11–16–09 Monday Vol. 74 No. 219 Nov. 16, 2009

Pages 58843–59032

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The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office of the Federal Register, National Archives and Records PUBLIC Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published by act of Congress, and other Federal agency documents of public Subscriptions: interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.federalregister.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases on GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal Register www.gpoaccess.gov/ nara, available through GPO Access, is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. For more information about GPO Access, contact the GPO Access User Support Team, call toll free 1-888-293-6498; DC area 202- 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. The Support Team is available between 7:00 a.m. and 9:00 p.m. Eastern Time, Monday–Friday, except official holidays. The annual subscription price for the Federal Register paper edition is $749 plus postage, or $808, plus postage, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $165, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Printing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1- 866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 74 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

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Contents Federal Register Vol. 74, No. 219

Monday, November 16, 2009

Agriculture Department Defense Department See Animal and Plant Health Inspection Service See Engineers Corps See Commodity Credit Corporation RULES See Rural Utilities Service Homeowners Assistance Program: Application Processing, 58846 Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58950 Submissions, and Approvals, 58979–58981, 58984– 58987 Department of Transportation See Pipeline and Hazardous Materials Safety Animal and Plant Health Inspection Service Administration NOTICES Agency Information Collection Activities; Proposals, Drug Enforcement Administration Submissions, and Approvals, 58937–58938 NOTICES Availability of an Environmental Assessment for a Agency Information Collection Activities; Proposals, Biological Control Agent for Water Hyacinth, 58939– Submissions, and Approvals, 58982–58984 58940 Education Department Army Department NOTICES See Engineers Corps Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58950–58952 Blind or Severely Disabled, Committee for Purchase From People Who Are Employee Benefits Security Administration See Committee for Purchase From People Who Are Blind or NOTICES Severely Disabled Application Nos. and Proposed Exemptions: JPMorgan Chase Bank, N.A., et al., 58987–59000 Census Bureau Prohibited Transaction Exemption; Exemption Application: NOTICES United States Steel and Carnegie Pension Fund, New 2009 Company Organization Survey, 58944–58945 York, NY, 59001 Annual Surveys in the Manufacturing Area, 58945–58946 Prohibited Transaction Exemptions and Grant of Individual Centers for Disease Control and Prevention Exemptions Involving: NOTICES PTE 2009–29, Iron Workers Local 17 Pension Fund (the Request for Information on Source Capture Ventilation Plan), D–11432, etc., 59001–59012 Systems (SCVS): Energy Department Units for use in Nail Salons, Including Downdraft Vented Nail Tables and Portable SCVS, 58965–58966 PROPOSED RULES Energy Conservation Standards: Coast Guard Residential Refrigerators, Refrigerator–Freezers, and PROPOSED RULES Freezers; Meeting and Preliminary Technical Support Drawbridge Operation Regulations: Document Availability, 58915–58918 Port of Coos Bay Railroad Bridge, Coos Bay, North Bend, NOTICES OR, 58931–58933 Availability of the U.S. Department of Energy Interim Snohomish River, Steamboat Slough, and Ebey Slough; Guidance: Everett and Marysville, WA, 58933–58936 Packaging, Transportation, Receipt, Management, and Long-Term Storage of Elemental Mercury, 58952– Commerce Department 58953 See Census Bureau See International Trade Administration Engineers Corps See National Oceanic and Atmospheric Administration RULES See National Telecommunications and Information Danger Zone and Restricted Area Regulations: Administration Marine Corps Base Hawaii, Kaneohe Bay, Island of Oahu, HI, 58846–58848 Committee for Purchase From People Who Are Blind or Restricted Areas at Cape Canaveral Air Force Station, Severely Disabled Patrick AFB, FL, 58848–58849 NOTICES Procurement List; Additions and Deletions, 58949–58950 Environmental Protection Agency NOTICES Commodity Credit Corporation Meetings: NOTICES Good Neighbor Environmental Board, 58953 Agency Information Collection Activities; Proposals, Proposed Consent Decree, Clean Air Act Citizen Suit, Submissions, and Approvals, 58938–58939 58953–58954

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Proposed Consent Decrees, 58954–58955 Geological Survey Proposed Settlement Agreement, Clean Air Act Citizen Suit, NOTICES 58955–58957 Agency Information Collection Activities; Proposals, Registration Applications: Submissions, and Approvals, 58973–58975 Pesticide Products, 58957–58959 Health and Human Services Department Federal Aviation Administration See Centers for Disease Control and Prevention PROPOSED RULES See Food and Drug Administration Airworthiness Directives: See National Institutes of Health Mitsubishi Heavy Industries, Ltd. Various Model MU–2B Airplanes, 58919–58923 Homeland Security Department Certification of Turbojets; Extension of Comment Period, See Coast Guard 58918–58919 See Federal Emergency Management Agency See Transportation Security Administration Federal Bureau of Investigation See U.S. Customs and Border Protection NOTICES RULES Agency Information Collection Activities; Proposals, Prohibition of Awards: Submissions, and Approvals, 58981–58982 Federal Protective Service Guard Services Contracts with Business Concerns Owned, Controlled, or Operated Federal Communications Commission By an Individual Convicted of a Felony, 58851– RULES 58859 NOTICES FM Table of Allotments: Meetings: Dubois, WY, 58851 PROPOSED RULES DHS Data Privacy and Integrity Advisory Committee, Radio Broadcasting Services: 58966–58967 Kahuku, HI, 58936 NOTICES Housing and Urban Development Department Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 58959–58961 Closing of Application Solicitation: Recovery Act, Green Retrofit Program for Multifamily Federal Emergency Management Agency Housing, 58973 RULES Fund Availability: Criminal and Civil Penalties: Fiscal Year 2009 Neighborhood Stabilization Program 2 Under The Robert T. Stafford Disaster Relief And under the American Recovery and Reinvestment Act Emergency Assistance Act, 58849–58851 of 2009; Correction, 58973 Interior Department Federal Maritime Commission See Fish and Wildlife Service NOTICES See Geological Survey Meetings; Sunshine Act, 58962 See Minerals Management Service

Federal Motor Carrier Safety Administration International Trade Administration NOTICES NOTICES City of Boston Requirements for Highway Routing of Extension of Time Limit for the Final Results of Certain Hazardous Materials, 59021–59027 Antidumping Duty Administrative Review: Meetings; Sunshine Act, 59027 Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea, 58946 Federal Reserve System Final Results of Antidumping Duty Administrative Review: NOTICES Polyethylene Retail Carrier Bags from Malaysia, 58947– Change in Bank Control Notices; Acquisition of Shares of 58948 Bank or Bank Holding Companies, 58961 Formations of, Acquisitions by, and Mergers of Bank International Trade Commission Holding Companies, 58961 NOTICES Determinations: Financial Crimes Enforcement Network Certain Standard Steel Fasteners from China and Taiwan, PROPOSED RULES 58978 Expansion of Special Information Sharing Procedures to Investigations: Deter Money Laundering and Terrorist Activity, 58926– Certain Liquid Crystal Display Modules, Products 58931 Containing Same, And Methods Using The Same, 58978–58979 Fish and Wildlife Service NOTICES Justice Department Receipt Applications for Permit, 58977–58978 See Alcohol, Tobacco, Firearms, and Explosives Bureau See Drug Enforcement Administration Food and Drug Administration See Federal Bureau of Investigation RULES Listing of Color Additives Exempt From Certification: Labor Department Paracoccus Pigment, 58843–58846 See Employee Benefits Security Administration

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Minerals Management Service Nuclear Regulatory Commission NOTICES NOTICES Availability of the Proposed Notice of Sale: Environmental Impact Statements; Availability, etc.: Outer Continental Shelf Oil and Gas Lease Sale 213 in Eastern Connecticut State University’s Facility in Central Planning Area in Gulf of Mexico, 58975– Willimantic, CT, 59013–59015 58976 Meetings; Sunshine Act, 59015 Environmental Impact Statements; Availability, etc.: Gulf of Mexico, Outer Continental Shelf, Central Planning Pipeline and Hazardous Materials Safety Administration Area, Oil and Gas Lease Sale 213 (2010), 58976– NOTICES 58977 Applications for Modification of Special Permits, 59019– 59020 National Credit Union Administration Applications for Special Permits, 59020–59021 NOTICES Meetings; Sunshine Act, 59012 Postal Regulatory Commission NOTICES National Highway Traffic Safety Administration New Postal Product, 59015–59016 NOTICES Petitions for Exemption from the Federal Motor Vehicle Presidio Trust Motor Theft Prevention Standard: NOTICES Jaguar Land Rover, 59027–59028 Meetings: Petitions for Exemption from the Vehicle Theft Prevention Presidio Trust Board of Directors, 59016–59017 Standard: Fuji Heavy Industries U.S.A., Inc., 59028–59030 Research and Innovative Technology Administration NOTICES National Institutes of Health Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 59018–59019 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58962–58963 Rural Utilities Service Meetings: NOTICES Center for Scientific Review, 58963–58965 Broadband Initiatives Program and Broadband Technology National Cancer Institute, 58964–58965 Opportunities Program, 58940–58944 National Institute of Neurological Disorders and Stroke, 58963–58964 Securities and Exchange Commission Office of the Director, National Institutes of Health, 58965 NOTICES Meetings; Sunshine Act, 59017 National Oceanic and Atmospheric Administration RULES Transportation Department 2010 List of Fisheries, 58859–58901 See Federal Aviation Administration Fisheries of the Caribbean, Gulf of Mexico, and South See Federal Motor Carrier Safety Administration Atlantic: See National Highway Traffic Safety Administration Snapper–Grouper Fishery off Southern Atlantic States; See Pipeline and Hazardous Materials Safety Amendment 15B; Reef Fish Fishery of Gulf of Administration Mexico, 58902–58914 PROPOSED RULES See Research and Innovative Technology Administration Marine Sanitation Device Discharge Regulations: See Transportation Security Administration NOTICES Florida Keys National Marine Sanctuary, 58923–58926 NOTICES Inflation Adjustments to Liability Limits Governed by the Indirect Cost Rates for the Damage Assessment, Montreal Convention Effective December 30, 2009, Remediation, and Restoration Program (Fiscal Years 59017–59018 2007 and 2008), 58948–58949 Transportation Security Administration National Science Foundation NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 58967–58970 Advisory Committee for Cyberinfrastructure (25150), 59013 Treasury Department Proposal Review Panel for Materials Research, 59012– See Financial Crimes Enforcement Network 59013 NOTICES Meetings; Sunshine Act, 59013 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 59030–59031 National Telecommunications and Information Administration U.S. Customs and Border Protection NOTICES NOTICES Issuance of Final Determination Concerning Toner Broadband Initiatives Program and Broadband Technology Cartridges and Image Drums, 58970–58973 Opportunities Program, 58940–58944

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Reader Aids To subscribe to the Federal Register Table of Contents Consult the Reader Aids section at the end of this page for LISTSERV electronic mailing list, go to http:// phone numbers, online resources, finding aids, reminders, listserv.access.gpo.gov and select Online mailing list and notice of recently enacted public laws. archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

10 CFR Proposed Rules: 430...... 58915 14 CFR Proposed Rules: 1...... 58918 23...... 58918 39...... 58919 15 CFR Proposed Rules: 922...... 58923 21 CFR 73...... 58843 31 CFR Proposed Rules: 103...... 58926 32 CFR 239...... 58846 33 CFR 334 (2 documents) ...... 58846, 58848 Proposed Rules: 117 (2 documents) ...... 58931, 58933 44 CFR 206...... 58849 47 CFR 73...... 58851 Proposed Rules: 73...... 58936 48 CFR 3009...... 58851 3052...... 58851 50 CFR 229...... 58859 622...... 58902

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Rules and Regulations Federal Register Vol. 74, No. 219

Monday, November 16, 2009

This section of the FEDERAL REGISTER • Mail/Hand delivery/Courier [For pigment as the common or usual name contains regulatory documents having general paper, disk, or CD–ROM submissions]: for this color additive. applicability and legal effect, most of which Division of Dockets Management (HFA– II. Identity, Technical Effect, and are keyed to and codified in the Code of 305), Food and Drug Administration, Specifications Federal Regulations, which is published under 5630 Fishers Lane, rm. 1061, Rockville, 50 titles pursuant to 44 U.S.C. 1510. MD 20852. Paracoccus pigment consists of cells The Code of Federal Regulations is sold by To ensure more timely processing of of the bacterium P. carotinifaciens that the Superintendent of Documents. Prices of objections, FDA is no longer accepting are produced by fermentation, and then new books are listed in the first FEDERAL objections submitted to the agency by e- killed by heat. The major components of REGISTER issue of each week. mail. FDA encourages you to continue the dried cells are proteins, to submit electronic objections by using carbohydrates, and lipids. The cells may the Federal eRulemaking Portal, as be mixed with calcium carbonate added DEPARTMENT OF HEALTH AND described previously, in the ADDRESSES as necessary to yield a granular solid HUMAN SERVICES portion of this document under that contains at least 1.75 percent Electronic Submissions. (weight/weight) astaxanthin and lesser Food and Drug Administration Instructions: All submissions received amounts of other carotenoids as coloring must include the agency name and agents. Calcium carbonate is added to 21 CFR Part 73 docket number for this rulemaking. All adjust the astaxanthin content to the objections received will be posted appropriate level in the final pigment. [Docket No. FDA–2007–C–0456] (formerly without change to http:// The primary coloring substance in Docket No. 2007–C–0245) www.regulations.gov, including any paracoccus pigment is astaxanthin, Listing of Color Additives Exempt personal information provided. For which is typically present in the color From Certification; Paracoccus detailed instructions on submitting additive at an average concentration of Pigment objections, see the ‘‘Objections’’ heading 2.18 percent, and represents of the SUPPLEMENTARY INFORMATION approximately 51 percent of the total AGENCY: Food and Drug Administration, section of this document. carotenoids present. The approximate HHS. Docket: For access to the docket to levels of other carotenoids present in ACTION: Final rule. read background documents or paracoccus pigment at lower levels that objections received, go to http:// contribute to the color of the salmonid SUMMARY: The Food and Drug www.regulations.gov and insert the flesh are adonirubin (30 percent), Administration (FDA) is amending the docket number, found in brackets in the canthaxanthin (10 percent), color additive regulations to provide for heading of this document, into the adonixanthin (4 percent), and the safe use of paracoccus pigment as a ‘‘Search’’ box and follow the prompts asteroidenone (2 percent). When fed to color additive in the feed of salmonid and/or go to the Division of Dockets salmonid fish, the petitioned use of fish to enhance the color of their flesh. Management, 5630 Fishers Lane, rm. paracoccus pigment results in This action is in response to a petition 1061, Rockville, MD 20852. deposition of very small amounts of filed by Nippon Oil Corp. FOR FURTHER INFORMATION CONTACT: carotenoids in the flesh of the fish. DATES: This rule is effective December Mical E. Honigfort, Center for Food Studies included in the petition showed 17, 2009, except as to any provisions Safety and Applied Nutrition (HFS– that paracoccus pigment at the intended that may be stayed by the filing of 265), Food and Drug Administration, level of use satisfactorily pigmented the proper objections. Submit electronic or 5100 Paint Branch Pkwy., College Park, flesh of the fish to levels comparable to written objections and requests for a MD 20740–3835, 301–436–1278. that in wild salmonids. hearing by December 16, 2009. See SUPPLEMENTARY INFORMATION: In the Federal Register of April 13, section X of this document for 1995 (60 FR 18736), the agency information on the filing of objections. I. Background published a final rule that listed ADDRESSES: You may submit electronic In a notice published in the Federal astaxanthin in § 73.35 (21 CFR 73.35) for or written objections and requests for a Register of July 9, 2007 (72 FR 37243), use in the feed of salmonid fish. In that hearing identified by Docket No. FDA– FDA announced that a color additive final rule, the agency concluded that 80 2007–C–0456, by any of the following petition (CAP 7C0283) had been filed by milligrams (mg) of astaxanthin per (/) methods: Nippon Oil Corp., c/o Beckloff kilogram (kg) of finished feed would Associates, 7400 West 110th St. suite result in adequate pigmentation of the Electronic Submissions 300, Overland Park, KS 66210. The flesh of salmonid fish. Therefore, in Submit electronic objections in the petition proposed to amend the color § 73.35(c)(2), the agency limited the following way: additive regulations in part 73 (21 CFR astaxanthin content of finished feed to • Federal eRulemaking Portal: http:// part 73) to provide for the safe use of not more than 80 mg/kg. In the Federal www.regulations.gov. Follow the Paracoccus carotinifaciens (P. Register of July 6, 2000, the agency instructions for submitting comments. carotinifaciens) granules as a color published final rules that listed additive in the feed of salmonid fish to haematococcus algae meal in § 73.185 Written Submissions enhance the color of their flesh. This (65 FR 41581) and phaffia yeast in Submit written objections in the color additive is commonly known as § 73.355 (65 FR 41584) as additional following ways: paracoccus pigment. Therefore, the sources of astaxanthin for use in the • FAX: 301–827–6870. agency is establishing paracoccus feed of salmonid fish. Both

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haematococcus algae meal and phaffia the estimated daily intake of astaxanthin carotinifaciens in the production of yeast may be used alone or in and canthaxanthin, and that these two paracoccus pigment is safe. combination with other astaxanthin carotenoids are safe as components of IV. Labeling Requirements color additive sources, provided that the the paracoccus pigment in the feed of quantity of astaxanthin in the finished salmonid fish. All color additives, in accordance feed does not exceed 80 mg/kg. To support the safety of the petitioned with § 70.25 (21 CFR 70.25), are Canthaxanthin also is listed for use as use of the subject color additive, required to be labeled with sufficient a color additive in salmonid fish feed including the carotenoids adonirubin, information to assure their safe use and with a limit of 80 mg/kg of finished feed adonixanthin, and asteroidenone, the to allow a determination of compliance (§ 73.75). petitioner provided data from studies in with any limitations imposed by the Consistent with these other listings, which sea bream and rainbow trout agency in other applicable regulations. the petitioner proposes that the were fed feed containing paracoccus The labeling of the color additive, maximum amount of astaxanthin in pigment at levels up to 5 percent in the paracoccus pigment, and any mixture prepared therefrom, is subject to the finished feed from the use of paracoccus feed. The studies did not reveal any requirements of § 70.25. pigment not exceed 80 mg/kg and has toxicity to the target fish species. According to § 70.25(a)(4), an requested that this level be specified in Therefore, FDA concludes that the the listing regulation. Because of the expiration date for a color additive must petitioned use of paracoccus pigment is be stated on its label if stability data other listed sources of astaxanthin and safe to salmonid fish. The petitioner other color additives that are sources of require it. FDA finds that because of the also provided results from toxicity instability of astaxanthin in paracoccus astaxanthin the agency may list in the studies in which rats were fed future, new § 73.352(c)(2) requires that pigment, an expiration date must be paracoccus pigment. These studies did stated on the label of sealed and open the quantity of astaxanthin in finished not reveal any adverse effects from feed, from paracoccus pigment when containers, in accordance with exposure to paracoccus pigment. § 70.25(a)(4). FDA also finds that used alone or in combination with other Importantly, consumers will not be astaxanthin color additive sources listed declaration of the expiration date directly exposed to paracoccus pigment, in part 73, shall not exceed 80 mg/kg (72 constitutes a material fact that must be but to carotenoids remaining in the fish grams per ton) of finished feed. disclosed on the label of the color that have consumed the color additive additive mixture under sections 201(n) III. Evaluation of Safety in their diet. Therefore, based on the and 403(a)(1) of the Federal Food, Drug, In evaluating the safety of the use of exposure estimates for the individual and Cosmetic Act (21 U.S.C. 321(n) and paracoccus pigment in fish feed, FDA carotenoids, the results from the fish 343(a)(1)). Failure to disclose the considered the safety of the paracoccus and rat toxicity studies and genetic material fact on the label of the color pigment to humans and fish and the toxicity tests, as well as previous safety additive mixture would constitute a safety of the producing organism, P. determinations regarding the use of failure to reveal facts that are: (1) carotinifaciens. astaxanthin and canthaxanthin in Material in light of the representations salmonid fish feed, FDA concludes that made on the label and (2) material with A. Safety of Paracoccus Pigment there is a reasonable certainty of no respect to consequences which may Because consumers are not directly harm to consumers from the petitioned result from the use of the color additive. exposed to the paracoccus pigment, use of paracoccus pigment. The use of paracoccus pigment requires FDA focused its review on the safety of B. Safety of the Producing Organism, P. the declaration of expiration dates the carotenoids present in the pigment carotinifaciens because astaxanthin in paracoccus that are deposited in the fish. The pigment is unstable and can decompose, agency considered the safety of FDA reviewed the pathogenicity, thereby affecting the efficacy of the astaxanthin and canthaxanthin, which toxigenic potential, and antimicrobial color. are already approved for use in the feed activity of the producing organism, P. In addition to the requirements for of salmonid fish, as well as the safety of carotinifaciens. The heat treatment labeling the color additive or color the other carotenoids in the pigment. during production of paracoccus additive mixture, the ingredient list on Astaxanthin and canthaxanthin are two pigment ensures that no viable P. fish feed, to which paracoccus pigment substances found in wild salmonids that carotinifaciens cells will be in the final is added, must identify the presence of are responsible for imparting the pink or product and ensures that there is no the color additive under § 501.4 (21 CFR red coloring to the flesh of these fish. pathogenic or toxigenic potential of P. 501.4). New § 73.352(d)(2) references The agency has determined that the carotinifaciens in the production of § 501.4 to ensure that the presence of astaxanthin and canthaxanthin from paracoccus pigment. In addition, as a paracoccus pigment as a color additive paracoccus pigment, which account for condition of safe use, FDA is requiring in the fish feed will be declared on the approximately 60 percent of the total that only a nonpathogenic and ingredient label. Finally, the presence of carotenoids in paracoccus pigment, will nontoxicogenic strain of the bacterium the color additive must be declared on substitute for the fish feed uses of other P. carotinifaciens be used in the the label of any food, including approved color additive sources of these production of paracoccus pigment. FDA salmonid fish, containing added carotenoids. Additionally, the agency also reviewed a study that provided paracoccus pigment and food containing considers the intake of astaxanthin and evidence that the strain of P. such salmonid fish as an ingredient. canthaxanthin from the consumption of carotinifaciens used to produce Section 101.22(b) (21 CFR 101.22(b)) wild salmon and the intake of paracoccus pigment is not capable of requires a food that bears or contains astaxanthin and canthaxanthin from producing antibiotics. Based on this artificial coloring, such as salmon consumption of farm-raised salmonid information and the fact that consumers artificially colored with paracoccus fish that have been fed approved color will not be directly exposed to pigment, to bear labeling even though additive sources of these carotenoids to paracoccus pigment, but to carotenoids such food is not in package form. be comparable. Therefore, the agency remaining in the fish that have Section 101.22(c) (21 CFR 101.22(c)) concludes that the petitioned use of consumed the pigment, FDA concludes requires that label statements of paracoccus pigment will not increase that the petitioned use of P. artificial coloring be ‘‘likely to be read

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by the ordinary person under customary that FDA considered and relied upon in therefore should not be construed to be conditions of purchase and use of such reaching its decision to approve the a statement of the likelihood that food.’’ petition will be made available for section 301(ll) applies. Furthermore, § 101.22(k)(2) requires, inspection at the Center for Food Safety X. Objections in the statement of ingredients for a food and Applied Nutrition by appointment to which any coloring has been added, with the information contact person (see This rule is effective as shown in the and for which the coloring is not subject FOR FURTHER INFORMATION CONTACT). As DATES section of this document; except to certification, a declaration that makes provided in § 71.15, the agency will as to any provisions that may be stayed it clear that a color additive has been delete from the documents any by the filing of proper objections. Any used in the food. In addition, the materials that are not available for person who will be adversely affected presence of a color additive in a food public disclosure before making the by this regulation may file with the received in a bulk container that is held documents available for inspection. Division of Dockets Management (see at a retail establishment must be VII. Environmental Impact ADDRESSES) electronic or written declared on the labeling of the bulk objections. Each objection shall be container or on a counter card or other The agency has previously considered separately numbered, and each similar device under the provisions in the environmental effects of this rule as numbered objection shall specify with § 101.100(a)(2) (21 CFR 101.100(a)(2)). announced in the notice of filing for particularity the provisions of the The ingredient label would alert the CAP 7C0283 (72 FR 37243). No new regulation to which objection is made consumer that the fish is artificially information or comments have been and the grounds for the objection. Each colored. Without such ingredient received that would affect the agency’s numbered objection on which a hearing labeling, food comprising salmonid fish previous determination that there is no is requested shall specifically so state. with added paracoccus pigment would significant impact on the human Failure to request a hearing for any be deemed to be misbranded under environment and that an environmental particular objection shall constitute a section 403(k) of the Federal Food, impact statement is not required. waiver of the right to a hearing on that Drug, and Cosmetic Act, which states VIII. Paperwork Reduction Act of 1995 objection. Each numbered objection for that: A food shall be deemed to be which a hearing is requested shall This final rule contains no collection misbranded ‘‘If it bears or contains any include a detailed description and of information. Therefore, clearance by artificial flavoring, artificial coloring, or analysis of the specific factual the Office of Management and Budget chemical preservative, unless it bears information intended to be presented in under the Paperwork Reduction Act of labeling stating that fact * * *.’’ support of the objection in the event 1995 is not required. Therefore, in accordance with that a hearing is held. Failure to include §§ 101.22(b), (c), and (k)(2), and IX. Section 301(ll) of the Federal Food, such a description and analysis for any 101.100(a)(2), labeling on any salmonid Drug, and Cosmetic Act particular objection shall constitute a fish containing paracoccus pigment is FDA’s review of this petition was waiver of the right to a hearing on the required to declare the presence of the objection. Three copies of all documents color additive or color additive mixture. limited to section 721 of the act (21 U.S.C. 379e). This final rule is not a are to be submitted and are to be New § 73.352(d)(3) references identified with the docket number §§ 101.22(b), (c), and (k)(2), and statement regarding compliance with other sections of the act. For example, found in brackets in the heading of this 101.100(a)(2) to ensure that, at the retail document. Any objections received in level, the presence of paracoccus the Food and Drug Administration Amendments Act of 2007, which was response to the regulation may be seen pigment as a color additive in the fish in the Division of Dockets Management will be declared, and that the labeling signed into law on September 27, 2007, amended the act to, among other things, between 9 a.m. and 4 p.m., Monday of the bulk fish container, including a through Friday. FDA will publish notice list of ingredients, will be displayed on add section 301(ll). Section 301(ll) of the act (21 U.S.C. 331(ll)) prohibits the of the objections that the agency has the container or on a counter card with received or lack thereof in the Federal similar information. introduction or delivery for introduction into interstate commerce of any food Register. V. Conclusion that contains a drug approved under List of Subjects in 21 CFR Part 73 FDA reviewed data in the petition and section 505 of the act (21 U.S.C. 355), Color additives, Cosmetics, Drugs, other available relevant material to a biological product licensed under Medical devices. evaluate the safety of the use of section 351 of the Public Health Service paracoccus pigment as a color additive Act (42 U.S.C. 262), or a drug or ■ Therefore, under the Federal Food, in the feed of salmonid fish to enhance biological product for which substantial Drug, and Cosmetic Act and under the color of their flesh. Based on this clinical investigations have been authority delegated to the Commissioner information, the agency concludes that instituted and their existence has been of Food and Drugs, and redelegated to the proposed use of the additive is safe, made public, unless one of the the Center for Food Safety and Applied and the additive will achieve its exemptions in section 301(ll)(1) through Nutrition, 21 CFR part 73 is amended as intended technical effect. Therefore, the (4) applies. In our review of this follows: regulations in part 73 should be petition, FDA did not consider whether PART 73—LISTING OF COLOR amended as set forth in this document. section 301(ll) or any of its exemptions ADDITIVES EXEMPT FROM In addition, based upon the factors apply to food containing this additive. CERTIFICATION listed in § 71.20(b) (21 CFR 71.20(b)), Accordingly, this final rule should not the agency concludes that certification be construed to be a statement that a ■ food containing this additive, if 1. The authority citation for 21 CFR of paracoccus pigment is not necessary part 73 continues to read as follows: for the protection of the public health. introduced or delivered for introduction into interstate commerce, would not Authority: 21 U.S.C. 321, 341, 342, 343, VI. Public Disclosure violate section 301(ll). Furthermore, this 348, 351, 352, 355, 361, 362, 371, 379e. In accordance with § 71.15 (21 CFR language is now included in all color ■ 2. Section 73.352 is added to subpart 71.15), the petition and the documents additive final rules for food use and A to read as follows:

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§ 73.352 Paracoccus pigment. §§ 101.22(b), (c), and (k)(2), and docket number or RIN for this Federal (a) Identity. (1) The color additive 101.100(a)(2) of this chapter. Register document. The general policy paracoccus pigment consists of the heat- (e) Exemption from certification. for comments and other submissions killed, dried cells of a nonpathogenic Certification of this color additive is not from members of the public is to make and nontoxicogenic strain of the necessary for the protection of the these submissions available for public bacterium Paracoccus carotinifaciens public health, and therefore, batches viewing on the Internet at http:// and may contain added calcium thereof are exempt from the certification regulations.gov as they are received carbonate to adjust the astaxanthin requirements of section 721(c) of the act. without change, including any personal level. Dated: November 5, 2009. identifiers or contact information. (2) Color additive mixtures for fish Leslye M. Fraser, FOR FURTHER INFORMATION CONTACT: feed use made with paracoccus pigment Director, Office of Regulations, Policy and Deanna Buchner, (703) 602–4353. may contain only those diluents that are Social Sciences, Center for Food Safety and Dated: November 9, 2009. suitable and are listed in this subpart as Applied Nutrition. Patricia L. Toppings, safe for use in color additive mixtures [FR Doc. E9–27394 Filed 11–13–09; 8:45 am] OSD Federal Register Liaison Officer, for coloring foods. BILLING CODE 4160–01–S Department of Defense. (b) Specifications. Paracoccus [FR Doc. E9–27373 Filed 11–13–09; 8:45 am] pigment shall conform to the following specifications and shall be free from BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE impurities, other than those named, to the extent that such impurities may be Office of the Secretary DEPARTMENT OF DEFENSE avoided by good manufacturing practice: 32 CFR Part 239 Department of the Army, Corps of (1) Physical state, solid. Engineers (2) Lead, not more than 5 milligrams [DOD–2009–OS–0090] per kilogram (mg/kg) (5 parts per RIN 0790–AI58 33 CFR Part 334 million (ppm)). (3) Arsenic, not more than 2 mg/kg Homeowners Assistance Program— Marine Corps Base Hawaii, Kaneohe (2 ppm). Application Processing Bay, Island of Oahu, HI (4) Mercury, not more than 1 mg/kg AGENCY: U.S. Army Corps of Engineers, (1 ppm). AGENCY: Under Secretary of Defense for DoD. (5) Heavy metals (as Pb), not more Acquisition, Technology, and Logistics, than 10 mg/kg (10 ppm). Office of the Deputy Under Secretary of ACTION: Final rule. Defense (Installations and (6) Astaxanthin, not less than 1.75 SUMMARY: Environment), DoD. The U.S. Army Corps of percent. Engineers is amending the regulations at (c) Uses and restrictions. Paracoccus ACTION: Interim final rule; extension of 33 CFR 334.1380 for the existing danger pigment may be safely used in the feed comment period. zone in the vicinity of Kaneohe Bay, of salmonid fish in accordance with the SUMMARY: On September 30, 2009, DoD Hawaii. The amendment reflects the following prescribed conditions: current operational and safety (1) The color additive is used to published an interim final rule implementing the Homeowners procedures at the Ulupau Crater enhance the pink to orange-red color of Weapons Training Range and highlights the flesh of salmonid fish. Assistance Program (HAP), with an effective date of September 30, 2009 (74 a change in the hours that weapons (2) The quantity of astaxanthin in firing may occur. The amendment also finished feed, from paracoccus pigment FR 50109–50115). This notice is being published to invite additional public expands the boundaries of the existing when used alone or in combination with danger zone. These regulations are other astaxanthin color additive sources comment on the interim final rule. Any timely public comments received will necessary to protect the public from listed in this part 73, shall not exceed potentially hazardous conditions which 80 mg/kg (72 grams per ton) of finished be considered and any changes to the final rule will be published in the may exist as a result from use of the feed. areas by the United States Marine Corps. (d) Labeling requirements. (1) The Federal Register. The public comment period is being extended for 60 days. DATES: Effective date: December 16, labeling of the color additive and any 2009. premixes prepared therefrom shall bear DATES: The effective date of the HAP expiration dates for the sealed and open interim final rule remains September 30, FOR FURTHER INFORMATION CONTACT: Mr. container (established through generally 2009. Additional comments must be David B. Olson, Headquarters, accepted stability testing methods), received on or before January 15, 2010. Operations and Regulatory Community other information required by § 70.25 of ADDRESSES: You may submit comments, of Practice, Washington, DC at this chapter, and adequate directions to identified by docket number and/or 202–761–4922 or by e-mail at prepare a final product complying with Regulatory Information Number (RIN) [email protected], or Ms. the limitations prescribed in paragraph and title, by either of the following Susan A. Meyer, Corps of Engineers, (c) of this section. methods: Honolulu District, Regulatory Branch, at (2) The presence of the color additive Federal eRulemaking Portal: http:// 808–438–2137 or by e-mail at in finished fish feed prepared according www.regulations.gov. Follow the [email protected]. to paragraph (c) of this section shall be instructions for submitting comments. SUPPLEMENTARY INFORMATION: Pursuant declared in accordance with § 501.4 of Mail: Federal Docket Management to its authorities in Section 7 of the this chapter. System Office, 1160 Defense Pentagon, Rivers and Harbors Act of 1917 (40 Stat. (3) The presence of the color additive Room 3C843, Washington, DC 20301– 266; 33 U.S.C. 1) and Chapter XIX of the in salmonid fish that have been fed 1160. Army Appropriations Act of 1919 (40 feeds containing paracoccus pigment Instructions: All submissions received Stat. 892; 33 U.S.C. 3), the Corps is shall be declared in accordance with must include the agency name and amending the danger zone regulations at

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33 CFR 334.1380 to reflect current with NEPA requirements. Public input is less complicated for the boating operational and safety procedures at the on the proposed action was solicited public to interpret and chart. The Ulupau Crater Weapons Training Range, using Federal Register noticing and reduced number of coordinates and Marine Corps Base Hawaii (MCBH), local public noticing. Public comments minor changes to the configuration Kaneohe Bay, Island of Oahu, Hawaii received in response to the notices were simplify the boundaries of the danger and highlight a change in the hours that documented and fully considered zone, but do not appreciably change the weapons firing may occur. The during final agency decision making. overall size of the amended danger zone amendment also provides more detailed Section 7 of the Rivers and Harbors as it was depicted in the proposed rule. times, dates, and extents of restrictions. Act of 1917 (40 Stat. 266; 33 U.S.C. 1) The amended danger zone is defined by The dimensions of the danger zone have and Chapter XIX of the Army Act of three points extending seaward a increased, from the original distance of 1918 (40 Stat. 892; 33 U.S.C. 3) grant distance of 3.8 nautical miles between 3,900 yards from a point on Mokapu authority to the Secretary of the Army radial lines bearing 357.1° true and Peninsula to 3.8 nautical miles from that to establish danger zones and to regulate 124.9° true, respectively, from a starting same point. navigation within them for the point on Mokapu Peninsula at latitude The proposed rule was published in protection of life and property. 21° 27′ 11.84″ N, longitude 157° 43′ the August 31, 2007, issue of the The danger zone represents a public 53.83″ W. The three seaward points are Federal Register (72 FR 50303) with the safety buffer beyond the physical as follows: boundaries of the training range to docket number COE–2007–0027 and Point A: Latitude 21°30′59.66″ N, further reduce the safety threat to the approximately 23 comments were Longitude 157°44′05.97″ W boating public. The geographical nature received from 13 commenters. One Point B: Latitude 21°29′16.58″ N, of the crater combined with the use of commenter said that a draft Longitude 157°40′30.19″ W man-made measures makes the crater Environmental Impact Report should Point C: Latitude 21°25′01.79″ N, secure from unintended projectiles have been available for public comment Longitude 157°40′33.70″ W at the same time as the proposed rule. exiting its confines, although a very The prohibited area is defined as a slight possibility exists that a projectile Two other commenters requested a copy 500-yard wide zone within the waters of could ricochet or otherwise be of the draft EA for review and comment. Kaneohe Bay contiguous with the inadvertently fired beyond the confines Another commenter requested shoreline of the MCBH, which remains of the crater. Under current conditions, clarification on the Corps’ authority to off limits to the public for military sensitive wildlife areas, including amend the danger zone and promulgate security and public safety. While a designated protected areas, are regulations at 33 CFR part 334. One portion of the amended danger zone encompassed within the existing commenter objected to the expansion of overlaps the existing prohibited area, the danger zone on the basis of potential boundaries of the danger zone. Since the 500-yard wide prohibited area will impacts to sensitive marine wildlife and munitions are not intentionally fired not expand or otherwise change as a organisms, including existing into waters surrounding Ulupau Crater result of this action. designated wildlife protected areas. The and the probability of an unintended same commenter requested that projectile exiting the crater is negligible, Procedural Requirements submerged lands surrounding the crater an expanded danger zone will not a. Review Under Executive Order 12866 be treated with sensitivity and respect incrementally change, modify or based on the view these areas are ceded otherwise adversely impact sensitive This final rule is issued with respect lands belonging to the Hawaiian marine species and organisms that to a military function of the Defense monarchy. Three other commenters inhabit or are supported by the waters Department and the provisions of stated that the coordinates for Point E of and protected areas occurring within the Executive Order 12866 do not apply. danger zone. Marine resources, the expanded danger zone do not appear b. Review Under the Regulatory including endangered species, migratory to be correct and one of the three Flexibility Act commenters interpreted the proposed shorebirds, and other seabirds that rule to amend/expand the prohibited occupy designated protected areas will This final rule has been reviewed area. Lastly, eight commenters remain adequately protected by the under the Regulatory Flexibility Act expressed no objections to the proposed MCBH under obligations of pre-existing (Pub. L. 96–354) which requires the amendment. agreements. For similar reasons, preparation of a regulatory flexibility In the August 31, 2007, proposal the submerged lands will not be directly or analysis for any regulation that will Corps made a preliminary indirectly adversely affected by the have a significant economic impact on determination that the proposed rule expanded danger zone. a substantial number of small entities does not require the preparation of an The coordinates for Point E of the (i.e., small businesses and small Environmental Impact Statement, and danger zone were not correct in the governments). The economic impact of that an environmental assessment proposed rule, and in the final rule we the amendment to this danger zone does would be prepared for the final rule. have eliminated Point E altogether. In not have an effect on the public, does The regulations governing the National the final rule the amended danger zone not result in a navigational hazard, or Environmental Policy Act (NEPA) do is defined by a reduced number of interfere with existing waterway traffic. not require draft environmental coordinates, from six points (Points A, Therefore, this final rule does not have assessments to be available for public B, C, D, E and the starting point) to four a significant economic impact on small comment. Federal agencies are only points (Points A, B, C and the starting entities. required to solicit public comments point). The boundaries of the amended during the preparation of Environmental danger zone form a pie-shaped area with c. Review Under the National Impact Statements. Given the an arc having a 3.8 nautical-mile radius Environmental Policy Act administrative nature of the proposed at its center point (Point B). When Due to the administrative nature of rule and the substance of the comments compared to the irregularly shaped area this action and because there is no received, we have determined that an described in the proposed rule, this intended change in the use of the area, environmental assessment is the modified configuration is less the Corps determined the amendment appropriate mechanism for complying problematic to monitor and patrol, and does not have a significant impact on

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the quality of the human environment Point C: Latitude 21°25′01.79″ N, Dated: November 5, 2009. and, therefore, preparation of an Longitude 157°40′33.70″ W Michael G. Ensch, environmental impact statement is not (b) The regulations. (1) Weapons Chief, Operations, Directorate of Civil Works. required. An environmental assessment firing at the Ulupau Crater Weapons [FR Doc. E9–27486 Filed 11–13–09; 8:45 am] was prepared after the public notice Training Range may occur at any time BILLING CODE 3720–58–P period is closed and considered all between 6 a.m. and 11 p.m., Monday comments received on the public notice. through Sunday. Specific dates and The environmental assessment may be hours for weapons firing, along with DEPARTMENT OF DEFENSE reviewed at the District office listed at information regarding onshore warning the end of the FOR FURTHER INFORMATION signals, will be promulgated by the U.S. Department of the Army, Corps of CONTACT section, above. Coast Guard’s Local Notice to Mariners. Engineers Information on weapons firing d. Unfunded Mandates Act schedules may also be obtained by 33 CFR Part 334 This final rule does not impose an calling the MCBH Range Manager, Restricted Areas at Cape Canaveral Air enforceable duty among the private AC/S G–3 (telephone number 808–257– Force Station, Patrick AFB, FL sector and, therefore, it is not a Federal 8816/17). private sector mandate and it is not (2) Whenever live firing is in progress AGENCY: United States Army Corps of subject to the requirements of either during daylight hours, two large red Engineers, Department of Defense. Section 202 or Section 205 of the triangular warning pennants will be ACTION: Correcting amendments. Unfunded Mandates Act. We have also flown at each of two highly visible and found under Section 203 of the Act that widely separated locations on the shore SUMMARY: The U.S. Army Corps of small governments will not be at Ulupau Crater. Engineers (Corps) published a document significantly and uniquely affected by (3) Whenever any weapons firing is in the Federal Register on July 23, 2009 this rulemaking. scheduled and in progress during (74 FR 36400), revising the restricted areas at Cape Canaveral Air Force List of Subjects in 33 CFR Part 334 periods of darkness, flashing red warning beacons will be displayed on Station, Patrick Air Force Base (AFB), Danger zones, Marine safety, the shore at Ulupau Crater. Florida. The revision included the Navigation (water), Restricted areas, (4) Boaters will have complete access establishment of a restricted area within Waterways. to the danger zone whenever there is no the waters of the Atlantic Ocean offshore of the Cape Canaveral Air Force ■ For the reasons stated in the preamble, weapons firing scheduled, which will Station. The regulation included the Corps amends 33 CFR part 334 as be indicated by the absence of any information regarding the boundaries of follows: warning flags, pennants, or beacons displayed ashore. the new restricted area, including a PART 334—DANGER ZONE AND (5) The danger zone is not considered reference to the offshore (eastern) boundary as being 1.5 miles offshore of RESTRICTED AREA REGULATIONS safe for boaters whenever weapons the mean high water line. The final rule firing is in progress. Boaters shall ■ 1. The authority citation for 33 CFR did not reference the type of mile unit expeditiously vacate the danger zone at part 334 continues to read as follows: to be used for the boundary line of the best speed and by the most direct route restricted area. The intent was to use Authority: 40 Stat. 266 (33 U.S.C. 1) and whenever weapons firing is scheduled. nautical miles as the unit type. Since 40 Stat. 892 (33 U.S.C. 3). Passage of vessels through the danger the use of nautical miles changes the zone when weapons firing is in progress ■ 2. Revise § 334.1380 to read as coordinates for the northeast and will be permitted, but boaters shall follows: southeast corner points of the restricted proceed directly through the area at best area, we are also correcting those § 334.1380 Marine Corps Base Hawaii speed. Weapons firing will be coordinates. This document corrects the (MCBH), Kaneohe Bay, Island of Oahu, suspended as long as there is a vessel in final regulation by revising this section. Hawaii—Ulupau Crater Weapons Training the danger zone. Whenever a boater Range; danger zone. disregards the publicized warning DATES: Effective date: November 16, (a) The danger zone. The area within signals that hazardous weapons firing is 2009. a sector extending seaward a distance of scheduled, the boater will be personally FOR FURTHER INFORMATION CONTACT: Mr. 3.8 nautical miles between radial lines requested to expeditiously vacate the David Olson, Headquarters, Operations bearing 357.1° true and 124.9° true, danger zone by MCBH Kaneohe Bay and Regulatory Community of Practice, respectively, from a starting point on military personnel utilizing by hailing Washington, DC at 202–761–4922 or Mr. Mokapu Peninsula at latitude the vessel on VHF channel 16 or Jon Griffin, U.S. Army Corps of 21°27′11.84″ N, longitude 157°43′53.83″ contacting directly by U.S. Navy surface Engineers, Jacksonville District, W, and overlapping the existing 500- craft. Regulatory Division at 904–232–1680. yard wide prohibited area. The danger (6) Observation posts will be manned SUPPLEMENTARY INFORMATION: On July zone is defined as a pie-shaped area whenever any weapons firing is 23, 2009 (74 FR 36400), the Corps bounded by the landward starting point scheduled and in progress. Visibility published a document in the Federal on Mokapu Peninsula and the three will be sufficient to maintain visual Register establishing a new restricted seaward points forming an arc with a surveillance of the entire danger zone area at Cape Canaveral Air Force 3.8 nautical-mile radius at its center and for an additional distance of 5 miles Station, Patrick AFB, Florida. Section (Point B) with a radial line bearing 56.9° in all directions whenever weapons 334.595(a) of the final rule did not true. The three seaward points have the firing is in progress. specify the type of mile unit to use to following coordinates: (c) The enforcing agency. The define the area. Nautical miles are to be Point A: Latitude 21°30′59.66″ N, regulations shall be enforced by the used to define this restricted area. Since Longitude 157°44′05.97″ W Commanding Officer, MCB Hawaii, the use of nautical miles changes the Point B: Latitude 21°29′16.58″ N, Kaneohe Bay and such agencies as he/ coordinates for the northeast and Longitude 157°40′30.19″ W she may designate. southeast corner points of this restricted

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area, we are also correcting those DEPARTMENT OF HOMELAND subject to a civil penalty of not more coordinates. In § 334.595(a) the SECURITY than $5000 for each violation.’’ 42 coordinates of the northeast and U.S.C. 5157(d). This provision is southeast corner points of the restricted Federal Emergency Management implemented in FEMA’s regulations at area are latitude 28°35.716′ N, longitude Agency 44 CFR 206.14(d), promulgated in 1990. 80°32.938′ W and latitude 28°24.187′ N, 55 FR 2288 (Jan. 23, 1990). longitude 80°33.443′ W, respectively. 44 CFR Part 206 The Adjustment Act directs agencies [Docket ID FEMA–2009–0007] to make the first such adjustment by List of Subjects in 33 CFR Part 334 October 23, 1996, and then at least once RIN 1660–AA01 every four years thereafter. The Danger zones, Navigation (water), Adjustment Act provides a cost-of-living Criminal and Civil Penalties Under the Restricted areas, Waterways. adjustment formula and requires Robert T. Stafford Disaster Relief and agencies to use this formula in ■ Accordingly, 33 CFR part 334 is Emergency Assistance Act corrected by making the following recalculating the penalties. The formula correcting amendments: AGENCY: Federal Emergency reflects changes in the Department of Management Agency, DHS. Labor’s Consumer Price Index of all- PART 334—DANGER ZONE AND ACTION: Final rule. urban consumers (CPI) in the years RESTRICTED AREA REGULATIONS between adjustments. The Adjustment SUMMARY: The Federal Emergency Act also establishes a staged method for ■ 1. The authority citation for part 334 Management Agency (FEMA) is rounding the calculated increase, and continues to read as follows: adopting as final, without substantive states that the first such increase of a change, a proposed rule that increases civil monetary penalty may not exceed Authority: 40 Stat. 266 (33 U.S.C. 1) and the maximum civil monetary penalty 10 percent of the penalty. A civil 40 Stat. 892 (33 U.S.C. 3). under the Robert T. Stafford Disaster penalty is to be initially adjusted by the Relief and Emergency Assistance Act lesser of the Adjustment Act’s ■ 2. Revise paragraph (a) of § 334.595 to from $5,000 to $5,500. The Federal Civil calculation or 10 percent of the current read as follows: Penalties Inflation Adjustment Act of penalty. § 334.595 Atlantic Ocean off Cape 1990 mandates this increase. Since the promulgation of 44 CFR Canaveral; 45th Space Wing, Cape DATES: This final rule is effective 206.14(d), the CPI has increased by Canaveral Air Force Station, FL.; Restricted December 16, 2009. nearly 80 percent. However, this final Area. FOR FURTHER INFORMATION CONTACT: Erin rule is FEMA’s first adjustment of its McMunigal, Assistant Chief Counsel for civil penalty regulations since the (a) The area. The restricted area shall Regulation & Policy, Federal Emergency passage of the Adjustment Act. As encompass all navigable waters of the Management Agency, 500 C Street, SW., described above, the first increase may United States, as defined at 33 CFR part Washington, DC 20472, (phone) 202– not exceed 10 percent of the original 329, contiguous to the area offshore of 646–4097, or (e-mail) penalty amount. The original penalty Cape Canaveral Air Force Station, [email protected]. amount was $5,000, as set out in the Florida. The area is bounded by a line Stafford Act and FEMA regulations, SUPPLEMENTARY INFORMATION: connecting the following coordinates: making the maximum allowable Commencing from the shoreline at the I. Background increase $500. Thus, properly adjusted, northwest portion of the area, at latitude The Federal Emergency Management the maximum civil penalty under ° ′ ° ′ 28 35.008 N, longitude 80 34.448 W, Agency (FEMA) is adopting as final, section 314(d) of the Stafford Act and 44 ° ′ thence directly to latitude 28 35.716 N, without substantive change, a proposed CFR 206.14(d) will be $5,500. longitude 80°32.938′ W, thence rule that increases the maximum civil II. Discussion of Public Comments following the mean high water line at a penalty under the Robert T. Stafford distance of 1.5 nautical miles offshore Disaster Relief and Emergency FEMA published a Notice of Proposed proceed southerly to a point at latitude Assistance Act, 42 U.S.C. 5157(d), Rulemaking on February 10, 1997. 62 28°24.187′ N, longitude 80°33.443′ W, (‘‘Stafford Act’’), from $5,000 to $5,500. FR 5957. FEMA received no substantive thence proceeding westerly to terminate This increase is mandated by the public comments. at a point on the shoreline at latitude Federal Civil Penalties Inflation III. Regulatory Requirements 28°24.69′ N, longitude 80°35.05′ W. Adjustment Act of 1990. Public Law A. Executive Order 12866, Regulatory * * * * * 101–410, 104 Stat. 890 (Oct. 5, 1990), 28 U.S.C. 2461, note, (‘‘Adjustment Act’’) Planning and Review Dated: November 5, 2009. as amended by the Debt Collection Under Executive Order 12866, Michael G. Ensch, Improvement Act of 1996, Public Law ‘‘Regulatory Planning and Review,’’ 58 Chief, Operations, Directorate of Civil Works. 104–134, sec. 31001, 110 Stat. 1321–373 FR 51735 (Oct 4. 1993), a ‘‘significant [FR Doc. E9–27487 Filed 11–13–09; 8:45 am] (1996), as amended, Public Law 105– regulatory action’’ is subject to Office of BILLING CODE 3720–58–P 362, tit. XIII, sec. 1301(a), 112 Stat. 3293 Management and Budget (OMB) review (Nov. 10, 1998). and the requirements of Executive Order The Adjustment Act, as amended, 12866. This rule, increasing the Stafford requires each Federal agency to adjust Act’s civil monetary penalty by $500, is by regulation the civil monetary not a significant regulatory action, and penalties within its jurisdiction. has not been reviewed by OMB. FEMA’s civil penalties are mandated by section 314(d) of the Stafford Act, which B. Regulatory Flexibility Act provides, ‘‘any individual who Under the Regulatory Flexibility Act, knowingly violates any order or 5 U.S.C. 601–612, FEMA has considered regulation under this Act shall be whether this rule would have a

