recognize as a fundamental change, EPA has further below, this date may vary a similar distinction in some instances. completed the revision reflected in this depending on the nature of the first CAA section 112(i)(3)(A) provides that action after a notice and comment regulatory requirement that applies to ‘‘after the effective date of any emissions process. Furthermore, since EPA control or restrict emissions of a standard, limitation or regulation initiated a process of reconsidering and pollutant. promulgated under this section and soliciting comment on the PSD Several public comments observed applicable to a source, no person may Interpretive Memo within three months that a date a control requirement operate such source in violation of such of its issuance, the memorandum had becomes ‘‘final and effective’’ and the standard, limitation, or regulation not yet become particularly well- date it actually ‘‘takes effect’’ may differ. except, in the case of an existing source, established or long-standing. See Some commenters supported these the Administrator shall establish a MetWest Inc. v. Secretary of Labor, 560 points with reference to Federal court compliance date or dates for each F.3d 506, 511 n.4 (D.C. Cir. 2009). Thus, decisions that suggest the date that the category or subcategory of existing the doctrines reflected in these cases do terms of a regulation become effective sources, which shall provide for not preclude the action EPA has taken can take more than one form. In one compliance as expeditiously as here to refine its interpretation of the case involving the Congressional practicable, but in no event later than 3 regulations. Review Act, the United States Court of years after the effective date of such Appeals for the Federal Circuit observed standard.’’ Another example in section The regulatory language of 40 CFR that the date a regulation may ‘‘take 202 of the Act is discussed in more 52.21(b)(50)(iv) does not specify the effect’’ in accordance with the CRA is detail below. exact time at which the PSD distinct from the ‘‘effective date’’ of the Another formulation may be found in requirements should apply to pollutants regulation. See Liesegang v. Sec’y of Section 553(c) of the APA (5 U.S.C. in the fourth category of the definition Veterans Affairs, 312 F.3d 1368, 1374– 553(c)), which provides, with some of ‘‘regulated NSR pollutant.’’ In the PSD 75 (Fed. Cir. 2002), amended on reh’g in exceptions, that ‘‘[t]he required Interpretive Memo, EPA states that EPA part on other grounds, 65 Fed. Appx. publication or service of a substantive interprets the language in this definition 717 (Fed. Cir. 2003). In this opinion, the rule shall be made not less than 30 days to mean that the fourth part of the court observed that ‘‘[t]he ordinary before its effective date.’’ The APA does definition should ‘‘apply to a pollutant meaning of ‘take effect’ is ‘[t]o be in not define the term ‘‘effective date’’ or upon promulgation of a regulation that force; go into operation’ ’’ Id. at 1375 make precisely clear whether it is requires actual control of emissions.’’ (quoting Black’s Law Dictionary at 1466 referring to the date a regulation has the See Memo at 14. However, after (7th ed. 1999). Based on this, the court force of law or the date by which a continuing to consider the underlying reasoned that the CRA does not ‘‘change regulatory requirement applies to a statutory requirement in the CAA and the date on which the regulation regulated entity or activity. The APA the language in all parts of the becomes effective’’ but rather ‘‘only also separately recognizes the concept of regulatory definition more closely, EPA affects the date when the rule becomes finality of Agency action for purposes of proposed in the October 7, 2009 notice operative.’’ Id. In another case, the judicial review. See 5 U.S.C. 704. to modify its interpretation of the fourth Second Circuit Court of Appeals In the October 7, 2009 notice, EPA did part of the definition with respect to the described a distinction between the date not clearly distinguish between the timing of PSD applicability. In the a rule may ‘‘take effect’’ under the CRA, various forms of the date when a proposed notice of reconsideration, EPA the ‘‘effective date’’ for application of the regulatory requirement may become observed that the term ‘‘subject to rule to regulated manufacturers, and the effective. One commenter observed that regulation’’ in the statute and regulation ‘‘effective date’’ for purposes of the EPA analysis in the proposed is most naturally interpreted to mean modifying the Code of Federal reconsideration notice appeared to blur that PSD requirements apply when the Regulations. See Natural Resources the distinction between the ‘‘effective regulations addressing a particular Defense Council v. Abraham, 355 F.3d date’’ set by EPA and the date that pollutant become final and effective. In 179, 202 (2d Cir. 2004). Congress allows a regulation to become addition, EPA expressed a desire to The Office of the Federal Register effective under the CRA. EPA in fact harmonize the application of the PSD (OFR) uses the term ‘‘effective date’’ to discussed all of these concepts in its requirements with the limitation in the describe the date that amendments in a notice, with part of the discussion Congressional Review Act (CRA) that a rulemaking document affect the current focused on the date a regulation major rule cannot take effect until 60 Code of Federal Regulations. See becomes ‘‘final’’ and ‘‘effective’’ and a days after it is published in the Federal Federal Register Document Drafting part on when a regulation may ‘‘take Register. Handbook, at p. 2–10 (Oct. 10, 1998). effect’’ under the CRA. EPA viewed However, OFR draws a contrast between these forms of the date when a revised interpretation of the CAA described in this such a date and the compliance or regulation becomes ‘‘effective’’ to be notice. applicability date of a rule, which is essentially the same, but the case law

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suggests that administrative agencies do 165(a)(4) and 169 of the CAA to mean pollutant a regulated NSR pollutant on not necessarily need to harmonize the the act or process of controlling or the date that a control requirement takes date that regulatory requirements take restricting an activity. This effect, provided such an interpretation effect with the ‘‘effective date’’ of a interpretation applies a common is not inconsistent with the existing regulation, meaning the date a meaning of the term regulation reflected language of the regulations. regulation has the force of law and in dictionaries. EPA does not agree with several amends the Code of Federal Thus, EPA agrees with commenters commenters who suggested that EPA Regulations. Since these are distinct that the term ‘‘subject to regulation’’ determine that a pollutant does not concepts, the effective date of a used in both the CAA and EPA’s become subject to regulation until the regulation for purposes of amending the regulations may be construed to mean time that an individual source engages CFR may precede the date when a the point at which a requirement to in the regulated activity. EPA does not regulatory requirement ‘‘takes