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significant economic impact on a or regulations. Since this rulemaking J. Executive Order 12988, Civil Justice substantial number of small entities. action will not have a significant effect Reform The term ‘‘small entities’’ comprises on the human environment, it is small businesses, not-for-profit categorically excluded from further This rule meets applicable standards organizations that are independently NEPA review, and no environmental in sections 3(a) and 3(b)(2) of Executive owned and operated and are not impact assessment has been prepared. Order 12988, Civil Justice Reform, to dominant in their fields, and minimize litigation, eliminate governmental jurisdictions with F. Executive Order 12898, ambiguity, and reduce burden. populations of less than 50,000. FEMA Environmental Justice K. Executive Order 13175, Consultation certifies under 5 U.S.C. 605(b) that this Executive Order 12898, Federal and Coordination With Indian Tribal final rule will not have a significant Actions to Address Environmental Governments economic impact on a substantial Justice in Minority Populations and number of small entities, because it will Low-Income Populations, requires This rule does not have Tribal only affect those persons who Federal agencies to consider the implications under Executive Order knowingly violate regulations issued ‘‘disproportionately high and adverse 13175, Consultation and Coordination under the Stafford Act. human health or environmental effects with Indian Tribal Governments. This C. Unfunded Mandates of its programs, policies, and activities rule would not have a substantial direct on minority populations’’ to ensure that The Unfunded Mandates Reform Act effect on one or more Indian Tribes, on the programs do not ‘‘exclude persons the relationship between the Federal of 1995, 2 U.S.C. 1531–1538, requires (including populations) from Government and Indian Tribes, or on Federal agencies to assess the effects of participating in or getting the benefits the distribution of power and their discretionary regulatory actions. In of, or subject them to discrimination responsibilities between the Federal particular, the Unfunded Mandates under such programs, policies, and Reform Act addresses actions that may activities.’’ This rule does not impact Government and Indian Tribes. result in the expenditure by a State, human health or the environment or List of Subjects in 44 CFR Part 206 local, or Tribal government, in the discriminate according to race, color, or aggregate, or by the private sector, of national origin because it uniformly Administrative practice and $100,000,000 or more in any one year. increases the civil penalty of the procedure, Coastal zone, Community This rule will not have the requisite Stafford Act in accordance with a facilities, Disaster assistance, Fire economic impact and is not a statutory mandate. Therefore, the prevention, Grant programs—housing discretionary regulatory action, so requirements of Executive Order 12898 and community development, Housing, further analysis under the Unfunded do not apply to this rule. Insurance, Intergovernmental relations, Mandates Reform Act is not necessary. Loan programs—housing and G. Congressional Review of Agency D. Executive Order 13132, Federalism Rulemaking community development, Natural This rule will not have substantial resources, Penalties, Reporting and direct effects on the States, on the FEMA has complied with the recordkeeping requirements. Congressional Review of Agency relationship between the National ■ Rulemaking Act, Public Law 104–121 For the reasons stated in the preamble, Government and the States, or on the the Federal Emergency Management distribution of power and sec. 801, 110 Stat. 847, 868 (1996), (‘‘Congressional Review Act’’), by Agency amends 44 CFR part 206 as responsibilities among the various follows: levels of government. It will not sending this final rule to the Congress and to the Government Accountability preempt any State laws. In accordance PART 206—FEDERAL DISASTER Office. Since this rule is not a ‘‘major with Section 6 of Executive Order ASSISTANCE 13132, FEMA determines that this rule rule’’ within the meaning of the Congressional Review Act, the rule will not have federalism implications ■ 1. The authority citation for part 206 becomes effective without a Comptroller sufficient to warrant the preparation of continues to read as follows: a federalism impact statement. General’s report or an extended time for Congressional review. Authority: Robert T. Stafford Disaster E. National Environmental Policy Act Relief and Emergency Assistance Act, 42 H. Paperwork Reduction Act FEMA’s regulations implementing the U.S.C. 5121 through 5207; Reorganization National Environmental Policy Act of The Paperwork Reduction Act, 44 Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 1969, 42 U.S.C. 4321 et seq., at 44 CFR U.S.C. 3501–20, is designed to minimize Comp., p. 329; Homeland Security Act of 10.8(d)(2), list the categories of actions the burden of collecting and distributing 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, that have no significant effect on the information on any organization or 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 human environment and are therefore individual affected by legislation. FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. categorically excluded from the Implementing this final rule does not 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. preparation of environmental impact entail the collecting or distributing of 166. information for the purposes of the statements and environmental ■ assessments. Specifically, FEMA is not Paperwork Reduction Act. 2. Revise § 206.14, paragraph (d) to read as follows: required to prepare such statements and I. Executive Order 12630, Taking of assessments under 44 CFR 10.8(d)(2)(ii) Private Property § 206.14 Criminal and civil penalties. for the preparation, revision, and adoption of regulations, directives, This rule will not affect a taking of * * * * * manuals, and other guidance documents private property or otherwise have (d) Civil penalty. Any individual who related to actions that qualify for taking implications under Executive knowingly violates any order or categorical exclusions, or, under 44 CFR Order 12630, Governmental Actions and regulation shall be subject to a civil 10.8(d)(2)(iv) for actions to enforce Interference with Constitutionally penalty of not more than $5,500 for each Federal, State, or local codes, standards, Protected Property Rights. violation.

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Dated: November 5, 2009. Business Paperwork Relief Act of 2002, Service Guard Contracting Reform Act W. Craig Fugate, Public Law 107–198, see 44 U.S.C. of 2008. Administrator, Federal Emergency 3506(c)(4). The Commission will send a DATES: Effective date: December 16, Management Agency. copy of this Report and Order in a 2009. [FR Doc. E9–27358 Filed 11–13–09; 8:45 am] report to be sent to Congress and the Applicability: DHS contracting BILLING CODE 9111–21–P Government Accountability Office officers shall insert the clause at (HSAR) pursuant to the Congressional Review 48 CFR 3052.209–76 in solicitations for Act, see 5 U.S.C. 801(a)(1)(A). Federal Protective Service guard FEDERAL COMMUNICATIONS Provisions of the Regulatory services issued on or after the effective COMMISSION Flexibility Act of 1980 does not apply date of this rule. to this proceeding. FOR FURTHER INFORMATION CONTACT: 47 CFR Part 73 List of Subjects in 47 CFR Part 73 Gloria Sochon, Senior Procurement Analyst, at (202) 447–5307 for [DA 09–2266; MB Docket No. 09–83; RM– Radio, Radio broadcasting. 11532] clarification of content. ■ As stated in the preamble, the Federal SUPPLEMENTARY INFORMATION: FM Table of Allotments, Dubois, WY Communications Commission amends 47 CFR part 73 as follows: I. Background AGENCY: Federal Communications The Federal Protective Service Guard Commission. PART 73—RADIO BROADCAST Contracting Reform Act of 2008, Public ACTION: Final rule. SERVICES Law 110–356, 122 Stat. 3996 (Oct. 8, 2008), required DHS to promulgate SUMMARY: The Audio Division, at the ■ 1. The authority citation for Part 73 regulations establishing guidelines for request of Lorenz E. Proietti, allots FM continues to read as follows: the prohibition of awards of FPS Channel 242C2 at Dubois, Wyoming, as Authority: 47 U.S.C. 154, 303, 334, 336. contracts for guard services to any that community’s first transmission business concern that is owned, service. Channel 242C2 can be allotted § 73.202 [Amended] controlled, or operated by an individual at Dubois, Wyoming, in compliance ■ 2. Section 73.202(b), the Table of who has been convicted of a serious with the Commission’s minimum Allotments under Wyoming, is amended felony (as determined by DHS). This distance separation requirements with a by adding Dubois, Channel 242C2. final rule implements the prohibition; site restriction of 6.0 km (3.8 miles) Federal Communications Commission. identifies which felonies are serious and southwest of Dubois at the following may prohibit a business concern from reference coordinates: 43–29–59 North John A. Karousos, Assistant Chief, Audio Division, Media being awarded a contract; requires Latitude and 109–41–17 West contractors to provide information Longitude. Bureau. [FR Doc. E9–27367 Filed 11–13–09; 8:45 am] regarding any felony convictions when DATES: Effective December 16, 2009. submitting bids or proposals; provides BILLING CODE 6712–01–S ADDRESSES: Secretary, Federal guidelines for the contracting officer to Communications Commission, 445 12th assess present responsibility, mitigating Street, SW, Washington, DC 20554. factors, and the risk associated with the DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: previous conviction; and allows the SECURITY Deborah Dupont, Media Bureau, (202) contracting officer to award a contract under certain circumstances, 418–2180. 48 CFR Parts 3009 and 3052 SUPPLEMENTARY INFORMATION: This is a notwithstanding the conviction of a synopsis of the Commission’s Report [Docket No. DHS–2009–0017] serious felony of an individual who and Order, MB Docket 09–83, adopted owns, controls, or operates the RIN 1601–AA55 October 21, 2009, and released October contractor. 23, 2009. The full text of this Prohibition on Federal Protective II. Discussion and Analysis Commission document is available for Service Guard Services Contracts With A. Final Rule inspection and copying during normal Business Concerns Owned, business hours in the FCC Reference Controlled, or Operated by an The final rule expressly defines Information Center (Room CY–A257), Individual Convicted of a Felony certain types of felonies as serious 445 12th Street, SW., Washington, DC [HSAR Case 2009–001] felonies, and generally defines as 20554. serious felonies those which cast doubt The complete text of this decision AGENCY: Office of the Chief Procurement on the integrity or business ethics of a may also be purchased from the Officer, DHS. business concern or are of a nature that Commission’s copy contractor, Best ACTION: Final rule. is inconsistent with the mission of FPS. Copy and Printing, Inc., 445 12th Street, Serious felonies, committed by an SW, Room CY–B402, Washington, DC SUMMARY: The Department of Homeland individual who owns, controls, or 20554, 800–378–3160 or via the Security (DHS) is issuing a final rule to operates the contractor, will normally company’s website, http:// amend the Homeland Security prohibit a business concern from being www.bcpiweb.com. Acquisition Regulation (HSAR) to awarded an FPS contract for guard This document does not contain any establish guidelines under which DHS services. Serious felonies include, but information collection requirements will prohibit awards of Federal are not limited to, felony convictions subject to the Paperwork Reduction Act Protective Service (FPS) contract for for: fraud arising out of a contract with of 1995, Public Law 104–13. In addition, guard services to a business concern the federal, state or local government; therefore, it does not contain any that is owned, controlled, or operated by bribery, graft or a conflict of interest; information collection burden ‘‘for an individual who has been convicted threatened or actual harm to a small business concerns with fewer than of a serious felony. The rule implements government official, family member or 25 employees,’’ pursuant to the Small the provisions of the Federal Protective government property; crimes of

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violence; threat to national security; B. Changes Adopted in the Final Rule Amends the Privacy Notice in (HSAR) commercial bribery; counterfeiting; As a result of public comments 48 CFR 3052.209–72(e) to delete the forgery; obstruction of justice, perjury or received on the proposed rule, the final reference to a Privacy Act system of subornation of perjury, or bribery of a rule: records notice as DHS will not maintain witness; felony for attempt to evade or Revises the definition of ‘‘felony’’ for a system of records on reported felonies. defeat Federal tax or felony for willful consistency with the definition of It also adds instructions on how to failure to collect or pay over Federal tax; ‘‘individual’’ as used in (HSAR) 48 CFR submit corrections to or remove trafficking in illegal drugs, alcohol, 3009.171–2. The rule defines information on individuals both prior to firearms, explosives or other weapons; ‘‘individual’’ to include corporations, and after contract award. immigration violations and any other partnerships, or other entities as well as C. Response to Comments Received on felony that involves dishonesty, fraud, persons. If the definition did not the Notice of Proposed Rulemaking deceit, misrepresentation, or deliberate include business organizations, DHS DHS published a proposed rule to violence; that reflects adversely on the could not apply the prohibition to the implement the Federal Protective individual’s honesty, trustworthiness, or felonious conduct of a business entity Service Guard Contracting Reform Act fitness to own, control, or operate a that owns controls or operates the in the Federal Register on March 17, business concern; that casts doubt on business concern, which conduct would 2009. 74 FR 11512. DHS received three the integrity or business ethics of the otherwise disqualify the business comments on the proposed rule. All business concern; or is of a nature that concern if committed by a natural three supported the rule’s prohibition is inconsistent with the mission of FPS. person who owns controls or operates it. on awarding contracts for FPS guard DHS believes that a business entity that The HSAR clause requires offerors to services to convicted felons. One offered owns, operates, or controls the business recommendations to extend the rule’s disclose whether they are or are not a concern, as well as the business concern business concern owned, controlled or coverage and another recommended that itself, should be held to the same DHS not rely on self-reporting and that operated by an individual convicted of standard as natural persons who own, the rule further restrict contracting a felony. If an offeror represents that it operate, or control the business concern. officers’ discretion. is owned, controlled or operated by an Revises 3009.171–5 to provide more individual convicted of a felony, it will structured and objective guidance to 1. Extending the Rule’s Coverage need to submit a new award request contracting officers. The rule more Comment: One comment with its bid or proposal or a previously clearly defines serious felonies that will recommended that the proposed approved award request. The award prohibit a business concern from being regulation be amended and expanded to request will provide the basis for the awarded a contract for FPS guard include the denial of contracts, as well request and details regarding the felony services. The list of serious felonies is as the termination of existing contracts, conviction. expanded with offenses determined by to security contractors that have a DHS to be serious felonies. The clause also provides that after history of violating Federal laws, Revises (HSAR) 48 CFR 3009.171–6 including but not limited to the award of an Indefinite Delivery/ and –7 to clearly establish that a referral Indefinite Quantity Contract, Blanket National Labor Relations Act and of an award from the Contracting Officer Service Contract Act. Purchase Agreement, or other to the HCA will include the Contracting Response: DHS does not agree. This contractual instrument that may result Officer’s determination and a rule implements the specific statutory in the issuance of task orders, calls, or recommendation for approval to prohibition established under the exercise of options to extend the term of promote consistency and objectivity. Federal Protective Service Guard the contract, the contractor must The HCA must document his or her Contracting Reform Act of 2008. The provide notice of a felony conviction of decision in writing. Federal Acquisition Regulation (FAR) any individual who owns, controls, or As a result of further internal review, implements statutes and policy which operates the business concern. The DHS is also making the following provide protection against contracting contracting officer will review the changes in the final rule. The final rule: with entities that violate Federal laws. conviction and make a new Adds ‘‘exercise’’ of an option to FAR Parts 3 and 9 in particular address determination of eligibility prior to the (HSAR) 48 CFR 3009.171–3(b) for requirements for determining contractor issuance of any task order, call, or accuracy and clarity in describing the responsibility and procedures for exercise of any option. contractual instruments subject to suspension and debarment. The reporting during performance. The rule allows the contracting officer Department of Labor enforces and Revises (HSAR) 48 CFR 3009.171–7(b) to review the basis for the award request administers laws governing legally- for consistency with (HSAR) 48 CFR and assess the risk associated with the mandated wages and working 3009.171–6, which provides that conditions, including suspending and/ felony conviction. If the contracting contracting officers may consider the officer assesses the felony as not serious, or debarring entities who violate these circumstances underlying a serious laws. as contemplated by the Act and this felony. In (HSAR) 48 CFR 3052.209–72, regulation, he or she may award a replaces references to ‘‘this regulation’’ 2. Reliance on Self-Reporting contract for guard services to a business with the appropriate HSAR reference as Comment: One comment advised that concern owned, controlled or operated the clause requires specific citations it is unreasonable to depend on self- by an individual convicted of a felony. when incorporated into a contract. reporting to protect the Federal Prior to such an award, the contracting Replaces references to the ‘‘HCA for government from fraud. First, the officer must prepare and submit a U.S. Immigration and Customs comment notes that the rule requires a recommendation to the Head of the Enforcement’’ with ‘‘HCA.’’ This principal to report only convictions that Contracting Activity. The Head of the provides authority to the cognizant HCA fall in certain categories. Because the Contracting Activity must approve both while removing the need for a rule categories set forth are broad, an the contracting officer’s change in the event of a future individual may unnecessarily disclose a recommendation and the award request. reorganization or restructuring. conviction that is not covered.

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Unnecessary disclosure does not records checks to verify the accuracy of to determine the present responsibility advance contract fraud prevention and such contractor certifications. However, of such vendors. For example, pursuant may infringe upon the civil liberties of a false certification under this FAR to FAR 9.104–1, a contractor must have the individual making the disclosure. clause, as well as under the instant a satisfactory record of integrity and Second, the comment notes that an HSAR representation, would constitute business ethics to be awarded a individual who intends to engage in a criminal violation of 18 U.S.C. 1001 contract. As part of this present dishonest actions after receiving a and, potentially, a violation of 18 U.S.C. responsibility determination, the Federal contract will not disclose a prior 287. contracting officer must check the criminal conviction. Thus, the rule may DHS further considered Privacy Act, 5 Excluded Parties List Systems (EPLS) to serve to actually impair the honest U.S.C. 552a, and Paperwork Reduction verify that a vendor is not suspended, while promoting the nefarious. Act, 44 U.S.C. 3501, et seq., proposed for debarment, or barred from Response: DHS considered the requirements. In order to conduct a receiving federal contract awards. The advantages and disadvantages of relying criminal background check, DHS must FAR also imposes certain reporting on self-reporting. DHS had collect personally identifiable requirements on potential contractors. contemplated requiring business information (i.e., name and date of Under FAR 52.209–5, a vendor must concerns to submit a list of all owners, birth). To independently verify whether certify as to whether the vendor or any controllers or operators with their an offeror is owned, controlled or of its principals has been convicted of proposal and DHS would then conduct operated by a felon, DHS would need to certain civil judgments. If the vendor criminal background checks on each of collect this information on all covered certifies that a covered conviction these individuals prior to contract individuals for an offeror. This would occurred, the contracting officer would award rather than relying on a self- cause DHS to collect and retain examine it further to determine the reporting system. DHS elected not to personally identifiable information on vendor’s present responsibility. require criminal records checks as a many individuals with no felony DHS notes the commenter’s concerns condition of award based upon related conviction. To protect the integrity of that the rule requires only convictions precedents and privacy and information the procurement process and prevent falling into certain categories to be collection concerns. the release of pre-decisional reported and that the categories of Numerous statutes and regulations information, DHS would need to require felonies in the proposed rule were so intended to increase responsibility and all offerors to submit this information. If broad that individuals might disclose integrity among government contractors DHS were to request this information unnecessary information, which would do not require criminal background only from the apparent successful not advance contract fraud prevention checks. For example, 10 U.S.C. 2408 offeror, that would constitute an early and may infringe upon the civil liberties prohibits felons from being employed in release of the award decision and could of the individual making the disclosure. positions of responsibility on compromise the integrity of the The rule requires business concerns to Department of Defense (DOD) contracts. procurement process. However, DHS report all felony convictions for owners, The implementing Defense Federal would use only the information controllers or operators, but it precludes Acquisition Regulation (DFARS provided by the apparent successful contract award only for serious felony 252.203–7001) makes no provision for offeror to conduct a criminal convictions. The business concern does criminal background checks in order to background check (i.e., DHS would not not have discretion to determine that a verify whether these individuals have conduct checks on all owners, felony is not serious, and so avoid been convicted of a fraud or felony controllers, and operators identified in reporting it. DHS is responsible for arising out of a contract with the DOD, all proposals received). The information determining whether a reported felony but rather relies on a similar self- collection burden on small businesses casts doubt on the integrity or business reporting process. The Close the and other entities seeking to provide ethics of the business concern, or is of Contractor Fraud Loophole Act, Public guard services would increase without a nature that is inconsistent with the Law 110–252, Tit. VI, ch. 1, 122 Stat. concomitant value or benefits to the mission of FPS. 2386 (June 30, 2008), requires government. The burden on the The privacy risks associated with the contractors to disclose, in connection government for protecting this disclosure of this information were with the award, performance, or information would also increase, along carefully assessed. The privacy risk is closeout of a contract or any with the risk of inadvertent disclosure. mitigated to the extent that the felony subcontract, whether a principal, DHS recognizes that some dishonest conviction information requested is employee, agent, or subcontractor of the individuals may choose not to disclose limited to the minimum amount of contractor has committed a violation of a prior criminal conviction. The federal information necessary for the certain Federal criminal laws. The procurement system relies upon several contracting officer, in consultation with implementing Federal Acquisition other mechanisms which further protect other authorized agents, to determine Regulation (FAR 52.203–13) relies the integrity of the procurement process. whether the conviction is serious under solely on the contractor to self-report As noted above, false representations the regulation, and should prohibit the such violations. The regulation does not and claims may be prosecuted vendor from receiving a contract award. require criminal background checks on criminally, and may constitute a In addition, submission of the felony principals, employees, agents or violation of the civil False Claims Act, conviction information by the subcontractors in order to verify 31 U.S.C. 3729 et seq. Also, felons may individual is voluntary; however, failure whether any of these individuals have be precluded from participating in the to provide it may result in denial of an violated Federal criminal law. Similarly, federal procurement process by virtue of award to the business concern. The FAR 52.209–5, Certification Regarding individual plea agreements or business concern will be responsible for Debarment, Suspension, Proposed sentencing restrictions. Additionally, an collecting the required felony Debarment, and Other Responsibility agency may suspend or debar felons information from the individual Matters, requires a contractor to report from receiving federal contracts for a convicted of the felony, and to provide certain criminal convictions. The specified period of time pursuant to the individual with a written privacy government procurement community FAR Part 9.4. The government has notice detailing the authority and does not normally conduct criminal controls at the contracting officer level purpose of the collection, how the

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information will be shared, and that whether a particular felony constitutes a present responsibility, mitigating providing the information is voluntary. serious felony that would preclude a factors, and the risk associated with the Finally, DHS did not receive any firm from being awarded a FPS guard previous conviction, and allow the comments from individuals or guard service contract. DHS intends to issue contracting officer to award a contract service companies contesting the an internal policy directive which will under certain circumstances.’’ This disclosure of this information. further delineate the process contracting provision was intended to avoid an To mitigate the concern over officers will use to review an award overly broad prohibition which could unnecessary disclosure, the final rule request and determine whether the disproportionately affect small establishes a more structured definition associated felony conviction is serious businesses. The discretion that it of who owns, operates, or controls a enough to prohibit contract award. As provides is consistent with other business concern. This definition part of the risk assessment process, the acquisition statutes and regulations. It provides more effective guidance to contracting officer may request the recognizes the need for fairness and due assist offerors in determining which assistance of offices in DHS which process. DHS believes the controls individuals are subject to the disclosure possess the requisite subject matter established in the rule will allow DHS requirement. expertise to properly evaluate felony to apply this discretion in a responsible In respect to the broad scope of the conviction information and assist the manner to meet our agency needs. felonies identified in the proposed rule, contracting officer in determining III. Regulatory Requirements this final rule establishes more whether the felony conviction is structured and objective guidance for considered serious enough, by nature or A. Executive Order 12866 contracting officers. The rule more circumstance, to prohibit contract This is not a significant regulatory clearly defines serious felonies that will award. Just as a contracting officer must prohibit a business concern from being action and, therefore, was not subject to evaluate information related to other review under Section 6(b) of Executive awarded a contract for FPS guard criminal violations in determining services. Order 12866, Regulatory Planning and present responsibility, or the Review, 58 FR 51735 (Oct. 4, 1993), as DHS recognizes that a formal criminal Suspending Official or Debarring background check of each individual amended. The rule is not a major rule Official evaluates such information with sufficient ownership interest in a under 5 U.S.C. 804. when making suspension and contractor or offeror would provide a debarment decisions, it is equally B. Regulatory Flexibility Act greater degree of certainty, but DHS important that a contracting officer believes that the risk and rewards Comment: DHS received a single maintain decision-making authority as assessment does not support the comment regarding the estimate of the to eligibility for award under this new expenditure necessary for this function. economic impact of the rule on small HSAR clause. DHS contracting officers For example, the individuals with businesses. One commenter was are able to make appropriate business sufficient ownership interest do not disturbed by a perception that decisions based on the particular facts acquire any independent security access approximately ten percent of the FPS of each given situation, consulting with or authority from the contract and run contracts are held by security appropriate subject matter experts a substantial risk of criminal penalties contractors owned or operated by a where necessary. from falsely omitting a criminal felony convicted felon. conviction. This is particularly true The final rule does make two changes Response: This ten percent figure is because criminal convictions are that will promote objective and not meant to indicate that FPS believes matters of public record. consistent application of the that ten percent of current guard service circumstances that serve as mitigating providers are operated by convicted 3. Scope of Contracting Officers’ factors. As noted earlier, the rule felons. Ten percent is simply an Discretion provides more structured and objective educated estimate given the wide range Comment: One comment noted that guidance by more clearly defining of offenses that constitute a felony and the rule gives inappropriate discretion serious felonies that will prohibit a the fact that felony offenses can remain to contracting officers. The contracting business concern from being awarded a on an individual’s record for a lifetime. officer is asked to examine the nature contract for FPS guard services. The DHS received no comments that and circumstances surrounding a final rule requires the contracting officer disputed the ten percent estimate or conviction and whether the individual to provide the Head of the Contracting proposed an alternative. has accepted full responsibility for their Activity the contracting officer’s In accordance with the Regulatory past misconduct without appropriate determination that a reported felony is Flexibility Act, 5 U.S.C. 601, et seq., training. Further, the circumstances that either not serious or that circumstances DHS is required to determine whether a serve as mitigating factors are not are such that commission of the serious rule will have a significant economic delineated, allowing different felony no longer calls into question the impact on a substantial number of small contracting officers to arrive at vastly individual or business concern’s businesses. At this time, it is unknown different decisions based on similar integrity or business ethics or ability to how many guard service providers are facts and leading to unfair results. A perform consistently with FPS’ mission, owned, controlled or operated by an contracting officer’s exercise of together with a recommendation for individual convicted of a felony. discretion should be limited to judging approval of the award request. The HCA Without actual statistics or the ability to the external merits of the guard services must make a final written decision on quickly and efficiently gather this offered, the capacity of the company to the award approval request. This information, DHS was required to perform those services, and the provides more centralized review and provide an educated estimate as to the business’ record of integrity. decision-making, promoting consistency number of firms that would be impacted Response: DHS recognizes that and objectivity. The discretion provided by the proposed rule. contracting officers may not have the to the contracting officer and the HCA The rule not only requires vendors to training or law enforcement expertise to is consistent with the Act’s provision notify FPS of felony convictions at the evaluate all felony conviction that the regulations ‘‘provide guidelines time of proposal submission, but information and determine on their own for the contracting officer to assess vendors are also required to notify FPS

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if an individual that owns, controls or percent are identified as small Responses per respondent: 1. operates the business concern is businesses. Total annual responses: 47. convicted of a felony during actual Only those vendors that represent that Preparation hours per response: 2. contract performance. To date, FPS has they are owned, controlled, or operated Subtotal response burden hours: 94. had experience with a single guard by an individual convicted of a felony Total response burden hours: 211.5. × service provider known to be owned, will need to submit a new award request Average Hourly Rate ($72 36.35 controlled and operated by an with their bid or proposal or a percent overheard): $98. individual convicted of a felony. previously approved award request. Estimated cost: $20,763. However, given that FPS has no other After award, a contractor will need to Active Contracts: verifiable data to support an estimate, disclose felony convictions that occur Respondents submitting an award coupled with the facts that felonies can during the term of the contract. DHS request: 13. consist of any offense ranging from a estimates that this may affect no more Responses per respondent: 1. violent offense to driving under the than ten percent of offerors (fewer than Total annual responses: 13. influence, and that a felony charge can 50 per year—47 solicitations × 10 Preparation hours per response: 2. remain on an individual’s record for a offerors per solicitation × .1) and ten Total response burden hours: 26. Average Hourly Rate ($72 × 36.35 lifetime, DHS believes this rule may percent of contractors (fewer than five × percent overheard): $98. impact a few firms. The figure of ten per year—46 guard service vendors .1)). The award request must provide the Estimated cost: $2,552. percent, although a high estimate, is Therefore, DHS has not performed believed to be reasonable to support the basis for the request and details regarding the felony conviction to either an initial or a final regulatory determination that the rule will not flexibility analysis. have a significant economic impact on include: The age of the conviction, a substantial number of small nature and circumstances surrounding C. Paperwork Reduction Act the conviction, protective measures businesses. The Paperwork Reduction Act, 44 As a result, DHS certifies that the final taken by the individual or business concern to reduce or eliminate the risk U.S.C. 3501, et seq., applies because the rule amending (HSAR) 48 CFR 3009.1 rule contains information collection and 3052.209 will not have a significant of further misconduct, whether the individual has made full restitution for requirements. impact on a substantial number of small (1) The clause at 3052.209–76 requires entities within the meaning of the the felony and whether the individual has accepted responsibility for past each offeror for FPS contract guard Regulatory Flexibility Act, 5 U.S.C. 601, misconduct resulting in the felony services to disclose whether it is owned, et seq. The factual basis for certification conviction. Under certain controlled or operated by an individual is presented in the following analysis of circumstances, the contracting officer convicted of a felony. The the economic effects of the proposed may still award a contract for guard representation is necessary to evaluate rule. Application of the rule is limited services to a business concern owned, the offeror’s responsibility related to to offerors or contractors providing controlled or operated by an individual performing the required services in guard services under the FPS contract convicted of a felony. Only those accordance with Public Law 110–356. security guard program. Further, for felonies that cast doubt on the integrity An offeror that is owned, controlled or these offerors and contractors, the or business ethics of the business operated by a felon must also submit an economic impact of the rule is not concern or are of a nature that are award request with supporting expected to be substantial. Currently, inconsistent with the mission of FPS documentation. DHS has determined FPS administers a contract inventory will prohibit a business concern from that the burden for the responses is consisting of approximately 125 being awarded an FPS contract for guard within the total estimated burden for contract vehicles for guard services with services. Serious felony convictions information requested from prospective 46 different guard service vendors. include, but are not limited to: Fraud contractors in response to agency-issued These FPS contracts provide 14,000 arising out of a contract with the federal, solicitations approved under OMB contract guards to protect 9,000 federal state or local government, bribery, graft Control No. 1600–0005. Based on facilities. In FY2008, DHS issued or a conflict of interest, threatened or FY2008 statistics, DHS has approximately 47 solicitations for guard actual harm to a government official, approximately 470 respondents to services and awarded 55 contracts. For family member or government property, solicitations for contract guard services each solicitation issued, an average of crimes of violence, threat to national per year (47 solicitations with an 10 offerors responded. security, commercial bribery, average of 10 offers per solicitation), all The 46 vendors that provide guard counterfeiting, forgery, obstruction of of whom will make the representation. services to FPS represent less than one justice, perjury or subornation of Of these, DHS estimates that 10 percent percent of the industry. In 2005, the perjury, or bribery of a witness, felony (47 per year) may submit award Small Business Administration, based for attempt to evade or defeat Federal requests. DHS estimates the total burden on Bureau of Census data, estimated tax or felony for willful failure to collect on offerors to be 211.5 hours. This that there were 4,853 firms in Security or pay over Federal tax. In summary, represents .1 percent of the total burden Guards and Patrol Services Industry, DHS anticipates that the economic hours under OMB Control No. 1600– North American Industry Classification impact of this rule will not exceed: 0005. System (NAICS) 561612. See e.g. Small (2) The clause at 3052.209–76 requires Solicitations: Business Administration, Small Respondents making the the contractor to report felony Business Size Standards: Security representation: 470. convictions after award of an Indefinite Guards and Patrol Services, 70 FR Responses per respondent: 1. Delivery/Indefinite Quantity Contract, 68368 (Nov. 10, 2005) (proposed rule); Total annual responses: 470. Blanket Purchase Agreement, or other id. 71 FR 37490 (June 30, 2006) (final Preparation hours per response: .25. contractual instrument that may result rule). The Central Contractor Subtotal response burden hours: in the issuance of task orders, calls, or Registration database (www.ccr.gov) 117.5. exercise of options to extend the term of currently lists 5,952 active records for Respondents submitting an award the contract. The notice applies to a NAICS 561612. Of these, 4,822, or 81 request: 47. felony conviction of any individual who

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owns, controls, or operates the business 3009.171 Prohibition on Federal Protective is determined on the specific facts of the concern. DHS has determined that the Service guard services contracts with case, with reference to the factors burden for the responses is within the business concerns owned, controlled, or identified in paragraphs (b) and (c) of total estimated burden for information operated by an individual convicted of a this subsection. Prior to contract award, felony. requested from contractors in response such individual must provide any to OMB Control No. 1600–0003 for 3009.171–1 General. additional documentation to the information requested from contractors Except as provided in (HSAR) 48 CFR contracting officer upon the contracting as part of post-contract award 3009.171–6 and 3009.171–7, officer’s request for the agency’s use in administration by DHS acquisition Department of Homeland Security determining ownership, control, or officials. DHS has 125 contracts for FPS (DHS) contracting officers shall not operation. The refusal to provide or to guard services. Of these, DHS estimates enter into a contract for guard services timely provide such documentation may that 10 percent will also submit a notice under the Federal Protective Service serve as grounds for the contracting of felony conviction. DHS estimates the (FPS) guard services program with any officer to refuse making contract award total burden on contractors to be 25 business concern owned, controlled, or to the business concern. hours. This represents less than .001 operated by an individual convicted of (b) Any financial, voting, operational, percent of the total burden hours under a serious felony. or employment interest in the business OMB Control No. 1600–0003. concern of a spouse, child, or other 3009.171–2 Definitions. family member of, or person sharing a List of Subjects in 48 CFR Parts 3009 As used in this subpart— household with, the individual will be and 3052 Business concern means a commercial imputed to the individual in Government procurement. enterprise and the people who determining whether and the extent to constitute it. which the individual owns, controls, or Richard K. Gunderson, Felony means an offense which, if operates the business concern. Acting Chief Procurement Officer, committed by a natural person, is (c) An individual owns, controls, or Department of Homeland Security. punishable by death or imprisonment operates a business concern by fulfilling for a term exceeding one year. or holding the following types of roles ■ Accordingly, DHS amends 48 CFR Convicted of a felony means any or interests with respect to the business parts 3009 and 3052 as follows: conviction of a felony in violation of concern: ■ 1. The authority citation for 48 CFR state or federal criminal statutes, (1) Director or officer, including parts 3009 and 3052 continues to read including the Uniform Code of Military incumbents of boards and offices that as follows: Justice, whether entered on a verdict or perform duties ordinarily performed by a chairman or member of a board of Authority: 41 U.S.C. 418b(a) and (b). plea, including a plea of nolo contendere, for which a sentence has directors, a secretary, treasurer, been imposed. president, a vice president, or other PART 3009—CONTRACTOR Individual means any person, chief official of a business concern, QUALIFICATIONS corporation, partnership, or other entity including Chief Financial Officer, Chief with a legally independent status. Operating Officer, or Chief contracting Subpart 3009.1—Responsible official. Prospective Contractors 3009.171–3 Determination of eligibility for (2) Officials of comparable function award of FPS guard service contracts. and status to those described in ■ 2. Amend Subpart 3009.1 by— (a) Contracting officers shall make a paragraph (c)(1) of this subsection as ■ a. Redesignating section 3009.104–70 determination of eligibility for award of exist in partnerships of all kind and as section 3009.170 and redesignating FPS guard service contracts upon other business organizations, including subsections 3009.104–71 through identification of the apparent successful sole proprietorships. 3009.104–75 as subsections 3009.170–1 offeror as a result of a solicitation for (3) A general partner in a general or through 3009.170–5, respectively; and offers. limited partnership. (b) Contractors shall be required to (4) An individual with a limited ■ b. Adding section 3009.171 to read as immediately notify the contracting partnership interest of 25% or more. follows: officer in writing upon any felony (5) An individual that has the: 3009.171 Prohibition on Federal Protective conviction of personnel who own, (i) Power to vote, directly or Service guard services contracts with control or operate a business concern as indirectly, 25% or more interest in any business concerns owned, controlled, or defined in (HSAR) 48 CFR 3009.171–4 class of voting stock of the business operated by an individual convicted of a at any time during the duration of an concern; felony. Indefinite Delivery/Indefinite Quantity (ii) Ability to direct in any manner the 3009.171–1 General. Contract, Blanket Purchase Agreements, election of a majority of the business 3009.171–2 Definitions. or other contractual instrument that may concern’s directors or trustees; or 3009.171–3 Determination of eligibility for result in the issuance of task orders or (iii) Ability to exercise a controlling award of FPS guard service contracts. calls, or exercise of an option or options influence over the business concern’s 3009.171–4 Determination of ownership, to extend the term of a contract. Upon management, policies, or decision control, or operation. notification of a felony conviction, the making. 3009.171–5 Serious felonies prohibiting contracting officer shall review and (d) Generally, the existence of one or award. make a new determination of eligibility more of the roles or interests set forth in 3009.171–6 Guidelines for contracting prior to the issuance of any task order, paragraph (c) of this subsection, officers. call or exercise of an option. including roles or interests attributed to 3009.171–7 Contract award approval the individual, will be sufficient to procedures for contractors with felony 3009.171–4 Determination of ownership, determine that the individual owns, convictions. control, or operation. controls or operates the business 3009.171–8 Ineligible contractors. (a) Whether an individual owns, concern. However, specific facts of the 3009.171–9 Clause. controls, or operates a business concern case may warrant a different

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determination by the contracting officer, (8) Obstruction of justice, perjury or 3009.171–7 Contract award approval where, for example, an indicator in subornation of perjury, or bribery of a procedures for contractors with felony paragraph (c) of this subsection, in light witness; convictions. of all of the facts and circumstances, (9) An attempt to evade or defeat (a) The HCA has sole discretion to suggests that the individual lacks Federal tax; approve a request to permit award of a sufficient authority or autonomy to exert (10) Willful failure to collect or pay contract for FPS guard services to a authority customarily associated with over Federal tax; business concern owned, controlled, or ownership or control or the assertion of (11) Trafficking in illegal drugs, operated by an individual convicted of operational prerogatives (e.g. the alcohol, firearms, explosives, or other a felony, for any reason permitted by individual is one of twenty on a board weapons; this regulation. This authority is not of directors, plays no other role, and (12) Immigration violations (e.g., 8 delegable. holds no other interest). Conversely, U.S.C. 1324, 1324c, 1326); and (b) A business concern owned, ownership, control, or the ability to (13) Any other felony that involves operated or controlled by an individual operate the business concern, if it exists dishonesty, fraud, deceit, convicted of any felony (including a in fact, can be reflected by other roles misrepresentation, or deliberate serious felony) may submit an award or interests. violence; that reflects adversely on the request to the contracting officer. The individual’s honesty, trustworthiness, or basis for such request shall be that the 3009.171–5 Serious felonies prohibiting fitness to own, control, or operate a subject felony is not a serious felony as award. business concern; that casts doubt on defined by this regulation; that such (a) Only serious felony convictions the integrity or business ethics of the individual does not or no longer owns, will prohibit a business concern from business concern; or is of a nature that controls or operates the business being awarded a contract for FPS guard is inconsistent with the mission of FPS. concern; or that the commission of a services. Serious felonies that will serious felony no longer poses the prohibit contract award are any felonies 3009.171–6 Guidelines for contracting contract risk the Act and this regulation officers. that involve dishonesty, fraud, deceit, were designed to guard against. The misrepresentation, or deliberate (a) In accordance with FAR Subpart business concern shall bear the burden violence; that reflect adversely on the 9.4 (48 CFR subpart 9.4), a contracting of proof for award requests. individual’s honesty, trustworthiness, or officer may not award a contract for FPS (c) A copy of the award approval fitness to own, control, or operate a guard services to any business concern request with supporting documentation business concern; that cast doubt on the that is suspended, debarred or proposed or a previously approved award request integrity or business ethics of the for debarment unless the agency head shall be attached with the bid or business concern; or are of a nature that determines that there is a compelling proposal. is inconsistent with the mission of FPS, reason for such action. (d) An award approval request shall including, without limitation, those (b) The contracting officer shall not contain the basis for the request, felonies listed in paragraphs (b)(1) award a contract for FPS guard services including, at a minimum, the following through (12) of this subsection. to any business concern that is information: (b) The following is a list of offenses otherwise nonresponsible on the same (1) Name and date of birth of determined by DHS to be serious contract. individual convicted of a felony; felonies for purposes of the Federal (c) The contracting officer shall not (2) A full description of which roles Protective Service Guard Reform Act of award an FPS guard services contract to or interests indicate that the individual 2008. Except as provided in (HSAR) 48 any business concern that is owned, owns, controls, or operates, or may own CFR 3009.171–7(f), award of a contract controlled or operated by an individual control or operate the business concern; for FPS guard services will not be made convicted of a serious felony as defined (3) Date sentenced; to any business that is owned, in (HSAR) 48 CFR 3009.171–5 except as (4) Statute/Charge; controlled, or operated by an individual provided in under (HSAR) 48 CFR (5) Docket/Case Number; who has been convicted of a felony 3009.171–7. (6) Court/Jurisdiction; (d) In considering an award request (7) The nature and circumstances involving: under (HSAR) 48 CFR 3009.171–7, the surrounding the conviction; (1) Fraud of any type, including those contracting officer may not review the (8) Protective measures taken by the arising out of a procurement contract, fact of the conviction itself, but may individual or business concern to cooperative agreement, grant or other consider any information provided by reduce or eliminate the risk of further assistance relationship with the federal, the individual or business concern, and misconduct; state or local government, as well as, any information known to the (9) Whether the individual has made without limitation, embezzlement, contracting officer. Factors that the full restitution for the felony; and fraudulent conversion, false claims or contracting officer may consider (10) Whether the individual has statements, kickbacks, include, but are not limited to: accepted responsibility for past misappropriations of property, unfair or (1) The age of the conviction. misconduct resulting in the felony deceptive trade practices, or restraint of (2) The nature and circumstances conviction. trade; surrounding the conviction. (e) If the contracting officer is unable (2) Bribery, graft, or a conflict of (3) Protective measures taken by the to affirmatively determine that the interest; individual or business concern to subject felony is not a serious felony as (3) Threatened or actual harm to a reduce or eliminate the risk of further defined in (HSAR) 48 CFR 3009.171–5; government official or family member; misconduct. that such individual no longer owns, (4) Threatened or actual harm to (4) Whether the individual has made controls or operates the business government property; full restitution for the felony. concern; or that the commission of a (5) A crime of violence; (5) Whether the individual has serious felony no longer calls into (6) A threat to national security; accepted responsibility for past question the individual or business (7) Commercial bribery, misconduct resulting in the felony concern’s integrity or business ethics counterfeiting, or forgery; conviction. and would be consistent with the

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mission of FPS, then the contracting INDIVIDUAL CONVICTED OF A (B) Ability to direct in any manner the officer shall deny the award approval FELONY (AUG 2009) election of a majority of the business concern’s directors or trustees; or request and not forward such request to (a) Prohibitions. Section 2 of the Federal the HCA. (C) Ability to exercise a controlling Protective Service Guard Contracting Reform influence over the business concern’s (f) For a felony that meets any of the Act of 2008, Public Law 110–356, generally management and policies. following conditions, the contracting prohibits the Department of Homeland (3) Generally, the existence of one or more officer shall refer the award request, Security from entering into a contract for of the roles or interests set forth in paragraph with a copy of the contracting officer’s guard services under the Federal Protective (c)(2) of this clause, including roles or determination, to the HCA with a Service (FPS) guard services program with interests attributed to the individual, will be recommendation for approval: any business concern owned, controlled, or sufficient to determine that the individual (1) The subject felony is not a serious operated by an individual convicted of a owns, controls or operates the business felony as defined by this regulation; serious felony. concern. However, specific facts of the case (b) Definitions. As used in this clause: (2) The convicted individual does not may warrant a different determination by Business concern means a commercial Government in light of all of the facts and or no longer owns, controls or operates enterprise and the people who constitute it. circumstances. Conversely, ownership, the business concern; or Felony means an offense which, if control, or the ability to operate the business (3) The commission of a serious committed by a natural person, would be concern, if it exists in fact, can be reflected felony no longer calls into question the punishable by death or imprisonment for a by other roles or interests, and the offeror or individual or business concern’s term exceeding one year. contractor should reveal the existence of integrity or business ethics and that an Individual means any person, corporation, felony convictions if there is doubt as to award would be consistent with the partnership, or other entity with a legally whether the individual owns, controls or mission of the FPS. independent status. operates the business concern. (g) The HCA shall make a final Convicted of a felony means any (d) Award request. conviction of a felony in violation of state or (1) A business concern owned, operated or written decision on the award approval federal criminal statutes, including the controlled by an individual convicted of any request following referral and after any Uniform Code of Military Justice, whether felony may submit an award request to the necessary additional inquiry. entered on a verdict or plea, including a plea Contracting Officer. The basis for such of nolo contendere, for which a sentence has request shall be either that the subject felony 3009.171–8 Ineligible contractors. been imposed. is not a serious felony as defined in (HSAR) Any business concern determined to (c) A business concern that is owned, 48 CFR 3009.171–5; that such individual no be ineligible for award under (HSAR) 48 controlled, or operated by an individual who longer owns, controls or operates the CFR 3009.171–5 to 3009.171–7 shall be has been convicted of any felony, and that business concern; or that commission of the ineligible to receive a contract for guard wishes to submit a bid, proposal, or other serious felony no longer calls into question services under the FPS guard program offer on a solicitation to obtain a FPS contract the individual or business concern’s integrity until such time as: for guard services, must submit with its offer or business ethics and that an award would (a) The concern demonstrates that it an award request as specified in paragraph be consistent with the mission of FPS. The (d) of this clause. business concern shall bear the burden of has addressed and resolved the issues (1) A financial, voting, operational, or proof for award requests. that resulted in the determination of employment interest in the business concern (2) If the Contracting Officer in his or her ineligibility, and of the individual’s spouse, child, or other sole discretion, is unable to affirmatively (b) The HCA approves an award family member, or person with whom the determine that the subject felony is not a request under (HSAR) 48 CFR individual shares his or her household, will serious felony as defined in (HSAR) 48 CFR 3009.171–7. be imputed to the individual in determining 3009.171–5 or that such individual no longer whether the individual owns, controls, or owns, controls or operates the business 3009.171–9 Clause. operates a business concern. concern, then the Contracting Officer shall Insert the clause (HSAR) 48 CFR (2) An individual owns, controls, or deny the award request. 3052.209–76, Prohibition on Federal operates a business concern by fulfilling or (3) The Head of the Contracting Activity Protective Service guard services holding the following types of roles or has sole discretion to approve an award contracts with business concerns interests with respect to the business request. concern: (4) A copy of the award request with owned, controlled, or operated by an (i) Director or officer, including supporting documentation or a copy of a individual convicted of a felony, in all incumbents of boards and offices that previously approved award request shall be solicitations and contracts for FPS guard perform duties ordinarily performed by a attached with the bid or proposal. services. chairman or member of a board of directors, (5) An award request shall contain the a secretary, treasurer, president, a vice basis for the request (i.e., that the subject PART 3052—SOLICITATION president, or other chief official of a business felony is not a serious felony as defined by PROVISIONS AND CONTRACT concern, including Chief Financial Officer, this regulation; that the convicted individual CLAUSES Chief Operating Officer, or Chief contracting does not or no longer owns, controls or official. operates the business concern; or that the ■ 3. Amend section 3052.209 by adding (ii) Officials of comparable function and commission of a serious felony no longer section 3052.209–76 to read as follows: status to those described in paragraph calls into question the individual or business (c)(2)(i) of this clause as exist in partnerships concern’s integrity or business ethics and 3052.209–76 Prohibition on Federal of all kind and other business organizations, that an award would be consistent with the Protective Service guard services contracts including sole proprietorships. mission of FPS). The award request shall with business concerns owned, controlled, (iii) A general partner in a general or contain, at a minimum, the following or operated by an individual convicted of a limited partnership. information: felony. (iv) An individual with a limited (i) Name and Date of Birth of Individual As prescribed at (HSAR) 48 CFR partnership interest of 25% or more. Convicted of a felony. 3009.171–9, insert the following clause: (v) An individual that has the: (ii) A full description of which roles or (A) Power to vote, directly or indirectly, interests indicate that the individual owns, PROHIBITION ON FEDERAL 25% or more interest in any class of voting controls, or operates or may own control or PROTECTIVE SERVICE GUARD stock of the business concern; operate the business concern. SERVICES CONTRACTS WITH Ability to direct in any manner the election (iii) Date sentenced. BUSINESS CONCERNS OWNED, of a majority of the business concern’s (iv) Statute/Charge. CONTROLLED, OR OPERATED BY AN directors or trustees; or (v) Docket/Case Number.