effect’’ or control a pollutant takes effect. The believe such a reading is consistent with when a regulated entity must comply CAA does not necessarily preclude the ‘‘subject to regulation’’ language in with a regulatory requirement. A construing a pollutant to become subject the CAA. Even if no source is actually regulation may ‘‘take effect’’ subsequent to regulation upon the promulgation engaged in the activity, once a standard to its stated ‘‘effective date’’ where it has date or the date that a regulation or control requirement has taken effect, been published in final form but does becomes final and effective for purposes no source may engage in the regulated not require immediate implementation of amending the CFR or judicial review. activity without complying with the by the agency or compliance by However, EPA has been persuaded by standard. At this point, the regulated regulated entities. public comments that the phrase activity and the emissions from that The key issue raised by EPA in the ‘‘subject to regulation’’ may also be activity are controlled or restricted, thus October 7, 2009 notice was determining interpreted to mean the date by which being subject to regulation within the which date should be determined by a control requirement takes effect. common meaning of the term regulation EPA to be the date when a pollutant Indeed, EPA has concluded that the used in EPA’s regulations and section becomes ‘‘subject to regulation’’ and, latter interpretation is more consistent 165(a)(4) and 169(3) of the CAA. thus, the date when the requirements of with the actual control interpretation Likewise, EPA does not agree with the PSD permitting program apply to reflected in the PSD Interpretive Memo. commenters who argued that a pollutant that pollutant. In recognition of the As one commenter observed, a does not become subject to regulation distinction between the ‘‘effective date’’ regulation would have to have become until the date when a source must of the regulation for purposes of actually effective, in the sense that certify compliance with regulatory amending the CFR and the point at actual legal obligations created by the requirements or submit a compliance which a regulatory restriction may ‘‘take regulation have become currently report. In some instances, a compliance effect,’’ EPA has considered whether it applicable for regulated entities and are report or certification of compliance is permissible to construe sections no longer merely prospective may not be required until well after the 165(a)(4) and 169(3) of the CAA to mean obligations, before that regulation could point that a regulation operates to that a pollutant becomes ‘‘subject to make a pollutant subject to actual control or restrict the regulated activity. regulation’’ at the point that a regulatory control. Another commenter noted that Thus, EPA does not feel that it would restriction or control ‘‘takes effect.’’ In a regulated entity has no immediate be appropriate as a general rule to the October notice, EPA observed that compliance obligations and cannot be establish the date when a source the use of ‘‘subject to’’ in the Act held in violation of the regulation until certifies compliance or submits its suggests that PSD requirements are a legal obligation becomes applicable to compliance report as the date that a intended to be triggered when those them on the ‘‘takes effect’’ date. Thus, pollutant becomes subject to regulation. standards become effective for the based on this reasoning, EPA has Since the fourth part of the definition pollutant. EPA also said that no party is decided that it will construe the point of ‘‘regulated NSR pollutant’’ functions required to comply with a regulation at which a pollutant becomes ‘‘subject to as a catch-all provision, it may cover a until it has become final and effective. regulation’’ within the meaning of variety of different types of control Prior to that date, an activity covered by section 52.21(b)(50)(iv) of EPA’s requirements established by EPA under a rule is not in the ordinary sense regulations to be when a control or the CAA. These different types of ‘‘subject to’’ any regulation. Regardless restriction is operative on the activity regulations may contain a variety of of whether one interprets regulation to regulated. EPA agrees with commenters different mechanisms for controlling mean monitoring or actual control of that there is generally no legally emissions and have varying amounts of emissions, prior to the effective date of enforceable obligation to control a lead time before controls take effect a rule there is no regulatory requirement pollutant when a regulation is under the particular regulatory to monitor or control emissions. promulgated or, in some instances, even framework. Thus, whenever the Agency The same reasoning applies to the when a regulation becomes effective for adopts controls on a new pollutant date that a regulation ‘‘takes effect,’’ as some purposes. under a portion of the CAA covered by that term is used in the judicial Thus, EPA currently interprets the the fourth part of the definition, EPA decisions described above. Regulated time that a pollutant becomes a anticipates that it will be helpful to entities are not required to comply with ‘‘regulated NSR pollutant’’ under section States and regulated sources for EPA to a regulatory requirement until it takes 52.21(b)(50)(iv) to be the time when a identify the date when a new pollutant effect. Prior to the date a regulatory control or restriction on emissions of the becomes subject to regulation. In section requirement takes effect, the activity pollutant takes effect or becomes IV.A of this notice, EPA provides such covered by a rule is not in the ordinary operative on the regulated activity. an analysis for the forthcoming LDV sense subject to any regulation. Given EPA’s conclusion that this is a Rule that is anticipated to establish the As discussed in the PSD Interpretive permissible interpretation of the first controls on GHGs. Memo, as used in the context of the PSD ‘‘subject to regulation’’ language in EPA has also concluded that it is provisions in EPA regulations and the sections 165(a)(4) and 169(3) of the appropriate to extend the reasoning of CAA, EPA interprets the term CAA, EPA will also interpret other parts this interpretation across all parts of the ‘‘regulation’’ in the context of sections of section 52.21(b)(50) to make a definition of the term ‘‘regulated NSR

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pollutant.’’ The reasoning described ‘‘takes effect.’’ As discussed above, the limitations for the NAAQS pollutant above is equally applicable to the effective date of an NSPS is also that before construction at a major source regulation of additional pollutants date when the controls in an NSPS ‘‘take may commence and thereby function to under the specific sections of the Act effect.’’ protect the NAAQS from new source delineated in the first three parts of the Likewise, under section 169(a)(3) of construction and modifications of definition of ‘‘regulated NSR pollutant.’’ the Act, a source applying for a PSD existing major sources in the SIP While the date a control requirement permit must demonstrate that it will not development period before a completion may take effect could vary across cause or contribute to a violation of the of the planning process necessary to sections 109, section 111, and Title VI, NAAQS in order to obtain the permit. determine whether additional standards EPA does not see any distinction in the Once a NAAQS is effective with respect for a new NAAQS pollutant need to be applicability of the legal reasoning to a pollutant, the standard operates developed. The timing when the above to these provisions of the CAA. through section 169(a)(3) of the Act and NAAQS operates in this manner under There should be less variability among section 52.21(k) of EPA’s regulations to SIP-approved programs is potentially rules promulgated under the same preclude construction of a new source more nuanced and depends on whether statutory section, so EPA does not that would cause or contribute to a State laws are sufficiently open-ended expect that it will be necessary for EPA violation of such standard. to call for application of a new NAAQS to identify the date that a new pollutant Using the effective date of a NAAQS as a governing standard for PSD permits becomes subject to regulation each time to determine when a pollutant covered upon the effective date. EPA believes EPA regulates a new pollutant in a by a NAAQS becomes a regulated NSR that State laws that use the same NAAQS or NSPS. EPA can more readily pollutant is more consistent with EPA’s language as in EPA’s PSD program identify the specific dates when controls general approach for determining when regulations at 52.21(k) and 51.166(k) are under such rules take effect. a new NAAQS applies to pending sufficiently open-ended and allow such permit applications. EPA generally By way of example, the NSPS under a NAAQS to ‘‘take effect’’ through the interprets a revised NAAQS that PSD program upon the effective date of section 111 of the Act preclude establishes either a lower level for the operation of a new source in violation the NAAQS. Notwithstanding this standard or a new averaging time for a complexity in SIP-approved programs, of such a standard after the effective pollutant already regulated to apply date of the standard. See 42 U.S.C. the applicability of the Federal PSD upon the effective date of the revised program regulations to a new NAAQS 7411(e). Thus, the control requirements NAAQS. Thus, unless EPA promulgates in an NSPS take effect on the effective pollutant upon the effective date of the a grandfathering provision that allows NAAQS is sufficient to determine that a date of the rule. Once such a standard pending applications to apply standards takes effect and operates to preclude new pollutant is subject to regulation on in effect when the application is this date. operations in violation of the standards, complete, a final permit decision issued then EPA interprets the statute and after the effective date of a NAAQS must In the October 7, 2009 notice, EPA EPA’s PSD regulations to also require consider such a NAAQS. As described observed that one portion of its existing that the BACT requirement apply to a above, the effective date of the NAAQS regulations was not necessarily pollutant that is subject to NSPS. is also the date a NAAQS takes effect consistent with this reading of the CAA. Consistent with the October 7, 2009 through the PSD permitting program to For the first class of pollutants proposal, EPA has determined that the regulate construction of a new or described in the definition of ‘‘regulated existing language in section modified source. NSR pollutant,’’ the PSD requirements 52.21(b)(50)(ii) of its regulations may be Since a NAAQS covering a new apply once a ‘‘standard has been construed to apply to a new pollutant pollutant would operate through the promulgated’’ for a pollutant or its upon the effective date of an NSPS. This PSD permitting program to control precursors. See 40 CFR 52.21(b)(50)(i). part of the definition covers ‘‘[a]ny emissions of that pollutant from the The use of ‘‘has been’’ in the regulation pollutant that is subject to any standard construction or modification of a major indicates that a pollutant becomes a promulgated under section 111 of the source upon the effective date of the ‘‘regulated NSR pollutant,’’ and hence Act.’’ See 40 CFR 52.21(b)(50)(ii). While NAAQS, a NAAQS covering a new PSD requirements for the pollutant are the word ‘‘promulgated’’ appears in this pollutant takes effect on the effective triggered, on the date a NAAQS is part of the definition, this term modifies date of the regulation promulgating the promulgated. Thus, EPA observed in the the term ‘‘standard’’ and does not NAAQS. EPA does not agree with one October 7, 2009 notice that it may not directly address the timing of PSD commenter’s suggestion that such a be possible for EPA to read the requirements. Under the language in NAAQS would not take effect until the regulatory language in this provision to this part of the definition, the PSD time a State first promulgates make PSD applicable to a NAAQS requirements apply when a pollutant limitations for the pollutant in a SIP. pollutant upon the effective date of the becomes ‘‘subject to’’ the underlying Under section 165(a)(3) of the Act and NAAQS. EPA did not propose to modify standard, which is ‘‘promulgated under’’ the Federal PSD permitting regulations the language in 40 CFR 52.21(b)(50)(i) in section 111 of the Act. Thus, this at 52.21(k), to obtain a PSD permit, a the October 2009 notice because EPA language can be interpreted to make an major source must demonstrate that the had not yet reached a final decision to NSPS pollutant a regulated NSR proposed construction will not cause or interpret the CAA to mean that a pollutant upon the effective date of an contribute to a violation of a NAAQS. pollutant is subject to regulation on the NSPS. EPA did not receive any public Due to these requirements, the PSD date a regulatory requirement becomes comments that opposed reading this program operates to incorporate the effective. Since EPA was not proposing portion of the definition to invoke PSD NAAQS as a governing standard for to establish a NAAQS for any additional requirements upon the effective date of permitting construction of large sources. pollutants, the timing of PSD an NSPS. This can logically be extended Thus, under the Federal PSD program applicability for a newly identified to be consistent with the general view regulations at least, a new pollutant NAAQS pollutant did not appear to be described above that the time a covered by a NAAQS becomes subject to of concern at the time. No public pollutant becomes subject to regulation regulation at a much earlier date. These comments on the October 2009 notice is the time when a control requirement PSD provisions require emissions addressed this issue. Since EPA is now