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(vi) Court/Jurisdiction. erroneous information contact the mammals that occurs incidental to each (vii) The nature and circumstances contracting officer of record. The contracting fishery. The categorization of a fishery surrounding the conviction. officer will handle such requests on a case by in the LOF determines whether (viii) Protective measures taken by the case basis. participants in that fishery are subject to individual or business concern to reduce or (f) Disclosure. The offeror under this eliminate the risk of further misconduct. solicitation represents that [Check one]: certain provisions of the MMPA, such as (ix) Whether the individual has made full lIt is not a business concern owned, registration, observer coverage, and take restitution for the felony. controlled, or operated by an individual reduction plan requirements. (x) Whether the individual has accepted convicted of a felony. DATES: This final rule is effective responsibility for past misconduct resulting lIt is a business concern owned, January 1, 2010. in the felony conviction. controlled, or operated by an individual ADDRESSES: See SUPPLEMENTARY (6) Upon the request of the Contracting convicted of a felony, and has submitted an INFORMATION for a listing of all Regional Officer, and prior to contract award, in award request pursuant to paragraph (d) of addition to information described in this clause. Offices. Comments regarding the paragraph (d)(5) of this clause, the business (g) If an award request is applied for, the burden-hour estimates, or any other concern must provide such other offeror shall attach the request with aspect of the collection of information documentation as is requested by the supporting documentation, to the bid or requirements contained in this final Contracting Officer to use in determining and proposal. The supporting documentation rule, should be submitted in writing to evaluating ownership, control, or operation; may include copies of prior award requests Chief, Marine Mammal and Sea Turtle the nature of the felonies committed; and granted to the offeror. Conservation Division, Office of such other information as is needed to make (h) The notification in this paragraph a decision on whether award should be made Protected Resources, NMFS, 1315 East- applies if this is an indefinite delivery/ West Highway, Silver Spring, MD to the offeror under the Federal Protective indefinite quantity contract, blanket purchase Service Guard Contracting Reform Act of agreement, or other contractual instrument 20910, or to David Rostker, OMB, by fax 2008. The refusal to timely provide such that may result in the issuance of task orders, to 202–395–7285 or by email to documentation may serve as grounds to calls or option to extend the terms of a [email protected]. preclude contract award. contract. The Contractor must immediately FOR FURTHER INFORMATION CONTACT: (e)(1) Privacy Statement. The offeror shall notify the Contracting Officer in writing upon Melissa Andersen, Office of Protected provide the following statement to any any felony conviction of personnel who own, individual whose information will be control or operate a business concern as Resources, 301–713–2322; David submitted in an award request pursuant to defined in paragraph (c) of this clause at any Gouveia, Northeast Region, 978–281– (d)(5) and (6) of this clause. time during the performance of this contract. 9280; Anne Ney, Southeast Region, 727– (2) Privacy Notice. The collection of this Upon notification of a felony conviction the 551–5758; Elizabeth Petras, Southwest information is authorized by the Federal Contracting Officer will review and make a Region, 562–980–3238; Brent Norberg, Protective Service Guard Contracting Reform new determination of eligibility prior to the Northwest Region, 206–526–6733; Act of 2008 (Pub. L. 110–356) and issuance of any task order, call or exercise of Bridget Mansfield, Alaska Region, 907– Department of Homeland Security (DHS) an option. implementing regulations at Homeland 586–7642; Lisa Van Atta, Pacific Islands Security Acquisition Regulation (HSAR) 48 (End of clause) Region, 808–944–2257. Individuals who CFR 3009.171. This information is being use a telecommunications device for the [FR Doc. E9–27330 Filed 11–13–09; 8:45 am] collected to determine whether an individual hearing impaired may call the Federal that owns, controls, or operates the business BILLING CODE 9111–28–P Information Relay Service at 1–800– concern submitting this offer has been 877–8339 between 8 a.m. and 4 p.m. convicted of a felony that would disqualify Eastern time, Monday through Friday, the offeror from receiving an award. This DEPARTMENT OF COMMERCE excluding Federal holidays. information will be used by and disclosed to SUPPLEMENTARY INFORMATION: DHS personnel and contractors or other National Oceanic and Atmospheric agents who require this information to Administration Availability of Published Materials determine whether an award request should Information regarding the LOF and be approved or denied. Additionally, DHS 50 CFR Part 229 may share this personal information with the the Marine Mammal Authorization U.S. Justice Department and other Federal [Docket No. 090218194–91045–02] Program, including registration and State agencies for collection, procedures and forms, current and past RIN 0648–AX65 enforcement, investigatory, or litigation LOFs, observer requirements, and purposes, or as otherwise authorized. List of Fisheries for 2010 marine mammal injury/mortality Submission of this information by the reporting forms and submittal individual is voluntary, however, failure to AGENCY: National Marine Fisheries procedures, may be obtained at: http:// provide it may result in denial of an award Service (NMFS), National Oceanic and to the offeror. Individuals who wish to www.nmfs.noaa.gov/pr/interactions/lof/ correct inaccurate information in or to Atmospheric Administration (NOAA), or from any NMFS Regional Office at remove their information from an offer that Commerce. the addresses listed below: has been submitted should contact the ACTION: Final rule. NMFS, Northeast Region, 55 Great business concern submitting the offer and Republic Drive, Gloucester, MA 01930– request correction. Should individuals seek SUMMARY: The National Marine 2298, Attn: Marcia Hobbs; to correct inaccurate information or remove Fisheries Service (NMFS) publishes its NMFS, Southeast Region, 263 13th their information from an offer that has been final List of Fisheries (LOF) for 2010, as Avenue South, St. Petersburg, FL 33701, submitted in response to a solicitation for required by the Marine Mammal Attn: Anne Ney; FPS guard services prior to contract award, Protection Act (MMPA). The final LOF NMFS, Southwest Region, 501 W. an authorized representative of the business for 2010 reflects new information on Ocean Blvd., Suite 4200, Long Beach, concern submitting the offer must contact the interactions between commercial contracting officer of record and request that CA 90802–4213, Attn: Lyle Enriquez; the firm’s offer be formally withdrawn or fisheries and marine mammals. NMFS NMFS, Northwest Region, 7600 Sand submit a correction to the award request. must categorize each commercial fishery Point Way NE, Seattle, WA 98115, Attn: After contract award, it is recommended that on the LOF into one of three categories Protected Resources Division; an authorized representative of the business under the MMPA based upon the level NMFS, Alaska Region, Protected concern that submitted the inaccurate or of serious injury and mortality of marine Resources, P.O. Box 22668, 709 West

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9th Street, Juneau, AK 99802, Attn: the stock would be placed in Category How Does NMFS Determine which Bridget Mansfield; or III (unless those fisheries interact with Species and Stocks are Included as NMFS, Pacific Islands Region, other stock(s) in which total annual Incidentally Killed or Injured in a Protected Resources, 1601 Kapiolani mortality and serious injury is greater Fishery? Boulevard, Suite 1100, Honolulu, HI than 10 percent of PBR). Otherwise, The LOF includes a list of marine 96814–4700, Attn: Lisa Van Atta. these fisheries are subject to the next mammal species and stocks incidentally What is the List of Fisheries? tier (Tier 2) of analysis to determine killed or injured in each commercial Section 118 of the MMPA requires their classification. fishery. To determine which species and NMFS to place all U.S. commercial Tier 2, Category I: Annual mortality stocks are included as incidentally fisheries into one of three categories and serious injury of a stock in a given killed or injured in a fishery, NMFS based on the level of incidental serious fishery is greater than or equal to 50 annually reviews the information injury and mortality of marine mammals percent of the PBR level. presented in the current SARs. The SARs are based upon the best available occurring in each fishery (16 U.S.C. Tier 2, Category II: Annual mortality 1387(c)(1)). The classification of a scientific information and provide the and serious injury of a stock in a given most current and inclusive information fishery on the LOF determines whether fishery is greater than 1 percent and less participants in that fishery may be on each stock’s PBR level and level of than 50 percent of the PBR level. required to comply with certain interaction with commercial fishing provisions of the MMPA, such as Tier 2, Category III: Annual mortality operations. NMFS also reviews other registration, observer coverage, and take and serious injury of a stock in a given sources of new information, including reduction plan requirements. NMFS fishery is less than or equal to 1 percent observer data, stranding data, and fisher must reexamine the LOF annually, of the PBR level. self-reports. considering new information in the When reliable information and While Tier 1 considers the cumulative sufficient levels of observer coverage are Marine Mammal Stock Assessment fishery mortality and serious injury for Reports (SAR) and other relevant available, the most recent five years of a particular stock, Tier 2 considers data are used to determine whether a sources, and publish in the Federal fishery-specific mortality and serious Register any necessary changes to the species or stock should be added to, or injury for a particular stock. Additional deleted from, the list of species and LOF after notice and opportunity for details regarding how the categories public comment (16 U.S.C. 1387 stocks incidentally killed or injured in were determined are provided in the (c)(1)(C)). each commercial fishery. In the absence preamble to the proposed rule of reliable information on the level of How Does NMFS Determine in which implementing section 118 of the MMPA mortality or injury of a marine mammal Category a Fishery is Placed? (60 FR 45086, August 30, 1995). stock, or insufficient observer data, The definitions for the fishery Because fisheries are categorized on a NMFS will determine whether a species classification criteria can be found in per-stock basis, a fishery may qualify as or stock should be added to, or deleted the implementing regulations for section one Category for one marine mammal from, the list by considering other 118 of the MMPA (50 CFR 229.2). The stock and another Category for a factors such as: changes in gear used, criteria are also summarized here. different marine mammal stock. A increases or decreases in fishing effort, increases or decreases in the level of fishery is typically categorized on the Fishery Classification Criteria observer coverage, and/or changes in LOF at its highest level of classification The fishery classification criteria fishery management that are expected to (e.g., a fishery qualifying for Category III consist of a two-tiered, stock-specific lead to decreases in interactions with a approach that first addresses the total for one marine mammal stock and for given marine mammal stock (such as a impact of all fisheries on each marine Category II for another marine mammal fishery management plan (FMP) or a mammal stock, and then addresses the stock will be listed under Category II). take reduction plan (TRP)). NMFS will impact of individual fisheries on each Other Criteria That May Be Considered provide case-specific justification in the stock. This approach is based on LOF for changes to the list of species consideration of the rate, in numbers of In the absence of reliable information and stocks incidentally killed or animals per year, of incidental indicating the frequency of incidental injured. mortalities and serious injuries of mortality and serious injury of marine marine mammals due to commercial How Does NMFS Determine the Level of mammals by a commercial fishery, Observer Coverage in a Fishery? fishing operations relative to the NMFS will determine whether the potential biological removal (PBR) level incidental serious injury of mortality is Data obtained from observers and the for each marine mammal stock. The ‘‘occasional’’ by evaluating other factors level of observer coverage are important MMPA (16 U.S.C. 1362 (20)) defines the such as fishing techniques, gear used, tools in estimating the level of marine PBR level as the maximum number of methods used to deter marine mammals, mammal mortality and serious injury in commercial fishing operations. The best animals, not including natural target species, seasons and areas fished, available information on the level of mortalities, that may be removed from a qualitative data from logbooks or fisher marine mammal stock while allowing observer coverage, and the spatial and reports, stranding data, and the species that stock to reach or maintain its temporal distribution of observed and distribution of marine mammals in Optimum Sustainable Population. This marine mammal interactions, is the area, or at the discretion of the definition can also be found in the presented in the SARs. Starting with the implementing regulations for section Assistant Administrator for Fisheries 2005 SARs, each SAR includes an 118 of the MMPA (50 CFR 229.2). (50 CFR 229.2). Further, eligible appendix with detailed descriptions of Tier 1: If the total annual mortality commercial fisheries not specifically each Category I and II fishery in the and serious injury of a marine mammal identified on the LOF are deemed to be LOF, including observer coverage. The stock, across all fisheries, is less than or Category II fisheries until the next LOF SARs generally do not provide detailed equal to 10 percent of the PBR level of is published. information on observer coverage in the stock, all fisheries interacting with Category III fisheries because, under the

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MMPA, Category III fisheries are not designates those fisheries in Tables 1, 2, obligation to obtain an MMPA required to accommodate observers and 3 by an ‘‘*’’ after the fishery’s name. registration under section 118, NMFS aboard vessels due to the remote The number of HSFCA permits listed in has deleted reference to tribal fisheries likelihood of mortality and serious Table 3 for the high seas components of in the LOF. The registration injury of marine mammals. Information these fisheries operating in U.S. waters requirements for Category I or II presented in the SARs’ appendices do not necessarily represent additional fisheries will not apply to treaty Indian includes: level of observer coverage, fishers that are not accounted for in tribes.’’ (60 FR 45086, August 30, 1995.) target species, levels of fishing effort, Tables 1 and 2. Many fishers holding NMFS considered, among other spatial and temporal distribution of these permits also fish within U.S. things, the public comments received on fishing effort, characteristics of fishing waters and are included in the number the proposed 2010 LOF and the 1994 gear and operations, management and of vessels and participants operating amendments to the MMPA and regulations, and interactions with within those fisheries in Table 1 and 2. accompanying legislative history to re- marine mammals. Copies of the SARs HSFCA permits are valid for five evaluate its 1995 conclusion to exempt are available on the NMFS Office of years, during which time FMPs can tribal fisheries from the LOF (60 FR Protected Resource’s website at: http:// change. Therefore, some fishers may 45086, August 30, 1995) should be www.nmfs.noaa.gov/pr/sars/. possess valid HSFCA permits without changed due to Anderson v. Evans. Additional information on observer the ability to fish under the permit NMFS determined that Anderson v. programs in commercial fisheries can be because it was issued for a gear type that Evans did not alter NMFS’ original found on the NMFS National Observer is no longer authorized under the most analysis in the final rule implementing Program’s website: http:// current FMP. For this reason, the section 118 of the MMPA (60 FR 45086, www.st.nmfs.gov/st4/nop/. number of HSFCA permits displayed in August 30, 1995); therefore, the Table 3 is likely higher than the actual inclusion of tribal fisheries on the LOF How Do I Find Out if a Specific Fishery U.S. fishing effort on the high seas. For at this time is not warranted. NMFS will is in Category I, II, or III? more information on how NMFS continue to work on a government-to- This final rule includes three tables classifies high seas fisheries on the LOF, government basis with the affected that list all U.S. commercial fisheries by see the preamble text in the final 2009 treaty tribal governments to gather data LOF Category. Table 1 lists all of the LOF (73 FR 73032; December 1, 2008). on injuries and mortalities of marine fisheries in the Pacific Ocean (including mammals incidental to tribal fisheries. Are Treaty Tribal Fisheries Included on Alaska); Table 2 lists all of the fisheries Additional information on NMFS’ the LOF? in the Atlantic Ocean, Gulf of Mexico, decision to continue to exclude tribal and Caribbean; Table 3 lists all U.S.- In the final rule implementing section fisheries from the LOF is provided authorized fisheries on the high seas. A 118 of the MMPA (60 FR 45086, August below in the response to comments 1– fourth table, Table 4, lists all fisheries 30, 1995) NMFS concluded that treaty 5 in the section ‘‘Comments and managed under applicable take tribal fisheries are conducted under the Responses.’’ reduction plans or teams. authority of the Indian treaties; the MMPA’s requirements in section 118 do Am I Required to Register Under the Are High Seas Fisheries Included on not apply to treaty Indian tribal MMPA? the LOF? fisheries. NMFS explained this decision Owners of vessels or gear engaging in Beginning with the 2009 LOF, NMFS in the final rule stating (the remaining a Category I or II fishery are required includes high seas fisheries in Table 3 text in this paragraph is quoted under the MMPA (16 U.S.C. 1387(c)(2)), of the LOF, along with the number of direction from the final rule at 60 FR as described in 50 CFR 229.4, to be valid High Sea Fishing Compliance Act 45086, August 30, 1995), ‘‘ the rights to registered with NMFS and obtain a (HSFCA) permits in each fishery. As of fish and hunt are already secured marine mammal authorization to 2004, NMFS issues HSFCA permits only separately for Northwest tribes pursuant lawfully take a non-endangered and for high seas fisheries analyzed in to their treaties with the United States. non-threatened marine mammal accordance with the National NMFS reviewed the relationship of the incidental to commercial fishing. Environmental Policy Act (NEPA) and Northwest Indian treaties to the MMPA Owners of vessels or gear engaged in a the Endangered Species Act (ESA). The and did not find clear evidence that Category III fishery are not required to authorized high seas fisheries are broad Congress intended to abrogate treaty be registered with NMFS or obtain a in scope and encompass multiple Indian rights. Section 14 of the marine mammal authorization. specific fisheries identified by gear type. Amendments to the MMPA (Public Law For the purposes of the LOF, the high No. 103–238) states ’Nothing in this Act, What is the Registration Process? seas fisheries are subdivided based on including any amendments to the NMFS has integrated the MMPA gear type (e.g., trawl, longline, purse Marine Mammal Protection Act of 1972 registration process, known as the seine, gillnet, troll, etc.) to provide more made by this Act -- alters or is intended Marine Mammal Authorization Program detail on composition of effort within to alter any treaty between the United (MMAP), with existing state and Federal these fisheries. Many fisheries operate States and one or more Indian tribes.’ fishery license, registration, or permit in both U.S. waters and on the high This provision clarifies that existing systems for Category I and II fisheries on seas, creating some overlap between the treaty Indian fishing rights are not the LOF. Participants in these fisheries fisheries listed in Tables 1 and 2 and affected by the amendments to the are automatically registered under the those in Table 3. In these cases, the high MMPA. Therefore, tribal fisheries are MMAP and are not required to submit seas component of the fishery is not conducted under the authority of the registration or renewal materials considered a separate fishery, but an Indian treaties rather than the MMPA, directly under the MMAP. In the Pacific extension of the fishery operating and the MMPA’s mandatory registration Islands, Southwest, Northwest, and within U.S. waters (listed in Table 1 or systems do not apply to treaty Indian Alaska regions, NMFS will issue vessel 2). In these fisheries, a single vessel may fishers operating in their usual and or gear owners an authorization set both within the U.S. Exclusive accustomed fishing areas. Since certificate; in the Northeast and Economic Zone (EEZ) and on the high inclusion of the treaty Indian fisheries Southeast Regions, NMFS will issue seas during a single fishing trip. NMFS in the LOF would also establish an vessel or gear owners notification of

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registry and directions on obtaining an How Do I Renew My Registration thereby exempting vessels too small to authorization certificate. The Under the MMPA? accommodate an observer from this authorization certificate, or a copy, must Vessel or gear owners that participate requirement. However, observer be on board the vessel while it is in Pacific Islands, Southwest, or Alaska requirements will not be exempted for operating in a Category I or II fishery, or regional fisheries are automatically U.S. Atlantic Ocean, Caribbean, Gulf of for non-vessel fisheries, in the renewed and should receive an Mexico large pelagics longline vessels operating in special areas designated by possession of the person in charge of the authorization certificate by January 1 of the Pelagic Longline Take Reduction fishing operation (50 CFR 229.4(e)). each new year. Vessel or gear owners in Plan implementing regulations (50 CFR Although efforts are made to limit the Washington and Oregon fisheries 229.36(d)) or vessels operating in North issuance of authorization certificates to receive authorization with each Carolina fisheries observed under the only those vessel or gear owners that renewed state fishing license, the timing Alternative Platform Program. Observer participate in Category I or II fisheries, of which varies based on target species. requirements can be found in 50 CFR not all state and Federal permit systems Vessel or gear owners who participate in 229.7. distinguish between fisheries as these regions and have not received classified by the LOF. Therefore, some authorization certificates by January 1 or Am I Required to Comply With Any vessel or gear owners in Category III with renewed fishing licenses must Take Reduction Plan Regulations? fisheries may receive authorization contact the appropriate NMFS Regional Fishers participating in a Category I or certificates even though they are not Office (see ADDRESSES). II fishery are required to comply with required for Category III fisheries. Vessel or gear owners participating in any applicable TRP regulations. Table 4 Individuals fishing in Category I and II Southeast or Northeast regional fisheries in this final rule provides a list of fisheries for which no state or Federal may receive an authorization certificate fisheries affected by take reduction permit is required must register with by calling the relevant NMFS Regional teams and plans. Take reduction plan NMFS by contacting their appropriate Office or visiting the relevant NMFS regulations can be found at 50 CFR Regional Office (see ADDRESSES). Regional Office Web site (see ‘‘How Do 229.30 through 229.36. I Receive My Authorization Certificate How Do I Receive My Authorization and Injury/Mortality Reporting Forms’’). Sources of Information Reviewed for Certificate and Injury/Mortality the Final 2010 LOF Am I Required to Submit Reports When Reporting Forms? NMFS reviewed the marine mammal I Injure or Kill a Marine Mammal incidental serious injury and mortality All vessel or gear owners that During the Course of Commercial information presented in the SARs for participate in Pacific Islands, Fishing Operations? all observed fisheries to determine Southwest, Northwest, or Alaska In accordance with the MMPA (16 whether changes in fishery regional fisheries will receive their U.S.C. 1387(e)) and 50 CFR 229.6, any classification were warranted. The SARs authorization certificates and/or injury/ vessel owner or operator, or gear owner are based on the best scientific mortality reporting forms via U.S. mail, or operator (in the case of non-vessel information available at the time of or with their state or Federal license at fisheries), participating in a Category I, preparation, including the level of the time of renewal. Vessel or gear II, or III fishery must report to NMFS all serious injury and mortality of marine owners participating in the Northeast incidental injuries and mortalities of mammals that occurs incidental to and Southeast Regional Integrated marine mammals that occur during commercial fisheries and the PBR levels Registration Program will receive their commercial fishing operations. ‘‘Injury’’ of marine mammal stocks. The authorization certificates as follows: is defined in 50 CFR 229.2 as a wound information contained in the SARs is 1. Northeast Region vessel or gear or other physical harm. In addition, any reviewed by three regional Scientific owners participating in Category I or II marine mammal that ingests fishing gear Review Groups (SRGs) representing fisheries for which a state or Federal or any marine mammal that is released Alaska, the Pacific (including Hawaii), permit is required may receive their with fishing gear entangling, trailing, or and the U.S. Atlantic, Gulf of Mexico, authorization certificate and/or injury/ perforating any part of the body is and Caribbean. The SRGs were created mortality reporting form by contacting considered injured, regardless of the by the MMPA to review the science that the Northeast Regional Office at 978– presence of any wound or other informs the SARs, and to advise NMFS 281–9328 or by visiting the Northeast evidence of injury, and must be on marine mammal population status, Regional Office Web site (http:// reported. Injury/mortality reporting trends, and stock structure, www.nero.noaa.gov/protlres/mmap/ forms and instructions for submitting uncertainties in the science, research certificate.html) and following forms to NMFS can be downloaded needs, and other issues. instructions for printing the necessary from: http://www.nmfs.noaa.gov/pr/ NMFS also reviewed other sources of documents. pdfs/interactions/ new information, including marine mmaplreportinglform.pdf. Reporting mammal stranding data, observer 2. Southeast Region vessel or gear requirements and procedures can be program data, fisher self-reports, fishery owners participating in Category I or II found in 50 CFR 229.6. management plans, and ESA fisheries for which a state or Federal documents. permit is required will receive notice of Am I Required to Take an Observer The final LOF for 2010 was based, registry and may receive their Aboard My Vessel? among other things, on information authorization certificate and/or injury/ Fishers participating in a Category I or provided in the NEPA and ESA mortality reporting form by contacting II fishery are required to accommodate documents analyzing authorized high the Southeast Regional Office at 727– an observer aboard vessel(s) upon seas fisheries, and the final SARs for 551–5758 or by visiting the Southeast request. MMPA Section 118 states that 1996 (63 FR 60, January 2, 1998), 2001 Regional Office Web site (http:// an observer will not be placed on a (67 FR 10671, March 8, 2002), 2002 (68 sero.nmfs.noaa.gov/pr/pr.htm) and vessel if the facilities for quartering an FR 17920, April 14, 2003), 2003 (69 FR following instructions for printing the observer or performing observer 54262, September 8, 2004), 2004 (70 FR necessary documents. functions are inadequate or unsafe, 35397, June 20, 2005), 2005 (71 FR

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26340, May 4, 2006), 2006 (72 FR 12774, American Samoa longline vessels in 2008, there was an average of 135,757 March 19, 2007), 2007 (73 FR 21111, April 2006 to monitor protected species pounds (lbs) of fish landed each year. In April 18, 2008), and 2008 (74 FR 19530, interactions, with observer coverage 2008 alone, 104,152 lbs of fish were April 29, 2009). The SARs are available averaging approximately 6–8 percent landed. Currently, there is no reporting at http://www.nmfs.noaa.gov/pr/sars/. each year. system in place to document potential Under the limited entry program, marine mammal interactions in this Fishery Descriptions vessel operators must submit Federal fishery. However, there are anecdotal Beginning with the final 2008 LOF (72 longline logbooks, vessels over 40 ft reports of interactions off the north side FR 66048, November 27, 2007), NMFS (12.2 m) must carry observers if of the island of Maui, but the species describes each Category I and II fishery requested by NMFS, and vessels over 50 and extent of interactions are unknown. on the LOF. Below, NMFS describes the ft (15.2 m) must have an operational fisheries classified as Category I or II vessel monitoring system. In addition, Comments and Responses fisheries on the 2010 LOF that were not vessel owners and operators of vessels NMFS received 11 comment letters on classified as such on a previous LOF registered to an American Samoa the proposed 2010 LOF (74 FR 27739, (and therefore have not yet been defined longline limited entry permit must June 11, 2009). Comments were received on the LOF). Additional details for attend a protected species workshop from the California Department of Fish Category I and II fisheries operating in annually, carry and use dip nets, line and Game, California Wetfish Producers U.S. waters are included in the SARs, clippers, and bolt cutters, and follow Association, Center for Biological FMPs, and TRPs, or through state handling, resuscitation, and release Diversity, Columbia River Inter-Tribal agencies. Additional details for Category requirements for incidentally hooked or Fish Commission, Eighteen Western I and II fisheries operating on the high entangled sea turtles (70 FR 69282, Washington Indian Tribes, Garden State seas are included in various FMPs, November 15, 2005). There are existing Seafood Association, Hawaii Longline NEPA, or ESA documents. regulations intended to mitigate sea Association, Makah Tribal Council, Makah Tribe’s marine mammal American Samoa Longline Fishery turtle incidental hookings, and in 2009 the WPFMC recommended additional biologist, Marine Conservation Alliance, The Category II ‘‘American Samoa measures be implemented to minimize and Marine Mammal Commission. longline’’ fishery operates in waters interactions with green sea turtles, Comments on issues outside the scope around American Samoa targeting tuna including modifications to gear to place of the LOF were noted, but are not (mainly albacore, also skipjack, hooks below 100 m (328 ft) depth and responded to in this final rule. yellowfin and bigeye). Wahoo, sharks, to increase observer coverage (WPFMC billfish, and other miscellaneous pelagic Comments on Tribal Treaty Fisheries 144th Meeting, March 23–26, 2009). Inclusion on the 2010 LOF species are also caught, with most of the Current regulations include a sharks and billfish released. In 2000, the prohibition on U.S. vessels greater than During the public comment phase for ‘‘American Samoa longline’’ fishery 50 ft (15.2 m) in length from using the then-proposed 2009 LOF, NMFS began to expand rapidly with the influx longline gear within 50 nmi around the received a comment requesting the 2009 of large (more than 50 ft (15.2 m) overall islands of American Samoa. American LOF be amended to include tribal length) conventional monohull vessels, Samoa longline fishery regulations can fisheries. The commenter stated that ‘‘in similar to the type used in the Hawaii- be found at 50 CFR 665.36–38. light of the subsequent holding of the based longline fisheries. Vessels over 50 Ninth Circuit in Anderson v. ft (15.2 m) may set 1,500 2,500 hooks HI Shortline Fishery Evans...finding that the MMPA applies and have a greater fishing range and The Category II ‘‘HI shortline’’ fishery to the Makah application to the gray capacity for storing fish (8 40 metric is a small-scale system operating off the whale hunt NMFS’ 1995 conclusion tons). The fleet reached a peak of 66 State of HI, and targeting bigeye tuna exempting tribal fisheries from the LOF vessels in 2001, and set a peak of almost (Thunnus obesus) or the lustrous and the Section 118 authorization 7,000 sets in 2002. pomfret (Eumigistes illustris). This process is no longer valid’’ (73 FR The rapid expansion of longline fishery was developed to target these 73039, December 1, 2008; comment/ fishing effort within the EEZ waters fish species when they concentrate over response 4). In response to this 2009 around American Samoa prompted the the summit of Cross Seamount (290 km LOF comment, NMFS included a Western Pacific Fishery Management (180 mi) south of the State of HI). The request for public comment in the Council (WPFMC) to develop a limited gear style is designed specifically to proposed 2010 LOF (74 FR 27739, June entry system for the fishery, target the aggregating fish species over 11, 2009) on whether or not to include implemented by NMFS in 2005. Under seamount structures. The primary gear treaty tribal fisheries on future LOFs. the limited access program, NMFS type used is a horizontal main line Below, NMFS summarizes each issued a total of 60 initial longline (monofilament) less than 1 nmi long, comment received on the 2010 proposed limited entry permits in 2005 to and includes two baskets of LOF related to tribal fisheries and issues qualified candidates, spread among 4 approximately 50 hooks each. The gear one response following the collective vessel size classes (72 FR 10711, March is set before dawn and has a short soak tribal fisheries comments. 9, 2007): 22 permits issued in Class A time, with the gear retrieved about two Comment 1: The Center for Biological (less than or equal to 40 ft (12.2 m) hours after it is set. This fishery has no Diversity (CBD) reiterated a comment on length); 5 in Class B (40–50 ft (12.2–15.2 seasonal component and may operate the 2009 LOF (73 FR 73039, December m)); 12 in Class C (50–70 ft (15.2–21.3 year-round. There are no specific fishing 1, 2008; comment/response 4), noting m)); and 21 in Class D (more than 70 ft permits issued for this fishery. However, that in an earlier decision the Ninth (21.3 m)). The limited entry program all persons with a State of Hawaii Circuit Court of Appeals determined regulations cap the maximum number of Commercial Marine License (CML) may that MMPA requirements applied to the permits to the 60 initial permits issued. participate in any fishery, including the Makah application to hunt gray whales Permits may be transferred, upgraded, ‘‘HI shortline’’ fishery. Of those persons (Anderson v. Evans, 371 F.3d 475 (9th and renewed. In 2008, the American possessing CMLs, shortline Cir. 2004)). The CBD stated that the Samoa longline fishery had 28 active participation has changed from 5 to 11 decision demonstrated that MMPA vessels. Observers were first placed on vessels during 2003–2008. From 2003– requirements can be harmonized with

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treaty rights. Therefore, the CBD percent/year since the 1970s; WA/OR the panel opinion was incorrectly based encouraged NMFS to move forward stock of harbor seals has been stable on numerous fundamental errors in with determining how best to since 1996; Inland WA stock of harbor reaching its conclusion. In the Makah harmonize tribal fishing and treaty seals has been stable at carrying Tribe’s opinion, if NMFS were to extend rights with MMPA requirements such capacity since 1994; Outer coast stock of Anderson v. Evans to the LOF issue, it that all fisheries operating in US waters harbor porpoises has been stable; Inland would further reinforce the panel’s are included in the LOF and categorized WA stock of harbor porpoise 2002 numerous incorrect applications of as I, II or III, as appropriate. population estimate is three times more settled precedent and directly contradict Comment 2: The Marine Mammal than the 1996 estimate; Eastern stock of the United States’ ongoing disagreement Commission (MMC) recommended Steller sea lions increased 3.1 percent/ with the case. Moreover, the Makah NMFS (1) include tribal fisheries on the year (with regional variances); and WA Tribe concluded that it would LOF, (2) revise its regulations stock of sea otters increased at 8 substantially undermine the Makah’s implementing section 118 (e.g., 50 percent/year. and other western Washington Tribes’ C.F.R. § 229.1 (d)) to clarify that treaty Comment 4A: The Makah Indian treaty rights notwithstanding their tribal fisheries are subject to the Tribe outlined three arguments express protection by the 1994 requirements of the MMPA, including (comments 4A, 4B, and 4C in this final Amendments. The Makah Tribe section 118, and (3) begin working with rule) for the continued exclusion of believed such a decision would the affected tribes to integrate the treaty tribal fisheries from the LOF, contravene Congress’s express intent. registration process with existing based on its experience with the MMPA Comment 4C: The Makah Tribe’s third licensing or permitting systems if it and as a party to Anderson v. Evans. argument for the continued exclusion of appears that some tribal fisheries will be The Makah Indian Tribe also joined and treaty Tribal fisheries from the LOF was listed as category I or category II fully incorporated the comments in the that the Makah Tribe does and will fisheries. joint tribal letter submitted by eighteen continue to work with NMFS to protect Comment 3: The Makah Tribe other Western Washington treaty tribes marine mammals. The Makah Tribe presented data indicating that tribal (see comments 5A, 5B, and 5C in this noted that NMFS’ 1995 rule excluding incidental takes of marine mammals do final rule) asserting that NMFS’ 1995 treaty tribal fisheries from the LOF was not present any conservation issues rule interpreting the relationship based in part on the extensive notwithstanding NMFS’ 1995 decision between the Tribe’s treaty-reserved right cooperation between the tribes and to exclude treaty tribal fisheries from to take fish and Section 118 of the NMFS in managing tribal fisheries, the LOF. The Makah Tribe compiled MMPA has not been affected by including their interactions with marine data regarding incidental take in its Anderson v. Evans and continues to be mammals (See 60 FR at 45096, Aug. 30, treaty fisheries and requires that all valid. Therefore, the Makah Tribe 1995). The Makah Tribe noted that in mortality or injury resulting from an recommends that NMFS reaffirm its the 1995 final rule, NMFS found that incidental take, required in Makah 1995 decision that treaty tribal fisheries tribal self-regulation and cooperation Tribal regulations to be reported to the are not subject to the MMPA’s with NMFS were instrumental to the Tribe, and submits an annual report to mandatory registration and that treaty agency achieving its responsibilities to NMFS. Records of these reports have tribal fisheries will not be included in protect marine mammals. been kept since the Tribe hired a marine the LOF. Comment 5A: NMFS received two mammal biologist in 2003. In general The Makah Tribe’s first argument for separate letters, each representing the rate of incidental take of marine the continued exclusion of treaty tribal multiple Washington Indian tribes that mammals during fishing operations is fisheries from the LOF was that the were similar to each other in the low. From 2003–2009, the Makah Tribal proper reading of the 1994 MMPA arguments presented. Therefore, the two fisheries incidentally killed 12 harbor Amendments’ treaty savings clause comments presented in the two letters seals (1 in 2003, 6 in 2004, 4 in 2008, (section 14) protects incidental take of are summarized together below. The 1 in 2009), 1 Dall’s porpoise (in 2004), marine mammals by tribal fishers first letter represented the comments of 5 harbor porpoise (2 in 2004, 3 in 2008), because the treaty fishing right, as the Columbia River Inter-Tribal Fish 6 unknown small odontocetes (in 2005), understood by the Indian signatories, Commission (Nez Perce, Umatilla, 1 Steller sea lion (in 2008), 1 includes the right to take marine Warm Springs and Yakama Tribes), the unidentified sea lion (in 2008), and 2 mammals incidental to tribal fisheries. second letter represented the joint sea otters (in 2004). One unidentified Comment 4B: The Makah Tribe’s comments of eighteen Indian Tribes of whale and one gray whale were second argument for the continued western Washington State (Lummi successfully released after entanglement exclusion of treaty Tribal fisheries from Nation, Quinault Indian Nation, (in 2005 and 2009, respectively). the LOF was that Anderson v. Evans Swinomish Indian Tribal Community, The Makah tribe noted that, despite a was wrongly decided (a position which and Nooksack, Tulalip, Suquamish, long history of interactions between the United States has also repeatedly Squaxin Island, Nisqually, Puyallup, Makah Tribal fishers and marine expressed) and, therefore, should not be Sauk-Suiattle, Skokomish, Muckleshoot, mammals, these animals remain extended to the LOF. The Makah Tribe Port Gamble, Jamestown, Lower Elwha, abundant, as indicated by NMFS’ SARs. asserted that although Anderson v. Upper Skagit, Quileute, and Observed take of marine mammals by Evans addressed direct take of marine Stillaguamish Indian Tribes), the Makah Tribe’s treaty fisheries is well mammals such as the Makah gray whale collectively, the ‘‘Tribes.’’ The Tribes below PBR for each stock. In addition, hunt, by its own terms it does not apply outlined three arguments (comments populations of marine mammal stocks to the question of incidental take in 5A, 5B, and 5C in this final rule) which are most likely to interact with treaty tribal fisheries. Therefore, the asserting that NMFS’ 1995 conclusion Makah tribal fisheries have either Makah Tribe believed NMFS need not that treaty fisheries are properly increased or remained stable since the and should not extend the decision to excluded from the LOF (60 FR 45086, MMPA was amended in 1994 and the issues of mandatory registration and August 30, 2009; at 45096) was correct, NMFS determined that treaty tribal inclusion in the LOF. and remains correct. fisheries would not be included in the During the Anderson v. Evans case, The Tribes’ first argument was that LOF: CA sea lions have increased 5.6 the United States took the position that NMFS’ 1995 conclusion remains correct

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because the Tribes’ rights are reserved authority to regulate treaty fisheries of the MMPA specifically regulates by various treaties and the U.S. has under appropriate circumstances. incidental take of marine mammals by broad trust responsibility to the Tribes. Response: In the final rule commercial fishers. The court in Comment 5B: The Tribes’ second implementing section 118 of the MMPA Anderson v. Evans did not address the argument was that NMFS’ 1995 (60 FR 45086, August 30, 1995) NMFS treaty savings clause, which restricts the conclusion regarding Tribal fisheries concluded that treaty tribal fisheries are application of section 118 in the context remains correct because it is not affected conducted under the authority of Indian of tribal treaty rights. In addition, NMFS by the rulings of the Ninth Circuit in treaties; therefore, the MMPA’s continues to adhere to a policy of Anderson v. Evans. The Tribes asserted requirements in section 118 do not implementing the Federal trust that Anderson v. Evans involved the apply to treaty Indian tribal fisheries. responsibility by protecting treaty Makah Tribe’s exercise of its express NMFS explained this decision in the fishing rights of tribes. NMFS also will whaling rights in the Treaty of Neah 1995 final rule stating (the remaining continue to work closely with the Bay, and was wholly unrelated to the text in this paragraph is quoted directly affected tribal governments on a Makah Tribe’s - or any other Tribes’ - from the final rule at 60 FR 45086, government-to-government basis to treaty right to take fish. The Tribes August 30, 1995), ‘‘ the rights to fish and gather data on injuries and mortalities of argued that the Anderson v. Evans court hunt are already secured separately for marine mammals incidental to tribal did not address the applicability of the Northwest tribes pursuant to their fisheries. In light of the above, NMFS 1994 MMPA amendments to treaty treaties with the United States. NMFS did not include in the 2010 LOF the fisheries or the exercise of any other reviewed the relationship of the treaty tribal fisheries where tribal fishers treaty rights, but instead focused solely Northwest Indian treaties to the MMPA exercise their treaty-protected fishing on the applicability of the MMPA’s and did not find clear evidence that rights. general take prohibition, which has no Congress intended to abrogate treaty Based on the information presented in Indian treaty savings clause, to the Indian rights. Section 14 of the the final 2008 SARs and provided in Makah Tribe’s gray whale hunt. The Amendments to the MMPA (Public Law Indian Tribal self-reports, there is no Tribes asserted that as a result of the No. 103–238) states ‘‘Nothing in this indication that any marine mammal narrow scope of the case, the court did Act, including any amendments to the bycatch associated with tribal fisheries not address - nor did it have any reason Marine Mammal Protection Act of 1972 presents a biological concern for to address - the MMPA’s provisions made by this Act -- alters or is intended applicable stocks. In the event this governing incidental take of marine to alter any treaty between the United becomes an issue, NMFS would mammals in commercial fisheries, much States and one or more Indian tribes. ’’ consider invoking the treaty-rights less treaty tribal fisheries. In the Tribes’ This provision clarifies that existing principle of ‘‘conservation necessity’’ to opinion, because Anderson v. Evans did treaty Indian fishing rights are not protect marine mammals. not address Section 118 of the Act, the affected by the amendments to the The 2008 SARs show that nine 1994 amendments (including the treaty MMPA. Therefore, tribal fisheries are species have been or are incidentally savings clause) or the 1995 rule, it is conducted under the authority of the seriously injured and killed in Pacific inapplicable to the 2010 LOF Indian treaties rather than the MMPA, Northwest treaty tribe fisheries, though rulemaking. The Tribes also asserted and the MMPA’s mandatory registration many of these species have not been that the incidental take of marine systems do not apply to treaty Indian seriously injured or killed in recent mammals in treaty fisheries is well fishers operating in their usual and within the treaty rights protected by the accustomed fishing areas. Since years. All of the takes by tribal fisheries 1994 treaty savings clause, a statute inclusion of the treaty Indian fisheries listed in the 2008 SARs are from non- which must be construed liberally in in the LOF would also establish an depleted stocks of marine mammals. favor of the Indians. obligation to obtain an MMPA One take occurring after publication of Comment 5C: The Tribes’ third registration under section 118, NMFS the 2008 SARs was from a depleted argument was that NMFS’ 1995 has deleted reference to tribal fisheries stock. Below is a summary of the conclusion regarding Tribal fisheries in the LOF. The registration information provided in the 2008 SARs remains accurate because the Tribes’ requirements for Category I or II as well as information available from regulate their fisheries (including fisheries will not apply to treaty Indian tribal self-reporting since publication of interactions with marine mammals) and tribes.’’ (60 FR 45086, August 30, 1995.) the 2008 SARs. Please see the 2008 NMFS retains authority to regulate tribal NMFS considered the public SARs for more detailed information on fisheries should the principle of comments received on the proposed these stocks and/or their interactions conservation necessity deem it 2010 LOF, existing Indian treaties with treaty tribal fisheries. necessary. In the Tribes’ opinion, NMFS providing rights for tribal fisheries, the (1) California sea lions: Current need not take the radical step of statutory provisions and context of the estimates of annual serious injury or reversing its 1995 rule with respect to MMPA, and the legislative history of the mortality of this stock in tribal fisheries treaty tribal fisheries and the LOF 1994 amendments to the MMPA in is zero to two animals/year. The stock’s because, as a practical and legal matter, evaluating whether the 1995 decision to PBR level is 8,511. the agency is fully capable of protecting exempt treaty tribal fisheries from the (2) Harbor seal (OR/WA coast): The marine mammals under the existing LOF should be changed due to Northern WA marine set gillnet (tribal rule. Finally, the Tribes noted that, just Anderson v. Evans, 371 F.3d 475 (9th fishery in coastal waters) fishery as in 1995 when NMFS asserted its Cir. 2004). NMFS has determined that seriously injured or killed 3 harbor seals authority to regulate tribal fisheries the facts and holding of Anderson v. in 2000 and 6 in 2004. The PBR for this under the treaty rights principle of Evans do not alter NMFS’ original stock is 1,343 and the minimum total conservation necessity, NMFS retains analysis in the final rule implementing fishery mortality and serious injury is that option should the impact of treaty section 118 of the MMPA (60 FR 45086, less than 10 percent of the PBR. tribal fisheries on certain marine August 30, 1995). Anderson v. Evans Therefore, fishery mortality and serious mammal species reach the threshold to applied to directed hunt of marine injury appears to be insignificant and apply the conservation necessity mammals and not incidental take of approaching a zero mortality and principle. Thus, NMFS retains the marine mammals by fishers. Section 118 serious injury rate.