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adopting a variation of the proposed standards, GHGs would not be However, the regulation of GHGs will interpretation with respect to the timing considered ‘‘subject to regulation’’ (and not actually take effect upon of PSD applicability, EPA believes it no source would be subject to PSD promulgation of the LDV Rule or on the will be appropriate to propose a revision permitting requirements for GHGs) effective date of the LDV Rule when the of the regulatory language in section earlier than January 2, 2011. The final provisions of the rule are incorporated 52.21(b)(50)(i) at such time as EPA may Tailoring Rule will address the into the Code of Federal Regulations. consider promulgation of a NAAQS for applicability of PSD requirements for Under the LDV Rule, the standards for an additional pollutant. Until that time, GHG-emitting sources that are not GHG emissions are not operative until EPA will continue to apply the terms of presently subject to PSD permitting. the 2012 model year, which may begin section 52.21(b)(50)(i) of the regulation. EPA’s determination that PSD will as early as January 2, 2011. In This is permissible because, even begin to apply to GHGs on January 2, accordance with the requirements of though EPA believes the better reading 2011 is based on the following Title II of the CAA and associated of the Act is to apply PSD upon the date considerations: (1) The overall regulations, vehicle manufacturers may that a control requirement ‘‘takes effect,’’ interpretation reflected in the PSD not introduce a model year 2012 vehicle the Agency has not determined in this Interpretive Memo; (2) EPA’s conclusion into commerce without a model year action that the CAA precludes applying in this notice that a pollutant becomes 2012 certificate of conformity. See CAA PSD requirements upon the subject to regulation when controls section 203(a)(1). A model year 2012 promulgation of a regulation that ‘‘take effect,’’ and (3) the assumption that certificate only applies to vehicles establishes a control requirement (as a the agency will establish emissions produced during that model year, and NAAQS does through the PSD standards for model year 2012 vehicles the model year production period may provisions). when it completes the proposed LDV begin no earlier than January 2, 2011. Rule. See CAA section 202(b)(3)(A) and IV. Application of PSD Interpretive As proposed, the LDV Rule consists of implementing regulations at 40 CFR Memo to PSD Permitting for GHGs two kinds of standards—fleet average 85.2302 through 85.2305. Thus, a A. Date by Which GHGs Will Be ‘‘Subject standards determined by the emissions vehicle manufacturer may not introduce to Regulation’’ performance of a manufacturer’s fleet of a model year 2012 vehicle into various models, and separate vehicle commerce prior to January 2, 2011. Although the PSD Interpretive Memo standards that apply for the useful life There will be no controls or and this reconsideration reflect a broad of a vehicle to the various models that limitations on GHG emissions from consideration of the most appropriate make up the manufacturer’s fleet. CAA model year 2011 vehicles. The legal interpretation and policy for all section 203(a)(1) prohibits obligation on an automaker for a model pollutants regulated under the CAA, the manufacturers from introducing a new year 2012 vehicle would be to have a need to clarify this issue as a general motor vehicle into commerce unless the certificate of conformity showing matter has been driven by concerns over vehicle is covered by an EPA-issued compliance with the emissions the effects of GHG emissions on global certificate of conformity for the standards for GHGs when the vehicle is climate and the contention made by appropriate model year. Section introduced into commerce, which can some parties in permit proceedings that 206(a)(1) of the CAA describes the occur on or after January 2, 2011. EPA began regulating CO2 as early as the requirements for EPA issuance of a Therefore, the controls on GHG promulgation of monitoring and certificate of conformity, based on a emissions in the Light Duty Rule will reporting requirements in EPA’s Part 75 demonstration of compliance with the not take effect until the first date when rules to implement section 821 of the emission standards established by EPA a 2012 model year vehicle may be CAA Amendments of 1990. The vast under section 202 of the Act. A introduced into commerce. In other majority of public comments on the certification demonstration requires words, the compliance obligation under October 7, 2009 notice focused on the emission testing, and must be done for the LDV Rule does not occur until a regulation of GHGs under the PSD each model year. manufacturer may introduce into program. As a result, EPA recognizes The certificate covers both fleet commerce vehicles that are required to that it is critically important at this time average and vehicle standards, and the comply with GHG standards, which will for the Agency to make clear when the manufacturer has to demonstrate begin with MY 2012 and will not occur requirements of the PSD permitting compliance with both of these standards before January 2, 2011. Since CAA program for stationary sources will for purposes of receiving a certificate of section 203(a)(1) prohibits apply to GHGs. For the reasons conformity. The demonstration for the manufacturers from introducing a new discussed below, GHGs will initially fleet average is based on a projection of motor vehicle into commerce unless the become ‘‘subject to regulation’’ under the sales for the model year, and the vehicle is covered by an EPA-issued CAA on January 2, 2011, assuming that demonstration for the vehicle standard certificate of conformity for the EPA issues final GHG emissions is based on emissions testing and other appropriate model year, as of January 2, standards under section 202(a) information. 2011, manufacturers will be precluded applicable to model year 2012 new Both the fleet average and vehicle from introducing into commerce any motor vehicles as proposed. As a result, standards in the LDV Rule will require model year 2012 vehicle that has not with that assumption, the PSD that automakers control or limit GHG been certified to meet the applicable permitting program would apply to emissions from the tailpipes of these standards for GHGs. GHGs on that date. However, the vehicles. As such, they clearly This interpretation of when the GHG Tailoring Rule, noted above, proposed constitute ‘‘regulation’’ of GHGs under controls in the LDV Rule take effect, and various options for phasing in PSD the interpretation in the PSD therefore, make GHGs subject to requirements for sources emitting GHGs Interpretive Memo. This view is regulation under the Act for PSD in various amounts above 100 or 250 consistent with the position originally purposes, is consistent with the tons per year. Since EPA has not yet expressed by EPA in 1978 that a statutory language in section 202(a)(2) of completed that rulemaking, today’s pollutant regulated in a Title II the CAA. This section provides that action concludes only that, under the regulation is a pollutant subject to ‘‘any regulation prescribed under approach envisioned for the vehicle regulation. See 42 FR at 57481. paragraph (1) of this subsection (and

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any revision thereof) shall take effect manufacturer may not engage in this regulate a pollutant in some form under after such period as the Administrator activity without complying with the the Act and such regulation is operative finds necessary to permit the applicable GHG standards. on the regulated activity, the terms of development and application of the Likewise, EPA does not agree with the Act make clear that the PSD program requisite technology, giving appropriate commenters who argued that EPA is automatically applicable. consideration to the cost of compliance should not consider the GHG controls in Nonetheless, given the substantial within such period.’’ See 42 U.S.C. the LDV Rule to take effect until magnitude of the PSD implementation 7521(a)(2) (emphasis added). The final automakers have to demonstrate challenges presented by the regulation LDV Rule will apply to model years compliance with the fleet average of GHGs, EPA proposed in the Tailoring 2012 through 2016. The time leading up standards at the end of the model year, Rule to at least temporarily limit the to the introduction of model year 2012 based on actual vehicle model scope of GHG sources covered by the is the time that EPA ‘‘finds necessary to production. As discussed above, the PSD program to ensure that permitting permit the development and application LDV Rule includes both fleet average authorities can effectively implement it. of the requisite technology, giving standards and vehicle standards that EPA based the proposal primarily on appropriate consideration to the cost of apply to individual vehicles throughout two legal doctrines: The ‘‘absurd results’’ compliance within such period.’’ Model their useful lives. As discussed above, doctrine, which EPA proposed to apply year 2012 is therefore when the GHG both of these standards for GHG on the basis that Congress did not standards in the rule ‘‘take effect.’’ emissions are operative on model year envision that the PSD program would 2012 vehicles introduced into apply to the many small sources that EPA does not agree with several commerce on or after January 2, 2011. emit GHGs; and the ‘‘administrative commenters who have suggested that Thus, controls on GHG emissions from necessity’’ doctrine, which EPA the GHG standards in the proposed LDV automobiles will take effect prior to the proposed to apply because of the Rule would not take effect until October date that a manufacturer must extremely large administrative burdens 1, 2011. The latter date appears to be demonstrate compliance with the fleet that permitting authorities would based on how the National Highway average standards. The fact that the confront in permitting the GHG sources. Traffic Safety Administration (NHTSA) manufacturer demonstrates final In comment on that action, as well as in determines the beginning of the 2012 compliance with the fleet average at a comments on the PSD Interpretive model year under the Energy Policy and later date, based on production for the Memo reconsideration proposal, EPA Conservation Act (EPCA). Under EPCA, entire year, does not change the fact that received numerous suggestions that it is a more stringent CAFE standard must be their conduct was controlled by both the necessary to limit the scope of sources prescribed by NHTSA at least 18 fleet average and the vehicle standards, covered at the time GHGs become months before the beginning of the and subject to regulation, prior to that subject to regulation. Commenters model year. For purposes of this EPCA date. further stated that it is necessary to provision, NHTSA has historically select a ‘‘trigger date’’ for GHG B. Implementation Concerns construed the beginning of the model permitting that takes into account the year to be October 1 of the preceding A substantial number of commenters time needed for permitting authorities calendar year. See 49 U.S.C. 32902(g)(2); requested that EPA defer application of to adopt any scope-limiting measures 74 FR 49454, 49644 n.447 (Sep. 28, the PSD program requirements to GHGs (including the need to amend State law), 2009). Although EPA has endeavored to based on various practical to secure the necessary additional harmonize its section 202(a) standards implementation considerations, and financial and other resources, and to with the NHTSA CAFE standards, EPA’s several of these comments argued that hire and train the staff needed to standards are promulgated under the CAA affords EPA the discretion to respond to the increase in permitting distinct legal authority in the CAA. set an implementation date based on workload. These comments make clear Thus, the section 202(a) standards such concerns. EPA agrees that that more time will be needed beyond promulgated in the LDV Rule are not application of PSD program January 2, 2011 before permitting of subject to EPCA or NHTSA’s requirements to GHGs presents several many GHG stationary sources can begin. interpretation of when a model year significant implementation challenges Thus, EPA will be taking additional begins for purposes of EPCA. Under for EPA, States and other entities that action in the near future in the context EPA’s planned LDV Rule, model year issue permits, and the sources that must of the Tailoring Rule to address GHG- 2012 vehicles may be introduced into obtain permits. Indeed, many of the specific circumstances that will exist commerce as early as January 2, 2011. public comments have illustrated the beyond January 2, 2011. Although as a practical matter, some magnitude of the challenge beyond what U.S. automakers may not begin is described in the proposed notice on C. Interim EPA Policy To Mitigate introducing model year 2012 vehicles reconsideration of the PSD Interpretive Concerns Regarding GHG Emissions into commerce until later in 2011, they Memo and the proposed Tailoring Rule. From Construction or Modification of may nevertheless do so as early as In recognition of the substantial Large Stationary Sources January 2, 2011 under EPA’s challenges associated with While EPA has concluded that GHGs regulations. Consistent with the incorporating GHGs into the PSD will not become subject to regulation discussion above, EPA construes the program, EPA’s preference would be to (and hence the PSD BACT requirement phrase ‘‘subject to regulation’’ in section establish a specific date when the PSD will not apply to them) earlier than 165(a)(4) and 169(3) of the Act to mean permitting requirements initially apply January 2, 2011, permitting authorities that the BACT requirement applies to GHGs based solely on these practical that issue permits before January 2, 2011 when controls on a pollutant first apply implementation considerations. are already in a position to, and should, to a regulated activity, and not the point However, EPA has not been persuaded use the discretion currently available at which an entity first engages in the that it has the authority to proceed in under the BACT provisions of the PSD regulated activity. In this instance, the this manner. While EPA may have program to promote technology choices regulated activity is the introduction of discretion as to the manner and time for for control of criteria pollutants that will model year 2012 vehicles into regulating GHG emissions under the also facilitate the reduction of GHG commerce. As of January 2, 2011, a CAA, once EPA has determined to emissions. More specifically, the CAA