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(3) Harbor seal (WA inland waters): to 2004. The PBR for this stock is 318 increasing at an overall annual rate of The Puget Sound treaty and non-treaty and the minimum estimated fishery 3.1 percent throughout most of the range sockeye salmon gillnet fishery seriously mortality and serious injury for this (Oregon to southeastern Alaska), which injured or killed one harbor seal in stock appears to be less than 10 percent may indicate that this stock is reaching 1994. The PBR for this stock is 771 and of the PBR. Therefore, fishery mortality Optimum Sustainable Population size the minimum estimated fishery and serious injury appears to be (2008 SAR). mortality and serious injury for this insignificant and approaching a zero (3) In 2008, 3 harbor porpoises were stock appears to be less than 10 percent mortality and serious injury rate. killed in a Makah fishery. While the of the PBR. Therefore, fishery mortality (8) Sea otter (WA): Sea otters (WA) are stock is unknown, based on the and serious injury appears to be managed by the U.S. Fish and Wildlife geographic range of the stock and the insignificant and a approaching zero Service. According to the Service’s 2008 location of the Makah fisheries, the mortality and serious injury rate. SAR, the Makah Northern Washington animals were either part of the OR/WA (4) Harbor Porpoise (Northern CA/ marine set-gillnet fishery seriously coast stock or the WA Inland Waters Southern OR): One harbor porpoise injured or killed 11 sea otters over a stock. As stated above, the PBR for this mortality was documented for the period of 13 years between 1988 and OR/WA coast stock is 277 and the Klamath River tribal salmon gillnet 2001 (2008 SAR) and 2 sea otters in minimum estimated fishery mortality fishery in 1995. The PBR for this stock 2004 (Makah Indian Tribe self-report). and serious injury for this stock appears is 259 and the minimum estimated The stock has increased at a rate of 8 to be less than 10 percent of the PBR. fishery mortality and serious injury for percent since 1989. The PBR for this Therefore, fishery mortality and serious this stock appears to be less than 10 stock is 11 per year. The Service was injury appears to be insignificant and percent of the PBR. Therefore, fishery unable to determine whether the level of approaching zero mortality and serious mortality and serious injury appears to human-caused mortalities and serious injury rate. Also stated above, while the be insignificant and approaching a zero injuries are insignificant and status of the WA Inland Waters stock mortality and serious injury rate. approaching a zero mortality and relative to its Optimum Sustainable (5) Harbor Porpoise (OR/WA coast): serious injury rate, based on a lack of Population level and population trends The Northern WA marine set gillnet information on the level of all sources is unknown, the uncorrected estimate of (tribal fishery in coastal waters) fishery of human-caused serious injury and abundance in Washington inland waters seriously injured or killed 3 harbor mortality of this stock. However, the was significantly greater in 2002–2003 porpoise in 2000. In addition, 2 harbor current population estimate of 1,125 is than in 1996 (2008 SARs). porpoise (stock unknown) were reported above the lower end of the Optimum NMFS will continue to work closely killed in 2004 in a Makah Tribal fishery Sustainable Population (60 percent of with the affected tribal governments on (Makah Tribe self-reports). Based on the the maximum carrying capacity for the a government-to-government basis to range of the stock and the location of the stock) (2008 SAR). gather data on injuries and mortalities of Makah fisheries, the animals were either In addition to the information marine mammals incidental to tribal part of the OR/WA coast stock or the provided in the 2008 SARs, recent self- fisheries. WA Inland Waters stock. The PBR for reports from the Makah Indian Tribe General Comments this stock is 277 and the minimum show additional serious injury and estimated fishery mortality and serious mortality of marine mammal stocks not Comment 6: The MMC recommended, injury for this stock appears to be less yet represented in the SARs (see based on their recommendation that than 10 percent of the PBR. Therefore, comment 3 above). The Makah Indian tribal fisheries be included on the LOF fishery mortality and serious injury Tribe’s self-reported data indicate that (comment/response 2 above), that appears to be insignificant and Makah fisheries interacted with three NMFS notify all treaty tribes believed to approaching zero mortality and serious marine mammal stocks in 2008 and be engaged in hunting that any directed injury rate. 2009. taking of marine mammals requires (6) Harbor Porpoise (WA inland (1) In 2009, a gray whale was authorization under the MMPA. In waters): The Puget Sound treaty and entangled in a Makah fishery and reviewing the SARs prepared by NMFS non-treaty sockeye salmon gillnet released alive. The Eastern North Pacific under section 117 of the MMPA, the fishery seriously injured or killed one gray whales are currently considered to MMC noted that tribal hunting of harbor harbor porpoise in 1994. As stated be at the stock’s Optimum Sustainable seals and California sea lions is above, 2 harbor porpoise (stock Population size (2008 SAR). included as a possible source of unknown) were reported killed in 2004 (2) In 2008, a Steller sea lion was mortality. The MMC asserted that if in a Makah Tribal fishery (Makah Tribe killed in a Makah fishery. Based on the such hunting is in fact ongoing, it would self-reports). Based on the range of the geographical range of the species, this be subject to the same analysis as the stock and the location of the Makah animal was most likely from the Eastern proposed taking of gray whales at issue fisheries, the animals were either part of stock of Steller sea lions, which is listed in Anderson v. Evans and would the OR/WA coast stock or the WA as threatened under the ESA and presumably require authorization under Inland Waters stock. The PBR for this therefore considered depleted under the the MMPA. stock is 63. While the status of the WA MMPA. Based on currently available Response: NMFS acknowledges this Inland Waters stock relative to its data, the minimum estimated U. S. comment; however, this comment is not Optimum Sustainable Population level commercial fishery-related mortality applicable to the LOF rulemaking at and population trends is unknown, the and serious injury for Eastern Steller sea hand. The LOF categorizes fisheries uncorrected estimate of abundance in lions is less than that 10 percent of the based solely on the incidental, not Washington inland waters was stock’s PBR of 200 per year; therefore, intentional, serious injury and mortality significantly greater in 2002–2003 than fishery mortality and serious injury to marine mammals. However, this in 1996. appears to be insignificant and comment is relevant to the SARs (7) Dall’s Porpoise (CA/OR/WA): The approaching a zero mortality and rulemaking process; therefore, NMFS Puget Sound salmon drift gillnet tribal serious injury rate (2008 SAR). In will address this comment as part of the fishery seriously injured or killed one addition, the Eastern Steller sea lion comments received during the comment Dall’s porpoise in the period from 2000 population has been consistently period for the proposed 2009 SARs

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(June 26, 2009–September 24, 2009; these fisheries authorizing take under convening of such teams. The CBD overlapping with the comment period these statutes, or take appropriate asserted that Category I and II fisheries for the proposed 2010 LOF). enforcement action, including, as not yet subject to take reduction teams Comment 7: The MMC recommended necessary, closure of the fisheries, to which interact with strategic stocks NMFS incorporate into the applicable ensure such illegal take does not must have take reduction teams SARs language similar to that included continue to occur. promptly convened. The CBD viewed in the SAR for the Washington stock of Response: NMFS received a similar the Hawaii pelagic longline fishery as sea otters prepared by the U.S. Fish and comment on the 2009 LOF. As noted in the highest priority for such a team as Wildlife Service to clarify that, in NMFS’ response to comments in the take continues to exceed PBR for the accordance with the ruling in Anderson final 2009 LOF (73 FR 73032, December false killer whale. v. Evans, any such taking requires 1, 2008; comment/response 2), the Response: NMFS received similar authorization under the MMPA. CBD’s comment refers to how NMFS comments on the 2008 and 2009 LOFs. Response: NMFS acknowledges this authorizes takes of ESA listed marine As noted in the responses to comments comment; however, this comment is not mammals incidental to commercial on the 2008 LOF (72 FR 66048, applicable to the LOF rulemaking at fishing. The MMPA requires fishermen November 27, 2007; comment/response hand. This comment is relevant to the to obtain a permit granted under section 6) and 2009 LOF (73 FR 73032, SARs rulemaking process; therefore, 101(a)(5)(E) of the MMPA if they December 1, 2008; comment/response NMFS will address this comment as participate in a fishery that takes ESA- 3), at this time, NMFS’ resources for part of the comments received during listed marine mammals. A 101(a)(5)(E) TRTs are fully utilized and new TRTs the comment period for the proposed permit does not authorize the operation will be initiated when additional 2009 SARs (June 26, 2009–September of a fishery. Instead, a 101(a)(5)(E) resources become available. When 24, 2009; overlapping with the comment permit authorizes the incidental take of NMFS lacks sufficient funding to period for the proposed 2010 LOF). ESA-listed marine mammals in convene a TRT for all stocks that Comment 8: The Garden State commercial fisheries, if certain interact with Category I and II fisheries, Seafood Association (GSSA) requested provisions are met. Any incidental take NMFS will give highest priority for that NMFS provide the number of of an ESA-listed species in an otherwise developing and implementing new take vessels which reported landings for legally-operating fishery, without a reduction plans to species and stocks specific fisheries and gear types, along 101(a)(5)(E) permit, is not authorized. If whose level of incidental mortality and with estimated number of vessels or an ESA-listed species is taken by a persons in individual fisheries currently serious injury exceeds PBR, has a small fishermen in a fishery that has not been population size, and are declining most reported on the LOF. The GSSA noted granted a MMPA 101(a)(5)(E) permit, that this information would be rapidly, pursuant to MMPA section then the fisher may be subject to 118(f)(3). specifically pertinent when considering enforcement proceedings. the ‘‘Mid Atlantic mid-water trawl’’ NMFS acknowledges that the LOF Comment 11: The CBD reiterated a fishery and the ‘‘Northeast mid-water includes fisheries in which ESA-listed comment made on the 2009 LOF that trawl’’ fishery. The GSSA stated that species are listed as incidentally killed the LOF once again includes ‘‘Marine recently the number of vessels who or injured, but for which NMFS has not Aquaculture Fisheries’’ as Category III reported landings using a mid-water issued a permit under section fisheries. As stated in the past, the CBD trawl in the Mid-Atlantic was 101(a)(5)(E) of the MMPA. To issue a does not believe aquaculture facilities approximately 17 vessels. permit under section 101(a)(5)(E) of the are properly considered ‘‘commercial Response: NMFS agrees that MMPA, NMFS must determine that (1) fishing operations’’ eligible for the take including information on the number of the incidental mortality and serious authorization contained in Section 118 vessels landing catches to compare to injury from commercial fisheries will of the MMPA. The CBD asserted that the estimated number of permit holders have a negligible impact on such species these facilities and activities, to the could be helpful for providing an and stocks; (2) a recovery plan has been degree they interact with marine accurate description of effort in each developed or is being developed for mammals, should be subject to the take fishery. However, while this such species or stock pursuant to the prohibitions and permitting regimes information is readily available for some ESA; and (3) where required under contained in Section 101 of the MMPA. fisheries, gathering this information in section 118 of the MMPA, a monitoring Response: NMFS received a similar other fisheries may be more program is established, vessels engaged comment on the 2009 LOF. As noted in complicated. It is unclear if the in such fisheries are registered, and a the responses to comments on the 2009 information would be readily available take reduction plan has been developed LOF (73 FR 73032, December 1, 2008; from state agencies. NMFS will consult or is being developed for such species comment/response 5), eight aquaculture with the responsible state agencies and or stock. NMFS is continuing this fisheries are listed on the MMPA LOF, consider incorporating this additional process of making these determinations all as Category III fisheries. NMFS’ data for each fishery in future LOFs. in various fisheries on the LOF. Since regulations implementing section 118 of Comment 9: The CBD reiterated a the publication of the final 2009 LOF, the MMPA (50 CFR 229) specifically comment made on the 2009 LOF that NMFS has been reviewing available include aquaculture as a commercial the LOF lists over 40 fisheries that are bycatch data for ESA-listed species in fishing operation. The regulations in 50 known to interact with ESA-listed fisheries on the LOF. CFR 229.2 define a ‘‘commercial fishing marine mammals. Only one fishery, the Comment 10: The CBD reiterated a operation’’ as ‘‘the catching, taking, or ‘‘CA/OR thresher shark/swordfish drift comment made on the 2008 and 2009 harvesting of fish from the marine gillnet’’ fishery, has authorization to LOFs that the proposed 2010 LOF environment * * * The term includes take ESA-listed marine mammals. The includes a table of fisheries subject to * * * aquaculture activities.’’ Further, CBD asserted that each of the other take reduction teams. While CBD found ‘‘fishing or to fish’’ is defined as ‘‘any fisheries is therefore operating in this table is very useful, they noted that commercial fishing operation.’’ violation of the both the ESA and there are Category I and II fisheries not Therefore, aquaculture fisheries are MMPA. The CBD further asserted that yet subject to take reduction teams that considered commercial fisheries that are NMFS must either issue permits for also meet the statutory criteria for the managed under section 118 of the

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MMPA, including inclusion on the categorization process which is classifying U.S. commercial fisheries. A annual LOF. completely ignored by NMFS. The MCA full copy of the updated 2005 EA can be Comment 12: Consistent with its asserted that the formula NMFS has found at http://www.nmfs.noaa.gov/pr/ recommendations regarding the 2005 developed for placing fisheries into pdfs/interactions/loflea.pdf. through 2009 LOFs, the MMC reiterated Category I, II, or III is arbitrary and The fishery classification criteria its previous recommendation that capricious and may well violate the consider the rate of incidental serious NMFS indicate the level of observer equal protection and due process injury and mortality of marine mammals coverage for each fishery as part of the clauses of the U.S. Constitution. The in commercial fisheries on a stock LOF. MCA asserted that if a fishery is the specific basis. Therefore, the rate of Response: NMFS received similar only one interacting with a strategic interaction of a fishery with a marine comments on the 2005 through 2009 marine mammal stock and it is mammal stock with a low PBR can be LOFs. As noted in the responses to responsible for the serious injury or significant even if it appears to be a comments on the 2005 LOF (71 FR 247, death of 1 percent of the PBR, the minimal problem based on the size of January 2, 2006; comment/response 6), fishery is placed into Category III and the fishery or frequency of the 2006 LOF (71 FR 48802, August 22, subject to no further regulation under interactions. The chosen approach 2006; comment response 4), 2007 LOF this section of the MMPA. However, the allows NMFS to focus management (72 FR 14466, March 28, 2007; MCA stated that if a second and new actions where fishery interactions have comment/response 8), 2008 LOF (72 FR fishery enters the scene and it is a significant negative effect on the 66048, November 27, 2007; comment/ responsible for taking 10 percent or population. In addition to the 1 percent response 4), and 2009 LOF (73 FR more of the PBR, then the first fishery, threshold, the definitions of Category II 73032, December 1, 2008; comment/ which a moment ago was determined to and III fisheries include qualitative response 1), NMFS continues to feel that be having no impact on the marine criteria that allow the Assistant the LOF is not the appropriate avenue mammal stock, is suddenly transformed Administrator for Fisheries to place a for reporting this data because it will into a fishery having a significant fishery into Category II or III in the confuse rather than clarify if presented impact and a fishery that must be absence of reliable information. These without all the associated information subject to additional regulation as a qualitative criteria will allow the supplied in the SARs. Also, the LOF is Category II fishery. The MCA asserted Assistant Administrator to take into not meant to be redundant to the SARs, that the regulations provide that if only consideration cases where the PBR level but to base fishery classifications based one fishery is interacting with a strategic for a particular stock is very low and/ on the information presented in the marine mammal stock, and it is or where the level of incidental SARs. responsible for 10 percent or less of the interaction with commercial fisheries is NMFS continues to agree that PBR, then it is a Category III fishery low and not likely to delay the observer coverage information would be since it, together with all other fisheries population’s attainment of its Optimum useful for the reader to reference when interacting with that marine mammal Sustainable Population. See the general determining whether a given fishery description of the two-tiered scheme was adequately observed and no marine stock, is responsible for the serious injury and mortality of 10 percent or and qualitative criteria that may be used mammals were taken or the fishery was to classify a fishery in the preamble in not adequately observed and mortality less of the PBR. The MCA asserts that classifying fisheries into Categories II or this rule under Fishery Classification and serious injury may have occurred Criteria. but were not documented. Therefore, III based on such methodology is NMFS is developing summaries for each inconsistent and arbitrary. Comments on High Seas Fisheries Category I and II fishery on the LOF, Response: The current fishery Comment 14: The CBD reiterated which include a description of each classification system continues to be previous concerns that the Commission fishery, the history of the fishery and it’s widely accepted as accurate by NMFS, for the Conservation of Antarctic Marine interactions with marine mammals, and the scientific community, Living Resources (CCAMLR) fisheries the level of observer coverage in recent environmental organizations and the are listed in the LOF as Category II years. When completed, these fishing industry. As noted in a response fisheries. The CBD asserted that the summaries will be placed on the NMFS to a similar comment on the 2008 LOF CCAMLR trawl fishery for krill should Office of Protected Resources website (72 FR 66048, November 27, 2007; be listed as Category I. The CBD noted for easy public access, the citation for comment/response 7), NMFS that a 2006 Federal Register notice which will be included in each LOF. implemented the LOF fishery indicated that observer data from three NMFS hopes to have these summaries classification criteria in the final vessels, including a U.S. flagged vessel, available for reference during the public regulations to implement the 1994 reported that 95 fur seals were caught in comment period on the 2011 LOF. amendments to the MMPA (60 FR the 2004/2005 season and 156 fur seals NMFS also continues to refer readers 45086, August 30, 1995) after ample were caught in the 2003/2004 season in to the SARs and the National Observer consideration of comments and two CCAMLR areas (71 FR 39642, Program for information on observer suggestions from the public. NMFS 39646, July 13, 2006). The CBD also coverage. The SARs can be accessed refers the reader to the response to noted that the Final Programmatic through the NMFS Office of Protected comments 5 through 9 in that rule for Environmental Impact Statement (EIS) Resources’ Web site at http:// a detailed explanation of the reasoning for CCAMLR fisheries noted that a www.nmfs.noaa.gov/pr.sars/. for setting the dividing thresholds single U.S.-flagged krill vessel killed Additional information can also be between Category II and III as 1 percent 138 Antarctic fur seals in a five-week found on the National Observer Program of PBR. NMFS also finalized an period in 2004. The CBD asserted that Web site at http://www.st.nmfs.gov/st4/ Environmental Assessment (EA) in this fishery is clearly not operating at a nop/. August 1995, to analyze the impacts of ‘‘zero mortality and serious injury rate’’ Comment 13: The Marine the regulations implementing the 1994 and must be listed in the LOF as a Conservation Alliance (MCA) stated that amendments on the environment and Category I fishery. there is a significant legal and structural the public. NMFS finalized a revised EA Response: NMFS received similar issue associated with the fishery in December 2005 on the process of comments on the 2008 and 2009 LOFs.

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As noted in the responses to comments Comment 15: In comments on the require novel stock assessment on the 2008 LOF (72 FR 66048, proposed 2009 LOF, the CBD raised the techniques and the development, and/or November 27, 2007; comment/response concern that NMFS was treating single continuation, of international 5) and 2009 LOF (73 FR 73032, fisheries that have both a high seas and partnerships (please see the 2009 LOF, December 1, 2008; comment/response within-EEZ component as two separate 74 FR 73032, December 1, 2008; 9), and in the final rule implementing fisheries for LOF purposes. The CBD comment/response 8). NMFS is measures adopted by CCAMLR (72 FR was pleased that NMFS has clarified currently developing a strategic action 48496, August 23, 2007; comment/ that the high seas operations of certain plan for addressing international marine response 29), the CCAMLR trawl fishery fisheries are extensions or components mammal conservation issues, including for krill does not qualify as a Category of existing fisheries operating in U.S. the need to gather the necessary data I fishery. waters and therefore injure and kill the and strengthen international To be considered Category I, a fishery same marine mammal species and share partnerships to effectively manage must have a serious injury or mortality the same LOF category. The CBD noted marine mammal bycatch in domestic rate of marine mammals at greater than that this change reduces the risk that the and foreign high seas fisheries. 50 percent of a stock’s PBR level (50 total marine mammal take from such a Comment 17: The Hawaii Longline CFR 229.2). While NMFS does not have fishery may be inappropriately Association (HLA) stated that NMFS sufficient information to calculate PBR apportioned into two separate fisheries should use fishery- and marine level for marine mammal stocks found (the high seas and non-high seas mammal-specific information to classify high seas fisheries according to their outside of the U.S. waters, including components of a single fishery) and interactions and, where such Antarctic fur seals, there is available therefore result in an underestimation of information is not available, should information on the relative abundance the true environmental effect, and LOF designate high seas fisheries as Category of this species. The relative abundance classification, of what is more properly II regardless of the classification of their of Antarctic fur seals was estimated as considered a single fishery. Response: NMFS will continue to EEZ components. The HLA asserted 1.5 million in 1990 and is thought to include language in the preamble of that, as a threshold matter, the proposed have since increased to over 4 million future LOFs to clarify that many LOF arbitrarily and inaccurately (CCAMLR Final Programmatic EIS, fisheries operate in both U.S. waters and justifies its categorization of the high October 2006). Further, at the 2006 on the high seas, creating some overlap seas deep-set fishery on the assumption Antarctic Treaty Consultative Meeting, between the fisheries listed in Tables 1 that the fishery interacts with the so- the Antarctic Treaty Parties delisted the and 2 and those in Table 3. In these called ‘‘pelagic’’ false killer whale stock. Antarctic fur seal from its listed of cases, the high seas component of the The HLA noted that by NMFS’s Specially Protected Species. The fishery is not considered a separate definition, the ‘‘pelagic’’ false killer delisting reflected the much-increased fishery, but an extension of the same whale stock occurs only in the U.S. EEZ abundance of fur seals. In 2003/2004, a fishery operating within U.S. waters - an area that does not include the high total of 158 Antarctic fur seals were (listed in Table 1 or 2). NMFS will seas. The HLA stated that NMFS is observed taken by the single U.S.- continue to designate those fisheries in arbitrarily picking and choosing when permitted trawl krill fishing vessel in Tables 1, 2, and 3 by an ‘‘*’’ after the and where it will split or combine the CCAMLR region, 142 of which were fishery’s name. artificially-constructed false killer whale mortalities. As a result, a permit Comment 16: The MMC supported stocks for purposes of estimating provision was added requiring the use NMFS’ inclusion of high-seas fisheries abundance and establishing a given of a seal excluder device and any other on the LOF. The MMC noted that the fishery’s rate of interaction with the gear modifications or fishing practice descriptions and evaluations of high- stock (and, hence, the fishery’s LOF that reduces or eliminates Antarctic fur seas fisheries on the LOF highlight the categorization). The HLA asserted that seal bycatch. In the 2004/2005 fishing lack of data on both the status and the either NMFS must acknowledge that all season the U.S. vessel used the required incidental take of marine mammals false killer whales outside the ‘‘insular’’ seal excluder device; and, as a result, 24 outside the U.S. EEZ, a lack of data that zone belong to the Eastern North Pacific Antarctic fur seals were incidentally is not surprising because current U.S. stock, the size of which is unknown, or taken, 16 of which were mortalities marine mammal stock assessment it must consistently apply its arbitrary (2005 Report of the CCAMLR Scientific programs are focused on U.S. waters. and scientifically unsound ‘‘pelagic’’ Committee). This modification would be The MMC commented that gathering stock definition. a requirement of any CCAMLR fishing data to support the management of high- The HLA also commented that recent permit NMFS would issue to the vessel. seas fisheries will be difficult but will reports call into question the proposed Ninety-five fur seals were reported provide many ancillary benefits, LOF’s assumption that the high seas caught during fishing operations in including the development of useful deep-set fishery interacts with 2005/2006, during which time no U.S. tools for managing transboundary noncoastal marine mammals to the same krill trawl vessel was operating. Given stocks. Therefore, the MMC reiterated extent as the U.S. EEZ fishery (Forney the large estimated abundance of its previous recommendation that and McCracken, 2008), and suggest that Antarctic fur seals, the current low rate NMFS develop and implement the false killer whales may be sufficiently of incidental serious injury and research and monitoring programs abundant on the high seas between mortality would likely be well below 50 needed to manage high-seas fisheries in Hawaii and Palmyra Atoll that already percent of PBR if NMFS were to a manner consistent with the low deep-set fishery interaction rates calculate a PBR for this stock. Therefore, requirements of the MMPA and the may warrant at least a Category II the fishery does not qualify as a High Seas Driftnet Fishing Moratorium classification (Barlow and Rankin, Category I fishery. In addition, no U.S. Protection Act. 2007). vessels have participated in this fishery Response: NMFS continues to agree Response: This comment questions: in recent years and NMFS has not that the development of a research and (1) NMFS’ criteria for classifying high received any requests for a permit to monitoring plan to manage high seas seas fisheries in general; (2) The manner participate in this fishery in the fisheries in a manner consistent with in which NMFS classifies the high seas upcoming fishing season. the requirements of the MMPA will portion of the HI-based deep-set

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longline fishery (the ‘‘Western Pacific categorized on the LOF at its highest level of bycatch by international vessels pelagic deep-set longline’’) based on level of classification (e.g., a fishery on the high seas, take rates by U.S. serious injury and mortality levels of qualifying for Category II for one marine vessels on the high seas (0.78 animals false killer whales (HI pelagic stock); mammal stock and a Category I for per 1000 sets) are similar to take rates and (3) Information regarding false killer another stock, will be listed as Category by U.S. vessels within the Hawaiian whale stock delineation, and false killer I). This also applies to fisheries that EEZ (0.71 per 1000 sets) (Forney and whale abundance and fishery takes on operate over a large geographic range. Kobayashi, 2007). No complete the high seas. NMFS responded to a The entire fishery is categorized on the abundance estimate for false killer similar comment in the final 2009 LOF LOF at its highest level of classification, whales on the high seas is available, but (73 FR 73032, December 1, 2008; regardless of where marine mammal an estimate made for part of the high comment/response 11). interactions occur within the fishery’s seas range of these fisheries is 906 (C.V. (1) The first part of this comment range. Since the ‘‘Western Pacific = 0.68), which would result in a PBR of questioned NMFS’ criteria for pelagic deep-set longline’’ and ‘‘HI 5.2 false killer whales for all U.S. and classifying high seas fisheries. NMFS deep-set (tuna target)’’ are two international fisheries combined. The agrees that fisheries should be classified components of the same fishery, estimated mortality and serious injury on the LOF according to their distinguished from each other only by of false killer whales by U.S. vessels interactions with marine mammals. which side of the 200 nmi EEZ operating on the high seas is 5.4 animals Although information on interaction boundary they operate, and the per year (Draft 2009 SAR), which rates (per trip or per set) are available component of the fishery operating in already exceeds the PBR, without taking for the high seas deep-set and shallow- U.S. waters is classified as Category I, into account international takes. set fisheries, PBR levels for marine the high seas component of the fishery Comment 18: The HLA stated that the mammal stocks on the high seas are not is also classified as Category I. proposed 2010 LOF nowhere mentions available. This is because, as mandated If NMFS receives information longline fishing in and around Palmyra by Section 117 of the MMPA (16 U.S.C. indicating that the high seas component Atoll, Johnston Atoll and other U.S. 1386), NMFS prepares SARs and of a fishery operates significantly possessions in the Pacific Ocean. The calculates PBR levels for marine differently than the component HLA noted that the 2008 false killer mammal stocks occurring ‘‘in waters operating within U.S. waters, NMFS whale SAR estimates a population size under the jurisdiction of the United would consider splitting that fishery of 1,329 animals for the Palmyra Atoll States.’’ NMFS does not generally into two fisheries. However, the fishing stock, butt is not clear how the proposed develop SARs or calculate PBR levels operations of the high seas component 2010 LOF takes into account, in any for stocks on the high seas; therefore, of this fishery are not significantly manner, longline fishing in U.S. waters NMFS does not possess the same different than fishing operations within around these possessions. The HLA information to categorize high seas the U.S. EEZ, and a single vessel may asked if the proposed LOF intended to fisheries as is used to categorize set both within the U.S. EEZ waters and include these animals in its ‘‘pelagic’’ fisheries operating within U.S. waters. on the high seas. Therefore, splitting false killer whale stock definition? Or, As stated in the preamble of the these components into separate are fisheries in these areas considered proposed 2010 LOF (74 FR 27739, June fisheries, and classifying them part of the deep-set fishery or a separate 11, 2009), many fisheries operate in separately, is not warranted. longline fishery (which then should be both U.S. waters and on the high seas, (3) The third part of this comment is separately categorized)? The HLA then and fishing gears and methods in these related to information regarding false asked, if the former, why is the fishery fisheries remain virtually unchanged on killer whale stock delineation, and false categorized based only upon a either side of the 200 nmi EEZ killer whale abundance and fishery population estimate and PBR that does boundary. In these cases, the high seas takes on the high seas. The commenter not include the Palmyra population component of the fishery (Table 3) is not is correct in that NMFS currently estimate? The HLA asserted that NMFS considered a separate fishery, but an defines the pelagic stock of false killer should clarify these issues in the final extension of a fishery operating within whales as occurring from 75nmi to the 2010 LOF, particularly because false U.S. waters (listed in Table 1 or 2). EEZ boundary (2008 SAR). However, killer whale stock estimates exist for NMFS designates those fisheries in these animals are thought to move Palmyra Atoll and Johnston Atoll and Tables 1, 2, and 3 by a ‘‘*’’ after the across the EEZ boundary into the high could be used to derive a PBR that could fishery’s name. While NMFS recognizes seas. NMFS truncated the stock be measured against observer data for it is somewhat confusing to include boundary as ending at the 200nmi EEZ longline fishing in those waters. different components of the same line because of the mandate in section Response: As stated in the response to fishery in two tables on the LOF, listing 117 of the MMPA (16 U.S.C. 1386) for a similar comment on the 2009 LOF (73 the two components separately on two NMFS to create SARs and calculate PBR FR 73032, December 1, 2008; comment/ tables is necessary because of levels for marine mammal stocks response 12), NMFS considers U.S. differences in the Federal permitting occurring ‘‘in waters under the vessels deep-set longline fishing in U.S. systems for vessels permitted to operate jurisdiction of the United States.’’ While waters around Palmyra Atoll, Johnston only within U.S. waters versus those NMFS does not gather detailed Atoll, and other U.S. Territories in the permitted to operate within U.S. waters abundance information for the entire Pacific Ocean as operating in the same and on the high seas. range of Hawaiian false killer whales, fishery, the ‘‘HI deep-set (tuna target) (2) The second part of this comment NMFS has estimated the density of false fishery’’ (and/or its high seas questioned the manner in which NMFS killer whales on the high seas within the component, the ‘‘Western Pacific classifies the high seas portion of the HI- area of operation of U.S. longline pelagic deep-set longline’’). The fishery based deep-set longline fishery (the fisheries to be 0.049 animals per 100 description provided in the final 2008 ‘‘Western Pacific pelagic deep-set km2, which is not dramatically different LOF (72 FR 66048, November 27, 2007), longline’’) based on serious injury and than the density within the Hawaiian states that Hawaii-based longline fishing mortality levels of false killer whales (HI EEZ (0.022 animals per 100 km2) effort takes place over a huge geographic pelagic stock). As stated in the preamble (Barlow and Rankin 2007). Also, while range extending north-south from 40° N. of the proposed 2010 LOF, a fishery is NMFS does not have information on the lat. to the equator and east-west from

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Kure Atoll to as far as 135° W. long., respect to the two fisheries at issue, the humpback whales to other fisheries. The with fishing for tunas primarily data and analyses on which NMFS MCA noted that the SAR never occurring around the main Hawaiian relied to calculate the PBR and mortality mentions the ‘‘BSAI Pollock trawl’’ Islands and south of the Hawaiian and serious injury rates are flawed. The fishery as causing humpback whale Islands. MCA further stated that by utilizing this deaths or serious injury (final 2008 SAR In the final 2008 SARs, there were flawed data, NMFS has seemingly made at page 165, 173). The MCA asserted three recognized false killer whale an arbitrary and capricious decision not that since the LOF is based on the SAR, stocks in the Pacific Islands region, to use the best scientific data available. the ‘‘BSAI Pollock trawl’’ fishery cannot including the Palmyra stock: (1) the The MCA provided reasoning, be placed in Category II based on Hawaii insular stock, and (2) the Hawaii research results, and literature citations humpback whale interactions that are pelagic stock, and (3) the Palmyra stock. to support the assertion that the data not reported in the SAR. The status of false killer whales in used for stock delineations, PBR Response: The classification of a Palmyra Atoll EEZ waters relative to the calculations, and mortality and serious fishery as a Category II fishery is based Optimal Sustainable Population is injury calculations in the final 2008 on the annual mortality and serious unknown, and there are insufficient SARs (for the marine mammal stocks injury of a stock in a given fishery data to evaluate trends in abundance. listed in the previous paragraph) are exceeding 1 percent and less than 50 The rate of mortality and serious injury flawed. The MCA stated that NMFS percent of the PBR level (72 FR 66048, to false killer whales within the Palmyra double counts mortalities and injuries 27 November 2007). While there are Atoll EEZ in the Hawaii-based longline because of the procedure NMFS uses to known historical interactions between fishery (0.3 animals per year) does not calculate marine mammal bycatch the BSAI pollock trawl fishery and the exceed the PBR (6.4) for this stock. The (including incorporating all observed central and western North Pacific stocks total fishery mortality and serious injury and unobserved fishing sets into of humpback whales, these interactions for Palmyra Atoll false killer whales is analyses and counting mortality and are not the basis for classifying the less than 10 percent of PBR. Additional serious injury twice for certain stocks). ‘‘BSAI Pollock trawl’’ fishery as a injury and mortality of false killer The MCA commented that relying on Category II fishery (i.e., the level of whales is known to occur in U.S and the flawed SARs has caused NMFS to serious injury and mortality of these international longline fishing operations understate the PBR for marine mammal stocks in the ‘‘BSAI Pollock trawl’’ in international waters, and the stocks. The MCA asserted that the errors fishery is below 1 percent of the stocks’ potential effect on the Palmyra stock is in the PBR calculations in the SARs PBR levels). The continued inclusion of unknown. require that these errors be corrected the superscript ‘‘1’’ following these The ‘‘HI deep-set (tuna target) and PBRs recalculated before NMFS stocks in this fishery on Table 1 was a longline’’ fishery is classified as a proceeds with any final LOF typographical error, which NMFS has Category I fishery based on its designations. corrected in this final rule. The Tier 1 interactions resulting in serious injury Response: NMFS acknowledges this approach to classifying fisheries and mortality levels that exceed the PBR comment; however, this comment is not considers the cumulative fishery of the Hawaii pelagic stock of false killer applicable to the LOF rulemaking mortality and serious injury for a whales. As noted in the response to process at hand. This comment is particular stock; however, Tier 2 comment 17, a fishery is categorized on concerned with the calculation of PBRs classification of fisheries considers the LOF based at its highest level of and mortality and serious injury rates, fishery-specific mortality and serious classification. Therefore, while the rate which NMFS’ reports in the annual injury for a particular stock. A fishery is of mortality and serious injury to false SARs. NMFS then categorizes fisheries typically categorized on the LOF at its killer whales within the Palmyra Atoll on the LOF based on the information highest level of classification. In the EEZ in the Hawaii-based longline presented in the SARs. NMFS does not ‘‘BSAI Pollock trawl’’ fishery, the fishery does not warrant a Category I complete any PBR or serious injury and estimated annual level of serious injury classification, the fishery remains a mortality-related analysis in the LOF and mortality of the Eastern North Category I based on serious injury and rulemaking process. Also, this comment Pacific, Gulf of Alaska, Aleutian Islands, mortality levels of the pelagic stock of references information in the final 2008 and Bering Sea transient killer whale false killer whales. SARs, which is not relevant to the stock is 0.4, or 12.9 percent of PBR (PBR proposed 2009 SARs rulemaking public Commercial Fisheries in the Pacific is 3.1), and the western Steller sea lion comment period that overlapped with Ocean stock is 3.8, or 1.6 percent of PBR (PBR the proposed 2010 LOF comment period is 234). Therefore, this fishery is Comment 19: The MCA believed that and was therefore not directed to the classified as a Category II fishery under NMFS’ proposed 2010 classification of SARs for consideration in the 2009 the Tier 2 approach to fishery fisheries incorrectly designates the SARs rulemaking process. The classification. ‘‘Bering Sea Aleutian Islands (‘‘BSAI’’) commenter may resubmit these Comment 21: The MMC and the CBD Pollock trawl’’ and the ‘‘BSAI flatfish comments during the next SARs open recommended the ‘‘Gulf of Alaska trawl’’ fisheries as Category II fisheries. public comment period. sablefish longline’’ fishery be elevated The MCA noted that the ‘‘BSAI flatfish Comment 20: The MCA stated that above a Category III. The CBD based this trawl’’ fishery is classified as Category II there is a serious disconnect between recommendation on frequent because of interactions with the western the proposed 2010 LOF and the SARs. interactions with sperm and killer stock of Steller sea lions, and the ‘‘BSAI In the proposed 2010 LOF, NMFS stated whales, qualifying this fishery for Pollock trawl’’ fishery is classified as the ‘‘BSAI Pollock trawl’’ fishery is Category I or II. The MMC noted the Category II because of interactions with placed into Category II in part because 2008 SARs indicate that observers the western stock of Steller sea lions; of interactions with the central and reported that three sperm whales were eastern North Pacific, Gulf of Alaska, western North Pacific stocks of seriously injured in this fishery in 2006. BSAI transient killer whales; central humpback whales (74 FR at 27752, June The MMC asserted that, given the North Pacific humpback whales; and 11, 2009). The MCA stated that the SAR estimated number of injuries or deaths western North Pacific humpback assigns 100 percent of the fisheries based on 2002 to 2006 data, NMFS’ whales. The MCA stated that, with related mortality for these two stocks of inability to calculate a potential

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biological removal level for the North regarding humpback whale takes. The along is not reason for classifying a Pacific sperm whale stock is not a MMC noted that high levels of fishery as Category II. sufficient basis for maintaining the entanglement-related scarring have been Comment 23: The CBD asserted that current Category III classification for documented for humpback whales in all other Alaska pot fisheries should be this fishery. The MMC further noted Alaska. The MMC further noted that the classified as Category II rather than that NMFS is unable to estimate PBR lack of evidence for interactions does Category III. levels for 57 percent of the marine not provide a reliable basis for Response: Categorization of mammal stocks that occur in Alaska reclassifying this fishery to category III individual Alaska fisheries in Category because of inadequate or outdated data. if NMFS has failed to institute an II due to interactions with humpback The MMC asserted that NMFS cannot observer program for it. The MMC stated whales are based on documented continue to use this lack of information that given that the fishery has no serious injury and mortality levels of as the basis for failing to classify observer coverage and analogous humpback whales in each of those fisheries that incidentally kill or fisheries are known to seriously injure fisheries, including the ‘‘AK Bering Sea seriously injure marine mammals. Doing humpback whales, NMFS should sablefish pot’’ fishery. Other Alaska pot, so is inconsistent with NMFS’ own maintain the fishery’s Category II ring net, or trap fisheries either have no guidance for addressing such situations, classification. documented humpback whale serious which directs placement in category II Response: In this case a 15–year lack injuries or mortalities or have low levels when the available information is not of evidence of serious injury and that do not meet the Category II sufficient to categorize a fishery mortality in this fishery, even in the requirements. Comment 24: The HLA supported the accurately (74 FR at 27740, June 11, absence of an observer program, is re-labeling of the false killer whale stock 2009). enough to warrant its re-categorization. with which the deep-set fishery Response: NMFS received similar Under the annual LOF, fishery interacts as the ‘‘HI pelagic’’ stock (as comments on the 2009 LOF (73 FR categories are assigned via NMFS’ well- 73032, December 1, 2008; comment/ opposed to the ‘‘HI’’ stock), but only documented process of analyzing insofar as this change purports to response 22). The PBR level for the known or estimated levels of serious North Pacific sperm whale stock is distinguish the false killer whale injury and mortalities relative to a ‘‘pelagic’’ stock from the false killer unknown because a reliable abundance stock’s PBR. In some cases, a fishery estimate is not available. NMFS is in the whale ‘‘insular’’ stock. As HLA has with no recent documented injuries or repeatedly commented (including process of analyzing bycatch data from mortalities of marine mammals may be 2007 and 2008 and will re-evaluate the comments submitted on the draft 2008 classified in Category II by analogy to category placement for the ‘‘Gulf of SARs), the HLA believes there are similar gear types in similar areas that Alaska sablefish longline’’ fishery on the significant uncertainties and errors are known to cause mortality or serious 2011 LOF. perpetuated in NMFS’ false killer whale The commenter’s interpretation of injury of marine mammals. However, in SAR year after year, which is then used NMFS’ guidance is not entirely correct. those instances, additional available to generate inaccurate LOFs. NMFS’ guidance provided in the information (such as stranding data, Specifically, the HLA disagreed with the preamble of each proposed LOF, fishermen self-reports, or anecdotal continued division of false killer whales including the proposed 2010 LOF (74 information) suggests serious injury or into three fictional stocks based on U.S. FR at 27740, June 11, 2009), states, ‘‘In mortality of marine mammals may be EEZ boundaries and NMFS’ the absence of reliable information occurring that is likely to exceed the underestimate for the population indicating the frequency of incidental Category III threshold. Only marine abundance of false killer whales with mortality and serious injury of marine mammal serious injuries and mortalities which the deep-set fishery interacts. mammals by a commercial fishery, that can be assigned to a specific fishery Thus, while HLA agreed with the NMFS will determine whether the are included in fisheries’ categorization. proposed LOF’s recognition of separate incidental serious injury of mortality is The re-categorization of the ‘‘Southeast ‘‘pelagic’’ and ‘‘insular’’ false killer ’occasional’ by evaluating other factors Alaska purse seine’’ fishery in the 2010 whale stocks, it did not agree with the such as fishing techniques, gear used, LOF is consistent with this practice, cramped manner in which NMFS has methods used to deter marine mammals, albeit somewhat delayed. NMFS defined the ‘‘pelagic’’ stock. The HLA target species, seasons and areas fished, delayed the re-categorization of this asserted that NMFS must address these qualitative data from logbooks or fisher fishery until this year as a precautionary concerns or, at a minimum, reports, stranding data, and the species measure, and is satisfied at this time acknowledge the significant and distribution of marine mammals in that this fishery meets the criteria for uncertainties that underlie the the area, or at the discretion of the Category III. determinations made in the proposed Assistant Administrator for Fisheries While humpback whale scarring is LOF. (50 CFR 229.2).’’ NMFS has such documented in Alaska, at this time there Response: NMFS acknowledges this information on some of the ‘‘other is no accepted method to establish a comment and the reference to the false factors’’ related to the ‘‘Gulf of Alaska reliable rate of fishing-related serious killer whale stock with which the deep- sablefish longline’’ fishery, such as injury or mortality from documented set fishery interacts has been changed to fishing techniques, gear used, and scarring. Scarring alone is not valid the ‘‘HI pelagic’’ stock on the final 2010 qualitative data and stranding data. As evidence for classifying a fishery as LOF. The comment is also concerned stated above, NMFS is in the process of Category II. Further, in the few cases of that there are uncertainties with the evaluating available data and will re- known serious injury or mortality of designation of the Hawaii pelagic stock evaluate the category placement of this humpback whales in purse seines in of false killer whales. This comment is fishery in the 2011 LOF. Alaska, unique scarring patterns from not relevant to the LOF rulemaking at Comment 22: The MMC and the CBD purse seine gear have been shown to be hand. NMFS reports stock delineations disagreed with NMFS’ proposal to easily identifiable. NMFS recognizes and discussions surrounding the reclassify the ‘‘Alaska southeast salmon that the lack of observer coverage due to uncertainties in the data used to base purse seine’’ fishery from Category II to funding constraints is not ideal; stock delineations, after opportunity for Category III based on lack of data however, the lack of observer coverage public review and comment, in the

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annual SARs. NMFS determines which sea bottomfish’’ fishery: The final 2008 2009) that the abundance estimate and species and stocks are included as SAR states that in the past, monk seal the PBR for the false killer whales incidentally killed or injured in a interactions with fisheries in the NWHI interacting with the American Samoa fishery on the LOF in part by annually were documented, but direct longline fishery are unknown. NMFS reviewing the information presented in interactions have since become rare or biologists at the Southwest Fisheries the current SARs, which are based upon non-existent, and issues related to Science Center will analyze the the best available scientific information competition have also somewhat abated. information on false killer whale and provide the most current and A Federal observer program of the abundance and interactions with the inclusive information on each stock’s NWHI bottomfish handline fishery was ‘‘American Samoa longline’’ fishery PBR level and level of interaction with conducted from the fourth quarter of during the development of the 2010 commercial fishing operations. NMFS 2003 through 2006, and no monk seal SAR. NMFS will revisit whether also reviews other sources of new interactions were observed. This fishery reclassification of this fishery is information, including observer data, has not been observed since 2006. The warranted based on the updated SAR stranding data, and fisher self-reports. NWHI lobster fishery closed in 2000, analyses at that time. The LOF is not intended to repeat the and on June 15, 2006, former President At this time a fishery classification of information included in the SARs, but Bush signed a proclamation that created Category I cannot be scientifically rather to incorporate the SARs with the Northwestern Hawaiian Islands substantiated. The fishing gear and other sources of information in order to Marine National Monument. methods used in the American Samoa make determinations based on the best Subsequent regulations prohibit longline fishery are similar to those of available science. However, this commercial fishing in the Monument other Category I and II longline fisheries comment is relevant to the SARs except for the bottomfish fishery (and elsewhere in tropical/sub-tropical rulemaking process and NMFS is aware associated pelagic species catch), which latitudes of the Pacific that are taking of the concerns raised by the HLA and may continue until 2011. The MHI false killer whales. Therefore, the MMC in recent years. Therefore, bottomfish handline fishery may also classification of this fishery as Category NMFS will address this comment as interact with monk seals as evidenced II by analogy is warranted. NMFS part of the comments received during by recent fatty acid research; however, recognizes the uncertainties with the the comment period for the proposed no mortalities or serious injuries have false killer whale stock structure in 2009 SARs (June 26, 2009–September been attributed to this fishery. American Samoa and will continue to 24, 2009; overlapping with the comment While serious injuries and mortalities assess false killer whale abundance and period for the proposed 2010 LOF). have not been documented in recent take estimates as resources become Comment 25: The HLA supported years, NMFS has retained Hawaiian available. Please also see the discussion NMFS’s proposal to remove spinner monk seals as a species or stock of a similar comment on the 2009 LOF dolphin (HI stock) and pantropical incidentally killed or injured in these (73 FR 73032, December 1, 2008; spotted dolphin (stock unknown) from fisheries because monk seals in the comment/response 14). the list of species and stocks that Main Hawaiian Islands are hooked and Comment 28: The MMC concurred interact with the deep-set fishery and entangled at a rate that has not been with NMFS’ proposal to reclassify the shallow-set fishery, respectively. reliably assessed and the true ‘‘American Samoa longline’’ fishery Response: NMFS acknowledges this interaction rate cannot be estimated from Category III to Category II. The comment. These stocks are removed without purpose-designed observation MMC further recommended that NMFS from the list of species and stocks effort. Also, the PBR level for monk not postpone the injury determinations incidentally killed or injured in this seals is currently ‘‘undetermined.’’ Due for the animals released alive from final rule. to the fact that the PBR level for monk interactions with longline gear in 2008. Comment 26: The CBD reiterated a seals is undetermined and that the Response: NMFS acknowledges the previous comment from the 2009 LOF hooking and entanglement rate cannot concurrence and ‘‘American Samoa that various Hawaiian fisheries are be reliably assessed, NMFS will retain longline’’ fishery is reclassified from known or suspected of interacting with the ‘‘HI lobster trap’’ and ‘‘HI Main Category III to Category II in this final Hawaiian monk seals. The CBD asserted Hawaiian Islands, Northwestern rule. NMFS understands the concerns that, given the critically endangered Hawaiian Islands deep sea bottomfish’’ about the fishery impacts to false killer status of the monk seal, any interaction fisheries as Category III fisheries on the whales in American Samoa, especially is significant and these fisheries should LOF, until more information becomes since there is a the lack of population be reclassified as Category I or II. available to determine whether abundace or stock status information Response: NMFS received a similar reclassification is warranted. from this area. In response to this comment on the 2009 LOF (73 FR Comment 27: The CBD noted that concern NMFS began observing this 73032, December 1, 2008; comment/ available information indicates that the fishery. In 2008, the observer coverage response 13). The LOF lists the ‘‘American Samoa longline’’ fishery was 6.4 percent. NMFS will continue to Hawaiian monk seal on the list of should be listed as Category I based on assess false killer whale abundance and species and stocks incidentally killed or its interactions with false killer whales. take estimates as resources become injured in the Category III ‘‘HI lobster Response: As stated in the preamble available. NMFS is not postponing trap’’ and ‘‘HI Main Hawaiian Islands for each LOF, a fishery is classified as determinations of the three marine (MHI), Northwestern Hawaiian Islands Category I if the annual mortality and mammal interactions reported in this (NWHI) deep sea bottomfish’’ fisheries. serious injury of a stock in a given fishery in 2008. NMFS is analyzing the The available information on Hawaiian fishery is greater than or equal to 50 2008 observer data and making the monk seal interactions with these percent of a stock’s PBR level. A fishery necessary injury determinations during fisheries is: is classified as Category II if the annual the development of the 2010 SARs. This (1) ‘‘HI lobster trap’’ fishery: There mortality and serious injury of a stock timeline is in line with NMFS’ process have not been any reported interactions in a given fishery is greater than 1 for reviewing and updating each annual since the mid–1980s; and percent and less than 50 percent of the NMFS SAR. The data presented in the (2) ‘‘HI Main Hawaiian Islands, PBR level. NMFS stated in the proposed annual SARs have an average of a two- Northwestern Hawaiian Islands deep LOF for 2010 (73 FR 27739, June 11, year time delay because of the time

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needed to properly analyze the data and reclassify the fishery to a Category III. the four years of available information, complete the peer-review process. The CWPA noted that observer data the estimated annual serious injury or Comment 29: The CBD stated that the from the California Coastal Pelagic mortality is 22 long-beaked common ‘‘Hawaii shallow-set longline’’ fishery Purse Seine Observer Program contains dolphins (draft 2009 SAR). The current should be listed as a Category I fishery, a single observed mortality of an PBR for long-beaked common dolphins since observer data from 2008 show ‘‘unidentified common dolphin’’ in this is 95/year (final 2008 SAR). Therefore takes of false killer whales and fishery on January 3, 2005, and past the serious injury or mortality rate is 23 humpback whales in this fishery. LOFs have represented this interaction percent, meeting the Category II criteria Response: For the 2010 LOF, a as ‘‘common dolphin, unknown.’’ The (less than 50 percent and greater than 1 reclassification of the Hawaii shallow- CWPA stated that, while the two percent of the stock’s PBR). set longline fishery to a Category I is not cetacean species do exhibit some Comment 33: The California warranted. As noted in NMFS’ response overlapping distribution, there are Department of Fish and Game (CDFG) to comments on the 2009 LOF (73 FR substantially more recent data and disagreed with NMFS’ proposal to 73032, December 1, 2008; comment/ robust observer data available to NMFS elevate the ‘‘California spiny lobster response 15), NMFS analyzes observer than just 2006: there were more than trap’’ fishery from Category III to data and applies observed takes against 193 interaction-free trips observed by Category II. The CDFG stated that the calculated PBR levels during the process Federal observers during 2004 to 2006, report of the 2007 humpback whale of updating and publishing the annual 80 more clean sets observed in mid to entanglement event, submitted by CDFG SARs. NMFS then classifies fisheries on late 2007, and 13 interaction-free to NMFS Southwest Region’s stranding the LOF based on the most recent SARs observed seine sets (4 trips) in 2008. coordinator, was submitted with the (including observer documented Response: NMFS received similar emphasis that the report was a third interactions, stranding data, and other comments on the 2008 and 2009 LOFs. hand report. The CDFG stated that this data reported in the SARs). The 2010 As noted in the final 2008 LOF (72 FR report was based on information LOF is based on information in the final 66048, November 27, 2007; comment/ provided to the CDFG biologist from 2008 SARs, which includes analysis of response 19) and final 2009 LOF (73 FR friends who heard it from a recreational the observer takes against calculated 73032, December 1, 2008; comment/ fisherman. CDFG assumed that neither PBR levels through 2006. As noted in response 32), NMFS based this listing the whale species nor the gear type was the response to comment 28 above, the on observer information from this verified. Also, since the 2007 data presented in the annual SARs have fishery collected from 2004 through entanglement event occurred in the first an average of a two-year time delay 2007. When able, NMFS bases serious week of July, CDFG had doubts as to because of the time needed to properly injury and mortality estimates on the whether the trap involved in the analyze the data and complete the peer- most recent 5 years for which data have entanglement was a lobster trap. review process. Observer data from 2008 been analyzed (NMFS 2005, Guidelines Response: NMFS published criteria has not yet been analyzed and included for Assessing Marine Mammal Stocks for evaluating reports from the LWDN in in the current SARs or included in the [GAMMS] II). If the total fishing effort the proposed 2009 LOF (73 FR 33760, level of annual mortality and serious has changed substantially over the last June 13, 2008). Each year, the LWDN injury for false killer whales. NMFS will 5 years, NMFS may use only the most receives reports of whales entangled in reexamine the categorization of this recent relevant data to most accurately fishing gear. For some fisheries, fishery on a future LOF if the analysis reflect the current level of annual particularly pot and trap fisheries, this of the 2008 observer data reported in the mortality. In some cases where is currently the only information NMFS SARs indicates that a change in information is lacking, such as in cases has on which to assess the level of large categorization is warranted. where there is no observer coverage, Comment 30: The MMC concurred information that is more than 5 years whale entanglement in fisheries on the with NMFS’ proposal to classify the old may not be ignored if it is the most west coast. NMFS used the criteria to ‘‘Hawaii shortline’’ fishery as Category appropriate information available in a elevate four pot and trap fisheries to II. particular case (NMFS 2005, GAMMS II Category II in the 2009 LOF based upon Response: NMFS acknowledges this report). interactions with humpback whales. comment and has added the ‘‘Hawaii In each year from 2004–2007, NMFS acknowledged and identified the shortline’’ fishery as a Category II observer coverage in the ‘‘CA squid assumptions that need to be made in fishery in this final rule. purse seine’’ was low, under 2 percent. using the criteria in the proposed 2009 Comment 31: The CA Wetfish There was one mortality of a short- LOF. Producers Association (CWPA) agreed beaked common dolphin in 2005 and in When evaluating an entanglement with NMFS’ proposal to remove short- 2006 one unidentified common dolphin event, NMFS’ first criterion is whether finned pilot whales (CA/OR/WA) from was observed seriously injured. There a specific fishery has been positively the list of species and stocks killed or are no available biological samples or identified as causing the entanglement injured in the Category II ‘‘CA squid photographs of the injured dolphin; (73 FR 33760, June 13, 2008). Different purse seine’’ fishery. therefore, there is insufficient types of pot and trap gear have Response: NMFS acknowledges this information to identify the species. Both distinguishing characteristics (e.g., comment and has removed short-finned species, long-beaked common dolphins marking requirements on buoys) that pilot whales (CA/OR/WA) from the list and short-beaked common dolphins, make it possible to identify the gear to of species and stocks killed or injured utilize much of the same habitat and a particular fishery. NMFS second in the Category II ‘‘CA squid purse overlap in areas with the squid purse criterion is whether the fishery operates seine’’ fishery. seine fishery; therefore, it is possible in the area and time when a humpback Comment 32: The CWPA requested that either species could have been whale was reported entangled in pot NMFS utilize the most recent scientific taken and NMFS cannot eliminate the and trap gear (73 FR 33760, June 13, information in terms of observer data possibility that a long-beaked common 2008). Most pot and trap fisheries have from 2004–2008 to update the list of dolphin was seriously injured during discrete seasons, thus gear can be species and stocks killed or injured in this event. Extrapolating these sightings associated with certain fisheries in the ‘‘CA squid purse seine’’ fishery and to the entire fishery and averaging over certain areas based on the time of year.