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BACT definition requires permitting 2011 if EPA finalizes the proposed LDV sources or modifications that submitted authorities selecting BACT to consider Rule as anticipated, EPA does not see a complete permit application before the the reductions available through any grounds to establish a transition effective date of the increment in the application of not only control methods, period for permit applications that are applicable implementation plan are not systems, and techniques, but also pending before GHGs become subject to required to meet the increment through production processes, and regulation. As a general matter, requirements for PM10, but could requires them to take into account permitting and licensing decisions of instead satisfy the increment energy, environmental, and economic regulatory agencies must reflect the law requirements for TSP that were impacts. Thus, the statute expresses the in effect at the time the agency makes previously in effect. Also, 40 CFR need for a comprehensive review of a final determination on a pending 52.21(i)(9) provides that sources or available pollution control methods application. See Ziffrin v. United States, modifications that submitted a complete when evaluating BACT that clearly 318 U.S. 73, 78 (1943); State of Alabama permit application before the provisions requires consideration of energy v. EPA, 557 F.2d 1101, 1110 (5th Cir. embodying the maximum allowable 14 efficiency. The consideration of energy 1977); In re: Dominion Energy Brayton increase for nitrogen oxides (NOX) efficiency is important because it Point, LLC, 12 E.A.D. 490, 614–616 took effect, but did not yet receive a contributes to reduction of pollutants to (EAB 2006); In re Phelps Dodge Corp., final and effective PSD permit, are not which the PSD requirements currently 10 E.A.D. 460, 478 n.10 (EAB 2002). required to demonstrate compliance apply and have historically been Thus, in the absence of an explicit with the new increment requirements to applied. Further, although BACT does transition or grandfathering provision in be eligible to receive the permit. not now apply to GHG, BACT for other the applicable regulations (and Under the particular circumstances pollutants can, through application of assuming EPA finalizes the LDV Rule as presented by the forthcoming more efficient production processes, planned), each PSD permit issued on or application of PSD requirements to indirectly result in lower GHG after January 2, 2011 would need to GHGs, EPA does not see a justification emissions. contain provisions that satisfy the PSD for adopting an explicit grandfathering Neither the statute nor EPA requirements that will apply to GHGs as provision of the nature described above. regulations specify precisely how to of that date. Permit applications submitted prior to address energy efficiency in BACT Under certain circumstances, EPA has the publication of this notice should in determinations, nor has EPA fully previously allowed proposed new major most cases be issued prior to January 2, articulated how to take climate sources and major modifications that 2011 and, thus, effectively have a considerations into account under the have submitted a complete PSD permit transition period of nine months to ‘‘energy, environmental, and economic application before a new requirement complete processing before PSD impacts’’ considerations of BACT. becomes applicable under PSD requirements become applicable. Further, while EPA’s BACT guidance for regulations, but have not yet received a Additional time for completion of action currently regulated pollutants has final and effective PSD permit, to on applications submitted prior to the addressed some facets of these issues, continue relying on information already onset of PSD requirements for GHGs EPA believes that, given the potential in the application rather than therefore does not appear warranted to importance of the indirect GHG benefits, immediately having to amend ensure a smooth transition and avoid it will be useful for EPA to summarize applications to demonstrate compliance delays for pending applications. To the this guidance and further clarify it as with the new PSD requirements. In such extent any pending permit review necessary in order to further illustrate a way, these proposed sources and cannot otherwise be completed within where PSD permitting authorities modifications were ‘‘grandfathered’’ or the next nine months based on the should be using existing BACT exempted from the new PSD requirements for pollutants other than authority for pollutants that are requirements that would otherwise have GHGs, it should be feasible for presently regulated in ways that can applied to them. permitting authorities to begin indirectly address concerns about GHG For example, EPA adopted a incorporating GHG considerations into emissions from large stationary sources. grandfathering provision when it permit reviews in parallel with the EPA is developing such guidance and changed the indicator for the particulate completion of work on other pollutants plans to issue it in the near future. matter NAAQS from total suspended without adding any additional delay to particulate matter (TSP) to particulate permit processing. D. Transition for Pending Permit matter less than 10 microns (PM10). The Applications Furthermore, the circumstances Federal PSD regulations at 40 CFR surrounding the onset of requirements Some commenters requested that EPA 52.21(i)(1)(x) provide that the owners or for GHGs are distinguishable from prior address the question of how the operators of proposed sources or situations where EPA has allowed application of PSD requirements to modifications that submitted a complete grandfathering of applications that were GHGs will affect applications for PSD permit application before July 31, 1987, deemed complete prior to the permits that are pending on the date but did not yet receive the PSD permit, applicability new PSD permitting GHGs initially become ‘‘subject to are not required to meet the requirements. First, this action and the regulation.’’ These commenters requirements for PM10, but could PSD Interpretive Memo do not involve generally asked that EPA establish an instead satisfy the requirements for TSP a revision of the PSD permitting exclusion for any PSD permit that were previously in effect. regulations but rather involves application that was submitted in In addition, EPA has allowed some clarifications of how EPA interprets the complete form before the date on which grandfathering for permit applications existing regulatory text. This action PSD begins to apply to GHGs. submitted before the effective date of an articulates what has, in most respects, In light of EPA’s conclusion that amendment to the PSD regulations been EPA’s longstanding practice. It has pollutants become subject to regulation establishing new maximum allowable been EPA’s consistent position since for PSD purposes when control increases in pollutant concentrations ‘‘ ’’ requirements on that pollutant take (also known as PSD increments ). The 14 The increments for emissions of the various effect and that such requirements will Federal PSD regulations at 40 CFR oxides of nitrogen are expressed as concentrations not take effect for GHGs until January 2, 52.21(i)(10) provide that proposed of nitrogen dioxide (NO2).

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1978 that regulation of a pollutant under States that implement the Federal PSD exercise its oversight authority as Title II triggers PSD requirements for permit program under delegation from appropriate to call for revisions to SIPs such a pollutant. See 42 FR 57481. an EPA Regional Office will do the and to otherwise ensure sources do not Thus, permitting authorities and permit same. commence construction without permits applicants could reasonably anticipate In addition, EPA will apply the that satisfy the minimum requirements that completion of the LDV Rule would interpretation reflected in this notice of the Federal PSD program. trigger PSD and prepare for this action. and the PSD Interpretive Memo in its To enable EPA to assess the Many commenters interpreted EPA’s oversight of existing State programs and consistency of a State’s action with any October 7, 2009 notice as proposing to review and approval of new program PSD program requirements for GHGs, trigger PSD requirements within 60 days submissions. Many States implement States should ensure that the record for of the promulgation of the LDV Rule the PSD program pursuant to State laws each PSD-permitting decision addresses rather than the January 2, 2011 date that that have been approved by EPA as part whether the State has elected to follow EPA has determined to be the date the of the SIP, pursuant to a determination EPA’s interpretation or believes it is controls in that rule take effect. Second, by EPA that such laws meet the PSD appropriate to apply a different there are presently no regulatory program criteria set forth in 40 CFR interpretation of State laws that is requirements in effect for GHGs. On the 51.166. The EPA regulation setting forth nonetheless consistent with the other hand, at the time EPA moved from PSD program requirements for SIPs also requirements of EPA’s PSD program using TSP to using PM10 as the includes the same definition of the term regulations. In light of additional indicator for the particulate matter ‘‘regulated NSR pollutant’’ as the Federal actions to be taken by EPA in the NAAQS, grandfathered sources were program regulation. See 40 CFR Tailoring Rule, States that issue permits still required to satisfy PSD 51.166(b)(49). Because this regulation in the near term may want to preserve requirements for particulate matter uses the same language as contained in the discretion to modify their approach based on the TSP indicator. Likewise, 40 CFR 52.21 and the same after other EPA actions are finalized. In when EPA later updated the PSD considerations apply to implementation light of this contingency, one option increment for particulate matter to use of the PSD program under State laws, States may consider is to establish that the PM10 indicator, the grandfathered EPA will interpret section 51.166(b)(49) the State will not interpret its laws to sources were still required to in the same manner as section require PSD permits for sources that are demonstrate that they would not cause 52.21(b)(50). However, in doing so, EPA not required to obtain PSD permits or contribute to a violation of the will be mindful that permitting under EPA regulations. authorities in SIP-approved States have particulate matter increment based on VI. Application of the Title V Program some independent discretion to TSP. In the case of the adoption of the to Sources of GHGs NO2 increment, grandfathered sources interpret State laws, provided those were still required to demonstrate that interpretations are consistent with Although the PSD Interpretive they would not cause or contribute to a minimum requirements under the Memorandum and the October 7, 2009 violation of the NO2 NAAQS. In Federal law. proposed reconsideration notice contrast, for GHGs, there are no To the extent approved SIPs contain addressed only PSD permitting issues, measures currently in effect that serve to the same language as used in 40 CFR EPA received several comments on the limit emission of GHGs from stationary 52.21(b)(50) or 40 CFR 51.166(b)(49), proposed reconsideration that also sources. SIP-approved State permitting addressed the application of Title V For these reasons, EPA does not authorities may interpret that language permitting requirements to GHGs. Most intend to promulgate a transition or in State regulations in the same manner of these comments urged EPA to apply grandfathering provision that exempts reflected in the PSD Interpretive Memo the same approach for determining pending permit applications from the and this notice. However, EPA will not major source applicability for Title V onset of GHG requirements in the PSD seek to preclude actions to address permitting that EPA applies to PSD. program. As discussed above, in the GHGs in PSD permitting actions prior to EPA has in fact been following the PSD absence of such a provision, PSD January 2, 2011 where a State permitting approach in many respects. As with the permits that are issued on or after authority feels it has the necessary legal PSD program, currently GHGs are not January 2, 2011 (in accordance with foundation and resources to do so. considered to be subject to regulation limitations promulgated in the EPA has not called on any States to and have not been considered to trigger upcoming Tailoring Rule) will be make a SIP submission that addresses applicability under Title V. EPA required to contain provisions that the interpretive issues addressed in this discussed this in the preamble to the fulfill the applicable program notice and the PSD Interpretive Memo. proposed Tailoring Rule as described requirements for GHGs. As long as States are applying their below. See 74 FR at 55300 n.8. approved program regulations Title V requires, among other things, V. PSD Program Implementation by consistent with the minimum program that any ‘‘major source’’—defined, as EPA and States elements established in 40 CFR 51.166, relevant here, under CAA sections 302(j) Consistent with the PSD Interpretive EPA does not believe it will be and 501(2)(b), as ‘‘any stationary facility Memo, the refined interpretation necessary to issue a SIP call for all or source of air pollutants which reflected in this notice (that a pollutant States to address this issue. However, directly emits, or has the potential to subject to actual control becomes permitting authorities in SIP-approved emit, one hundred tons per year or more subject to regulation at the time such States do not have the discretion to of any air pollutant * * *’’—apply for a controls take effect) is an interpretation apply State laws in a manner that does Title V permit. EPA interprets this of the language in 40 CFR 52.21(b)(50) not meet the minimum Federal requirement to apply to sources of of EPA’s regulations. EPA will apply the standards in 40 CFR 51.166, as pollutants ‘‘subject to regulation’’ under PSD Interpretive Memo, with the interpreted and applied by EPA. Thus, the Act. EPA previously articulated its refinement described above, when if a State is not applying the PSD interpretation that this Title V implementing the Federal permitting requirements to GHGs for the required permitting requirement applies to program under 40 CFR 52.21. sources after January 2, 2011, or lacks ‘‘pollutants subject to regulation’’ in a Furthermore, EPA will expect that the legal authority to do so, EPA will 1993 memorandum from EPA’s air