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NMFS proposed to elevate the spiny information to suggest that re- LOF. NMFS reviewed all of the lobster fishery to Category II on the 2010 categorizing the spiny lobster fishery to available data on entangled large whales LOF based on available information that Category II at this time is not supported off the U.S. West Coast, the distribution indicated a humpback whale was by the available data. Please see of species entangled, and the spatial and observed entangled in spiny lobster gear response to comment number 33 above. temporal characteristics of pot and trap on July 10, 2007, south of Newport Regarding the recommendation that all fisheries to develop criteria for Harbor, CA. The available information pot or trap fisheries be placed in categorizing fisheries. NMFS is came from a staff member from CDFG Category II until observers can show continuing to work on methods for and was thus considered reliable. that the fisheries do not pose a threat to improved data collection and analysis Unfortunately, there are no photographs humpback whales, NMFS received and and will consider re-categorizing available to aid in identification of the responded to a similar comment from additional pot and trap fisheries when fishing gear that entangled the whale the CBD on the final 2009 LOF (73 FR and if more information and/or analysis and no other information available. In 73032, December 1, 2008; comment/ become available, as appropriate. As CDFG’s comment they state that they do response 29). It may not be appropriate noted in the response to comment 34, not consider the report to be reliable. to place observers onboard fishing NMFS is continuing to dedicate The information on the humpback vessels in pot and trap fisheries to resources to address the issue of large whale and gear came not from a CDFG detect interactions with marine whale entanglements in fishing gear, staff member, so CDFG does not have mammals. Observers in pot and trap including hiring additional staff to help confidence in the accuracy of the fisheries have very limited ability to NMFS’ Southwest Region’s ongoing information. NMFS spoke with staff detect interactions with the gear. In efforts. from CDFG to discuss the sighting and most instances, an entangled large Comment 36: The MMC concurred the spiny lobster fishery. Based upon whale is likely to swim away with gear with NMFS’ proposal to reclassify the those discussions and memos from and not be observed on the fishing ‘‘CA pelagic longline’’ fishery from CDFG, NMFS agrees that the sighting of grounds. Therefore alternative Category II to Category III. a humpback entangled in spiny lobster monitoring methods are needed. NMFS Response: NMFS acknowledges this gear can not be considered reliable and continues to work with other comment and has reclassified the ‘‘CA does not meet our first criterion for re- government agencies, the scientific and pelagic longline’’ fishery from Category categorizing fisheries based upon LWDN fishing communities, and the public to II to Category III in this final rule. reports. collect information on entanglements Comment 37: The CBD urged NMFS NMFS then considered the report events and methods for tracking to maintain 100 percent observer using the second criterion to propose interactions between marine mammals coverage in the ‘‘CA pelagic longline’’ the fishery’s elevation to Category II: and pot and trap gear. NMFS is fishery, as recent proposals to expand does the fishery operate at a time and continuing to address the problem of that fishery if brought to fruition are area consistent with the observed large whale entanglements and is likely to result in significant increases entanglement (73 FR at 33772, June 13, committing resources to the issue, in interactions with marine mammals. 2008). The season for the spiny lobster including hiring additional staff to help Response: The ‘‘CA pelagic longline’’ trap fishery is October through March advance NMFS’ Southwest Region’s fishery is re-categorized as a Category III and occurs in the southern California efforts on this issue. As noted in fishery in the 2010 LOF due to the low Bight, so the reported entanglement was previous LOFs, when and if additional observed bycatch of marine mammals. observed almost 4 months after the information and/or analysis become The current fishery has 100 percent fishery closed, within the geographic available, NMFS would consider observer coverage. If a proposed region in which the spiny lobster trap reclassifying of pot and trap fisheries, as shallow-set longline fishery exempted fishery occurs. The information appropriate. fishing permit is approved, one of the provided by CDFG and a review of the Comment 35: The MMC reiterated its conditions of issuing the permit would fishery indicates that neither of the two previous recommendation that NMFS be 100 percent observer coverage. There criteria for re-categorizing the spiny classify all West Coast pot/trap fisheries are currently no other proposals to lobster fishery have been met. Based on (i.e., those off Washington, Oregon, and expand the existing ‘‘CA pelagic this information, NMFS is not elevating California) as Category II. The MMC longline’’ fishery. this fishery to Category II in the final asserted that dividing and renaming the Comment 38: The MMC responded to 2010 LOF. This fishery will remain a West Coast pot/trap fisheries based on NMFS’ request for public comment and separate Category III fishery. NMFS will observed entanglement events is not information on two large whale continue to evaluate reports of pot and appropriate, given the small fraction of entanglements in gillnet gear in 2007. trap interactions with large whales on entanglements likely to be observed and The MMC asserted that observer the west coast and may consider the fact that the gear cannot be coverage is insufficient to provide elevating this fishery in the future if distinguished. The MMC also stated that reliable data on marine mammal take additional information or analysis the existing evidence on large whale rates in both of the Category II California supports such a change. entanglement events is not sufficient to set gillnet fishery (3.5–in mesh) for Comment 34: The CBD agreed with make an informed assessment regarding halibut, white seabass, and other species NMFS’ proposal to reclassify the ‘‘CA the entanglement rates for pot/trap or the California drift gillnet fisheries spiny lobster trap’’ fishery as a Category fisheries on the West Coast. (mesh size ≥3.5 in and <14 in) for II. The CBD further asserted that all pot Response: Please see the responses to yellowtail, barracuda, and white or trap fisheries that occur within the comments 33 and 34 above. NMFS seabass. The MMC further asserted that range of the humpback whale should be received a similar comment from the the size of these fisheries and the classified as Category II until and unless MMC on the 2009 LOF. As noted in number of species they take warrant observer coverage demonstrates that NMFS’ response to comments on the increased observer coverage. For that they do not pose a risk of entanglement 2009 LOF (73 FR 73032, December 1, purpose, the MMC recommended that to the species. 2008; comment/response 30), NMFS NMFS develop and implement Response: Since the publication of the must use the best available information expanded monitoring programs for the proposed 2010 LOF, NMFS has received in making recommendations for the ‘‘CA halibut, white seabass, and other

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species set gillnet fishery (3.5–in mesh)’’ uncertainty around the number of active total incidental serious injury and and the ‘‘CA yellowtail, barracuda, and versus passive participants and mortality levels. white seabass drift gillnet fisheries duplicative permit information. Response: NMFS acknowledges the (mesh size ≥3.5 in and <14 in)’’ Therefore, NMFS will not make the comment and will continue to monitor fisheries. changes proposed in the proposed 2010 all marine mammal takes within the Response: NMFS is working to LOF (74 FR 27739, June 11, 2009) and ‘‘Northeast bottom trawl’’ fishery. NMFS expand observer coverage of the will revert back to the estimates of recognizes the harbor porpoise as a California state gillnet fisheries. NMFS Federal permits from the 2009 LOF (73 stock incidentally injured or killed in plans to place observers on the FR 73032. December 1, 2008) in this the ‘‘Northeast bottom trawl’’ fishery, as California set gillnet fishery (3.5–in final 2010 LOF for the ‘‘Mid-Atlantic depicted by its current listing in Table mesh) for halibut, white seabass, and gillnet,’’ Northeast sink gillnet,’’ 2 of the 2010 LOF. NMFS recently other species beginning January 2010. ‘‘Atlantic mixed species trap/pot,’’ proposed modifications to the Harbor Available observer funds should yield ‘‘Mid-Atlantic menhaden purse seine,’’ Porpoise Take Reduction Plan (74 FR coverage of up to 25 percent. NMFS ‘‘Mid-Atlantic haul/beach seine,’’ ‘‘Mid- 36058, July 21, 2009) to further reduce plans to place observers on the Atlantic mid-water trawl,’’ ‘‘Northeast the serious injury and mortality of California drift gillnet fisheries (mesh bottom trawl,’’ ‘‘Northeast mid-water harbor porpoises from incidental ≥ size 3.5 in and <14 in) for yellowtail, trawl,’’ and ‘‘Gulf of Maine Atlantic interactions with Northeast sink and barracuda, and white seabass beginning herring purse seine’’ fisheries. NMFS Mid-Atlantic gillnet fisheries to below in summer 2010 if observer funds are will work with the relevant state the stock’s PBR level. NMFS will available. agencies to obtain more reliable continue to coordinate with the Harbor NMFS did not receive additional information on state permits for these Porpoise Take Reduction Team and the information from the public on the two fisheries to be incorporated in future Atlantic Trawl Gear Take Reduction large whale entanglements in 2007 that LOFs. Based on updated information Team to ensure that the stock’s total NMFS believes may have been caused received from the Virginia Marine incidental serious injury and mortality by either the California set gillnet Resource Commission on the 2008 is reduced to below its PBR level and, fishery (3.5–in mesh) for halibut, white license year, the estimated number of ultimately, to an insignificant level seabass, and other species or the Virginia Pound Net fishery participants approaching a zero mortality and California drift gillnet fishery (mesh size serious injury rate. ≥ will be updated to ‘‘41.’’ In summary, 3.5 in and <14 in). NMFS will continue the estimated numbers of fishery Comment 41: The MMC to evaluate new and existing participants in this final rule, for the recommended that NMFS not remove entanglement information to better previously mentioned fisheries, are: the superscript ‘‘1’’ after Gulf of Maine/ Bay of Fundy harbor porpoise in its understand the nature of large whale Category I ‘‘Mid-Atlantic gillnet’’ fishery interactions with fishing gear along the listing of the Category I ‘‘Mid-Atlantic to ≤370; Category I ‘‘Northeast sink U.S. West Coast. When and if new gillnet’’ fishery until NMFS has more gillnet’’ fishery to 341; Category II information or analysis is available, definitive information indicating that ‘‘Atlantic mixed species trap/pot’’ NMFS will assign these entanglements the number of removals is, and is likely fishery to unknown; Category II ‘‘Mid- to the appropriate fisheries. At this time, to remain, below 50 percent of the Atlantic menhaden purse seine’’ fishery these reports will continue to be listed stock’s PBR level. The MMC asserted to 22; Category II ‘‘Mid-Atlantic haul/ as entangled in unknown gillnet gear. that it would be premature to conclude beach seine’’ fishery to 25; Category II that the taking of harbor porpoises is no Comments on Fisheries in the Atlantic ‘‘Mid Atlantic mid water trawl’’ fishery longer driving the classification of the Ocean, Gulf of Mexico, and Caribbean to 620; Category II ‘‘Northeast bottom ‘‘Mid-Atlantic gillnet’’ fishery. The Comment 39: The MMC trawl’’ fishery to 1052; Category II MMC noted that the estimated take is recommended NMFS review the ‘‘Northeast mid-water trawl’’ fishery to only a single percentage point (or 11 available information on state and 17; Category II ‘‘VA pound net’’ fishery animals) below the threshold that would Federal permit holders in Northeast and to 41; and Category III ‘‘Gulf of Maine trigger a Category I classification. The Mid-Atlantic fisheries and revise the Atlantic herring purse seine’’ fishery to MMC asserted that, given the level of published LOF to accurately reflect the 30. observer coverage in the fishery (2.2 number of active vessels and Comment 40: The MMC concurred percent) and the resulting uncertainty participants in each fishery. The MMC with NMFS’ proposal to add the Gulf of around the estimates of incidental noted that NMFS revised its estimates of Maine/Bay of Fundy harbor porpoise serious injury and mortality, this the number of participants for Northeast stock to the list of species and stocks difference is not significant or and Mid-Atlantic fisheries in the incidentally killed or injured in the justification for removal of the proposed 2010 LOF based on state and Category II ‘‘Northeast bottom trawl’’ superscript notation. The MMC further Federal permit information without fishery. The MMC further noted that the noted that NMFS’ proposal fails to removing any duplication (i.e., combined mortality of harbor porpoises recognize the increasing trend in the individuals holding both state and from this stock in the Category I deaths of harbor porpoises in this Federal permits for a particular fishery) ‘‘Northeast sink gillnet,’’ Category I fishery in recent years. or accounting for inactive permits. ‘‘Mid-Atlantic gillnet,’’ and Category II Response: The superscript ‘‘1’’ in Thus, although the information ‘‘Northeast bottom trawl’’ fisheries Table 3 of the LOF is defined to depict previously included in the LOF may exceeds the stock’s PBR level. For that ‘‘Fishery classified based on serious have underestimated the number of reason, the MMC commented that injuries of this stock which are greater participants, the new information likely NMFS should recognize the harbor than 50 percent (Category I) or greater overestimates the level of participation porpoise as a stock incidentally injured than 1 percent and less than 50 percent in some fisheries. or killed in the ‘‘Northeast bottom (Category II) of the stock’s PBR.’’ Response: NMFS concurs that the trawl’’ fishery and work jointly with the According to the 2008 SAR, the average updated number of estimated Harbor Porpoise Take Reduction Team annual harbor porpoise (Gulf of Maine/ participants for each fishery may and the Atlantic Trawl Gear Take Bay of Fundy stock) mortality and complicate management efforts due to Reduction Team to reduce the stock’s serious injury in the ‘‘Mid-Atlantic

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gillnet’’ fishery from 2002 to 2006 was gillnet fishery’’ be elevated from two in 2002, one in 2001 and five in 299, which represented the 4–year Category II to Category I, based on 2000. Nine of these mortalities were average estimate from 2003, 2004, 2005, known or likely impacts to bottlenose confirmed to be bottlenose dolphins. and 2006. Using this average, the fishery dolphin stocks. The CBD expressed However, it is not possible to was responsible for taking 49 percent of pleasure that NMFS proposed to extrapolate these numbers to obtain an the stock’s PBR, which is not greater reclassify the Gulf of Mexico blue crab estimate of total takes in this fishery. than 50 percent. As the commenter trap/pot fishery. Finally, the CBD stated No marine mammal mortalities stated, regulations (50 CFR 229.2) define that NMFS should make it a high associated with gillnet fisheries in the a Category I fishery as ‘‘one that is by priority to place observer coverage on Gulf of Mexico have been reported itself responsible for the annual removal the ‘‘Gulf of Mexico menhaden purse through the MMAP; however, four of 50 percent or more of any stock’s seine’’ fishery and convene a take dolphin mortalities occurred in gillnet potential biological removal level’’ and reduction team to address bottlenose research gear between 2003–2007. a Category II fishery as ‘‘is by itself dolphin takes in the Gulf from this and Stranding data also suggests that marine responsible for the annual removal of other fisheries. mammal interactions with gillnets do between 1 and 50 percent, exclusive, of Response: The commenter incorrectly occur, causing mortality and serious any stock’s potential biological removal states that NMFS has proposed to injury. NMFS acknowledges that level.’’ Therefore, given the specific elevate the blue crab trap/pot fishery. stranding data likely underestimates the regulatory reference to 50 percent for This fishery remains a Category III on extent of fishery-related mortality and the cut off for Category I, while harbor the final 2010 LOF. NMFS does not serious injury. Interpreting the data is porpoises are being taken in this fishery, believe elevation of the Gulf of Mexico difficult due to varying ability among this stock currently does not qualify as blue crab trap/pot, menhaden purse the stranding network to detect and driving the Category I definition for the seine, or gillnet fisheries is supported by respond to strandings in all areas and ‘‘Mid-Atlantic gillnet’’ fishery. Harbor currently available information. There is accurately document human porpoise serious injuries and mortalities no observer program for these fisheries, interactions and the condition of the were responsible for the elevation of the and NMFS relies on stranding data and carcass when stranded. To address this, ‘‘Mid-Atlantic gillnet’’ fishery from fishermen’s self-reports to document NMFS conducted multiple stranding Category III to Category II on the 1996 fishery interactions with marine and human interaction workshops in LOF (December 28, 1995; 60 FR 67063) mammals. NMFS acknowledges that, Texas, Louisiana, Mississippi and but serious injuries and mortalities of while these sources show only a low Alabama in 2008, and provided coastal bottlenose dolphins were level of interactions, these sources are additional human interaction training to responsible for the elevation of the unreliable and likely to be biased low. the Southeast Stranding Network at fishery to Category I on the 2003 LOF In addition, PBR is unknown for these their Biennial Conference in 2009. In (July 15, 2003; 68 FR 41725). Currently, stocks because of insufficient addition, in 2009 NMFS awarded nearly coastal bottlenose dolphin serious information on stock structure and $292,000 in Prescott Grants to increase injuries and mortalities still drive the abundance. NMFS will continue stranding network capabilities Category I definition for this fishery. monitoring fishermen’s self-reports and throughout the Gulf of Mexico. Prescott The placement of the superscript for stranding data. Observer coverage for Grant 2010 Southeast Regional priorities Category I and Category II fisheries is these fisheries also remains a priority if include research into ways to enhance evaluated on a yearly basis and if in the resources become available. stranding response coverage, capability, future harbor porpoise serious injuries In the ‘‘Gulf of Mexico blue crab trap/ Level A data collection, and number of and mortalities in this fishery increase pot’’ fishery, stranding data indicate necropsies in areas where there is little to 50 percent of PBR or greater, the there were two confirmed bottlenose or no coverage, including along the superscript will be added to Table 2. dolphin interactions with crab pot Northern Gulf of Mexico. Comment 42: The GSSA requested fishing gear between 2002–2006, one Because population size and PBR are that NMFS consider that the proposal to animal which was released alive. In the undetermined for the three coastal update the estimated number of vessels same time period, four dead bottlenose stocks and most of the bay, sound, and or participants in the 2010 proposed dolphins stranded with rope or rope estuary stocks of bottlenose dolphins, LOF to 7,596 for the ‘‘Mid-Atlantic marks that may have been from trap/pot NMFS is unable to assess the population gillnet’’ fishery is counting the number gear, but cause of death could not be level impacts of serious injury and of North Carolina state permits that are determined. mortality from fisheries to determine issued to thousands of people who use The ‘‘Gulf of Mexico menhaden purse whether annual mortality is greater than gillnets for personal consumption in seine’’ fishery was observed by or equal to 50 percent of PBR. Thus, the North Carolina bays and sounds. researchers from Louisiana State currently available information dues not Response: NMFS will work with state University in 1992, 1994, and 1995. The support convening a TRT. agencies to obtain more specific state observers documented nine bottlenose Comment 44: The MMC reiterated its permit information. See response to dolphin captures, three of which were previous recommendations on the 2003 number 39 for additional discussion on mortalities. Using observed and total through 2009 LOFs that NMFS expedite this topic. fishery effort data, the number of takes its investigation of bottlenose dolphin Comment 43: The CBD reiterated was linearly extrapolated to an estimate stock structure in the Gulf of Mexico, previous years’ comments stating of 68 animals. On the basis of this expand its efforts to collect reliable concerns regarding NMFS’ failure to information, the fishery was elevated information on serious injury and adequately classify certain Gulf of from Category III to Category II on the mortality rates of marine mammals Mexico fisheries as Category I or 1999 LOF (64 FR 9067, February 24, incidental to Gulf of Mexico fisheries, Category II in light of known or 1999). Since that time, there has been no and reevaluate the classification of Gulf estimated mortality and serious injury observer coverage in this fishery. of Mexico fisheries as information to marine mammals from those Fishermen’s self-reports through the becomes available. fisheries. Specifically, they suggested MMAP reveal 11 dolphin mortalities in Response: NMFS agrees that it is the ‘‘Gulf of Mexico menhaden purse the menhaden purse seine fishery from important to further investigate stock seine fishery’’ and the ‘‘Gulf of Mexico 2000–2008: two in 2005, one in 2004, structure and abundance of bottlenose

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dolphins in the Gulf of Mexico. PBR is the ‘‘CA coonstripe shrimp, rock crab, killed or injured in the ‘‘CA pelagic undetermined for most Gulf of Mexico tanner crab pot or trap’’ fishery. longline’’ fishery. stocks because the population size List of Species and Stocks That are Commercial Fisheries in the Atlantic estimates are more than 8 years old and Incidentally Killed or Injured Ocean, Gulf of Mexico, and Caribbean resources are unavailable to conduct additional surveys. Collecting reliable The stock name for false killer whales Fishery Name and Organizational information on serious injury and incidentally killed or injured in the ‘‘HI Changes and Clarifications mortality of marine mammals in the deep-set (tuna-target) longline/set line’’ The description of the Category I Gulf of Mexico is also essential. fishery is changed from ‘‘HI’’ to ‘‘HI ‘‘Mid-Atlantic gillnet’’ fishery is However, there are currently no pelagic.’’ replaced with the following: ‘‘The resources to fund observer programs in Pantropical spotted dolphin (stock Category I Mid-Atlantic gillnet fishery the Gulf of Mexico fisheries. Therefore, unknown) is added to the list of species targets monkfish, spiny dogfish, smooth NMFS is focusing on building volunteer and stocks incidentally killed or injured dogfish, bluefish, weakfish, menhaden, stranding network capacity in the Gulf in the Category I ‘‘HI deep-set (tuna spot, croaker, striped bass, large and and increasing the level and quality of target) longline/set line’’ fishery. small coastal sharks, Spanish mackerel, stranding response and has taken Spinner dolphin (HI) is removed from king mackerel, American shad, black concrete steps to improve stranding the list of species and stocks drum, skate spp., yellow perch, white capacity, as discussed in the response to incidentally killed or injured in the perch, herring, scup, kingfish, spotted Comment 43 above. NMFS expects these Category I ‘‘HI deep-set (tuna target) seatrout, and butterfish. The fishery efforts will increase the effectiveness of longline/set line’’ fishery. uses drift and sink gillnets, including the stranding networks and better Pantropical spotted dolphin (stock nets set in a sink, stab, set, strike, or inform management decisions in the unknown) is removed from the list of drift fashion, with some unanchored future. species and stocks incidentally killed or drift or sink nets used to target specific Summary of Changes to the LOF for injured in the Category II ‘‘HI shallow- species. The dominant material is 2010 set (swordfish target) longline/set line’’ monofilament twine with stretched fishery. The following summarizes changes to mesh sizes from 2.5 12 in (6.4 30.5 cm), False killer whale (stock unknown) is the LOF for 2010 in fishery and string lengths from 150 8,400 ft. (46 added to the list of species and stocks classification, fisheries listed in the 2,560 m). This fishery operates year- incidentally killed or injured in the ° ′ LOF, the number of participants in a round west of a line drawn at 72 30 W. ‘‘American Samoa longline’’ fishery ° ′ particular fishery, and the species and long. south to 36 33.03 N. lat. (VA/NC (elevated to Category II in this final stocks that are incidentally killed or border) and east to the eastern edge of rule). injured in a particular fishery. The the EEZ and north of the NC/SC border, Humpback whale (Central North classifications and definitions of U.S. not including waters where Category II Pacific) is removed from the list of commercial fisheries for 2010 are and Category III inshore gillnet fisheries species and stocks incidentally killed or identical to those provided in the LOF operate in bays, estuaries, and rivers. injured in the Category III ‘‘AK for 2009 with the changes outlined This fishery includes any residual large southeast salmon purse seine’’ fishery. below. pelagic driftnet effort in the mid- The superscript ‘‘1’’ is removed after Atlantic, any shark and dogfish gillnet Commercial Fisheries in the Pacific humpback whale (Central North Pacific) effort in the mid-Atlantic, and those Ocean and humpback whale (Western North North Carolina small and large mesh Fishery Classification Pacific) in the list of species and stocks beach-anchored gillnets formerly placed incidentally killed or injured in the in the Category II Mid-Atlantic haul/ The ‘‘American Samoa longline’’ Category II ‘‘AK Bering Sea Aleutian beach seine fishery in the mid-Atlantic fishery is elevated from Category III to Islands Pollock trawl’’ fishery to correct zone described. This NC component Category II. a typographical error. fishing effort is prosecuted right off the The ‘‘AK southeast salmon purse The stock name for Northern fur seals beach (6 ft [1.8 m]) or in nearshore seine’’ fishery is reclassified from is changed on the list of species and coastal waters to offshore waters (250 ft Category II to Category III. stocks incidentally killed or injured in The ‘‘CA pelagic longline’’ fishery is [76 m]). Gear in this fishery is managed the Category II ‘‘AK Bering Sea, by several Federal and interstate FMPs reclassified from Category II to Category Aleutian Islands flatfish trawl’’ fishery III. managed by the Atlantic States Marine from ‘‘Eastern North Pacific’’ to ‘‘Eastern Fisheries Commission (ASMFC), the Addition of Fisheries to the LOF Pacific.’’ Atlantic Large Whale Take Reduction The ‘‘CA spiny lobster trap’’ fishery is Short-finned pilot whale (CA/OR/ Plan (ALWTRP), the Harbor Porpoise added as a separate Category III fishery WA) is removed from the list of species Take Reduction Plan (HPTRP), and the (split from the ‘‘CA spiny lobster, and stocks incidentally killed or injured Bottlenose Dolphin Take Reduction coonstripe shrimp, rock crab, tanner in the Category II ‘‘CA squid purse Plan (BDTRP). Fisheries are primarily crab pot or trap’’ fishery, renamed the seine’’ fishery. managed by total allowable catch limits; ‘‘CA coonstripe shrimp, rock crab, A superscript ‘‘1’’ is added after long- individual trip limits (quotas); effort tanner crab pot or trap’’ fishery in this beaked common dolphin (CA) in the list caps (limited number of days at sea per final rule). of species and stocks incidentally killed vessel); time and area closures; and gear The ‘‘HI shortline’’ fishery is added as or injured in the Category II ‘‘CA squid restrictions and modifications.’’ a Category II fishery. purse seine’’ fishery. The description of the Category II Gray whale (Eastern North Pacific) is ‘‘Mid-Atlantic haul/beach seine’’ fishery Fishery Name and Organizational added to the list of species and stocks is replaced with the following: ‘‘The Changes and Clarifications incidentally killed or injured in the Category II Mid-Atlantic haul/beach The Category III ‘‘CA spiny lobster, Category III ‘‘CA spiny lobster’’ fishery. seine fishery targets striped bass, mullet, coonstripe shrimp, rock crab, tanner CA sea lion (U.S.) is removed from the spot, weakfish, sea trout, bluefish, crab pot or trap’’ fishery is renamed to list of species and stocks incidentally kingfish, and harvestfish using seines

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with one end secured (e.g., swipe nets around the number of active versus no longer authorized for use (therefore, and long seines) and seines secured at passive participants and duplicative the fishers are unable to fish under the both ends or those anchored to the permit information. Therefore, NMFS is permit). For this reason, the number of beach and hauled up on the beach. The not finalizing those proposed updates in HSFCA permits updated below and beach seine system also uses a bunt and this final rule. The number of vessels/ displayed in Table 3 of this final rule a wash net that are attached to the beach persons in Atlantic fisheries remains the may not accurately represent actual and extend into the surf. The fishery same as those reported in the 2009 LOF. fishing effort by U.S. vessels on the high occurs in waters west of 72° 30′ W. long. The estimated number of vessels or seas. and north of a line extending due east persons in the Category II ‘‘VA pound The estimated number of HSFCA from the NC/SC border. The only haul/ net’’ fishery is updated from 187 to 41. permits in the High Seas Atlantic Highly beach seine gear operating in NC Migratory Species fishery is updated for included in this Category II fishery is List of Species and Stocks That are the following gear types: longline, from the ‘‘Atlantic Ocean striped bass beach Incidentally Killed or Injured 75 to 72; trawl, from 3 to 2; handline/ seine fishery’’ during the winter, as Harbor porpoise (Gulf of Maine/Bay of pole-and-line from 2 to 1; and troll, from regulated by NC Marine Fisheries Fundy (GME/BF)) is added to the list of 5 to 7. Commission rules (NCDMF) and marine mammal species and stocks The estimated number of HSFCA NCDMF proclamations. NCDMF defines incidentally killed or injured in the permits in the High Seas Pacific Highly a beach seine operating under the Category II ‘‘Northeast bottom trawl Migratory Species fishery is updated for Atlantic Ocean Striped Bass beach seine fishery. the following gear types: drift gillnet, fishery as a ‘‘swipe net constructed of Fin whale (Western North Atlantic from 5 to 4; trawl, from 14 to 3; purse multifilament, multifiber webbing (WNA)) is removed from the list of seine, from 5 to 8; pot, from 8 to 7; fished from the ocean beach that is species and stocks incidentally killed or longline, from 56 to 62; handline/pole deployed from a vessel launched from injured in the Category I ‘‘Northeast/ and line, from 18 to 22; liners not the ocean beach where the fishing Mid-Atlantic American lobster trap/pot’’ elseware identified (NEI), from 3 to 1; operation takes place, and one end of fishery. multipurpose vessels, from 9 to 7; and the beach seine is attached to the shore The superscript ‘‘1’’ after humpback troll, from 222 to 249. at all times during the operation.’’ All whale (Gulf of Maine) and minke whale The estimated number of HSFCA other NC small and large mesh beach- (Canadian east coast) is removed from permits in the High Seas South Pacific anchored gillnets with webbing the list of species and stocks Albacore Troll fishery is updated for the constructed of all monofilament incidentally killed or injured in the following gear types: trawl, from 5 to 2; material or a combination of Category I ‘‘Northeast/Mid-Atlantic longline, from 12 to 11; handline/pole monofilament and multifilament American lobster trap/pot’’ fishery. and line, from 7 to 8; troll, from 45 to material were moved to the Category I The superscript ‘‘1’’ after minke 53; multipurpose vessels, from 6 to 4. Mid-Atlantic gillnet fishery in the final whale (Canadian east coast), humpback The estimated number of HSFCA 2009 LOF because their construction whale (Gulf of Maine), and North permits in the High Seas South Pacific and fishing technique were more similar Atlantic right whale (WNA) is removed Tuna fishery is updated for the to a gillnet than a traditional beach from the list of species and stocks following gear types: purse seine from seine. A description of the gear and incidentally killed or injured in the 23 to 36; longline, from 2 to 3; troll, fishing practices for the haul/beach Category I ‘‘Northeast sink gillnet’’ from 1 to 3. The estimated number of HSFCA seine and small and large mesh beach- fishery. permits in the High Seas Western anchored gillnets operating in NC are The superscript ‘‘1’’ after harbor Pacific Pelagic fishery is updated for the found in the final 2008 LOF (72 FR porpoise (GME/BF) and humpback following gear types: trawl, from 11 to 66048; November 27, 2007) and final whale (Gulf of Maine) is removed from 4; purse seine, from 4 to 3; pot, from 8 2009 LOF (73 FR 73032, December 1, the list of species and stocks to 7; handline/pole and line, from 8 to 2008). In addition to the NC component incidentally killed or injured in the 9; liners NEI, from 2 to 1; multipurpose as described above, the ’Mid-Atlantic Category I ‘‘Mid-Atlantic gillnet’’ vessels, from 7 to 5. haul/beach seine’ fishery also includes fishery. haul/beach seining in other areas of the Pygmy sperm whale (WNA) is List of Species That are Incidentally mid-Atlantic, including NY through VA. removed from the list of species and Killed or Injured Because the net materials and fishing stocks incidentally killed or injured in The stock name for false killer whales practices of the Atlantic Ocean striped the Category I ‘‘Atlantic Ocean, bass beach seine fishery in NC are incidentally killed or injured in the Caribbean, Gulf of Mexico large pelagics ‘‘High Seas Western Pacific Pelagic different from haul seining in other longline’’ fishery. areas, NMFS may consider splitting this (Deep-set component)’’ fishery is fishery in the future. The Mid-Atlantic Commercial Fisheries on the High Seas changed from ‘‘HI’’ to ‘‘unknown.’’ This fishery is a component of the ‘‘HI deep- haul/beach seine fishery is managed Removal of Fisheries under several state and Interstate FMPs set (tuna target) longline/set line’’ and is an affected fishery under the All unspecified high seas fisheries for fishery operating in U.S. waters, which BDTRP.’’ all gear types are removed, except for interacts with the ‘‘HI pelagic’’ stock of trawl gear. Four trawl gear HSFCA false killer whales. While the animals in Number of Vessels/Persons permits remain valid for an unspecified this stock are thought to move across the Based on public comments on the fishery. EEZ boundary into the high seas, the proposed 2010 LOF, NMFS agreed that stock is currently defined as occurring the proposed updates to the estimated Number of HSFCA Permits from 75nmi to the EEZ boundary (2008 number of vessels/persons in several As stated in the preamble under SAR). NMFS truncated the stock Northeast and Mid-Atlantic fisheries by ‘‘How Does NMFS Authorize U.S. boundary as ending at the 200nmi EEZ including available state permit Vessels to Participate in High Seas line because of the mandate in section information may complicate Fisheries?,’’ some fishers possess valid 117 of the MMPA (16 U.S.C. 1386) for management efforts due to uncertainty HSFCA permits for gear types that are NMFS to create SARs and calculate PBR

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levels for marine mammal stocks section 118 of the MMPA. In Tables 1 a stock’s PBR) by a ‘‘1’’ after the stock’s occurring ‘‘in waters under the and 2, the estimated number of vessels/ name. jurisdiction of the United States.’’ persons in fisheries operating within In Tables 1 and 2, there are several Therefore, to be consistent with the U.S. waters is expressed in terms of the fisheries classified in Category II that stock definition in the final 2008 SARs, number of active participants in the have no recent documented injuries or NMFS has changed the stock name to fishery, when possible. If this mortalities of marine mammals, or that ‘‘unknown’’ at this time. See the information is not available, the did not result in a serious injury or response to comment 17 above for estimated number of vessels or persons mortality rate greater than 1 percent of additional information. licensed for a particular fishery is a stock’s PBR level. NMFS has classified Pantropical spotted dolphin (stock provided. If no recent information is these fisheries by analogy to other gear unknown) is added to the list of species available on the number of participants types that are known to cause mortality and stocks incidentally killed or injured in a fishery, the number from the most or serious injury of marine mammals, as in the Category II ‘‘High Seas Western recent LOF is used. For high seas discussed in the final LOF for 1996 (60 Pacific Pelagic (Deep-set component)’’ fisheries, Table 3 lists the number of FR 67063, December 28, 1995), and fishery. This fishery is a component of currently valid HSFCA permits held by according to factors listed in the the ‘‘HI deep-set (tuna target) longline/ fishers. Although this likely definition of a ‘‘Category II fishery’’ in set line’’ fishery operating in U.S. overestimates the number of active 50 CFR 229.2. NMFS has designated waters. participants in many of these fisheries, those fisheries listed by analogy in Spinner dolphin (HI) is removed from the number of valid HSFCA permits is Tables 1 and 2 by a ‘‘2’’ after the the list of species and stocks the most reliable data at this time. fishery’s name. incidentally killed or injured in the There are several fisheries in Tables 1, Category I ‘‘High Seas Western Pacific Tables 1, 2, and 3 also list the marine 2, and 3 in which a portion of the Pelagic (Deep-set component)’’ fishery. mammal species and stocks incidentally fishing vessels cross the EEZ boundary, This fishery is a component of the ‘‘HI killed or injured in each fishery based operating within U.S. waters and on the deep-set (tuna target) longline/set line’’ on observer data, logbook data, high seas. These fisheries, while listed fishery component operating in U.S. stranding reports, disentanglement on both Table 1 or 2, and 3, are not waters. network data, and fisher reports. This separate fisheries. Instead, they are Pantropical spotted dolphin (stock list includes all species and stocks components of a single fishery unknown) is removed from the list of known to be injured or killed in a given organized on Table 1, 2, or 3 by species and stocks incidentally killed or fishery, but also includes species and geographic region. NMFS has injured in the Category II ‘‘High Seas stocks for which there are anecdotal designated those fisheries in each Table Western Pacific Pelagic (Shallow-set records of an injury or mortality. by an ‘‘*’’ after the fishery’s name. component)’’ fishery. This fishery is a Additionally, species identified by Table 1 lists commercial fisheries in component of the ‘‘HI shallow-set logbook entries may not be verified. the Pacific Ocean (including Alaska); (swordfish target) longline/set line’’ NMFS has designated those stocks Table 2 lists commercial fisheries in the fishery operating in U.S. waters. driving a fishery’s classification (i.e., the Atlantic Ocean, Gulf of Mexico, and fishery is classified based on serious Caribbean; Table 3 lists commercial List of Fisheries injuries and mortalities of a marine fisheries on the High Seas; Table 4 lists The following tables set forth the final mammal stock greater than 50 percent fisheries affected by Take Reduction list of U.S. commercial fisheries [Category I], or greater than 1 percent Plans or Teams. according to their classification under and less than 50 percent [Category II], of BILLING CODE 3510–22–S

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BILLING CODE 3510–22–C Small Business Administration that this Under existing regulations, all fishers Classification rule would not have a significant participating in Category I or II fisheries economic impact on a substantial must register under the MMPA and The Chief Counsel for Regulation of number of small entities. The factual obtain an Authorization Certificate. The the Department of Commerce certified basis leading to the certification is set Authorization Certificate authorizes the to the Chief Counsel for Advocacy of the forth below. taking of marine mammals incidental to

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commercial fishing operations. approved by OMB under OMB control LOF is not considered to be a Additionally, fishers may be subject to number 0648–0292 (0.15 hours per management action that would a Take Reduction Plan (TRP) and report). These estimates include the adversely affect threatened or requested to carry an observer. NMFS time for reviewing instructions, endangered species. If NMFS takes a has estimated that approximately 44,600 searching existing data sources, management action, for example, fishing vessels, most of which are small gathering and maintaining the data through the development of a TRP, entities, operate in Category I or II needed, and completing and reviewing NMFS would conduct consultation fisheries, and therefore, are required to the collection of information. Send under ESA section 7 for that action. register with NMFS. The MMPA comments regarding these reporting registration process is integrated with burden estimates or any other aspect of This final rule will have no adverse existing state and Federal licensing, the collections of information, including impacts on marine mammals and may permitting, and registration programs. suggestions for reducing burden, to have a positive impact on marine Therefore, fishers who have a state and NMFS and OMB (see ADDRESSES and mammals by improving knowledge of Federal fishery permit or landing SUPPLEMENTARY INFORMATION). marine mammals and the fisheries license, or who are authorized through Notwithstanding any other provision interacting with marine mammals another related state and Federal fishery of law, no person is required to respond through information collected from registration program, are currently not to nor shall a person be subject to a observer programs, stranding and required to register separately under the penalty for failure to comply with a sighting data, or take reduction teams. collection of information subject to the MMPA or pay the $25 registration fee. This final rule will not affect the land Therefore, there are no direct costs to requirements of the Paperwork or water uses or natural resources of the small entities under this final rule. Reduction Act unless that collection of If a vessel is requested to carry an information displays a currently valid coastal zone, as specified under section observer, fishers will not incur any OMB control number. 307 of the Coastal Zone Management direct economic costs associated with This final rule has been determined to Act. carrying that observer. Potential indirect be not significant for the purposes of References costs to individual fishers required to Executive Order 12866. take observers may include: lost space An environmental assessment (EA) Barlow, J., and S. Rankin. 2007. False on deck for catch, lost bunk space, and was prepared under the National killer whale abundance and density: lost fishing time due to time needed to Environmental Policy Act (NEPA) for preliminary estimates for PICEAS study process bycatch data. For effective regulations to implement section 118 of area south of Hawaii and new estimates monitoring, however, observers will the MMPA in June 1995. NMFS revised for the US EEZ around Hawaii. rotate among a limited number of that EA relative to classifying U.S. Administrative Report LJ–07–02. commercial fisheries on the LOF in vessels in a fishery at any given time Southwest Fisheries Science Center, December 2005. Both the 1995 EA and and each vessel within an observed National Marine Fisheries Service, 8604 the 2005 EA concluded that fishery has an equal probability of being La Jolla Shores Drive La Jolla, CA 92037. requested to accommodate an observer. implementation of MMPA section 118 Therefore, the potential indirect costs to regulations would not have a significant Forney, K. A., and D. R. Kobayashi. individual fishers are expected to be impact on the human environment. This 2007. Updated Estimates of Mortality minimal because observer coverage final rule would not make any and Injury of Cetaceans in the Hawaii- would only be required for a small significant change in the management of based Longline Fishery, 1994–2005. percentage of an individual’s total reclassified fisheries, and therefore, this U.S. Department of Commerce, NOAA annual fishing time. In addition, section final rule is not expected to change the Technical Memorandum NMFS, NOAA- 118 of the MMPA states that an observer analysis or conclusion of the 2005 EA. TM-NMFS-SWFSC–412, 30 p. The Council of Environmental Quality will not be placed on a vessel if the NMFS. 2005. Revisions to Guidelines facilities for quartering an observer or (CEQ) recommends agencies review EAs for Assessing Marine Mammal Stocks. performing observer functions are every five years; therefore, NMFS 24 pp. Available at: http:// inadequate or unsafe, thereby exempting reviewed the 2005 EA in 2009. NMFS vessels too small to accommodate an concluded that, because there have been www.nmfs.noaa.gov/pr/pdfs/sars/ observer from this requirement. As a no changes to the process used to gamms2005.pdf result of this certification, an initial develop the LOF and implement section Dated: November 9, 2009. regulatory flexibility analysis is not 118 of the MMPA (including no new Samuel D. Rauch III, alternatives and no additional or new required and was not prepared. In the Deputy Assistant Administrator for impacts on the human environment), event that reclassification of a fishery to Regulatory Programs, National Marine Category I or II results in a TRP, there is no need to update the 2005 EA Fisheries Service. at this time. If NMFS takes a economic analyses of the effects of that [FR Doc. E9–27431 Filed 11–13–09; 8:45 am] plan will be summarized in subsequent management action, for example, rulemaking actions. through the development of a TRP, BILLING CODE 3510–22–S This final rule contains collection-of- NMFS will first prepare an information requirements subject to the environmental document, as required Paperwork Reduction Act. The under NEPA, specific to that action. collection of information for the This final rule will not affect species registration of fishers under the MMPA listed as threatened or endangered has been approved by the Office of under the Endangered Species Act Management and Budget (OMB) under (ESA) or their associated critical habitat. OMB control number 0648–0293 (0.15 The impacts of numerous fisheries have hours per report for new registrants and been analyzed in various biological 0.09 hours per report for renewals). The opinions, and this final rule will not requirement for reporting marine affect the conclusions of those opinions. mammal injuries or mortalities has been The classification of fisheries on the

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DEPARTMENT OF COMMERCE for snowy grouper and red porgy that for the measures contained in are no longer in effect and revises sea Amendment 15B is provided in the National Oceanic and Atmospheric turtle bycatch mitigation requirements amendment and the preamble to the Administration applicable to the Gulf reef fish fishery proposed rule and is not repeated here. to add two devices that were Comments and Responses 50 CFR Part 622 inadvertently omitted from a prior rule. NMFS received 216 comments on [Docket No. 080226312–91249–03] The intended effects of this final rule are to provide additional information Amendment 15B and the proposed rule, RIN 0648–AW12 for, and otherwise improve the effective including 1 comment from a state management of, the South Atlantic agency, 2 comments from Federal Fisheries of the Caribbean, Gulf of snapper-grouper fishery; minimize the agencies, and 213 comments from Mexico, and South Atlantic; Snapper- impacts on incidentally caught individuals (including 155 copies of a Grouper Fishery off the Southern threatened and endangered sea turtles form letter sent by individuals). Of these Atlantic States; Amendment 15B; Reef and smalltooth sawfish; and remove comments, 14 expressed general Fish Fishery of the Gulf of Mexico outdated language. opposition to Amendment 15B, one DATES: This rule is effective December comment expressed general support, AGENCY: National Marine Fisheries and one comment was unrelated to the Service (NMFS), National Oceanic and 16, 2009, except for the following amendments. The amendment to scope of the actions contained in the Atmospheric Administration (NOAA), amendment and the rule. The remaining Commerce. § 622.18(c) is effective November 16, 2009; the amendment to § 622.10(c) is comments addressed specific concerns ACTION: Final rule. effective February 16, 2010; and the related to the actions contained in the amendment and the rule, and those SUMMARY: amendments to §§ 622.5, 622.8, and NMFS issues this final rule to comments, as well as NMFS’ respective implement Amendment 15B to the 622.18(b)(1)(ii) require approval by the Office of Management and Budget responses, are summarized below. Fishery Management Plan for the Comment 1: One hundred fifty seven (OMB) under the Paperwork Reduction Snapper-Grouper Fishery of the South comments expressed concern regarding Act (PRA). When OMB approval for Atlantic Region (FMP), as prepared and the allocation of snowy grouper. Several those amendments is received, NMFS submitted by the South Atlantic Fishery constituents stated the 95–percent will publish a notice in the Federal Management Council (Council). This commercial and 5–percent recreational Register announcing the applicable final rule, for South Atlantic snapper- allocation of snowy grouper is effective date. grouper, requires a private recreational unbalanced and favors the commercial vessel that fishes in the exclusive ADDRESSES: Copies of the Final sector. Others cited National Standard 4 economic zone (EEZ), if selected by Environmental Impact Statement (FEIS), (NS 4) of the Magnuson-Stevens Act, NMFS, to maintain and submit fishing Final Regulatory Flexibility Analysis regarding ‘‘fair and equitable’’ records; requires a vessel that fishes in (FRFA), and Record of Decision may be management measures, as not being the EEZ, if selected by NMFS, to carry obtained from Kate Michie, Southeast met, stating that a fair allocation of the an observer and install an electronic Regional Office, NMFS, 263 13th species would be 50–percent logbook (ELB) and/or video monitoring Avenue South, St. Petersburg, FL 33701; commercial and 50–percent equipment provided by NMFS; telephone 727–824–5305; fax 727–824– recreational. Another commenter stated prohibits the sale of snapper-grouper 5308. recreational data collection is harvested or possessed in the EEZ under Written comments regarding the insufficient to monitor recreational the bag limits and prohibits the sale of burden-hour estimates or other aspects landings and is concerned any snapper-grouper harvested or possessed of the collection-of-information recreational overages will undermine under the bag limits by vessels with a requirements contained in this final rule efforts to rebuild the stock. Federal charter vessel/headboat permit may be submitted to Rich Malinowski, Response: The sector allocations for for South Atlantic snapper-grouper Southeast Regional Office, NMFS, and snowy grouper in Amendment 15B are regardless of where the snapper-grouper by e-mail to based on historical landings by fishery were harvested; requires an owner and [email protected], or by fax sector, and are proportional to the total operator of a vessel for which a to 202–395–7285. allowable catch (TAC) for the applicable commercial or charter vessel/headboat FOR FURTHER INFORMATION CONTACT: Kate species. The Council recommended and permit has been issued and that has on Michie, telephone: 727–824–5305. NMFS adopted snowy grouper board any hook-and-line gear to comply SUPPLEMENTARY INFORMATION: The allocations based on average annual with sea turtle and smalltooth sawfish snapper-grouper fishery off the southern harvests for each sector using the release protocols, possess on board Atlantic states is managed under the longest time series of data (1986–2005). specific gear to ensure proper release of FMP. The FMP was prepared by the The snowy grouper 95–percent such species, and comply with Council and is implemented under the commercial and 5–percent recreational guidelines for proper care and release of authority of the Magnuson-Stevens allocation was supported by the such species that are incidentally Fishery Conservation and Management Council’s Snapper-Grouper Advisory caught; and expands the allowable Act (Magnuson-Stevens Act) by Panel. It was concluded that the transfer of a commercial vessel permit regulations at 50 CFR part 622. preferred allocation is fair and equitable under the limited access program and On June 4, 2009, NMFS published a based on the best scientific information extends the allowable period for notice of availability for Amendment available. renewal of such a permit. Amendment 15B and requested public comments (74 NMFS recognizes that snowy grouper 15B also revises the stock status FR 26827). On June 30, 2009, NMFS recreational landings are more difficult determination criteria for golden tilefish published the proposed rule to to track than commercial landings. and specifies commercial/recreational implement Amendment 15B and Snowy grouper are infrequently allocations for snowy grouper and red requested public comments (74 FR encountered by the current data porgy. In addition, NMFS removes 31225). NMFS approved Amendment collection program, which is the Marine language specifying commercial quotas 15B on September 1, 2009. The rationale Recreational Fisheries Statistical

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Survey. Therefore, the Council has grouper permit, which they would need same fishermen are not considered discussed, as an action for a future to sell their snapper-grouper caught in participants of the Federal commercial amendment, the possibility of Federal waters; they will no longer be sector of the snapper-grouper fishery. comparing a recreational annual catch able to sell their catch if they only hold Fishermen holding state-issued limit with recreational landings state-issued commercial licenses; commercial licenses will still be averaged over a range of years. For recreational fishermen could begin to allowed to sell snapper-grouper, example, for 2010, landings from 2010 sell their catch illegally, creating an provided those fish are caught in state would be used; for 2011, landings from illegal market for snapper-grouper; the waters (and the fishermen do not also 2010 and 2011 would be used; and for prohibition unfairly favors the hold a Federal for-hire snapper-grouper 2012, landings from 2010, 2011, and commercial sector and inequitably permit), unless and/or until their state 2012 would be used. impacts the recreational and for-hire implements regulations compatible with Comment 2: One hundred fifty five sectors; and for-hire and private this final rule. commenters who signed the form letter recreational vessel operators will no Illegal sale of snapper-grouper by opposed updating management longer be able to defray their trip costs recreational fishermen will likely be an reference points for golden tilefish. by selling bag-limit caught snapper- enforcement issue similar to other They stated that such updates should be grouper. Further, several commenters current illegal fish sales in the South delayed until a peer-reviewed study is alleged that the prohibition on bag-limit Atlantic. The Council’s Law completed with more current data. sales contradicts Amendment 7 (1994) Enforcement Advisory Panel reported Response: Section 303(a) of the to the FMP, which implemented a that the prohibition of bag-limit sales Magnuson-Stevens Act requires that provision to allow the sale of snapper- would aid law enforcement efforts regional fishery management councils grouper caught under the bag limits by because the universe of people involved must specify within their FMPs fishermen who possess a state-issued in the sale of snapper-grouper would be objective and measurable criteria for commercial license, and that the reduced. identifying when the stocks are prohibition on bag-limit sales is illegal The main argument shared by overfished or when overfishing is and violates Magnuson-Stevens Act recreational fishermen on this issue is occurring. These criteria are referred to National Standards (NS) 4, 5, and 8. the disparity of negative socioeconomic by NMFS as stock status determination Response: The cost and limited impacts between the commercial and criteria, otherwise known as availability of Federal commercial recreational sectors. However, management reference points. Required snapper-grouper permits (or limited- fishermen with Federal commercial criteria include maximum sustainable access snapper-grouper permits) could snapper-grouper permits are more yield (MSY), optimum yield (OY), be determining factors for those dependent on snapper-grouper species minimum stock size threshold (MSST), fishermen seeking to sell their catch. If to make a living than individuals who and maximum fishing mortality a person who does not hold a Federal possess a state license and can sell up threshold (MFMT). The Council has commercial snapper-grouper permit to their bag limit. Commercial specified numerical values for MSY, wishes to sell snapper-grouper harvesters with a Federal commercial OY, MSST, and MFMT (the definition of harvested from the EEZ, that person snapper-grouper permit that depend on MFMT, which is the fishing mortality must purchase two Federal commercial the harvest and sale of fish for their that will produce MSY, would remain snapper-grouper permits in order to be livelihood have greater vessel safety unchanged) for golden tilefish, in issued one Federal commercial snapper- requirements and associated expenses Amendment 15B, based on the most grouper permit. This two-for-one than recreational fishermen have with recent Southeast Data, Assessment, and program was established in 1998 their private vessels. This fact, coupled Review (SEDAR) assessment for golden through Amendment 8 to the FMP. with recent regulations that have tilefish, which was completed in 2004. The prohibition on sale of bag-limit established or reduced quotas to end The data used in the 2004 SEDAR caught snapper-grouper is not intended overfishing of a number of snapper- assessment and in Amendment 15B to financially penalize recreational grouper species, were the primary were determined to be the best available fishermen who would like to sell their reasons the Council voted to eliminate scientific information by the Southeast catch, rather it is intended to: the sale of bag limit catch to prevent an Fisheries Science Center (SEFSC). The (1) eliminate the double counting of early closure of the commercial sector of management reference points specified recreationally caught fish, which may be the snapper-grouper fishery and to for golden tilefish in Amendment 15B counted through the Marine prevent market disruption. will continuously be reviewed and Recreational Fishing Statistics Survey The revenue from sales of snapper- updated as new data becomes available. and by snapper-grouper dealers who grouper caught under the bag-limits by The next SEDAR assessment for golden report all landings as commercial; (2) those vessel owners who possess state- tilefish is scheduled to begin in 2010. If improve enforcement by implementing issued commercial licenses traditionally the assessment results indicate a change regulations compatible with those have been used to help offset the cost of is needed, the management reference already in place for reef fish harvested fishing trips. Prohibiting the sale of bag- point values may be updated through a in the Gulf of Mexico; and (3) reduce the limit caught fish could result in a framework action or a future FMP financial risk and negative economic decrease in recreational fishing effort, amendment. impacts that would be incurred if and for-hire vessels may require Comment 3: Three commenters snapper-grouper fisheries are closed increased fees or reduced levels of supported the prohibition on bag limit early due to recreationally caught fish services offered. The use of bag-limit sales of snapper-grouper, however, 168 being counted against the commercial sales as a form of crew payment is commenters (including 155 commenters quotas. understood to be common industry who signed the form letter) expressed Fishermen who hold a state-issued practice. Elimination of the bag-limit opposition to the measure, for one or commercial license to sell fish but who sale provision could result in the more reasons. Those opposed to this do not hold a Federal commercial increase of charter fees, lower crew measure are concerned: about the snapper-grouper permit may be wages, or fewer crew onboard. potential cost of purchasing a considered commercial fishermen by Amendment 7 to the FMP commercial limited access snapper- their respective state. However, those implemented controls on the sale and

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purchase of snapper-grouper by limiting as previously discussed, and because of commercial and recreational vessels bag-limit sale transactions to those who the implementation of compatible fishing for snapper-grouper in the South possessed a state-issued commercial regulations in the South Atlantic and Atlantic EEZ would be cost prohibitive license to sell and dealers who held a Gulf of Mexico. In regard to NS 8, which and is not statistically necessary to Federal snapper-grouper dealer permit. states in part that conservation and create a robust data set. Therefore, the It was NMFS’ intent to allow the sale of management measures shall provide for Council decided to implement bycatch bag-limit caught fish in order to improve the sustained participation of monitoring methods only on vessels stock assessments with the communities and minimize adverse selected by the SRD. supplemental data and allow the impacts on such communities to the Comment 6: One hundred fifty five Council to better manage the snapper- extent practicable, this action would commenters who signed the form letter grouper resource. However, since the help sustain fishing communities whose opposed the action that allows an Council has established new (reduced) fishermen possess Federal commercial individual to transfer his or her limited commercial quotas to end overfishing of snapper-grouper permits and are access vessel permit to a corporation several snapper-grouper species the directly dependent upon the harvest whose shares are all held by the consequences of bag-limit sales has and sale of snapper-grouper species. individual or the individual and one or become more evident. All snapper- Comment 4: Many commenters more of his or her immediate family grouper landings that are sold are supported the bycatch monitoring members. The majority of these counted toward commercial quotas and methods contained in Amendment 15B commenters also support further permit commercial fisheries close when their for commercial vessels, however, 178 reductions in the fishery in order to respective quotas are reached. NMFS is commenters, including those that signed protect snapper-grouper stocks in the implementing the prohibition on bag- the form letter, opposed the requirement South Atlantic. limit sales to help avoid early closures for private recreational vessels to carry Response: This action would add no for species caught by the commercial observers and/or video monitoring additional permits to the fishery. The snapper-grouper fleet. This action does systems if selected to do so by the intent of this action is to allow family- not restrict the recreational fishermen Science and Research Director, SEFSC, owned fishing businesses to transfer from harvesting their bag limit; it NMFS (SRD), stating that it is a individual snapper-grouper permits to a restricts the sale of those bag limit violation of their constitutional rights. family-owned corporation, on a one-for- harvested fish. Response: It is not the Council’s or one basis, to obtain tax and liability NMFS’ intent to infringe on any rights benefits that may be provided to a National Standard 4 states, in part, guaranteed to private citizens of the corporation. The snapper-grouper that conservation and management United States and these requirements do limited access program requires new measures shall not discriminate not violate any person’s rights entrants into the fishery to purchase two between residents of different States, guaranteed under the United States commercial snapper-grouper permits in but if it becomes necessary to allocate Constitution. The requirement for exchange for one permit. Some current such fishing privileges among various private recreational vessels fishing for permit holders would like to fishermen, such allocation shall be fair snapper-grouper in the EEZ to carry incorporate their fishing businesses and and equitable to all such fishermen. observers, and use video monitoring transfer their snapper-grouper permits This rule ensures that fish harvested by equipment, among other monitoring to a new family-owned corporation the recreational sector are not counted methods, if selected to do so by the without the need to buy a second toward the commercial quotas, that total SRD, is intended solely to supplement permit. The Council concluded that the landings are accurate, that market existing data on interactions with modification to the permit disruption is avoided due to early bycatch species and obtain information transferability requirements is fair and snapper-grouper fishery closures, and on regulatory discards. Additionally, equitable based upon the information that South Atlantic regulations for sale any vessel fishing within the confines of available. Under this action, an of recreationally caught snapper-grouper Federal waters is subject to Federal individual would be able to transfer his are consistent with those for reef fish in requirements regardless of the or her limited access transferable vessel the Gulf of Mexico. NS 5 states that commercial or recreational status of the permit to a corporation whose shares are conservation and management measures vessel. The Council voted, and NMFS all held by the individual or the shall, where practicable, consider agreed to adopt, measures to collect individual and or one or more of his or efficiency in the utilization of fishery standardized bycatch data across all her immediate family members. The resources; except that no such measure sectors of the snapper-grouper fishery in permit may not be renewed or shall have economic allocation as its order to create a more reliable and transferred if an annual corporate report sole purpose. NMFS acknowledges the comprehensive database to be used in shows a shareholder other than an economic impacts of this action. The future fisheries management decisions. immediate family member of the economic analysis contained within Comment 5: One commenter stated individual who originally transferred Amendment 15B indicates that there that the monitoring methods included the vessel permit to the family would be adverse economic impacts to in Amendment 15B should be applied corporation. those who have engaged in bag limit to all vessels operating in the snapper- While an optimal fleet size to sales. However, prohibiting the sale of grouper fishery, not only a selected maximize benefits (biological, social, bag-limit caught snapper-grouper will portion. and economic) for the snapper-grouper enhance efficiency in the utilization of Response: All fishing vessels fishery doesn’t currently exist, fishery resources through improved data operating in this fishery, if selected, are reductions in the number of permits in integrity by eliminating the double subject to these monitoring the limited access program continue counting of snapper-grouper species requirements, however, NMFS agrees under the current ‘‘two-for-one’’ permit towards both the recreational and that total bycatch monitoring coverage program. The Council may choose to commercial landings, which will result would yield the greatest amount of further reduce the number of permits in in improved assessments and bycatch data. Placing observers, this fishery in a future amendment. management. Efficiency will also be electronic logbooks, and video Comment 7: One commenter gained through improved enforcement, monitoring systems onboard all expressed concern about any

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disproportionate effects the success of requiring such gear would be amendment was approved by the modification to permit transferability monitored. Secretary of Commerce. requirements might have on low-income Response: Equipment specialists will Other Non-Substantive Changes or subsistence fishermen. The same conduct voluntary dockside training Implemented by NMFS commenter stated a more liberal sessions for proper use of sea turtle approach may be appropriate for permit release gear. Additionally, the protocol This final rule removes the outdated transferability requirements if, indeed, required onboard every Federally 2008 quotas for snowy grouper and red low-income or subsistence fishermen permitted snapper-grouper vessel porgy at § 622.42(e)(1) and (e)(6), were affected. contains step-by-step instructions on respectively. Response: An environmental justice proper use of the required equipment Classification analysis was conducted for all actions in and handling of entangled or hooked sea The Administrator, Southeast Region, Amendment 15B (see Section 7.5 of the turtles. To monitor the efficacy of the NMFS, determined that Amendment FEIS), and it found that no minority, requirement to carry sea turtle release 15B is necessary for the conservation low-income, or subsistence groups gear, NMFS would need to implement and management of the snapper-grouper would be disproportionately affected by an observer or video monitoring fishery and is consistent with the actions therein. program in the snapper-grouper fishery. Magnuson-Stevens Act and other Comment 8: One commenter opposed Presently, enforcement of this provision applicable laws. the requirement for all vessels with would occur via dockside and at-sea This final rule has been determined to commercial and for-hire snapper- vessel inspections. Amendment 15B be not significant for purposes of grouper vessel permits, carrying hook- does include a requirement for federally Executive Order 12866. and-line gear onboard, to: (1) permitted snapper-grouper vessels to An FRFA was prepared. The FRFA immediately release incidentally caught carry an observer and/or video incorporates the initial regulatory smalltooth sawfish by following the monitoring equipment on board if flexibility analysis (IRFA), a summary of latest NMFS approved guidance on selected to do so by the SRD. Once the significant economic issues raised smalltooth sawfish release techniques; funding is secured, NMFS’ intention is by public comments, NMFS responses (2) have a copy of the document, to move forward with the to those comments, and a summary of provided by NMFS, titled ‘‘Careful implementation of an observer program the analyses completed to support the Release Protocols for Sea Turtle Release for the snapper-grouper fishery of the action. A copy of the full analysis is with Minimal Injury’’ posted inside the South Atlantic. available from NMFS (see ADDRESSES). wheelhouse, or within a waterproof case Comment 10: One commenter stated A summary of the FRFA follows. in a readily accessible area; (3) post the the Snapper-Grouper Advisory Panel The purpose of this rule is to specify NMFS provided sea turtle handling and was unbalanced in its representation of quotas for snowy grouper and red porgy; release guideline placard inside the commercial and recreational fishermen modify the sales provisions of snapper- wheelhouse, or in an easily viewable at the time the Advisory Panel voted grouper caught or possessed under the area if there is no wheelhouse; (4) tend against a motion to allow for the bag limit; implement a plan to monitor to incidentally caught sea turtles in a continued sale of bag limit caught and assess bycatch; implement manner consistent with the protocols snapper-grouper by fishermen holding measures to minimize the impacts of specified in 50 CFR 635.21(c)(5)(ii); and state licenses to sell fish. incidental sea turtle and smalltooth (5) carry NMFS approved sea turtle Response: Council advisory panels are sawfish take; and ease the requirements release gear onboard. made up of recreational and commercial of snapper-grouper permit renewal and Response: A 2006 Biological Opinion fishermen, industry representatives, transfer. These measures are expected to conducted by NMFS under the environmentalists and other interested provide additional information for, and Endangered Species Act concluded that members of the public who volunteer otherwise improve the effective the impacts of the South Atlantic their time to advise the Council about management of, the South Atlantic snapper-grouper fishery were likely to trends in fisheries, environmental snapper-grouper fishery, and minimize adversely affect threatened or concerns relating to fish habitats and the impacts on incidentally caught endangered sea turtles and smalltooth management impacts on fishermen and threatened and endangered sea turtles sawfish. Based on the Biological fishing communities. Advisory panel and smalltooth sawfish. The Magnuson- Opinion, NMFS determined the need to members serve 3-year terms and are Stevens Act provides the statutory basis implement sea turtle bycatch release appointed by the Council based on for this rule. In addition to these equipment requirements, and sea turtle Committee recommendations. The actions, Amendment 15B establishes and smalltooth sawfish handling advisory panel member’s seat is open to allocation ratios for snowy grouper and protocols and/or guidelines in the qualified applicants at the end of the 3- red porgy, and management reference commercial and for-hire sectors of the year term, and the current member is points and stock status criteria for snapper-grouper fishery. NMFS also eligible for reappointment. Any golden tilefish. acknowledges the financial burden as motions or issues discussed by a No public comments were received well as the onboard storage issues specific advisory panel may be brought that raised specific issues on the IRFA. related to requirements under this before the respective committee and However, comments were received from action. According to the economic Council for consideration. In this case, 13 individuals that addressed multiple impact analysis contained within the the issue of bag-limit sales was brought issues relating to the general economic FEIS for Amendment 15B (Section before, and voted on, by the Snapper- analysis conducted for the amendment 4.6.2), expenses per vessel are estimated Grouper Committee as well as the and the proposed rule. Some of these to range from $617-$1,115. Council. Both entities voted in favor of comments address issues that are Comment 9: One commenter asked if choosing the alternative to prohibit the germane to the RFA, while others do training in the proper use of sea turtle sale of bag limit caught snapper-grouper not. However, while the Regulatory dehooking and disentanglement gear in the South Atlantic as the preferred Flexibility Analysis (RFA) pertains to would be provided to fishermen in the alternative. Subsequent to the Council’s specific economic questions, there is a snapper-grouper fishery, and how the approval of Amendment 15B, the logical connection between all

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economic issues and the nuances of under the bag limit is necessary to snapper-grouper sales by fishermen that which comments are or are not germane achieve the Council’s objectives. do not possess the Federal commercial to the RFA may not be obvious to the NMFS agrees the cost of obtaining a snapper-grouper permit constituted less public. In recognition of these Federal commercial snapper-grouper than eight percent of total sales of all considerations, all of the economic permit, resulting from the current species by these fishermen for 2004– comments, regardless of whether they limited access permit system that 2006. address issues relevant to the RFA, are requires new entrants to purchase a NMFS disagrees that the rule will addressed here. Federal commercial snapper-grouper result in sufficient contraction of the Thirteen comments addressed the permit on the open market from a fishery to raise monopoly concerns. proposed prohibition on the sale of current permit holder, combined with Although the analysis for the proposed snapper-grouper harvested under the the requirement that two current rule identified over 1,500 entities with bag limit, and two comments addressed permits be purchased in order to enter recorded sales of snapper-grouper the potential costs of bycatch the fishery, is prohibitive and, as a harvested under the bag limit for 2004– monitoring. Among the 13 comments on result, fishermen, who will no longer be 2006, over 700 entities have the the sales prohibition, 8 expressed able to sell bag-limit quantities of necessary Federal commercial permit concern over the magnitude of the likely snapper-grouper are unlikely to acquire that will allow continued harvest and economic effects of the proposed rule; 2 the necessary permits to continue sale of these species. While the permit comments stated that the cost of the commercial sales of these species. In the transfer provisions for this fishery are necessary permit to allow continued analysis of the proposed rule, the cost expected to result in further reduction bag-limit sales was prohibitive; 2 of a single Federal commercial snapper- over time of the number of vessels that comments stated that markets would be grouper permit was estimated to range operate in the fishery, the number of harmed; 1 comment stated the rule will from $9,000-$21,000, but could be permitted vessels is sufficiently large contribute to a regulatory-induced higher. As a result, affected vessels are that no monopoly concerns are evident. contraction of vessels in the fishery, expected to cease the sale of snapper- NMFS disagrees that the economic resulting in a number of ‘‘units’’ that grouper and experience reductions in analysis was inadequate because it did ‘‘may approach a monopolistic level fish revenues ranging from, on average, not sufficiently delineate the effects by with perilous consequences≥; and 1 7 percent for commercial vessels and 17 user group. The economic analysis comment stated the economic analysis percent for for-hire vessels, with some identified average historic harvest and was inadequate because it did not individual fishing vessels expected to sales activity by fishermen, by state, sufficiently delineate the effects by user experience greater than average who did or did not possess the Federal group, particularly the effects on reductions. While these vessels will be commercial snapper-grouper permit. individuals who possessed a North expected to be adversely affected, the The expected economic effects of the Carolina Standard Commercial Fishing Council has not determined at this time proposed rule on affected entities License (SCFL). The two comments on that it is appropriate to either eliminate equates to the loss of revenues from bycatch monitoring stated that certain the two-for-one permit requirement or snapper-grouper sales by individuals options, notably the use of observers allow increased participation in the who do not possess the Federal and electronic monitoring, may be commercial snapper-grouper fishery commercial snapper-grouper permit. In physically impractical or cost through other methods and, therefore, the case of North Carolina, fishermen prohibitive. the elimination of snapper-grouper sales who possessed either a SCFL or a NMFS agrees that this rule will result by vessels that do not have the Federal Retired SCFL have been allowed to sell in adverse economic effects on permit is necessary to achieve the up to the recreational bag limit of fishermen who will no longer be able to Council’s objectives. snapper-grouper. The effects of the continue to sell snapper-grouper NMFS disagrees that fish markets will proposed rule on these entities was harvested under the bag limit. Estimates be significantly affected by this rule. provided in the economic analysis, of the average expected reduction in The prohibition on the sale of snapper- though the specific effects on North revenues associated with these harvests grouper harvested under the bag limit is Carolina fishermen were pooled with were provided in the analysis. Although only expected to affect those who may those of South Carolina fishermen some individual vessels will likely harvest and sell snapper-grouper and because of confidentiality. On average, experience greater than average losses, not the total amount of snapper-grouper the elimination of bag limit sales of across all affected entities, this rule is harvested and sold. Thus, the total snapper-grouper by these entities was expected to reduce average annual fish amount of snapper-grouper available to estimated to affect approximately four sale revenues by approximately 17 fish markets should not be substantially percent of the total average annual sales percent for federally permitted for-hire affected. Some individual market of all marine species by these entities. vessels and approximately 7 percent for businesses, however, may experience Therefore, the results presented all other vessels. It is noted, however, declines in product flow, with others consisted of the expected economic that the primary revenue source for for- experiencing increases, because effects on the subject group addressed in hire vessels is passenger fees and not individual fishermen sell their harvests the comment. It is also noted, as fish sales, so the loss of these revenues to different dealers. Markets that have discussed in the economic analysis in should have a substantially lower historically purchased snapper-grouper support of this rule, that state-licensed impact on business profitability than the harvested under the bag limit may have fishermen fishing in state waters who do reduction in fish sales might imply. to develop new purchase strategies to not possess any Federal permit will be While vessels that will no longer be able maintain product flow, but total product able to continue the harvest and sale of to sell snapper-grouper harvested under availability across all markets is not snapper-grouper harvested from state the bag limit are expected to experience expected to be reduced. Further, if the waters, and the expected economic lower revenues, increased harvests and product mix of individual markets effects described here will be reduced, sales of snapper-grouper by vessels with mirrors that of vessel sales, most if states do not adopt compatible the Federal commercial snapper-grouper markets should not be substantially regulations. permit will be possible, and the dependent on sales of snapper-grouper NMFS agrees that certain bycatch prohibition of the sale of fish harvested harvested under the bag limit as monitoring options may be physically

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impractical, such as insufficient space approximately $14.33 million (nominal $30.67 million. The average annual on the vessel for an observer or no place dollars), or total average annual revenue per vessel from sales of all to locate either an electronic logbook or revenues of approximately $27.29 marine species for this period was video monitor, or cost prohibitive, million. The average annual dockside approximately $21,000. particularly for some recreational revenue per vessel from sales of all Some fleet activity may exist in both vessels. However, any requirements marine species for this period was the commercial and for-hire snapper- would apply to a vessel only if selected, approximately $38,000. grouper sectors, but the extent of such rather than all vessels, and NMFS In 2005, 1,328 vessels were permitted is unknown, and all vessels are treated expects these issues to be key to operate in the Federal snapper- as independent entities in this analysis. considerations in the selection of grouper for-hire fishery, of which 82 are Based on the average revenue figures vessels required to participate. Further, estimated to have operated as described above, it is determined, for although subsequent operation and headboats, and 1,246 as charter vessels. the purpose of this assessment, that all maintenance costs have been the Within these 1,328 vessels, 201 vessels fishing operations that will be affected responsibility of vessel owners where also possessed a Federal commercial by this final rule are small entities. other electronic monitoring snapper-grouper permit and would be This final rule will not explicitly requirements, such as vessel monitoring included in the summary information impose any new reporting, record- systems, have been imposed, the initial provided on the commercial sector. The keeping or other compliance purchase of the system may be charter vessels charge a fee on a vessel requirements on small entities because government funded, further reducing basis, and headboats charge a fee on an this rule simply specifies the types of the burden to the vessel. No decision on individual angler (head) basis. The requirements that could be imposed to responsibility of these costs has been charter vessel annual average gross improve bycatch monitoring and made at this time. However, NMFS revenue is estimated to range from assessment. An individual vessel would expects that the selection of the method approximately $62,000-$84,000 (2005 only be subject to new requirements if of data collection and the vessels dollars) for Florida vessels, $73,000- selected. However, the bycatch and affected will be appropriate to the type $89,000 for North Carolina vessels, monitoring assessment action could of vessel, considerate of the resultant $68,000-$83,000 for Georgia vessels, and result in a requirement for the use of burden, and will minimize any $32,000-$39,000 for South Carolina paper logbooks, electronic logbooks, subsequent costs to the extent vessels. For headboats, the appropriate video cameras, or the carrying of practicable. estimates are $170,000-$362,000 for observers to aid in the monitoring of As explained in the responses Florida vessels, and $149,000-$317,000 bycatch. All commercial snapper- provided here and in the responses to for vessels in the other states. From grouper trips are currently required to other issues raised by public comment 2004–2006, an average of 159 vessels complete logbook records, with each on other aspects of the proposed rule, as per year with the for-hire snapper- report estimated to take 10 minutes to detailed in the Comments and grouper permit had recorded sales of complete. Over the years 2001–2005, Responses section of the preamble, no snapper-grouper species. The total commercial vessels operating in the changes were made in this final rule as average annual revenues from snapper- snapper-grouper fishery took almost a result of such comments. grouper species were approximately 16,000 trips, or approximately 14 trips This final rule is expected to directly $316,000 (nominal dollars), while per vessel. Assuming modification to impact commercial fish harvesters and average annual revenues for all other the current logbook to include bycatch for-hire operators. The Small Business species was approximately $1.52 increased the time required to complete Association has established size criteria million (nominal dollars), for total the form by 25 percent, the additional for all major industry sectors in the U.S. average annual revenues from fish sales annual time burden to complete the including fish harvesters and for-hire of approximately $1.84 million. The form fishery-wide would be operations. A business involved in fish average annual revenue per for-hire approximately 667 hours or 0.6 hours harvesting is classified as a small vessel from fish sales of all marine per vessel. business if it is independently owned species for this period was The headboat sector is also currently and operated, is not dominant in its approximately $11,600. It should be required to complete logbook reports for field of operation (including its noted that these revenues are not all trips, estimated to take 18 minutes affiliates), and has combined annual included in the average gross for-hire per report. Assuming an average of 322 receipts not in excess of $4.0 million revenues listed above, which only trips per vessel (note that many vessels (NAICS code 114111, finfish fishing) for reflect revenues from charter fees. take multiple trips per day, so the all its affiliated operations worldwide. The prohibition of sale of fish average number of trips does not equal For for-hire vessels, the other qualifiers harvested under the bag limit will affect days fished), 82 headboats, and a 25– apply and the annual receipts threshold vessels that have historically sold percent increase in the amount of time is $6.5 million (NAICS code 713990, snapper-grouper but do not possess a required to complete the form to recreational industries). Federal commercial snapper-grouper account for bycatch, the resultant From 2001–2005, an average of 1,127 permit. From 2004–2006, an average of increased annual time burden to the vessels per year were permitted to 1,439 fishing vessels per year that could industry would be approximately 1,980 operate in the Federal commercial not be associated with either a Federal hours, or 24 hours per vessel. snapper-grouper fishery. However, over commercial or Federal for-hire snapper- Although charter vessels currently are the 2004–2006 fishing years, an average grouper permit had recorded snapper- required to complete logbooks if of only 717 vessels per year that were grouper sales. Total average annual selected, no vessels in the charter-vessel permitted to operate in this fishery revenues from snapper-grouper species sector are currently selected and recorded snapper-grouper sales. The for these vessels were approximately required to submit logbooks. Assuming average annual dockside value of $2.09 million (nominal dollars), while it took a charter vessel the same amount snapper-grouper sold by these vessels average revenues from all other species of time required for a commercial vessel was approximately $12.96 million were approximately $28.59 million to complete a bycatch-augmented (nominal dollars), while the value of all (nominal dollars), for total average logbook, 12.5 minutes, 1,246 charter other species sold by these vessels was annual revenues of approximately vessels, and 146 trips per charter vessel

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per year, if all vessels were required to 82,900 lb (37,603 kg) gutted weight is Atlantic charter vessels are estimated to complete logbooks, the total annual time expected to result in a loss of 1,100 lb have average gross annual revenues of burden to the industry would be (499 kg) of snowy grouper to the approximately $32,000-$89,000, across approximately 37,900 hours or 30.4 commercial sector. Assuming an average all states, while headboat average hours per vessel. ex-vessel price of $2.31 per pound (2006 annual revenues are estimated to range There would be no anticipated costs dollars), this reduction is valued at from $149,000-$362,000. of logbook reporting beyond the approximately $2,500, or a loss of If compatible regulations are not opportunity cost of completing the approximately $13 per vessel active in adopted in any state, the estimated logbook forms. Current logbook the fishery (190 vessels; 2001–2005 reduction in bag-limit sales revenues programs provide fishermen with average number of commercial vessels will be limited to those harvests that addressed, pre-paid envelopes for per year with snowy grouper landings). originate from the EEZ by all vessels, returning completed forms. Completing The red porgy quota of 190,050 lbs bag-limit harvests from state waters by the logbooks would not be expected to (86,205 kg) gutted weight is expected to vessels with the Federal charter vessel/ require special skills. result in a gain of 63,050 lb (28,599 kg) headboat permit for South Atlantic Similar burden estimates are not gutted weight of red porgy to the snapper-grouper, and harvests that are available for the use of electronic commercial sector. This gain is marketed through dealers with a Federal logbooks. Electronic logbooks would be comprised of approximately 59,000 lbs permit. This will lower the reduction in expected to take less time to complete (26,762 kg) gutted weight resulting from bag-limit sales to approximately $1.562- because certain response variables could the increase in red porgy TAC as a result $1.799 million, accounting for the be preprogrammed and transmission of the rebuilding strategy implemented estimated portion of bag-limit sales that would be simplified. Electronic through Amendment 15A to the FMP originate in state waters (approximately logbooks are estimated to cost $500 per and the remaining increase resulting 9 percent) and the estimated portion of unit, but responsibility for this expense from an expected one percent increase bag-limit sales that are marketed is undetermined at this time. due to the commercial allocation through dealers without Federal Considering the widespread familiarity established by Amendment 15B. licenses (approximately 21–35 percent). with and usage of computers throughout Assuming an average ex-vessel price of For the Federal for-hire sector, using the today’s society, special skills to use an $1.40 per pound (2006 dollars), the total average EEZ bag-limit sales electronic logbook would not be gain in commercial quota is valued at (approximately $267,000) and dealer expected, though some initial training approximately $88,300, or a gain of proportions (approximately 11 percent or demonstration and a short learning approximately $493 per vessel active in state dealer sales if the North Carolina curve would be logical. the fishery (179 vessels; 2001–2005 and South Carolina proportion is The use of video cameras to monitor average number of commercial vessels applied throughout and 34 percent and record bycatch is likely a method per year with red porgy landings). otherwise), the reduction in bag limit that would, if used, be imposed on only sales will be approximately $175,000- a small portion of participants in the Assuming the implementation of $238,000. For the non-Federal sector, snapper-grouper fishery due to its cost compatible regulations in all states, thus using the average EEZ bag-limit sales and complexity. Purchase, installation, encompassing snapper-grouper (approximately $1.921 million) and and maintenance costs of video systems harvested in both state and Federal dealer proportions (approximately 23– would likely be borne by the waters as well as marketed through all percent state dealer sales if the North government, though some cost-sharing state and federally permitted dealers, Carolina and South Carolina proportion with fishermen may occur. Additional the prohibition on bag-limit sales is is applied throughout and 35 percent details are unavailable at this time, so projected to result in the transfer of otherwise), the reduction will be concrete determinations on fishermen approximately $2.4 million in nominal approximately $1.246 million to $1.483 burden or skill requirements cannot be ex-vessel revenues (2004–2006 average) million. These values equate to made. from for-hire and commercial fishing approximately a 10–13 percent This final rule will directly affect all vessels that do not have a Federal reduction in average annual for-hire vessels that operate in the commercial commercial snapper-grouper permit to fish-sales revenues ($175,000-$238,000/ snapper-grouper fishery, all vessels that the federally permitted commercial 159 vessels/$11,568 total average annual have a Federal snapper-grouper charter snapper-grouper sector. This will revenues) and approximately a 4–5 vessel/headboat permit, and all vessels constitute a total reduction of percent reduction in average annual that harvest snapper-grouper from the approximately $316,000 per year from revenues to non-federally permitted EEZ and sell their catch to federally fish sales by vessels in the federally vessels ($1.246-$1.483 million/1,439 permitted dealers. All affected entities permitted for-hire fishery, or a 17– vessels/$21,317 total average revenues). have been determined, for the purpose percent reduction in average annual The transference of these revenues to of this analysis, to be small entities. gross revenues from fish sales per the Federal commercial snapper-grouper Because all entities that are expected to vessel, and approximately $2.085 sector will result in an estimated be affected by this final rule have been million per year in sales from increase of approximately 9 percent in determined to be small entities, no commercial vessels that do not posses a nominal ex-vessel revenues per year disproportionate effects on small Federal commercial snapper-grouper ($2.4 million/717 vessels/$38,000 entities relative to large entities are permit, or a 7–percent reduction in average annual revenues) if compatible expected. average annual gross revenues per regulations are adopted by all states, Only four of the actions in this final vessel. It should be noted that snapper- and from 5 percent to 6 percent if no rule, including: the two changes in grouper fish sales by federally permitted states adopt compatible regulations quota, the prohibition on bag-limit sales, for-hire vessels, estimated at ($1.422-$1.729 million/717 vessels/ and the gear requirements to minimize approximately $2,000 per vessel on $38,000 average annual revenues). the incidental take of sea turtles and average, constitute a minor portion of The gear requirements to minimize smalltooth sawfish, are expected to have total average annual revenues, with the the incidental take impact on sea turtles direct economic impacts on fishing majority of revenues coming from and smalltooth sawfish are estimated to entities. The snowy grouper quota of charter fees. As discussed above, South increase vessel gear costs by $617-

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$1,115, based on low and high alternative to the bycatch monitoring requirements, the status quo, would not estimated costs, respectively, for each of program in this final rule, the status achieve the desired take-impact the 12 different pieces of required gear quo, would only utilize existing minimization and would not meet the and assuming the vessel does not information, would not improve current Council’s objectives. already possess any of the required gear. capabilities to monitor and assess The second alternative to the final Few actual vessels are expected to have bycatch, and would not achieve the equipment requirements would require to incur the maximum cost, however, Council’s objectives. The second the acquisition of less costly equipment because most vessels are expected to alternative would require the (vessels with less than 4 ft (1.2 m) of already possess and use most of this implementation of the ACCSP bycatch freeboard would be required to carry gear or allowable substitutes. For-hire monitoring program. The ACCSP is a less release gear and vessels with more vessels that exclusively harvest fish cooperative state-federal program whose than 4 ft (1.2 m) of freeboard would through snorkeling or diving activities mission is to design, implement, and have more gear substitution options). and do not possess hook-and-line gear conduct marine fisheries statistics data However, these requirements would not on-board will not have to carry the collection programs and to integrate be expected to result in the same required gear. For those vessels that those data into a single data reduction in bycatch impact need to carry the gear, any costs will be management system that will meet the minimization for these species and, as a one-time expenditures, subject to needs of fishery managers, scientists, result, would not be expected to result breakage or loss replacement. and fishermen. The ACCSP design in as much protection for the species Three alternatives, including the includes data modules for catch and and net economic and social benefits for status quo, were considered for the effort data, permit and vessel society. action to address the sale of snapper- registration, biological data, bycatch Three alternatives, including the grouper harvested under the bag limit. data, quota monitoring data, economic status quo, were considered for the This final rule will prohibit the data, and sociological data. These action to establish the permit renewal purchase and sale of bag-limit fish modules are being implemented on a period. This final rule will allow 1 year harvested from or possessed in the EEZ priority basis consistent with available after permit expiration for permit by vessels that did not possess the funding. At this time, funding is not renewal. The first alternative to the Federal commercial snapper-grouper available for implementation of the renewal period in this final rule, the permit, and bag-limit fish harvested in bycatch data module. While this status quo, would retain the current 60- either state or EEZ waters by vessels that program would generate the best data in day renewal requirement and would not possess the Federal charter vessel/ the shortest period of time, with achieve the Council’s objective of headboat permit for South Atlantic accompanying social and economic increasing permit renewal flexibility. snapper-grouper. The first alternative, benefits, the program lacks the The second alternative to the renewal the status quo, would continue to allow flexibility of allowing interim methods period in this final rule would allow 6 the sale of snapper-grouper harvested until such time as the preferred methods months after permit expiration for under the bag limit, continue to allow can be funded and adopted. As a result, permit renewal. While this would add the Federal commercial snapper-grouper this alternative would not meet the greater flexibility for permit renewal quota to be harvested and sold by Council’s objectives. The overall cost to relative to the status quo, thereby vessels that did not possess the Federal implement the ACCSP bycatch reducing the likelihood of unintended commercial snapper-grouper permit, monitoring program has not been permit loss and associated economic continue increased commercial quota identified. losses, this alternative would not be pressure and accelerated quota closures, The third alternative to the bycatch consistent with the permit renewal result in continued adverse economic monitoring program in this final rule period of most other permits and would effects on the Federal commercial would implement a program that is less not be as flexible as the renewal period snapper-grouper sector, and not achieve comprehensive than the program in this final rule. Having common the Council’s objectives. selected. This program would require a renewal periods makes it possible to The second alternative to the variety of reporting and monitoring renew all permits at the same time, prohibition of sales of snapper-grouper tools, including observers, logbooks, decreases the burden associated with harvested under the bag limit would and video monitoring, among other permit renewal, and decreases the allow continued sales by vessels with a methods, but would be less structured possibility of unintended permit loss Federal for-hire snapper-grouper permit. and systematic than the ACCSP program due to non-renewal. While this would reduce the adverse or the program specified by this final Seven alternatives, including the economic effects on the Federal rule. The cost of this program is status quo, were considered for the commercial snapper-grouper sector unknown. As a result of being less action to establish options for transfer associated with the status quo, these structured and systematic, however, this provisions for permits owned by effects would not be eliminated, thereby program would be expected to be less corporations comprised of family generating less net economic benefits for costly than the program selected, but members. This final rule will allow the this sector and associated businesses would also be expected to result in transfer of the permit to a corporation than this final rule. poorer data and generate fewer long- comprised solely of immediate family Four alternatives, including the status term benefits than the program in this members. Five of the alternatives are quo, were considered for the action to final rule. variations of the transfer provisions of establish a program to monitor and Three alternatives, including the the final rule and vary by differences in assess bycatch. This final rule will status quo, were considered for the required action if the requirement for require the use of a variety of bycatch action to establish sea turtle and the submission of the annual corporate monitoring methods, which include smalltooth sawfish take impact report includes shareholders not listed observers and use of an ELB or video minimization measures. This final rule on the original permit application. The monitoring program, until the Atlantic will require a number of impact first alternative to the transfer Coastal Cooperative Statistics Program minimization measures, including the provisions of this final rule, the status (ACCSP) bycatch monitoring program carrying of release equipment. The first quo, would continue to require a two- can be implemented. The first alternative to the final equipment for-one permit exchange in order for a

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permit holder to incorporate their The sixth alternative to the transfer action will set both the commercial and business operation and change the provisions of this final rule would recreational allocations equal at 50 ownership of the permit to the eliminate the two-for-one permit percent. The status quo would not corporation. Current permit holders transfer requirement. Permit holders establish commercial and recreational would be prevented from receiving the would be able to transfer their permit to allocations. Because allocations are tax and other financial benefits of corporations, family owned or necessary to quantify the commercial incorporation without incurring the otherwise, and freely change quota, this alternative would not added expense of purchasing a second shareholders without incurring the cost achieve the Council’s objective. snapper-grouper permit. Because this of obtaining an additional permit. While The second alternative to the final red restriction was outside the scope of the this would create the most flexible porgy allocation would set the Council’s original intent for the two-for- transfer conditions, it would eliminate recreational sector allocation to 32 one permit transfer requirement, the ability to reduce the size of the percent, while the third alternative maintaining the status quo would not commercial snapper-grouper fleet would set the recreational allocation to achieve the Council’s objectives. through permit renewal requirements. 56 percent. Each sector would be The second alternative to the transfer While the optimal fleet size to maximize expected to receive increased or provisions of this final rule would treat social and economic benefits to the decreased economic benefits relative to the addition of family members as nation has not been identified, the the status quo as their allocation corporate shareholders the same as non- fishery is believed by the Council to still increased or decreased. Net benefits to family members. Thus, once a permit is be overcapitalized and further the nation under any alternative cannot transferred to a corporation, renewal of contraction is necessary. Thus, this be quantified with available data. the permit would not be restricted by alternative would generate less net Neither of these alternatives were change in shareholders. This alternative economic benefits than this final rule. selected as the final action because each would allow the most liberal transfer In addition to the actions discussed would involve substantial changes from flexibility but would not preserve the above, Amendment 15B considered what the Council believes, based on Council’s intent to promote family- alternatives to establish allocation ratios advisory panel comment, is the most owned fishing businesses. for snowy grouper and red porgy, and equitable allocation, which is the The third alternative to the transfer management reference points and stock average sector harvest from 1999–2003, provisions of this final rule would not status criteria for golden tilefish. These or 49 percent commercial and 51 alternatives are discussed in the percent recreational. The final action allow a permit to be renewed and following paragraphs. varies from this allocation by only one transferred if the annual corporate Four alternatives, including the status percentage point, allocating 50 percent report showed a shareholder not listed quo, were considered for the action to of the TAC to each sector. While not on the original corporate set the snowy grouper allocation, which precisely matching the average 1999– documentation. This alternative would was necessary to establish the 2003 harvest, the Council believes that be the most restrictive of the sub-set of commercial quota and recreational this allocation equitably accounts for alternatives that allow family allocation. The final action will set the the increased value of red porgy to the incorporation. Because this alternative allocation to the recreational sector at 5 recreational sector while reversing would eliminate the flexibility to percent, resulting in a commercial declines in commercial harvests due to change corporate shareholders even allocation of 95 percent. The first previous regulatory action. among family members, this alternative alternative to the final allocation, the Two alternatives, including the status would result in less economic benefits status quo, would not establish quo, were considered for the action to than this final rule. commercial and recreational allocations. specify MSY for golden tilefish. The The fourth alternative to the transfer Because allocations are necessary to final MSY is approximately 336,000 lb provisions of this final rule would quantify the commercial quota, this (152,407 kg) whole weight. The require a two-for-one transfer if the alternative would not achieve the alternative to the final MSY, the status annual corporate report showed a Council’s objective. quo, does not specify an MSY. Because shareholder not listed on the original The second alternative to the final specification of an MSY is a required corporate documentation. This snowy grouper allocation would set the component of an FMP, this alternative requirement would increase the cost of recreational allocation at 7 percent, would not achieve the Council’s transfer because of the cost of a second while the third alternative would set the objective. permit, estimated to cost between recreational allocation at 12 percent. Four alternatives, including the status $9,000 and $21,000, and generate less Both alternatives would be expected to quo, were considered for the action to net economic benefits than this final increase the economic benefits to the specify OY for golden tilefish. The final rule. recreational sector while reducing the OY is estimated to be approximately The fifth alternative to the transfer economic benefits to the commercial 327,000 lb (148,325 kg) whole weight. provisions of this final rule would sector. Net economic benefits to the Similar to the status quo MSY, the require either a two-for-one transfer or nation cannot be determined with status quo alternative for OY does not a transfer back to person who is an available data. These alternatives were specify a value for OY. Because immediate family member of the permit not selected as the final snowy grouper specification of an OY is a required holder who originally transferred the allocation because they were derived component of an FMP, this alternative permit to the family corporation if the from shorter time periods than the final does not achieve the Council’s objective. annual corporate report showed a allocation, 1992–2005 and just 2005, The second and third alternatives would shareholder not listed on the original respectively, compared to 1986–2005 for establish OYs of approximately 315,000 corporate documentation. This the final allocation, resulting in lb (142,882 kg) whole weight and requirement would either increase the excessive influence of unrealistic spikes approximately 333,000 lb (151,046 kg) cost of transfer or eliminate the tax and in recreational landings. whole weight, respectively and are, financial benefits of incorporation and, Four alternatives, including the status respectively, more and less conservative thus, generate less net economic quo, were considered for the action to than the final action. The second benefits than this final rule. set the red porgy allocation. The final alternative to the final OY is believed to