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program. Memorandum from Lydia N. requirements is assured. See, e.g., In the for Title V, for many of the reasons Wegman, Deputy Director, Office of Air Matter of Fort James Camas Mill, described above for PSD. EPA is Quality Planning and Standards, U.S. Petition No. X–1999–1 at 3–4 (Dec. 22, therefore generally inclined to follow EPA, ‘‘Definition of Regulated Air 2000); In the Matter of Cash Creek the approach adopted today for PSD, Pollutant for Purposes of Title V’’ (Apr. Generation, LLC, Petition Nos. IV–2008– and concludes that GHGs are ‘‘subject to 26, 1993) (‘‘Wegman Memo’’). EPA 1 & IV–2008–2 at 2 (Dec. 15, 2009). The regulation,’’ for purposes of determining continues to maintain this Wegman Memo points out that section whether a source of GHGs is a ‘‘major interpretation. The interpretation in this 821 involves reporting and study of source’’ for Title V, no earlier than the memorandum was based on: (1) EPA’s emissions, but is not related to actual date on which a control requirement for reading of the definitional chain for control of emissions. Since the reporting GHGs ‘‘takes effect.’’ EPA currently ‘‘major source’’ under Title V, including requirements of section 821 have no anticipates that the LDV Rule will be the the definition of ‘‘air pollutant’’ under connection to existing air quality first control requirement for GHGs to section 302(g) and the definition of control requirements, it is appropriate take effect. Under this approach, as with ‘‘major source’’ under 302(j); (2) the view not to treat them as making CO2 ‘‘subject PSD, if the LDV Rule takes effect as of that Congress did not intend to require to regulation’’ for purposes of Title V. Cf. January 2, 2011, a source that is not a variety of sources to obtain Title V Section 504(b) (providing EPA authority currently subject to Title V for its GHG permits if they are not otherwise to specify requirements for ‘‘monitoring emissions could become so no earlier regulated under the Act (see also CAA and analysis of pollutants regulated than January 2, 2011.17 section 504(a), providing that Title V under this Act.’’). Finally, as with PSD, EPA expects permits are to include and assure EPA has not previously explicitly that, beyond January 2, 2011, there will compliance with applicable considered the question of when a remain significant administrative and requirements under the Act); and (3) pollutant becomes ‘‘subject to programmatic considerations associated consistency with the approach under regulation’’ under this established with permitting of GHGs under Title V. the PSD program. While the specific interpretation of the Title V 15 In light of this, as discussed above with narrow interpretation in the Wegman requirements. EPA received comments regard to PSD permitting, EPA will be Memo of the definition of ‘‘air pollutant’’ in this reconsideration proceeding further addressing in the final Tailoring in CAA section 302(g) is in question in specifically on the question of when a Rule (to be promulgated in the near light of Massachusetts (finding this pollutant becomes subject to regulation future) the manner in which sources can definition to be ‘‘sweeping’’), EPA for purposes of Title V. In light of these become subject to Title V as a result of believes the core rationale for its comments, and the decision to adopt a their GHG emissions. interpretation of the applicability of ‘‘takes effect’’ approach for PSD, EPA Title V remains sound. EPA continues believes it is appropriate to address this VII. Statutory Authority issue for Title V with respect to GHG. to maintain its interpretation, consistent The statutory authority for this action EPA is mindful of the different with CAA sections 302(j), 501, 502 and purposes for the PSD and Title V is provided by section 553 of the 504(a), that the provisions governing programs under the statute. While PSD Administrative Procedure Act (5 U.S.C. Title V applicability for ‘‘a major results in substantive control 553) and the Clean Air Act (CAA), as stationary source’’ can only be triggered requirements as necessary to meet air amended (42 U.S.C. 7401 et seq.). by emissions of pollutants subject to quality goals, Title V is focused on Relevant portions of the CAA include, regulation. This interpretation is based identifying, collecting, and assuring but are not necessarily limited to, primarily on the purpose of Title V to compliance with other Act requirements sections 101, 165, 169, 301, 302, 307, collect all regulatory requirements (including PSD), and generally does not 501, 502, and 504 (42 U.S.C. 7401, 7475, applicable to a source and to assure itself result in new control 7479, 7601, 7602, 7607, 7661, 7661a, compliance with such requirements— requirements. Nevertheless, as reflected and 7661d). see, e.g., CAA section 504(a)—and on in the Wegman Memo, the two programs VIII. Judicial Review the desire to promote consistency with have historically followed the same the approach under the PSD program. approach for determining when a This action is a nationally applicable In applying this interpretation under pollutant is ‘‘subject to regulation.’’ 16 final action under section 307(b) of the Title V, the Wegman Memo also EPA believes that a ‘‘takes effect’’ Act. As a result, any legal challenges to explains that EPA does not consider approach to the triggering of new this action must be brought to the CO2 to be a pollutant subject to pollutants is desirable and appropriate United States Court of Appeals for the regulation based on the monitoring and District of Columbia Circuit by June 1, reporting requirements of section 821 of 15 The preamble to the proposed Tailoring Rule 2010. the Clean Air Act Amendments of 1990. implicitly assumed that a pollutant will become Dated: March 29, 2010. As articulated in numerous orders ‘‘subject to regulation’’ for PSD and Title V at the same time (and, in one case, suggests that time will Lisa P. Jackson, issued by EPA in response to petitions be on promulgation of the LDV Rule). The latter Administrator. to object to Title V permits, EPA views statement was based on the interpretation in the [FR Doc. 2010–7536 Filed 4–1–10; 8:45 a.m.] the Title V operating permits program as current PSD Interpretive Memorandum, but failed BILLING CODE 6560–50–P a vehicle for ensuring that air quality to note that EPA had proposed to change that interpretation in the October 7, 2009 notice (signed control requirements are appropriately the same day as the proposed Tailoring Rule). See 17 This date is also when EPA expects the first applied to facility emission units and 74 FR at 55300 and 55340–41. CAA control program addressing GHGs at stationary that compliance with these 16 Wegman Memo at 5. sources (i.e., the PSD program) to be in place.

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