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be more conservative than necessary to regulations, limited access permit PART 622—FISHERIES OF THE protect the resource and would be holders have 60 days to renew their CARIBBEAN, GULF, AND SOUTH expected to result in greater foregone permits after the expiration date. This ATLANTIC economic benefits than the final OY. final rule extends the renewal period to ■ Conversely, the third alternative to the 1 year. If the expiration date of a limited 1. The authority citation for part 622 final OY is believed to be insufficiently access permit were to fall within the 30- continues to read as follows: conservative to protect the resource. The day delay in effective date of this rule, Authority: 16 U.S.C. 1801 et seq. final OY is believed to be the the permit holder would only have 60 ■ 2. In § 622.2, the definition of appropriate choice to minimize foregone days to renew their permit. However, ‘‘Smalltooth sawfish’’ is added in economic benefits while protecting the waiving the 30-day delay in effective alphabetical order to read as follows: resource. date for this measure, and implementing § 622.2 Definitions and acronyms. Three alternatives, including the the 1-year renewal period immediately, status quo, were considered for the reduces undue burden on the fleet and * * * * * action to specify the MSST for golden decreases the possibility of permit loss Smalltooth sawfish means the species tilefish. The final MSST will establish a due to non-renewal. Pristis pectinata, or a part thereof. value of approximately 1.454 million lb This final rule contains collection-of- * * * * * (0.660 million kg) whole weight. The information requirements subject to the ■ 3. In § 622.5, paragraphs (a)(1)(iv), first alternative to the final MSST, the PRA. These requirements have been (b)(1), and (b)(2) are revised and status quo, would establish an MSST of submitted to OMB for approval. NMFS paragraph (g) is added to read as approximately 1.784 million lb (0.809 will publish a notice in the Federal follows: million kg) whole weight, would require Register when these requirements have § 622.5 Recordkeeping and reporting. the largest minimum stock size, and been approved by OMB and are effective would increase the likelihood that the (see DATES). * * * * * resource be declared overfished, The public reporting burdens for (a) * * * necessitating harvest reductions and these collections of information are (1) * * * imposing short term adverse economic estimated to average--(1) 10 minutes for (iv) South Atlantic snapper-grouper— (A) General reporting requirements. The impacts. The second alternative to the each logbook submission, (2) 4 minutes owner or operator of a vessel for which final MSST would require the smallest for each notification of a vessel trip, (3) a commercial permit for South Atlantic minimum stock size of approximately 20 minutes for each vessel and gear snapper-grouper has been issued, as 969,000 lb (439,531 kg) whole weight. characterization form, (4) 31 minutes for required under § 622.4(a)(2)(vi), or While this specification would each ELB installation and data whose vessel fishes for or lands South minimize, among the three alternatives, download, (5) 8 hours for each video Atlantic snapper-grouper in or from the likelihood of the stock being monitor installation and data download, state waters adjoining the South declared overfished, this stock level is and (6) 20 minutes for each change of Atlantic EEZ, who is selected to report believed to be insufficiently ownership. These estimates of the by the SRD must maintain a fishing conservative to provide adequate public reporting burdens include the record on a form available from the SRD protection to the resource. The final time for reviewing instructions, and must submit such record as MSST specifies a minimum stock size searching existing data sources, specified in paragraph (a)(2) of this intermediate to the other alternatives gathering and maintaining the data section. and is believed to be the appropriate needed, and completing and reviewing choice to minimize the likelihood of (B) Electronic logbook/video the collections of information. Send monitoring reporting. The owner or triggering restrictive management while comments regarding the burden protecting the resource. operator of a vessel for which a estimates or any other aspect of the commercial permit for South Atlantic Copies of the FRFA are available from collection-of-information requirements, NMFS (see ADDRESSES). snapper-grouper has been issued, as including suggestions for reducing the Section 212 of the Small Business required under § 622.4(a)(2)(vi), who is burden, to NMFS and to OMB (see Regulatory Enforcement Fairness Act of selected to report by the SRD must 1996 states that, for each rule or group ADDRESSES). participate in the NMFS-sponsored Notwithstanding any other provision of related rules for which an agency is electronic logbook and/or video of law, no person is required to respond required to prepare an FRFA, the agency monitoring reporting program as to, nor shall a person be subject to a shall publish one or more guides to directed by the SRD. Compliance with penalty for failure to comply with, a assist small entities in complying with the reporting requirements of this collection of information subject to the the rule, and shall designate such paragraph (a)(1)(iv)(B) is required for requirements of the PRA unless that publications as ‘‘small entity permit renewal. collection of information displays a compliance guides.’’ As part of the (C) Wreckfish reporting. The currently valid OMB control number. rulemaking process, NMFS prepared a wreckfish shareholder under § 622.15, fishery bulletin, which also serves as a List of Subjects in 50 CFR Part 622 or operator of a vessel for which a commercial permit for wreckfish has small entity compliance guide. The Fisheries, Fishing, Puerto Rico, been issued, as required under fishery bulletin will be sent to all vessel Reporting and recordkeeping § 622.4(a)(2)(vii), must— permit holders for the South Atlantic requirements, Virgin Islands. snapper-grouper fishery and the Gulf (1) Maintain a fishing record on a reef fish fishery. Dated: November 9, 2009 form available from the SRD and must Pursuant to 5 U.S.C. 533(d), there is Samuel D. Rauch III, submit such record as specified in good cause to waive the 30-day delay in Deputy Assistant Administrator For paragraph (a)(2) of this section. effective date for one of the measures Regulatory Programs, National Marine (2) Make available to an authorized contained in this final rule which Fisheries Service. officer upon request all records of relieves a restriction, namely the ■ For the reasons set out in the offloadings, purchases, or sales of extension of the time period to renew a preamble, 50 CFR part 622 is amended wreckfish. limited access permit. Under current as follows: * * * * *

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(b) * * * specified by the SRD, on forms provided in an easily viewable area if no (1) Coastal migratory pelagic fish, reef by the SRD. Completed fishing records wheelhouse, the sea turtle handling and fish, snapper-grouper, and Atlantic must be submitted to the SRD monthly release guidelines provided by NMFS. dolphin and wahoo—(i) General and must either be made available to an (ii) Such owner or operator must also reporting requirement. The owner or authorized statistical reporting agent or comply with the sea turtle bycatch operator of a vessel for which a charter be postmarked not later than 7 days mitigation measures, including gear vessel/headboat permit for Gulf coastal after the end of each month. Information requirements and sea turtle handling migratory pelagic fish, South Atlantic to be reported is indicated on the form requirements, specified in coastal migratory pelagic fish, Gulf reef and its accompanying instructions. §§ 635.21(c)(5)(i) and (ii) of this chapter, fish, South Atlantic snapper-grouper, or (2) Participate in the NMFS-sponsored respectively. Atlantic dolphin and wahoo has been electronic logbook and/or video (iii) Those permitted vessels with a issued, as required under § 622.4(a)(1), monitoring reporting program as freeboard height of 4 ft (1.2 m) or less or whose vessel fishes for or lands such directed by the SRD. must have on board a dipnet, tire, short- coastal migratory pelagic fish, reef fish, ■ 4. In § 622.7, paragraph (d) is revised handled dehooker, long-nose or needle- snapper-grouper, or Atlantic dolphin or to read as follows: nose pliers, bolt cutters, monofilament wahoo in or from state waters adjoining line cutters, and at least two types of the applicable Gulf, South Atlantic, or § 622.7 Prohibitions. mouth openers/mouth gags. This Atlantic EEZ, who is selected to report * * * * * equipment must meet the specifications by the SRD must maintain a fishing (d) Falsify or fail to maintain, submit, described in §§ 635.21(c)(5)(i)(E) record for each trip, or a portion of such or provide information or fail to comply through (L) of this chapter with the trips as specified by the SRD, on forms with inspection requirements or following modifications: the dipnet provided by the SRD and must submit restrictions, as specified in § 622.5. handle can be of variable length, only such record as specified in paragraph * * * * * one NMFS-approved short-handled (b)(2) of this section. ■ 5. In § 622.8, paragraph (a)(6) is added dehooker is required (i.e., (ii) Electronic logbook/video to read as follows: § 635.21(c)(5)(i)(G) or (H) of this monitoring reporting. The owner or chapter); and life rings, seat cushions, operator of a vessel for which a charter § 622.8 At-sea observer coverage. life jackets, and life vests or any other vessel/headboat permit for South (a) * * * comparable, cushioned, elevated surface Atlantic snapper-grouper has been (6) South Atlantic snapper-grouper. (i) that allows boated sea turtles to be issued, as required under § 622.4(a)(1), A vessel for which a Federal immobilized, may be used as who is selected to report by the SRD commercial vessel permit for South alternatives to tires for cushioned must participate in the NMFS- Atlantic snapper-grouper or a charter surfaces as specified in sponsored electronic logbook and/or vessel/headboat permit for South § 635.21(c)(5)(i)(F) of this chapter. Those video monitoring reporting program as Atlantic snapper-grouper has been permitted vessels with a freeboard directed by the SRD. Compliance with issued must carry a NMFS-approved height of greater than 4 ft (1.2 m) must the reporting requirements of this observer, if the vessel’s trip is selected have on board a dipnet, tire, long- paragraph (b)(1)(ii) is required for by the SRD for observer coverage. Vessel handled line clipper, a short-handled permit renewal. permit renewal is contingent upon and a long-handled dehooker, a long- (2) Reporting deadlines—(i) Charter compliance with this paragraph (a)(6)(i). handled device to pull an inverted ‘‘V’’, vessels. Completed fishing records (ii) Any other vessel that fishes for long-nose or needle-nose pliers, bolt required by paragraph (b)(1)(i) of this South Atlantic snapper-grouper in the cutters, monofilament line cutters, and section for charter vessels must be South Atlantic EEZ must carry a NMFS- at least two types of mouth openers/ submitted to the SRD weekly, approved observer, if the vessel’s trip is mouth gags. This equipment must meet postmarked not later than 7 days after selected by the SRD for observer the specifications described in the end of each week (Sunday). coverage. § 635.21(c)(5)(i)(A) through (L) of this Information to be reported is indicated * * * * * chapter with the following on the form and its accompanying modifications: only one NMFS- ■ 6. In § 622.10, paragraph (b)(1) is instructions. approved long-handled dehooker revised and paragraph (c) is added to (ii) Headboats. Completed fishing (§ 635.21(c)(5)(i)(B) or (C)) of this read as follows: records required by paragraph (b)(1)(i) chapter and one NMFS-approved short- of this section for headboats must be § 622.10 Conservation measures for handled dehooker (§ 635.21(c)(5)(i)(G) submitted to the SRD monthly and must protected resources. or (H) of this chapter) are required; and either be made available to an * * * * * life rings, seat cushions, life jackets, and authorized statistical reporting agent or (b) * * * life vests, or any other comparable, be postmarked not later than 7 days (1) Sea turtle conservation measures. cushioned, elevated surface that allows after the end of each month. Information (i) The owner or operator of a vessel for boated sea turtles to be immobilized, to be reported is indicated on the form which a commercial vessel permit for may be used as alternatives for and its accompanying instructions. Gulf reef fish or a charter vessel/ cushioned surfaces as specified in * * * * * headboat permit for Gulf reef fish has § 635.21(c)(5)(i)(F) of this chapter. (g) Private recreational vessels in the been issued, as required under * * * * * South Atlantic snapper-grouper fishery. §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), (c) South Atlantic snapper-grouper The owner or operator of a vessel that respectively, must post inside the commercial vessels and charter vessels/ fishes for or lands South Atlantic wheelhouse, or within a waterproof case headboats—(1) Sea turtle conservation snapper-grouper in or from the South if no wheelhouse, a copy of the measures. (i) The owner or operator of Atlantic EEZ who is selected to report document provided by NMFS titled, a vessel for which a commercial vessel by the SRD must— ‘‘Careful Release Protocols for Sea permit for South Atlantic snapper- (1) Maintain a fishing record for each Turtle Release With Minimal Injury,’’ grouper or a charter vessel/headboat trip, or a portion of such trips as and must post inside the wheelhouse, or permit for South Atlantic snapper-

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grouper has been issued, as required § 622.18 South Atlantic snapper-grouper (d) South Atlantic snapper-grouper. under §§ 622.4(a)(2)(vi) and limited access. (1) A South Atlantic snapper-grouper 622.4(a)(1)(i), respectively, and whose * * * * * harvested or possessed in the EEZ on vessel has on board any hook-and-line (b) * * * board a vessel that does not have a valid gear, must post inside the wheelhouse, (1) * * * commercial permit for South Atlantic or within a waterproof case if no (ii) A transferable permit may be snapper-grouper, as required under wheelhouse, a copy of the document transferred upon a change of ownership § 622.4(a)(2)(vi), or a South Atlantic provided by NMFS titled, ‘‘Careful of a permitted vessel with such permit— snapper-grouper harvested in the EEZ Release Protocols for Sea Turtle Release (A) From one to another of the and possessed under the bag limits With Minimal Injury,’’ and must post following: husband, wife, son, daughter, specified in § 622.39(d), may not be sold inside the wheelhouse, or in an easily brother, sister, mother, or father; or or purchased. In addition, a South viewable area if no wheelhouse, the sea (B) From an individual to a Atlantic snapper-grouper harvested or turtle handling and release guidelines corporation whose shares are all held by possessed by a vessel that is operating provided by NMFS. the individual or by the individual and as a charter vessel or headboat with a (ii) Such owner or operator must also one or more of the following: husband, Federal charter vessel/headboat permit comply with the sea turtle bycatch wife, son, daughter, brother, sister, for South Atlantic snapper-grouper may mitigation measures, including gear mother, or father. The application for not be sold or purchased regardless of requirements and sea turtle handling transfer of a permit under this paragraph where harvested, i.e., in state or Federal requirements, specified in (b)(1)(ii)(B) and each application for waters. § 635.21(c)(5)(i) and (ii) of this chapter, renewal of such permit must be (2) A person may sell South Atlantic respectively. accompanied by a current annual report snapper-grouper harvested in the EEZ of the corporation that specifies all only to a dealer who has a valid permit (iii) The required gear must meet the shareholders of the corporation. A for South Atlantic snapper-grouper, as specifications described in permit will not be renewed if the annual required under § 622.4(a)(4). § 635.21(c)(5)(i)(A) through (L) of this report shows a new shareholder other (3) A person may purchase South chapter with the following than a husband, wife, son, daughter, Atlantic snapper-grouper harvested in modifications: only one NMFS- brother, sister, mother, or father. the EEZ only from a vessel that has a approved long-handled dehooker * * * * * valid commercial permit for South (§ 635.21(c)(5)(i)(B) or (C) of this Atlantic snapper-grouper, as required chapter) and one NMFS-approved short- (c) Renewal. NMFS will not reissue a commercial vessel permit for South under § 622.4(a)(2)(vi). handled dehooker (§ 635.21(c)(5)(i)(G) (4) A warsaw grouper or speckled Atlantic snapper-grouper if the permit is or (H) of this chapter) are required; and hind in or from the South Atlantic EEZ revoked or if the RA does not receive an life rings, seat cushions, life jackets, life may not be sold or purchased. vests, or any other comparable, application for renewal within one year (5) No person may sell or purchase a cushioned, elevated surface that allows of the permit’s expiration date. snowy grouper, gag, golden tilefish, boated sea turtles to be immobilized, ■ 9. In § 622.42, paragraphs (e)(1) and greater amberjack, vermilion snapper, may be used as alternatives to tires for (e)(6) are revised to read as follows: black sea bass, or red porgy harvested cushioned surfaces as specified in § 622.42 Quotas. from or possessed in the South Atlantic, § 635.21(c)(5)(i)(F) of this chapter. i.e., in state or Federal waters, by a * * * * * (2) Smalltooth sawfish conservation vessel for which a valid Federal (e) * * * commercial permit for South Atlantic measures. The owner or operator of a (1) Snowy grouper. For the fishing snapper-grouper has been issued for the vessel for which a commercial vessel year that commences January 1, 2009, permit for South Atlantic snapper- remainder of the fishing year after the and for subsequent fishing years— applicable commercial quota for that grouper or a charter vessel/headboat 82,900 lb (37,603 kg). permit for South Atlantic snapper- species specified in § 622.42(e) has been * * * * * grouper has been issued, as required reached. The prohibition on sale/ (6) Red porgy. For the fishing year that under §§ 622.4(a)(2)(vi) and purchase during these periods does not commences January 1, 2009, and for 622.4(a)(1)(i), respectively, that apply to such of the applicable species subsequent fishing years- 190,050 lb incidentally catches a smalltooth that were harvested, landed ashore, and (86,205 kg). sawfish must— sold prior to the applicable commercial * * * * * (i) Keep the sawfish in the water at all quota being reached and were held in ■ times; 10. In § 622.44, paragraph (c)(3) is cold storage by a dealer or processor. revised to read as follows: (6) During January, February, March, (ii) If it can be done safely, untangle and April, no person may sell or the line if it is wrapped around the saw; § 622.44 Commercial trip limits. purchase a red porgy harvested from the (iii) Cut the line as close to the hook * * * * * South Atlantic EEZ or, if harvested by as possible; and (c) * * * a vessel for which a valid Federal (iv) Not handle the animal or attempt (3) Snowy grouper. (i) Until the quota commercial permit for South Atlantic to remove any hooks on the saw, except specified in § 622.42(e)(1) is reached— snapper-grouper has been issued, with a long-handled dehooker. 100 lb (45 kg). harvested from the South Atlantic, i.e., § 622.15 [Amended] (ii) See § 622.43(a)(5) for the in state or Federal waters. The limitations regarding snowy grouper prohibition on sale/purchase during ■ 7. In § 622.15, in paragraphs (c)(4)(iii) after the fishing year quota is reached. January through April does not apply to and (c)(5) remove cross references to * * * * * red porgy that were harvested, landed ‘‘§ 622.5(a)(1)(iv)(B)’’ and add in its ■ ashore, and sold prior to January 1 and place the cross reference 11. In § 622.45, paragraph (d) is revised to read as follows: were held in cold storage by a dealer or ‘‘§ 622.5(a)(1)(iv)(C)(1)’’. processor. This prohibition also does ■ 8. In § 622.18, paragraphs (b)(1)(ii) § 622.45 Restrictions on sale/purchase. not apply to a dealer’s purchase or sale and (c) are revised to read as follows: * * * * * of red porgy harvested from an area

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other than the South Atlantic, provided such documentation are specified in requirements for such documentation such fish is accompanied by paragraph (d)(9) of this section. are specified in paragraph (d)(9) of this documentation of harvest outside the (8) During January through April, no section. South Atlantic. The requirements for person may sell or purchase a gag, black (9) The documentation supporting a such documentation are specified in grouper, red grouper, scamp, red hind, dealer’s purchase or sale of applicable paragraph (d)(9) of this section. rock hind, yellowmouth grouper, tiger species during the times specified in (7) During April, no person may sell grouper, yellowfin grouper, graysby, or paragraphs (d)(6) through (d)(8) of this or purchase a greater amberjack coney harvested from or possessed in section must contain: harvested from the South Atlantic EEZ the South Atlantic EEZ or, if harvested (i) The information specified in part or, if harvested by a vessel for which a or possessed by a vessel for which a 300, subpart K, of this title for marking valid Federal commercial permit for valid Federal commercial permit for containers or packages of fish or wildlife South Atlantic snapper-grouper has South Atlantic snapper-grouper has that are imported, exported, or been issued, harvested from the South been issued, harvested from the South transported in interstate commerce; Atlantic, i.e., in state or Federal waters. Atlantic, i.e., in state or Federal waters. (ii) The official number, name, and The prohibition on sale/purchase during The prohibition on sale/purchase during home port of the vessel harvesting the April does not apply to greater January through April does not apply to applicable species; amberjack that were harvested, landed such species that were harvested, (iii) The port and date of offloading ashore, and sold prior to April 1 and landed ashore, and sold prior to January from the vessel harvesting the were held in cold storage by a dealer or 1 and were held in cold storage by a applicable species; and processor. This prohibition also does dealer or processor. This prohibition (iv) A statement signed by the dealer not apply to a dealer’s purchase or sale also does not apply to a dealer’s attesting that the applicable species was of greater amberjack harvested from an purchase or sale of such species harvested from an area other than the area other than the South Atlantic, harvested from an area other than the South Atlantic. provided such fish is accompanied by South Atlantic, provided such fish is * * * * * documentation of harvest outside the accompanied by documentation of [FR Doc. E9–27442 Filed 11–13–09; 8:45 am] South Atlantic. The requirements for harvest outside the South Atlantic. The BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 74, No. 219

Monday, November 16, 2009

This section of the FEDERAL REGISTER and should be submitted by no later (formerly Room 1E–190 at the Forrestal contains notices to the public of the proposed than January 15, 2010. Building) no longer houses rulemaking issuance of rules and regulations. The ADDRESSES: The public meeting will be materials. purpose of these notices is to give interested FOR FURTHER INFORMATION CONTACT: persons an opportunity to participate in the held at the U.S. Department of Energy, rule making prior to the adoption of the final Forrestal Building, Room 8E–089, 1000 Lucas Adin, U.S. Department of Energy, rules. Independence Avenue, SW., Office of Energy Efficiency and Washington, DC 20585–0121. Please Renewable Energy, Building note that foreign nationals participating Technologies, EE–2J, 1000 DEPARTMENT OF ENERGY in the public meeting are subject to Independence Avenue, SW., advance security screening procedures. Washington, DC 20585–0121. Phone: 10 CFR Part 430 If a foreign national wishes to (202) 287–1317. e-mail: [Docket No. EERE–2008–BT–STD–0012] participate in the public meeting, please [email protected] or Michael Kido, inform DOE of this fact as soon as U.S. Department of Energy, Office of RIN 1904–AB79 possible by contacting Ms. Brenda General Counsel, GC–72, 1000 Energy Conservation Standards for Edwards at (202) 586–2945 so that the Independence Avenue, SW., Residential Refrigerators, Refrigerator- necessary procedures can be completed. Washington, DC 20585–0121. Phone: Freezers, and Freezers: Public Meeting Interested persons may submit (202) 586–9507. e-mail: and Availability of the Preliminary comments, identified by docket number [email protected]. Technical Support Document EERE–2008–BT–STD–0012, by any of SUPPLEMENTARY INFORMATION: the following methods: AGENCY: Office of Energy Efficiency and • Federal eRulemaking Portal: http:// A. Statutory Authority Renewable Energy, U.S. Department of www.regulations.gov Follow the Part A of Title III of the Energy Policy Energy. instructions for submitting comments. and Conservation Act of 1975 (EPCA), • ACTION: Notice of public meeting and E-mail: ResRefFreez-2008–STD– 42 U.S.C. 6291 et seq., established an availability of preliminary technical [email protected]. Include EERE–2008– energy conservation program for major support document. BT–STD–0012 in the subject line of the household appliances, which includes message. residential refrigerators, refrigerator- SUMMARY: The U.S. Department of • Mail: Ms. Brenda Edwards, U.S. freezers, and freezers.1 This program Energy (DOE) will hold an informal Department of Energy, Building authorizes the Department to establish public meeting to discuss and receive Technologies Program, Mailstop EE–2J, energy efficiency standards for certain comments on the product classes that Public Meeting for Refrigerators, consumer products. Any new or DOE plans to analyze for purposes of Refrigerator-Freezers, and Freezers, amending energy conservation amended standard for these products EERE–2008–BT–STD–0012, 1000 must (1) achieve the maximum standards for residential refrigeration Independence Avenue, SW., products; the analytical framework, improvement in energy efficiency that is Washington, DC 20585–0121. Phone: technologically feasible and models, and tools that DOE is using to (202) 586–2945. Please submit one evaluate standards for these products; economically justified, and (2) result in signed paper original. significant conservation of energy. (42 the results of preliminary analyses • Hand Delivery/Courier: Ms. Brenda performed by DOE for these products; U.S.C. 6295(o)(2)(A)) To determine Edwards, U.S. Department of Energy, whether a proposed standard is and potential energy conservation Building Technologies Program, 6th standard levels derived from these economically justified, DOE must, after Floor, 950 L’Enfant Plaza, SW., receiving comments on the proposed analyses that DOE could consider for Washington, DC 20024. Phone: (202) these products. DOE also encourages standard, determine whether the 586–2945. Please submit one signed benefits of the standard exceed its written comments on these subjects. To paper original. inform stakeholders and facilitate this burdens to the greatest extent Instructions: All submissions received practicable, weighing the following process, DOE has prepared an agenda, a must include the agency name and preliminary Technical Support seven factors: docket number or RIN for this 1. The economic impact of the Document (TSD), and briefing materials, rulemaking. which are available at: http:// standard on manufacturers and Docket: For access to the docket to consumers of products subject to the www1.eere.energy.gov/buildings/ read background documents, a copy of _ standard; appliance standards/residential/ the transcript of the public meeting, or refrigerators_freezers.html. 2. The savings in operating costs comments received, go to the U.S. throughout the estimated average life of DATES: The Department will hold a Department of Energy, 6th Floor, 950 the covered products in the type (or public meeting on December 10, 2009, L’Enfant Plaza, SW., Washington, DC class) compared to any increase in the from 9 a.m. to 5 p.m. in Washington, 20024, (202) 586–2945, between 9:00 price, initial charges, or maintenance DC. Any person requesting to speak at a.m. and 4:00 p.m., Monday through the public meeting should submit such Friday, except Federal holidays. Please 1 Part A of Title III of EPCA, which focuses on request, along with an electronic copy of call Ms. Brenda Edwards at (202) 586– consumer products, and the corresponding Part A– the statement to be given at the public 2945 for additional information 1, which governs certain commercial and industrial equipment, were originally titled Parts B and C, meeting, before 4 p.m., November 25, regarding visiting the Resource Room. respectively. For editorial reasons, Parts B and C 2009. Written comments are welcome, Please note that the Department’s were redesignated as Parts A and A–1 in the United especially following the public meeting, Freedom of Information Reading Room States Code.

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expenses for the covered products refrigerator-freezers, and freezers by data sheets were based on the October which are likely to result from the publishing a final rule in the Federal 2005 draft technical report analyzing imposition of the standard; Register on April 28, 1997. 62 FR 23102. potential new amended energy 3. The total projected amount of The new standards became effective on conservation standards for residential energy savings likely to result directly July 1, 2001. By completing a second refrigerator-freezers described above. from the imposition of the standard; standards rulemaking, DOE had fulfilled The technical report and the associated 4. Any lessening of the utility or the its legislative requirement to conduct data sheets provided input to the setting performance of the covered products two cycles of standards rulemakings. of priorities for rulemaking activities. likely to result from the imposition of A coalition including utility 2. Current Rulemaking Process the standard; companies, consumer and low-income 5. The impact of any lessening of advocacy groups, environmental and The Energy Independence and competition, as determined in writing energy efficiency organizations, and the Security Act of 2007 (EISA), Public Law by the Attorney General, that is likely to California Energy Commission 110–140 (Dec. 19, 2007), requires DOE result from the imposition of the submitted a petition in 2004 requesting to publish a final rule by December 31, standard; that DOE conduct another rulemaking to 2010, to determine whether to amend 6. The need for national energy amend the standards for residential the standards in effect for refrigerators, conservation; and refrigerator-freezers. (June 1, 2004 refrigerator-freezers, and freezers 7. Other factors the Secretary Petition, Last accessed 9/9/09, http:// manufactured on or after January 1, considers relevant. www.standardsasap.org/documents/ 2014. See EISA, Sec. 311(a)(3) (codified (See 42 U.S.C. 6295(o)(2)(B)(i)) rfdoe.pdf) In April 2005, DOE granted at 42 U.S.C. 6295(b)(4)). As part of this Prior to proposing a standard for the petition and conducted a limited set rulemaking, if a positive determination public comment, DOE typically seeks of analyses to assess the potential is made, DOE must also include any public input on the analytical energy savings and potential economic amended standards. To comply with framework, models, and tools that DOE benefit of new standards. (See, e.g., these new requirements, the Department will use to evaluate standards for the ‘‘Energy Department Grants Petition for published on its website the Energy product at issue; the results of New Refrigerator Energy Efficiency Conservation Standards Rulemaking preliminary analyses performed by DOE Standards’’, ACEEE press release, April Framework Document for Residential for the product; and potential energy 13, 2005, Last accessed 9/9/09, http:// Refrigerators, Refrigerator-Freezers, and conservation standard levels derived www.aceee.org/press/ Freezers (the framework document) to from these analyses that DOE could 0504doepetition.htm) DOE issued a explain the issues, analyses, and process consider. report in October 2005 detailing the that it anticipated using for the analyses, which examined the development of energy efficiency B. History of Standards Rulemaking for technological and economic feasibility standards for these products. This Refrigerators, Refrigerator-Freezers, of new standards set at Energy Star document is available at: http:// and Freezers levels effective in 2005 for the two most www1.eere.energy.gov/buildings/ _ 1. Background popular product classes of refrigerators: appliance standards/residential/pdfs/ top-mount refrigerator-freezers without refrigerator_freezer_framework.pdf (Last The National Appliance Energy TTD features and side-mount accessed 9/9/09). DOE also published a Conservation Act of 1987 (NAECA), refrigerator-freezers with TTD features. notice announcing the availability of the Pub. L. 100–12 (March 17, 1989), Depending on assumptions regarding framework document and a public amended EPCA and established energy the impact that standards would have meeting to discuss the proposed conservation standards for refrigerators, on market efficiency, DOE estimated analytical framework, and inviting refrigerator-freezers, and freezers. See 42 that amended standards at the 2005 written comments concerning the U.S.C. 6295(b). It also required DOE to ENERGY STAR levels would yield development of standards for the decide whether these standards should energy savings of up to 2.4 to 3.4 residential refrigeration products. 73 FR be amended and to conduct two rounds quadrillion British thermal units (Btu), 54089 (September 18, 2008). of rulemakings. with an associated economic impact to DOE held a public meeting on On November 17, 1989, DOE the Nation ranging from a burden or cost September 29, 2008 to discuss the published a final rule in the Federal of $1.2 billion to a benefit or savings of analyses and issues identified in various Register updating the performance $3.3 billion. (Technical Report: Analysis sections of the framework document. At standards. The new standards became of Amended Energy Conservation the meeting, DOE described the effective on January 1, 1993. 54 FR Standards for Residential Refrigerator- different analyses it would conduct, the 47916. Subsequently, DOE determined Freezers, U.S. Department of Energy, methods proposed for conducting them, that new standards for some of the October 2005, Last accessed 9/9/09, and the relationships among the various product classes were based on http://www1.eere.energy.gov/buildings/ analyses. Manufacturers, trade incomplete data and incorrect analysis, appliance_standards/pdfs/ associations, environmental advocates, which prompted the publication of a refrigerator_report_1.pdf). regulators, and other interested parties correction notice. See 55 FR 42845 (Oct. In October 2005, DOE published draft attended the meeting. Comments 24, 1990). The notice amended the new data sheets containing energy savings received since publication of the standards for the following three potentials for refrigerator-freezers as framework document helped identify product classes: (1) Refrigerators and part of its fiscal year 2006 schedule- issues for DOE to address in developing refrigerator-freezers with manual setting process. (2006 Draft Rulemaking a proposed standard and provided defrost, (2) refrigerator-freezers with Activities Data Sheets, Appliance information contributing to DOE’s automatic defrost with a bottom- Standards, Building Technologies proposed resolution of these issues. mounted freezer but without through- Program, U.S. Department of Energy, the-door (TTD) ice service, and (3) chest October 2005, Last Accessed 9/9/09, C. Summary of the Analyses Performed freezers and all other freezers. Id. In http://www1.eere.energy.gov/buildings/ by DOE 1997, DOE updated the performance appliance_standards/pdfs/ For each of the residential standards once again for refrigerators, 2006_activities_data_sheets.pdf). The refrigeration products currently under

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consideration, DOE conducted in-depth used to determine the manufacturer value terms. The PBP represents the technical analyses in the following selling prices based on manufacturing number of years needed to recover the areas: (1) Engineering; (2) markups to cost. Chapter 5 of the preliminary TSD increase in purchase price (including determine product price; (3) energy-use discusses the engineering analysis. installation cost) of more efficient characterization; (4) life-cycle cost (LCC) products through savings in the 2. Markups To Determine Product Prices and payback period (PBP) analyses; and operating cost of the product. It is the (5) national impact analysis (NIA). DOE derives consumer prices for change in total installed cost due to These analyses resulted in a preliminary products based on manufacturer, increased efficiency divided by the TSD that presents the methodology and retailer, distributor, contractor, and change in annual operating cost from results of each of these analyses. The builder markups, as well as sales taxes. increased efficiency. Chapter 8 of the preliminary TSD is available at the Web Collectively, these items comprise the preliminary TSD discusses the LCC and address given in the SUMMARY section of markups affecting product pricing. In PBP analyses. this notice. The analyses are described deriving these markups, DOE has 5. National Impact Analysis in more detail below. determined (1) the distribution channels DOE also conducted several other for product sales; (2) the markup The NIA estimates the national energy supplemental analyses that will be associated with each party in the savings (NES) and the net present value expanded upon in the notice of distribution channels; and (3) the (NPV) of total consumer costs and proposed rulemaking (NOPR).2 These existence and magnitude of differences savings expected to result from new analyses include the market and between markups for baseline products standards at specific efficiency levels. technology assessment, the screening (baseline markups) and for more- DOE calculated NES and NPV for each analysis, which contributes to the efficient products (incremental efficiency level as the difference engineering analysis, and the shipments markups). DOE calculates both overall between a base-case forecast (without analysis, which contributes to the NIA. baseline and overall incremental new standards) and the standards case In addition to these analyses, DOE has markups based on the product markups forecast (with standards). DOE begun some preliminary work on the at each step in the distribution channel. determined national annual energy manufacturer impact analysis (MIA) and The overall incremental markup relates consumption by multiplying the identified the methods to be used for the the change in the manufacturer sales number of units in use (by vintage) by LCC subgroup analysis, the price of higher-efficiency models (the the average unit energy consumption environmental assessment, the incremental cost increase) to the change (also by vintage). Cumulative energy employment analysis, the regulatory in the retailer or distributor sales price. savings are the sum of the annual NES impact analysis, and the utility impact Chapter 6 of the preliminary TSD determined over a specified time period. analysis. DOE will expand on these discusses the estimation of markups. The national NPV is the sum over time analyses in the NOPR. of the discounted net savings each year, 3. Energy Use Characterization which consists of the difference 1. Engineering Analysis The energy use characterization between total operating cost savings and The engineering analysis establishes provides estimates of annual energy increases in total installed costs. Critical the relationship between the cost and consumption for the residential inputs to this analysis include efficiency of a product DOE is refrigeration products, which DOE uses shipments projections, retirement rates evaluating for amended energy in the LCC and PBP analyses and the (based on estimated product lifetimes), conservation standards. This NIA. DOE developed energy and estimates of changes in shipments relationship serves as the basis for cost- consumption estimates for all of the and retirement rates in response to benefit calculations for individual product classes analyzed in the changes in product costs due to consumers, manufacturers, and the engineering analysis, as the basis for its standards. Chapter 10 of the preliminary Nation. The engineering analysis energy use estimates. Chapter 7 of the TSD discusses the NIA. identifies representative baseline preliminary TSD discusses the energy DOE consulted with stakeholders and products, which is the starting point for use characterization. other interested persons as part of its analyzing technologies that provide process for conducting all of the 4. Life-Cycle Cost and Payback Period analyses and invites further input from energy efficiency improvements. The Analyses term ‘‘baseline product’’ refers to a the public on these topics. The model or models having features and The LCC and PBP analyses determine preliminary analytical results are technologies typically found in products the economic impact of potential subject to revision following review and currently offered for sale. The baseline standards on individual consumers. The input from the public. The final rule model in each product class represents LCC is the total consumer expense for will contain the final analysis results. the characteristics of products in that a product over the life of the product. The Department encourages those class and, for products already subject The LCC analysis compares the LCCs of who wish to participate in the public to energy conservation standards, is products designed to meet possible meeting to obtain the preliminary TSD usually a model that just meets the energy conservation standards with the and to be prepared to discuss its current standard. After identifying the LCCs of the products likely to be contents. A copy of the preliminary TSD baseline models, DOE estimated installed in the absence of standards. is available at the Web address given in manufacturer selling prices through an DOE determines LCCs by considering the SUMMARY section of this notice. analysis of (1) manufacturer costs, and (1) total installed cost to the purchaser However, public meeting participants (2) markups, which are the multipliers (which consists of manufacturer selling need not limit their comments to the price, sales taxes, distribution chain topics identified in the preliminary 2 Section 307 of the Energy Independence and markups, and installation cost); (2) the TSD. The Department is also interested Security Act of 2007, Public Law 110–140, operating expenses of the products in receiving views concerning other amended section 325(p) of EPCA (42 U.S.C. (energy use and maintenance); (3) relevant issues that participants believe 6295(p)) to remove a requirement that DOE publish an advance notice of proposed rulemaking. Thus, product lifetime; and (4) a discount rate would affect energy conservation the first regulatory action in this proceeding will be that reflects the real consumer cost of standards for these products or that DOE publication of a notice of proposed rulemaking. capital and puts the LCC in present- should address in the NOPR.

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Furthermore, the Department future airplane operations. This Comments Invited welcomes all interested parties, whether extension is a result of Cessna Aircraft The FAA invites interested persons to or not they participate in the public Company’s request to extend the participate in this rulemaking by meeting, to submit in writing by January comment period for the proposal. submitting written comments, data, or 15, 2010, comments and information on DATES: The comment period for the views. We also invite comments relating matters addressed in the preliminary NPRM published on August 17, 2009 to the economic, environmental, energy, TSD and on other matters relevant to (74 FR 41522) was scheduled to close on or federalism impacts that might result consideration of standards for November 16, 2009, and is extended from adopting the proposals in this refrigerators, refrigerator-freezers, and until December 16, 2009. document. The most helpful comments freezers. reference a specific portion of the The public meeting will be conducted ADDRESSES: You may send comments proposal, explain the reason for any in an informal, conference style. A court identified by Docket Number FAA– recommended change, and include reporter will be present to record the 2009–0738 using any of the following supporting data. To ensure the docket minutes of the meeting. Discussion of methods: does not contain duplicate comments, proprietary information, costs or prices, • Federal eRulemaking Portal: Go to please send only one copy of written market shares, or other commercial http://www.regulations.gov and follow comments, or if you are filing comments matters regulated by United States the instructions for sending your electronically, please submit your antitrust laws is prohibited. comments electronically. comments only one time. After the public meeting and the • Mail: Send comments to Docket We will file in the docket all expiration of the period for submitting Operations, M–30, U.S. Department of comments we receive, as well as a written statements, the Department will Transportation, 1200 New Jersey report summarizing each substantive consider all timely comments and Avenue, SE., West Building Ground public contact with FAA personnel additional information that is obtained Floor, Room W12–140, Washington, DC concerning this proposed rulemaking. from interested parties or through 20590. Before acting on this proposal, we will further analyses, and it will prepare an • Fax: Fax comments to Docket consider all comments we receive on or NOPR. The NOPR will include Operations at 202–493–2251. before the closing date for comments. proposed energy conservation standards • We will consider comments filed after for the products covered by this Hand Delivery: Bring comments to the comment period has closed if it is rulemaking, and members of the public Docket Operations in Room W12–140 of possible to do so without incurring will be given an opportunity to submit the West Building Ground Floor at 1200 expense or delay. We may change this written and oral comments on the New Jersey Avenue, SE., Washington, proposal in light of the comments we proposed standards. DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. receive. Issued in Washington, DC, on November 9, 2009. For more information on the rulemaking Availability of Rulemaking Documents Cathy Zoi, process, see the SUPPLEMENTARY You can get an electronic copy using Assistant Secretary, Energy Efficiency and INFORMATION section of this document. the Internet by: Renewable Energy. Privacy: We will post all comments (1) Searching the Federal [FR Doc. E9–27396 Filed 11–13–09; 8:45 am] we receive, without change, to http:// eRulemaking Portal at http:// BILLING CODE 6450–01–P www.regulations.gov, including any www.regulations.gov; personal information you provide. (2) Visiting the Office of Rulemaking’s Using the search function of our docket Web page at http://www.faa.gov/avr/ DEPARTMENT OF TRANSPORTATION web site, anyone can find and read the arm/index.cfm; or comments received into any of our (3) Accessing the Government Federal Aviation Administration dockets, including the name of the Printing Office’s Web page at http:// individual sending the comment (or www.gpoaccess.gov/fr/index.html. 14 CFR Parts 1 and 23 signing the comment for an association, You can also get a copy by sending a business, labor union, etc.). You may [Docket No. FAA–2009–0738; Notice No. 09– request to the Federal Aviation 09] review DOT’s complete Privacy Act Administration, Office of Rulemaking, Statement in the Federal Register ARM–1, 800 Independence Avenue, RIN 2120–AJ22 published on April 11, 2000 (65 FR SW., Washington, DC 20591, or by 19477–78) or you may visit http:// calling (202) 267–9680. Make sure to Certification of Turbojets; Extension of DocketsInfo.dot.gov. identify the docket number or notice Comment Period Docket: To read background number of this rulemaking. AGENCY: Federal Aviation documents or comments received, go to Proprietary or Confidential Business Administration (FAA), DOT. http://www.regulations.gov at any time Information ACTION: Notice of proposed rulemaking or to Docket Operations in Room W12– (NPRM); extension of comment period. 140 of the West Building Ground Floor Do not file in the docket information at 1200 New Jersey Avenue, SE., that you consider to be proprietary or SUMMARY: This action extends the Washington, DC, between 9 a.m. and 5 confidential business information. Send comment period for an NPRM that was p.m., Monday through Friday, except or deliver this information directly to published on August 17, 2009. In that Federal holidays. the person identified in the FOR FURTHER document, the FAA proposed to amend INFORMATION CONTACT section of this applicable standards for part 23 FOR FURTHER INFORMATION CONTACT: Pat document. You must mark the turbojet-powered airplanes—which are Mullen, Regulations and Policy, ACE– information that you consider commonly referred to as ‘‘turbojets’’—to 111, Federal Aviation Administration, proprietary or confidential. If you send reflect the current needs of industry, 901 Locust Street, Kansas City, MO the information on a disk or CD–ROM, accommodate future trends, address 64106; telephone (816) 329–4111. mark the outside of the disk or CD–ROM emerging technologies, and provide for SUPPLEMENTARY INFORMATION: and also identify electronically within

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the disk or CD–ROM the specific DEPARTMENT OF TRANSPORTATION • Fax: (202) 493–2251. information that is proprietary or • Mail: U.S. Department of confidential. Federal Aviation Administration Transportation, Docket Operations, M– Under 14 CFR 11.35(b), when we are 30, West Building Ground Floor, Room aware of proprietary information filed 14 CFR Part 39 W12–140, 1200 New Jersey Avenue, SE., with a comment, we do not place it in Washington, DC 20590. [Docket No. FAA–2009–1076; Directorate • the docket. We hold it in a separate file Identifier 2009–CE–019–AD] Hand Delivery: U.S. Department of to which the public does not have Transportation, Docket Operations, M– access, and place a note in the docket RIN 2120–AA64 30, West Building Ground Floor, Room that we have received it. If we receive W12–140, 1200 New Jersey Avenue, SE., Airworthiness Directives; Mitsubishi a request to examine or copy this Washington, DC 20590, between 9 a.m. Heavy Industries, Ltd. Various Model information, we treat it as any other and 5 p.m., Monday through Friday, MU–2B Airplanes request under the Freedom of except Federal holidays. Information Act (5 U.S.C. 552). We AGENCY: Federal Aviation • For service information identified process such a request under the DOT Administration (FAA), Department of in this proposed AD, contact Mitsubishi procedures found in 49 CFR part 7. Transportation (DOT). Heavy Industries America, Inc., 4951 Airport Parkway, Suite 800; Addison, Background ACTION: Notice of proposed rulemaking (NPRM). Texas 75001; telephone: (972) 934– On August 17, 2009, the Federal 5480; fax: (972) 934–5488; Internet: Aviation Administration (FAA) SUMMARY: We propose to supersede http://www.mu-2aircraft.com or http:// published Notice No. 09–09, Airworthiness Directive (AD) 2006–17– www.turbineair.com. Certification of Turbojets (74 FR 41522). 01, AD 2006–15–07, AD 2000–02–25, FOR FURTHER INFORMATION CONTACT: Al Comments to that document were to be and AD 97–25–02, which apply to Wilson, Flight Test Pilot, FAA, Fort received on or before November 16, certain Mitsubishi Heavy Industries, Worth Airplane Certification Office 2009. Ltd. (MHI) various Model MU–2B (ACO), 2601 Meacham Blvd., Fort By letter dated October 29, 2009, airplanes. An FAA-led MU–2B safety Worth, Texas 76137; telephone: (817) Cessna Aircraft Company requested that evaluation resulted in the 222–5146; fax: (817) 222–5960. the FAA extend the comment period for standardization of the MU–2B specific Notice No. 09–09 an additional 30 days. training and the FAA-accepted pilot SUPPLEMENTARY INFORMATION: In their request, Cessna explains that the operating checklists through a special Comments Invited ‘‘far reaching implications of the federal aviation regulation (SFAR). MHI We invite you to send any written proposal create the need for more time revised the airplane flight manuals relevant data, views, or arguments to generate a reasonable and proper (AFMs) to align them with the regarding this proposed AD. Send your response.’’ information in that training and the comments to an address listed under the The FAA concurs with the checklists. In addition, incorporating all ADDRESSES section. Include the docket petitioner’s request for an extension of AFM revisions up to and including this number, ‘‘FAA–2009–1076; Directorate the comment period on Notice No. 09– latest AFM revision will incorporate all Identifier 2009–CE–019–AD’’ at the 09. This will also allow other AFM compliance actions required by beginning of your comments. We commenters who may not have the four above-mentioned ADs. This specifically invite comments on the anticipated an extension of the proposed AD would retain from AD overall regulatory, economic, comment period additional time to 2006–17–01 the inspection of the engine environmental, and energy aspects of submit their comments. Absent unusual torque indication system and possible the proposed AD. We will consider all circumstances, the FAA does not recalibration of the torque pressure comments received by the closing date anticipate any further extension of the transducers and would require and may amend the proposed AD in comment period for this rulemaking. incorporating all revisions up to and light of those comments. including the latest revisions of the Extension of Comment Period We will post all comments we AFM. We are proposing this AD to receive, without change, to http:// In accordance with § 11.47(c) of Title correct inconsistencies in critical www.regulations.gov, including any 14, Code of Federal Regulations, the operating procedures between the MU– personal information you provide. We FAA has reviewed the petition made by 2B specific training, the FAA-accepted will also post a report summarizing each Cessna Aircraft Company for extension pilot operating checklists, and the substantive verbal contact we receive of the comment period to Notice No. AFMs. This condition, if not corrected, concerning this proposed AD. 09–09. The petitioner has shown a could result in operators using FAA- substantive interest in the proposed rule accepted pilot operating checklists that Discussion and good cause for the extension. The differ from the AFM in certain critical FAA has determined that extension of This proposed AD results from operating procedures, which could inconsistencies in critical operating the comment period is consistent with result in failure to properly operate the the public interest and that good cause procedures between the MU–2B specific airplane. This failure could lead to loss training, the FAA-accepted pilot exists for taking this action. of control. Accordingly, the comment period for operating checklists, and the AFMs. In DATES: We must receive comments on 2005, the FAA, Aircraft Certification Notice No. 09–09 is extended until this proposed AD by December 31, December 16, 2009. and Flight Standards Service, conducted 2009. an MU–2B safety evaluation. The FAA Issued in Washington, DC, on November ADDRESSES: Use one of the following found that MU–2B specific training was 10, 2009. addresses to comment on this proposed not required for all operators and, when Pamela Hamilton-Powell, AD: provided, was not standardized. The Director, Office of Rulemaking. • Federal eRulemaking Portal: Go to safety evaluation also revealed that [FR Doc. E9–27363 Filed 11–13–09; 8:45 am] http://www.regulations.gov. Follow the many FAA-accepted pilot operating BILLING CODE 4910–13–P instructions for submitting comments. checklists used by operators and

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trainers had no regulatory basis and • AD 2000–02–25, Amendment 39– FAA’s Determination and Requirements were locally produced, lacking 11543 (65 FR 5422, February 4, 2000), of the Proposed AD standardization for normal, abnormal, requires revising the AFM to include We are proposing this AD because we and emergency flight operations. requirements for activating the airframe evaluated all information and In 2008, the FAA issued SFAR No. pneumatic deicing boots. determined the unsafe condition 108, Mitsubishi MU–2B Series Airplane • AD 2006–15–07, Amendment 39– described previously is likely to exist or Special Training, Experience, and 14687 (71 FR 41116, July 20, 2006), Operating Requirements. The SFAR develop on other products of the same requires revising the Limitations section type design. This proposed AD would requires standardization for critical of the AFM to prevent improper rigging operating procedures in training and in supersede AD 97–25–02, AD 2000–02– of the propeller feathering linkage. 25, AD 2006–15–07, and AD 2006–17– the FAA-accepted pilot operating • checklists. MHI revised the AFMs to AD 2006–17–01, Amendment 39– 01 with a new AD that would: • align them with the information in the 14722 (71 FR 47697, August 18, 2006), Require incorporating all revisions current SFAR. The FAA requested requires inspecting the engine torque up to and including the latest revisions Mitsubishi Heavy Industries, Ltd. make indication system, recalibrating the of the AFM; and changes to the AFM for each model torque pressure transducers as required, • Retain from AD 2006–17–01 the approved under Type Certificate Data and revising the Limitations section of requirement of the engine torque Sheets (TCDS) A10SW and A2PC. the AFM to include power assurance indication system inspection and Incorporating all AFM revisions up to charts. The one-time inspection of and possible recalibration. possible recalibration is not part of the and including this latest AFM revision Costs of Compliance will incorporate the AFM actions in AFM revisions. other ADs, as follows: This condition, if not corrected, could We estimate that this proposed AD • AD 97–25–02, Amendment 39– result in operators using FAA-accepted would affect 355 airplanes. 10225 (62 FR 63830, December 3, 1997), pilot operating checklists that differ We estimate the following costs to requires revising the Limitations section from the AFM in certain critical accomplish the proposed engine torque of the airplane AFM to prohibit operating procedures, which could indication system inspection, including positioning the power levers below the result in failure to properly operate the the recalibration and ground check if flight idle stop while the airplane is in airplane. This failure could lead to loss needed. This is a retained cost from AD flight. of control. 2006–17–01:

Total cost Total cost on Labor cost Parts cost per airplane U.S. operators

5 work-hours × $80 = $400 ...... Not applicable ...... $400 $142,000

We estimate the following costs to do the proposed AFM revisions:

Total cost Total cost on Labor cost Parts cost per airplane U.S. operators

1 work-hour × $80 per hour = $80 ...... Not applicable ...... $80 $28,400

Authority for This Rulemaking Regulatory Findings We prepared a regulatory evaluation of the estimated costs to comply with Title 49 of the United States Code We have determined that this specifies the FAA’s authority to issue this proposed AD and placed it in the proposed AD would not have federalism AD docket. rules on aviation safety. Subtitle I, implications under Executive Order section 106, describes the authority of 13132. This proposed AD would not Examining the AD Docket the FAA Administrator. Subtitle VII, have a substantial direct effect on the You may examine the AD docket that Aviation Programs, describes in more States, on the relationship between the contains the proposed AD, the detail the scope of the Agency’s national Government and the States, or regulatory evaluation, any comments authority. on the distribution of power and received, and other information on the We are issuing this rulemaking under responsibilities among the various Internet at http://www.regulations.gov; the authority described in subtitle VII, levels of government. part A, subpart III, section 44701, or in person at the Docket Management ‘‘General requirements.’’ Under that For the reasons discussed above, I Facility between 9 a.m. and 5 p.m., section, Congress charges the FAA with certify that the proposed regulation: Monday through Friday, except Federal promoting safe flight of civil aircraft in 1. Is not a ‘‘significant regulatory holidays. The Docket Office (telephone air commerce by prescribing regulations action’’ under Executive Order 12866; (800) 647–5527) is located at the street for practices, methods, and procedures 2. Is not a ‘‘significant rule’’ under the address stated in the ADDRESSES section. the Administrator finds necessary for DOT Regulatory Policies and Procedures Comments will be available in the AD safety in air commerce. This regulation (44 FR 11034, February 26, 1979); and docket shortly after receipt. is within the scope of that authority 3. Will not have a significant List of Subjects in 14 CFR Part 39 because it addresses an unsafe condition economic impact, positive or negative, that is likely to exist or develop on on a substantial number of small entities Air transportation, Aircraft, Aviation products identified in this rulemaking under the criteria of the Regulatory safety, Incorporation by reference, action. Flexibility Act. Safety.

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The Proposed Amendment 97–25–02, Amendment 39–10225 (62 Affected ADs FR 63830, December 3, 1997); AD 2000– (b) This AD supersedes AD 97–25–02, Accordingly, under the authority 02–25, Amendment 39–11543 (65 FR delegated to me by the Administrator, Amendment 39–10225; AD 2000–02–25, 5422, February 4, 2000); AD 2006–15– Amendment 39–11543; AD 2006–15–07, the FAA proposes to amend 14 CFR part 07, Amendment 39–14687 (71 FR 39 as follows: Amendment 39–14687; and AD 2006–17–01, 41116, July 20, 2006); and AD 2006–17– Amendment 39–14722. 01, Amendment 39–14722 (71 FR PART 39—AIRWORTHINESS Applicability DIRECTIVES 47697, August 18, 2006), and adding the following new AD: (c) This AD applies to the following 1. The authority citation for part 39 Mitsubishi Heavy Industries, Ltd.: Docket airplane models and serial numbers that are continues to read as follows: No. FAA–2009–1076; Directorate certificated in any category: (1) Mitsubishi airplanes listed in Type Authority: 49 U.S.C. 106(g), 40113, 44701. Identifier 2009–CE–019–AD. Certificate Data Sheet (TCDS) A10SW: Comments Due Date § 39.13 [Amended] (a) We must receive comments on this 2. The FAA amends § 39.13 by airworthiness directive (AD) action by removing Airworthiness Directive (AD) December 31, 2009.

Models Serial Nos.

MU–2B–25, MU–2B–26, MU–2B–26A, MU–2B–35, MU–2B–36, MU–2B–36A, MU–2B–40, MU–2B–60 ...... All serial numbers.

(2) Mitsubishi airplanes listed in TCDS A2PC:

Models Serial Nos.

MU–2B, MU–2B–10, MU–2B–15, MU–2B–20, MU–2B–25, MU–2B–26, MU–2B–30, MU–2B–35, MU–2B–36 ...... All serial numbers.

Unsafe Condition in operators using FAA-accepted pilot engine torque indication system and, before (d) This AD results from inconsistencies in operating checklists that differ from the AFM further flight after the inspection, recalibrate in certain critical operating procedures, critical operating procedures between the the torque pressure transducers as required. which could result in failure to properly MU–2B specific training, the FAA-accepted For airplanes listed in TCDS A2PC, follow operate the airplane. This failure could lead Mitsubishi Heavy Industries, Ltd. (MHI) MU– pilot operating checklists, and the airplane to loss of control. flight manuals (AFM). MHI revised the 2 Service Bulletin No. 233A, dated January airplane flight manuals (AFMs) to align them Compliance 14, 1999. For airplanes listed in TCDS with the information in that training and the (e) Do the following unless already done: A10SW, follow MHI MU–2 Service Bulletin checklists. We are proposing this AD to (1) Within 100 hours time-in-service (TIS) No. 095/77–002, dated July 15, 1998. This correct the inconsistencies described above. after September 22, 2006 (the effective date inspection requires the use of the power This condition, if not corrected, could result retained from AD 2006–17–01), inspect the assurance charts referenced in Table 1 below:

TABLE 1—POWER ASSURANCE CHART FROM AD 2006–17–01

Airplane Page number model Date and version of AFM from affected AFM

MU–2B ...... AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–34. MU–2B–10 ...... AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–19. MU–2B–15 ...... AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–19. MU–2B–20 ...... AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–20. MU–2B–25 ...... AFM, Section 6, Reissued March 25, 1986; and ...... 6–18 and 6–19. AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–19. MU–2B–26 ...... AFM, Section 6, Reissued March 25, 1986; and ...... 6–17 and 6–18. AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–19. MU–2B–26A ...... AFM, Section 6, Reissued March 25, 1986 ...... 6–17 and 6–18. MU–2B–30 ...... AFM, Section 6, Revision 10, dated January 14, 1999 ...... 6–19. MU–2B–35 ...... AFM, Section 6, Reissued March 25, 1986; and ...... 6–18 and 6–19. AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–19. MU–2B–36 ...... AFM, Section 6, Revision 9, dated January 14, 1999 ...... 6–20. MU–2B–36A ...... AFM, Section 6, Reissued February 28, 1986 ...... 6–20 and 6–21. MU–2B–40 ...... AFM, Section 6, Reissued March 25, 1986 ...... 6–17 and 6–18. MU–2B–60 ...... AFM, Section 6, Reissued September 24, 1985 ...... 6–19 and 6–20.

(2) Within the next 50 hours TIS after the revisions up to and including the latest AFM contains each page, matching all the effective date of this AD or within the next revisions as published in the list of effective page numbers and page dates, listed in the 6 months after the effective date of this AD, pages of the applicable AFM listed in Table Effective Pages listing for that AFM: whichever occurs first, incorporate all 2 and Table 3. Assure that the applicable

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TABLE 2—TCDS A10SW

Airplane model AFM name Effective pages list

MU–2B–25 ...... MU–2B–25 Airplane Flight Manual K Model, Document Num- all revised pages up to and including revision 11, dated ber MR–0156–1. March 10, 2009, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–26 ...... MU–2B–26 Airplane Flight Manual M Model, Document Num- all revised pages up to and including revision 11, dated ber MR–0160–1. March 10, 2009, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–26A ...... MU–2B–26A Airplane Flight Manual P Model, Document all revised pages up to and including revision 13, dated Number MR–0194–1. March 10, 2009, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–35 ...... Not Available ...... Contact the type certificate holder for the latest revision of the FAA-approved AFM. MU–2B–36 ...... Not Available ...... Contact the type certificate holder for the latest revision of the FAA-approved AFM. MU–2B–36A ...... MU–2B–36A Airplane Flight Manual N Model, Document all revised pages up to and including revision 15, dated Number MR–0196–1. March 10, 2009, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–40 ...... MU–2B–40 Airplane Flight Manual SOLITAIRE Model, Docu- all revised pages up to and including revision 13, dated ment Number MR–0271–1. March 10, 2009, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–60 ...... MU–2B–60 Airplane Flight Manual MARQUISE Model, Docu- all revised pages up to and including revision 15, dated ment Number MR–0273–1. March 10, 2009, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM.

Note: The AFM revisions are not available manufactured was converted to a Model MU– models are still eligible under the type for Models MU–2B–35 and MU–2B–36 under 2B–36A. Mitsubishi Heavy Industries, Ltd. certificate, so if Mitsubishi Heavy Industries, TCDS A10SW because the only Model MU– has indicated they have no intention of Ltd. does put either model back in 2B–35 airplane was destroyed and putting either model back in production. production, contact them for an FAA- subsequently removed from the registry. The There are no other serial numbers eligible for approved AFM. only Model MU–2B–36 airplane either model, foreign or domestic. These

TABLE 3—TCDS A2PC

Airplane model AFM name Effective pages list

MU–2B ...... MU–2B Airplane Flight Manual, YET 67026A ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–10 ...... MU–2B–10 Airplane Flight Manual, YET 86400 ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–15 ...... MU–2B–15 Airplane Flight Manual, YET 68038A ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–20 ...... MU–2B–20 Airplane Flight Manual, YET 68034A ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–25 ...... MU–2B–25 Airplane Flight Manual, YET 71367A ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–26 ...... MU–2B–26 Airplane Flight Manual, YET 74129A ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–30 ...... MU–2B–30 Airplane Flight Manual, YET 69013A ...... all revised pages up to and including revision 14, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–35 ...... MU–2B–35 Airplane Flight Manual, YET 70186A ...... all revised pages up to and including revision 14, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM. MU–2B–36 ...... MU–2B–36 Airplane Flight Manual, YET 74122A ...... all revised pages up to and including revision 13, dated No- vember 29, 2007, as listed on page 1 and page 2 of the ‘‘Effective Pages’’ in the AFM.

Alternative Methods of Compliance Send information to ATTN: Al Wilson, Flight notify your appropriate principal inspector (AMOCs) Test Pilot, FAA, Fort Worth ACO, 2601 (PI) in the FAA Flight Standards District (f) The Manager, FAA, Fort Worth Airplane Meacham Blvd., Fort Worth, Texas 76137; Office (FSDO), or lacking a PI, your local Certification Office (ACO), has the authority telephone: (817) 222–5146; fax: (817) 222– FSDO. to approve AMOCs for this AD, if requested 5960. Before using any approved AMOC on using the procedures found in 14 CFR 39.19. any airplane to which the AMOC applies,

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Related Information pursuant to the National Environmental to protect marine resources, such as (g) To get copies of the AFM revisions Policy Act. coral reefs, sunken historical vessels or referenced in this AD, contact Mitsubishi DATES: Comments on the proposed rule unique habitats. Heavy Industries America, Inc., 4951 Airport and the draft environmental assessment The FKNMS was designated by Parkway, Suite 800, Addison, Texas 75001; will be accepted if received on or before Congress in 1990 through the Florida telephone: (972) 934–5480; fax: (972) 934– February 17, 2010. Keys National Marine Sanctuary 5488; Internet: http://www.mu-2aircraft.com Protection Act (FKNMSPA, Pub. L. 101– ADDRESSES: Comments may be or http://www.turbineair.com. To view the 605) and extends approximately 220 AD docket, go to U.S. Department of submitted by any of the following nautical miles southwest from the Transportation, Docket Operations, M–30, methods: West Building Ground Floor, Room W12– • Federal eRulemaking Portal: http:// southern tip of the Florida peninsula, 140, 1200 New Jersey Avenue, SE., www.regulations.gov. Submit electronic and is composed of both state and Washington, DC 20590, or on the Internet at comments via the Federal eRulemaking Federal waters. The sanctuary’s marine http://www.regulations.gov. Portal, FDMS Docket Number NOAA– ecosystem supports over 6,000 species of plants, fishes, and invertebrates, Issued in Kansas City, Missouri, on NOS–2009–0181; November 9, 2009. • Mail: Sean Morton, Acting including the Nation’s only living coral Kim Smith, Superintendent, Florida Keys National reef that lies adjacent to the continent. The area includes one of the largest Manager, Small Airplane Directorate, Aircraft Marine Sanctuary, 33 East Quay Road, Certification Service. Key West, Florida 33040. seagrass communities in this hemisphere. The primary goal of the [FR Doc. E9–27389 Filed 11–13–09; 8:45 am] • Instructions: All comments received sanctuary is to protect the marine BILLING CODE 4910–13–P are a part of the public record and will be generally posted to http:// resources of the Florida Keys. Other goals of the sanctuary include www.regulations.gov without change. facilitating human uses that are All Personal Identifying Information (for DEPARTMENT OF COMMERCE consistent with the primary objective of example, name, address, etc.) resource protection as well as educating voluntarily submitted by the commenter National Oceanic and Atmospheric the public about the Florida Keys Administration may be publicly accessible. Do not marine environment. Attracted by this submit confidential business subtropical diversity, tourists spend 15 CFR Part 922 information or otherwise sensitive or more than thirteen million visitor days protected information. NOAA will [Docket No. 090122044–91248–01] in the Florida Keys each year. In accept anonymous comments (enter addition, the region’s natural and man- RIN 0648–AX58 N/A in the required fields to remain made resources provide recreation and anonymous). Attachments to electronic Marine Sanitation Device Discharge livelihoods for approximately 80,000 comments will be accepted in Microsoft residents. The region also has some of Regulations for the Florida Keys Word, Excel, WordPerfect, or Adobe National Marine Sanctuary the most significant maritime heritage PDF file formats only. Comments will be and historical resources of any coastal AGENCY: Office of National Marine posted at the end of the public comment community in the nation. Sanctuaries (ONMS), National Oceanic period. NOAA issued final regulations and a and Atmospheric Administration The draft environmental assessment is final management plan in 1997 for the (NOAA), Department of Commerce available for download at http:// FKNMS (62 FR 32161; June 12, 1997). (DOC). floridakeys.noaa.gov/. Those regulations were designed to ACTION: Proposed rule; request for FOR FURTHER INFORMATION CONTACT: protect the fragile and nationally public comments. Sean Morton, Acting Superintendent, significant marine resources of the Florida Keys National Marine Florida Keys ecosystem. In doing so, SUMMARY: NOAA proposes to amend the Sanctuary, 33 East Quay Road, Key these regulations established a series of regulations implementing the Florida West, Florida 33040. fully protected marine zones, managed Keys National Marine Sanctuary SUPPLEMENTARY INFORMATION: certain human activities, and (FKNMS or sanctuary) to eliminate the Electronic Access: established a permitting system for exemption that allows discharges of This Federal Register document is allowing some activities that would biodegradable effluent incidental to also accessible via the Internet at otherwise be prohibited. Sanctuary- vessel use and generated by marine [INSERT GPO ACCESS URL]. wide prohibitions include restrictions sanitation devices, and to require on discharges into the sanctuary, marine sanitation devices be locked to Statutory and Regulatory History of the disturbing the seafloor of the sanctuary, prevent discharges. This action builds FKNMS and taking certain marine species. upon the Environmental Protection The National Marine Sanctuaries Act Currently, NOAA prohibits vessels Agency’s creation of a no discharge zone (NMSA) (16 U.S.C. 1431 et seq.) from discharging or depositing materials for the state waters of the FKNMS. This authorizes the Secretary of Commerce to or other matter in the sanctuary (15 CFR action will help protect the Florida Keys designate and protect areas of the 922.163(a)(4)). Exceptions to this ecosystem from potentially harmful marine environment with special prohibition include discharging or vessel sewage discharges and will national significance due to their depositing: (1) Fish, fish parts, and bait eliminate at least one contributing factor conservation, recreational, ecological, during traditional fishing operations; (2) to declining water quality within the historical, scientific, cultural, cooling water or engine exhaust; (3) FKNMS. Improved water quality is archeological, educational, or esthetic water generated by routine vessel necessary for the maintenance and qualities as national marine sanctuaries. operations (e.g., deck wash and enhancement of the sanctuary’s Management of national marine graywater), excluding oily wastes from biological resources, as well as of the sanctuaries has been delegated by the bilge pumping; and (4) biodegradable recreational opportunities they provide. Secretary of Commerce to NOAA’s effluent from marine sanitation devices. A draft environmental assessment has Office of National Marine Sanctuaries. However, in certain protected zones been prepared for this proposed action The primary objective of the NMSA is within the sanctuary, including

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Ecological Reserves, Sanctuary rule that designated the state waters of from vessels transiting Keys waters Preservation Areas, and Research-only the FKNMS a NDZ (67 FR 35735; May including the volume of discharge, level Areas, only discharges of engine exhaust 21, 2002). Effective June 19, 2002, the of treatment, number of vessels, depth and cooling water are allowed. EPA’s final rule prohibited all sewage and distance from shore or other sources In addition to NOAA, the U.S. discharges from vessels in state waters of pollution, current patterns, and Environmental Protection Agency of the FKNMS. Although the EPA’s rule habitat type at the discharge point. For (EPA), National Park Service, U.S. Coast under the CWA was limited to only example, the dilution of wastewater Guard, the State of Florida, and local state waters of the FKNMS, EPA from a single vessel transiting the Keys municipalities (e.g., City of Key West, recognized NOAA’s intention to expand may be great, but the discharge may not Marathon) also have regulations the prohibition on sewage discharges cause serious ecological problems and governing MSDs and vessel discharges from vessels into the federal waters of may not be detectable within a short within the Florida Keys region. the sanctuary. distance from the point of discharge. In December 2007, NOAA issued a Proposed Rule Background However, the cumulative impact of revised management plan for the discharges from many transiting vessels Water quality in the Florida Keys has FKNMS that was the culmination of an could significantly and negatively been a long-standing concern. Under extensive public process. The impact the sanctuary. section 163.3177 of the Florida Statutes, management plan included a water In response to an increasing boating all counties and municipalities quality action plan and regulatory population, and the resulting higher throughout the State of Florida are action plan. The strategies in the water discharge potential in south Florida, required to develop and adopt a quality action plan address sources of NOAA proposes to prohibit discharges comprehensive plan that address pollution, priority corrective actions of biodegradable effluent incidental to principles, guidelines, and standards for and compliance schedule, and seek to vessel use and generated by MSDs from balancing future economic, social, maintain and improve a balanced, all vessels while in the sanctuary. physical, environmental, and fiscal indigenous population of corals, Recent data show a continued upward development of the area. In addition, shellfish, fish and wildlife, and trend in the number of registered local governments can use local recreation in and on the water. In boaters in southern Florida, which comprehensive plans to conserve, particular, water quality Strategy L.1 would suggest an increased potential of develop, utilize, and protect natural identified the need to eliminate the transient visits to the Florida Keys and resources within their jurisdictions (Fla. discharge of wastewater, whether discharge in the FKNMS. The potential Stat. § 163.3161(3)). The FKNMS resides treated or not, from all vessels into impacts are increased if the transiting in the jurisdiction of Monroe County. sanctuary waters. The regulatory action vessels discharge in close proximity to Monroe County developed the Monroe plan identified the designation of a coral reef or seagrass habitats. In County Comprehensive Plan, which sanctuary-wide no discharge zone as a consideration of the ever increasing includes several objectives geared management priority. boating population (discharge potential) toward improving and protecting water in south Florida, the status quo is not Summary of the Proposed Rulemaking quality from vessel discharges. compatible with long-term marine In 1999, the Board of County This rulemaking proposes to ecosystem protection strategies. NOAA Commissioners of Monroe County eliminate the exemption that allows considered an alternative that would adopted a resolution requesting that the discharges of biodegradable effluent allow vessels to discharge at various Governor of the State of Florida petition incidental to vessel use and generated locations within the FKNMS, however the EPA to declare all waters of the State by MSDs and to add a new requirement this alternative was rejected as it may within the boundaries of the FKNMS to that MSDs be locked to prevent lead to confusion among boaters and be a NDZ. A NDZ is an area of a discharges while in the FKNMS. enforcement problems. Thus, the waterbody or an entire waterbody into A major challenge to scientists and prudent and expedient course of action which the discharge of sewage (whether managers working in the Florida Keys is to eliminate all discharges of treated or untreated) from all vessels is and elsewhere is being able to wastewater from all vessels in the completely prohibited. NDZs are differentiate the natural variability of FKNMS. designed to give states an additional ecosystems from human-caused If this rule is implemented, vessels tool to address water quality issues disturbances. Signs of ecosystem stress would have to use a pump out station associated with sewage contamination. in the Florida Keys include loss of coral or discharge biodegradable effluent Monroe County believed that this action cover and diversity, particularly at beyond the boundaries of the sanctuary. would be a major step in protecting offshore bank reefs, increasing nitrogen Florida boaters are already familiar with water quality around the Keys and and phosphorus concentrations in the using pump out stations. Since especially those areas where there is a near shore waters, decreased water discharges are prohibited in the EPA high concentration of vessels. The clarity, and changes in the natural NDZ for the state waters of the FKNMS, Governor of the State of Florida benthic community composition. many boaters already utilize the 38 supported Monroe County’s decision Comprehensive monitoring of coral reef pump out stations in the Florida Keys. and in December 2000 submitted the resources was initiated in 1996 because In addition, access to pump out county’s request to EPA Region 4, of the observed but poorly quantified facilities is expected to increase due to asking EPA to designate all state waters loss of coral cover throughout the additional funding under the Clean within the boundary of the FKNMS as Florida Keys, and has documented a Water Act. a NDZ under the authority of section 37% reduction in stony coral coverage NOAA is proposing to require that all 312 of the Clean Water Act (33 U.S.C. between 1996 and 2000. Habitat and vessels secure MSDs while in the 1322 et seq.). water quality degradation in canals and boundaries of the FKNMS. This Section 312 of the CWA gives the EPA other semi-confined waters within the requirement would achieve the goal of and states the authority to designate Florida Keys has been measured and is helping to protect the Florida Keys NDZs in state waters. Pursuant to the related to human population density. ecosystem by prohibiting the discharge authority provided in § 312(f)(4)(a) the There are many variables to consider of potentially harmful vessel sewage CWA, in 2002, the EPA issued a final in assessing the impacts of discharges because it would enhance the

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enforceability of the prohibition. Executive Order 12866: Regulatory have a holding tank installed. Therefore, Without this requirement, enforcement Impact NOAA will use this criteria to personnel would have to witness the This proposed rule has been approximate the number of impacted discharge of biodegradable effluent. The determined to be not significant within entities as they are most likely to be probability that personnel would be the meaning of Executive Order 12866. required to use a pump out facility or present at the exact moment of discharge their waste outside of the Executive Order 13132: Federalism discharge is beyond reasonable sanctuary boundaries. But, NOAA Assessment expectations. In addition, although NDZ acknowledges that the total universe of designation by EPA does not NOAA has concluded this regulatory affected entities may be larger as there may be some unknown number of specifically require that MSDs be in a action does not have federalism vessels smaller than 26 feet that may locked position, the final rule implications as that term is defined under Executive Order 13132. have MSDs. In Monroe County, 1,080 of designating the state waters of the the 2,653 (40.7%) registered commercial FKNMS as a NDZ does state that MSDs Paperwork Reduction Act vessels are 26 feet or longer. Of the should be secured to prohibit discharge This rule does not contain any new or 1,080 registered commercial vessels, while navigating within the NDZ. revisions to the existing information NOAA is not able to estimate the Specifically, ‘‘The NDZ designation collection subject to the requirements of number of small entities as it does not would not cause existing Type 1 and 2 the Paperwork Reduction Act of 1980, collect this data, and thus will consider MSDs to be in violation by their mere 44 U.S.C. 3501 et seq. Notwithstanding all 1,080 vessels to be small entities. presence onboard the vessel. However, any other provision of the law, no Any economic impact of the proposed it would be illegal for vessel operators person is required to respond to, nor regulation would be limited to those to discharge from these devices while shall any person be subject to a penalty vessel operators who currently inside the NDZ. Type 1 and 2 MSDs for failure to comply with, a collection discharge sewage waste into the federal should be secured to prohibit discharge of information subject to the waters area of the FKNMS. FKNMS does while navigating or otherwise situated requirements of the PRA, unless that not have any data on the number of within the NDZ’’ (67 FR 35740). If this collection of information displays a vessels that do this as opposed to rule were implemented, all vessels in currently valid OMB Control Number. utilizing one of the 38 pump out stations located throughout the the sanctuary would have to secure Regulatory Flexibility Act MSDs to prevent discharges of sanctuary. FKNMS also does not have The Chief Counsel for Regulation of complete information on the number of biodegradable effluent into the the Department of Commerce certified boats that do use pump out stations to sanctuary. to the Chief Counsel for Advocacy of the dispose of waste. Therefore, it is Classification Small Business Administration (SBA) assumed that all 1,080 estimated that this proposed rule, if adopted, commercial vessels with MSDs that use National Environmental Policy Act would not have a significant economic the Florida Keys would be affected. The impact on a substantial number of small additional costs to those vessel A draft environmental assessment entities. The factual basis for this operators could include additional fuel (EA) has been prepared to evaluate the certification is analyzed in the EA and costs to travel to pump out stations, the proposed rulemaking. NOAA proposes is summarized as follows: cost of the pump outs, and the value of to prohibit discharges of biodegradable In response to an increasing boating their travel time to the pump out effluent incidental to vessel use and population, and the resulting higher station. Vessels 26 feet or longer with an generated by MSDs in the entire FKNMS discharge potential, in south Florida, enclosed cabin with berthing facilities and to require MSDs be locked. This NOAA proposes to prohibit discharges (as noted in the Florida Clean Vessel action will eliminate at least one of biodegradable effluent incidental to Act) are currently required to have a contributing factor to declining water vessel use and generated by MSDs, and holding tank installed. Therefore, the quality within the FKNMS. Improved to add a new requirement that MSDs be installation of that equipment would not water quality is necessary for the locked to prevent discharges while in be considered an additional cost under maintenance and enhancement of the the FKNMS from all vessels in the the proposed regulation. sanctuary’s biological resources, as well sanctuary. EPA, Florida Department of as of the recreational opportunities they There were 25,370 pleasure and 2,653 Environmental Protection, and Monroe provide. The no action alternative commercial vessels registered in County conducted a survey of the would continue the discharge of treated Monroe County in 2007. Since no existing pump outs in the Florida Keys studies exist on transient vessels in the sewage from MSDs into the federal and determined that the range of costs Florida Keys, these registrations waters of the FKNMS and will continue to pump out was from $5.00 to $25.00, represent the approximate population of to contribute to the decline of water with the majority of pump out facilities vessels that utilize the Florida Keys. For charging $5.00. It is a condition of State quality. Poor water quality threatens not purposes of this analysis, only grant funds that a marina that receives only the unique biological resources of commercial vessels will be analyzed a grant for installation of pumpout the FKNMS, but also the viability of the since pleasure vessels are not facilities must charge a maximum of local economy, which depends on the considered small entities under the $5.00 per pump out. The number of ability of these resources to attract Regulatory Flexibility Act. Of the total times a tank will need to be pumped out visitors. Copies of the EA are available number of commercial vessels, NOAA will depend on usage. Live-aboards will at the address and Web site listed in the currently does not have an estimate of have to pump out regularly while less ADDRESSES section of this proposed rule. the number of vessels that use the frequent boat users will need to empty Responses to comments received on this Florida Keys that have MSDs on board. the tank much less often. Using a range proposed rule will be published in the However, vessels 26 feet or longer with between $5 (most pump outs cost) to final environmental assessment and an enclosed cabin with berthing $10.00 (high end of pump out cost), and preamble to the final rule. facilities (as noted in the Florida Clean one pump out per week, results in an Vessel Act) are currently required to estimated annual cost of $130 to $520

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per vessel per year. Therefore, if every c. By adding a new paragraph Special Information Sharing Procedures registered vessel in Monroe County (a)(5)(vi) as follows: to Deter Money Laundering and were previously discharging all waste Terrorist Activity, RIN 1506–AB04. into the federal waters as opposed to § 922.163 Prohibited activities—Sanctuary Please submit comments by one method wide. using a pumpout station, the annual only. All comments submitted in cost to Monroe County boaters (a) * * * response to this notice of proposed (assuming 1,080 vessels are affected) is (5) * * * rulemaking will become a matter of expected to be $140,400 to $561,600. It (vi) Having a marine sanitation device public record; therefore, you should should also be noted that pump out fees that is unlocked or that allows discharge submit only information that you wish may qualify as a business expense and or deposit of sewage. to make available publicly. may be tax deductible for some vessel * * * * * Inspection of comments: Public owners, so the actual economic impact [FR Doc. E9–27453 Filed 11–13–09; 8:45 am] comments received electronically or may be less. BILLING CODE 3510–NK–P through the U.S. Postal Service sent in The elimination of vessel discharges response to a ‘‘Notice and Request for in the federal waters of the FKNMS may Comment’’ will be made available for have a positive socioeconomic impact DEPARTMENT OF THE TREASURY public review as soon as possible on from improved water quality and http://www.regulations.gov. All healthier reefs and the indirect effects 31 CFR Part 103 comments received may be physically inspected in the FinCEN reading room that has on the economy. For example, RIN 1506–AB04 the tourist-based economy of the Florida located in Vienna, VA. Reading room appointments are available weekdays Keys depends upon clean water and Financial Crimes Enforcement (excluding holidays) between 10 a.m. abundant natural resources. If vessels Network; Expansion of Special and 3 p.m., by calling the Disclosure were allowed to continue to discharge Information Sharing Procedures To Officer at (703) 905–5034 (not a toll free the impacted area, the sanctuary’s water Deter Money Laundering and Terrorist call). quality would decrease, which would Activity negatively impact the health and FOR FURTHER INFORMATION CONTACT: The quantity of the sanctuary’s unique AGENCY: Financial Crimes Enforcement FinCEN regulatory helpline at (800) biological resources, and ultimately Network (‘‘FinCEN’’), Treasury. 949–2732 and select Option 3. impact the sanctuary as a tourist ACTION: Notice of proposed rulemaking SUPPLEMENTARY INFORMATION: destination. and request for comments. I. Background For the reasons above, the Chief Counsel for Regulation certified that this SUMMARY: FinCEN is issuing this notice A. Statutory Provisions of proposed rulemaking to amend the rule, if adopted, would not have a On October 26, 2001, the President relevant Bank Secrecy Act (‘‘BSA’’) significant economic impact on a signed into law the Uniting and information sharing rules to allow substantial number of small entities. Strengthening America by Providing certain foreign law enforcement Appropriate Tools Required to Intercept John H. Dunnigan, agencies, and State and local law and Obstruct Terrorism (‘‘USA Assistant Administrator for Ocean Services enforcement agencies, to submit PATRIOT ACT’’) Act of 2001, Public and Coastal Zone Management. requests for information to financial Law 107–56 (‘‘the Act’’). Title III of the institutions. The rule also clarifies that List of Subjects in 15 CFR Part 922 Act amends the anti-money laundering FinCEN itself, on its own behalf and on provisions of the Bank Secrecy Act, Administrative practice and behalf of other appropriate components codified at 12 U.S.C. 1829b and 1951– procedure, Coastal zone, Fish, Fisheries, of the Department of the Treasury, may 1959 and 31 U.S.C. 5311–5314 and Historic preservation, Intergovernmental submit such requests. Modification of 5316–5332, to promote the prevention, relations, Marine resources, Monuments the information sharing rules is a part of detection, and prosecution of and memorials, Natural resources, the Department of the Treasury’s international money laundering and the Wildlife, Wildlife refuges, Wildlife continuing effort to increase the financing of terrorism. Regulations Management Areas, Sanctuary efficiency and effectiveness of its anti- implementing the BSA appear at 31 CFR Preservation Areas, Ecological Reserves, money laundering and counter-terrorist part 103. The authority of the Secretary Areas to be Avoided, State of Florida, financing policies. U.S. Coast Guard. of the Treasury (‘‘the Secretary’’) to DATES: Written comments are welcome administer the BSA has been delegated For the reasons above, NOAA and must be received on or before to the Director of FinCEN. proposes to amend title 15, part 922 of December 16, 2009. Of the Act’s many goals, the the Code of Federal Regulations as ADDRESSES: Those submitting comments facilitation of information sharing follows: are encouraged to do so via the Internet. among governmental entities and PART 922—NATIONAL MARINE Comments submitted via the Internet financial institutions for the purpose of SANCTUARY PROGRAM may be submitted at http:// combating terrorism and money REGULATIONS www.regulations.gov/search/index.jsp, laundering is of paramount importance. Docket number Fincen–2009–0005, with Section 314 of the Act furthers this goal 1. The authority citation for part 922 the caption in the body of the text, by providing for the sharing of continues to read as follows: ‘‘Attention: Special Information Sharing information between the government Authority: 15 U.S.C. 1431 et seq. Procedures to Deter Money Laundering and financial institutions, and among and Terrorist Activity, RIN 1506– financial institutions themselves. As 2. Amend § 922.163 as follows: XXXX.’’ Comments may also be with many other provisions of the Act, a. By removing paragraph (a)(4)(i)(B); submitted by written mail to: Financial Congress has charged the U.S. b. By redesignating paragraphs Crimes Enforcement Network, Department of the Treasury with (a)(4)(i)(C) and (a)(4)(i)(D) as (a)(4)(i)(B) Department of the Treasury, P.O. Box developing regulations to implement and (a)(4)(i)(C), respectively; 39, Vienna, VA 22183, Attention: these information-sharing provisions.

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Subsection 314(a) of the Act states in include foreign law enforcement currently access the program. Thus, a part that: agencies. On June 25, 2003, the foreign law enforcement agency, prior to [t]he Secretary shall * * * adopt Agreement on Mutual Legal Assistance initiating a 314(a) query, would have to regulations to encourage further cooperation between the United States and the certify that, in the case of a money among financial institutions, their regulatory European Union (EU) (hereinafter, the laundering investigation, the matter is authorities, and law enforcement authorities, ‘‘U.S.–EU MLAT’’) was signed. Between significant, and that it has been unable with the specific purpose of encouraging 2004 and 2006, twenty-five bilateral to locate the information sought through regulatory authorities and law enforcement implementing agreements also were traditional methods of investigation and authorities to share with financial signed by the United States and EU analysis before attempting to use the institutions information regarding Member States. In 2006, the U.S.–EU 314(a) program. FinCEN also anticipates individuals, entities, and organizations MLAT, along with twenty-five bilateral that the foreign request will be screened engaged in or reasonably suspected based on credible evidence of engaging in terrorist acts instruments, was submitted to the U.S. initially by a Federal law enforcement or money laundering activities. Senate for its advice and consent to official serving as an attache´ to the ratification. An additional two bilateral requesting jurisdiction. The application B. Overview of the Current Regulatory instruments, with Romania and of these internal procedures will help Provisions Regarding the 314(a) Bulgaria, were concluded and submitted ensure that the 314(a) program is Program to the Senate in 2007, following those utilized only in significant situations, countries’ accession to the EU. The thereby minimizing the cost on On September 26, 2002, FinCEN U.S.–EU MLAT and all twenty-seven reporting financial institutions. published a final rule implementing the bilateral instruments were ratified by b. Allowing State and Local Law authority contained in section 314(a) of the President on September 23, 2008, 1 Enforcement Agencies To Initiate 314(a) the Act. That rule (‘‘the 314(a) rule’’) upon the advice and consent of the U.S. Queries allows FinCEN to require U.S. financial Senate. institutions to search their records to Article 4 of the U.S.–EU MLAT By regulation, access to the 314(a) determine whether they have (entitled ‘‘Identification of Bank program currently is only available to maintained an account or conducted a Information’’) obligates a requested Federal law enforcement agencies. transaction with a person that a Federal Signatory State to search on a When the section 314(a) rule was law enforcement agency has certified is centralized basis for bank accounts drafted, FinCEN considered expanding suspected based on credible evidence of within its territory that may be the process to include requesters from engaging in terrorist activity or money important to a criminal investigation in other types of law enforcement agencies. laundering.2 Before processing a request the requesting Signatory State. Article 4 However, because of uncertainty about from a Federal law enforcement agency, also contemplates that Signatory States how the new information-sharing rules FinCEN also requires the requesting may search for information in the would impact financial institutions, agency to certify that, in the case of possession of a non-bank financial FinCEN ultimately decided to defer money laundering, the matter is institution. Under Article 4, a Signatory expansion beyond Federal law significant, and that the requesting State receiving a request may limit the enforcement agencies. FinCEN now has agency has been unable to locate the scope of its obligation to provide the benefit of drawing upon six years of information sought through traditional assistance to terrorist activity and experience in administering the section methods of investigation and analysis money laundering offenses, and many 314(a) rule. In that time, financial before attempting to use this authority did so in their respective bilateral institutions have made necessary (‘‘the 314(a) program’’). instruments with the United States. In adjustments to comply with these rules Since its inception, the 314(a) addition, Article 4 makes clear that the and have developed more efficient ways program has yielded significant United States and the EU are under an to respond to section 314(a) requests. investigative benefits to Federal law obligation to ensure that the application Money laundering and terror-related enforcement users in terrorist financing of Article 4 does not impose financial crimes are not limited by and major money laundering cases. extraordinary burdens on States that jurisdiction or geography. Detection and Feedback from the requesters and receive search requests. Certain EU deterrence of these crimes require illustrations from sample case studies States are expected to accommodate information sharing across all levels of consistently demonstrate how useful the search requests from the United States investigative authorities, to include program is in enhancing the scope and by querying a single centralized State and local law enforcement, to expanding the universe of database which identifies all bank ensure the broadest United States investigations. In view of the proven accounts within that State. In Government defense. success of the 314(a) program, FinCEN negotiating the terms of Article 4, the State and local law enforcement seeks to broaden access to the program United States expressly envisioned that investigations run the gamut of criminal as outlined in the following paragraphs. EU member States would be able to violations, to include money laundering access the information sharing process and to a lesser extent, terrorist C. Objectives of Proposed Changes created by the implementation of financing, and some of these a. Allowing Certain Foreign Law section 314(a) of the Act. Expanding investigations could benefit from the Enforcement Agencies To Initiate 314(a) that process to include certain foreign use of the 314(a) program. Access to the Queries law enforcement requesters would 314(a) program by State and local law greatly benefit the United States by enforcement would provide them a In order to satisfy the United States’ platform from which they could more treaty obligation with certain foreign granting law enforcement agencies in the United States with reciprocal rights effectively and efficiently fill governments, FinCEN is proposing to information gaps, including those extend the use of the 314(a) program to to obtain information about matching accounts in EU member States. connected with multi-jurisdictional Foreign law enforcement agencies financial transactions, in the same 1 Special Information Sharing Procedures to Deter Money Laundering and Terrorist Activity, 67 FR would be able to use the 314(a) program manner as Federal law enforcement 60579 (Sept. 26, 2002). in a way analogous to how Federal agencies. This expansion of the 314(a) 2 31 CFR 103.100. criminal law enforcement agencies program, in certain limited

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circumstances, to include State and benefit from access to the 314(a) information comparable to that local law enforcement authorities, program by providing a more complete obtainable under section 103.100. The would benefit overall efforts to ensure picture of financial transactions and addition of foreign law enforcement that all law enforcement resources are mechanisms, as well as agencies would enable the United States made available to combat money interrelationships among investigative to be compliant with its obligations laundering and terrorist financing. subjects and financial transactions or under the U.S.–EU MLAT, thereby Therefore, the proposal would entities. In addition, other appropriate providing law enforcement agencies in broaden 314(a) access to allow State and components of the Department of the the United States with the benefit of local law enforcement agencies to Treasury that provide analytical reciprocal access to information in EU submit 314(a) queries. As is the case support, such as the Department’s member States. The U.S.–EU MLAT, currently with requesting Federal counter-terrorist financing and money and 27 bilateral instruments with EU criminal law agencies, State and local laundering efforts, will be better Member States implementing its terms, law enforcement, prior to initiating a equipped to fulfill their missions when require each EU member State to be able 314(a) query, would have to certify that, given access to the 314(a) program. It is to search for the kind of information in the case of a money laundering anticipated that the findings from the covered by 31 CFR 103.100 and to investigation, the matter is significant, use of the 314(a) program will reveal promptly report to the requesting State and that it has been unable to locate the additional insights and overall patterns the results of such a search. information sought through traditional of suspicious financial activities. The addition of State and local law methods of investigation and analysis enforcement agencies would provide a before attempting to use the 314(a) II. Section-by-Section Analysis platform for such agencies to deal more program. The application of these A. Section 103.90(a) effectively with multi-jurisdictional internal procedures will help ensure FinCEN proposes to amend 31 CFR financial transactions in the same that the 314(a) program will be utilized 103.90(a) by changing the definition of manner as Federal law enforcement only in the most compelling situations, the term ‘‘money laundering’’ to include agencies. Access to the 314(a) program thereby minimizing the cost incurred by activity that would be criminalized by would provide State and local law reporting financial institutions. 18 U.S.C. 1956 or 1957 if such activity enforcement agencies with another resource to aide in discovering the c. Clarifying That FinCEN, on Its Own occurred in the United States. The whereabouts of stolen proceeds. Behalf and on Behalf of Appropriate change would allow the term to be Components of the Department of the applied to information requests by C. Section 103.100(b)(1) Treasury, May Initiate 314(a) Queries foreign law enforcement agencies. State FinCEN proposes to amend section FinCEN’s statutory mandate includes and local law enforcement requesters 103.100(b)(1) to make conforming working to identify possible criminal would be subject to the same definition changes to reflect the addition of State activity to appropriate Federal, State, of money laundering that currently and local law enforcement agencies, and local, and foreign law enforcement applies to Federal law enforcement foreign law enforcement agencies, as agencies, and to support ongoing agencies—i.e., activity that is potential requesters of information. criminal financial investigations and criminalized by 18 U.S.C. 1956 or 1957. These other categories of law Thus, in the case of a significant money prosecutions.3 FinCEN also routinely enforcement agencies would be subject laundering matter, a State or local law assists the law enforcement community to the same standard now applicable to enforcement agency seeking information through proactive analyses to discover Federal law enforcement agencies—in under the section 314(a) program would trends, patterns, and common activity in particular, the requirement to certify have to certify that it is investigating the financial information contained in that each individual, entity, or activity that would be criminalized BSA reports. FinCEN’s use of the 314(a) organization about which the law under 18 U.S.C. 1956 or 1957. Such program will greatly enhance the scope enforcement agency is seeking activity could include, for example, and utility of its case support efforts information is engaged in, or is conducting a financial transaction with beyond the insights provided from the reasonably suspected based on credible proceeds of murder, kidnapping, or evidence of engaging in, terrorist BSA data, thereby delivering critical dealing in a controlled substance (as activity or money laundering. To further information about significant criminal defined in section 102 of the Controlled ensure that financial institutions are not activity on a timelier basis. Accordingly, Substances Act), which is punishable as overwhelmed by information requests, FinCEN would use the 314(a) program a felony under State law.4 to submit self-initiated 314(a) queries. FinCEN has, since 2003, adopted an FinCEN assists law enforcement by B. Section 103.100(a)(4) additional operating procedure that providing advanced or specialized FinCEN proposes to add 31 CFR requires Federal law enforcement analysis of BSA data on significant 103.100(a)(4), which would define a agencies to further certify that, in the investigations involving offenses of ‘‘law enforcement agency’’ to include a case of a money laundering money laundering or terrorist financing. Federal, State, local, or foreign law investigation, the matter is significant. These investigations often involve enforcement agency with criminal FinCEN intends to apply that same multiple locations or are otherwise investigative authority, provided that standard to State, local and certain linked to other investigations. A single the foreign law enforcement agency is foreign law enforcement agencies. 314(a) request issued by FinCEN could from a jurisdiction that is a party to a D. Section 103.100(b)(2) more efficiently coordinate and treaty that provides for, or in the FinCEN proposes to add new 31 CFR simultaneously support several determination of FinCEN is from a 103.100(b)(2) which would clarify that investigations, thereby eliminating the jurisdiction that otherwise allows, law FinCEN may request directly, on its own need for separate requests from each enforcement agencies in the United behalf and on behalf of appropriate investigating agency or jurisdiction. States with reciprocal access to There also are instances in which components of the Department of the FinCEN’s analytical products will 4 See 18 U.S.C. 1956(c)(7) (defining the term Treasury, whether a financial institution ‘‘specified unlawful activity’’ to include, inter alia, or a group of financial institutions 3 See 31 U.S.C. 310. an offense listed in 18 U.S.C. 1961(1)). maintains or has maintained accounts

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for, or has engaged in transactions with, Management and Budget, Paperwork local cases per annum of 314(a) requests specified individuals, entities, or Reduction Project (1506), Washington, that meet submission criteria. organizations. Such information DC 20503 at the following e-mail FinCEN and appropriate components requests shall be for the purpose of address: [email protected], of the Department of the Treasury conducting analyses to deter and detect with a copy to the Financial Crimes Requests: FinCEN estimates that the terrorist financing activity or money Enforcement Network by mail or the 314(a) program would be used by laundering. Adding FinCEN, itself and Internet at the addresses previously FinCEN and other appropriate acting on behalf of other appropriate specified. As an alternative, comments Department components in fewer than Treasury components, as a requester of may be submitted to OMB by fax to 10 cases per annum. Taking into information will increase the value of (202) 395–6974. Comments on the consideration the estimated number of analytical support to law enforcement. collection of information should be potential use cases that would fit recommended internal 314(a) criteria, III. Administrative Matters received by January 15, 2010. In accordance with the requirements of the FinCEN does not believe that this A. Executive Order 12866 Paperwork Reduction Act of 1995, 44 expansion would be a significant strain It has been determined that this U.S.C. 3506(c)(2)(A), and its on existing program resources. Description of Recordkeepers: proposed rule is a significant regulatory implementing regulations, 5 CFR part Covered financial institutions as defined action for purposes of Executive Order 1320, the following information in 31 CFR 103.100. 12866 because it raises a novel policy concerning the collection of information Estimated Number of Recordkeepers: issue. However, a regulatory impact is presented to assist those persons On an annual basis, there are analysis is not required. wishing to comment on the information collection. approximately 20,134 covered financial B. Unfunded Mandates Act of 1995 The collection of information in this institutions, consisting of 15,106 Statement proposal is in 31 CFR 103.100. The commercial banks, savings associations, Section 202 of the Unfunded information will be used by Federal,5 and credit unions, 4,793 securities broker-dealers, 139 future commission Mandates Reform Act of 1995 State, and local law enforcement merchants, 79 trust companies, and 17 (‘‘Unfunded Mandates Act’’), Public agencies, as well as certain foreign law life insurance companies. Law 104–4 (March 22, 1995), requires enforcement agencies, and FinCEN and that an agency prepare a budgetary Estimated Average Annual Burden other appropriate components of the Hours per Recordkeeper: FinCEN impact statement before promulgating a Department of Treasury, in the conduct 7 rule that may result in expenditure by estimates 120 search requests per year of investigating money laundering and associated with the recordkeeping that State, local, and tribal governments, terrorist financing activity. The in the aggregate, or by the private sector, requirement in this proposed rule and 9 collection of information is mandatory. subjects (including aliases) per request, of $100 million or more in any one year. International Requests: FinCEN If a budgetary impact statement is resulting in an estimated 1,080 subjects estimates that there would be no more per year. The estimated average burden required, section 202 of the Unfunded than 60 requests for research submitted Mandates Act also requires an agency to associated with searching each subject to the 314(a) program by foreign law is 4 minutes per subject. FinCEN identify and consider a reasonable enforcement agencies annually.6 number of regulatory alternatives before therefore estimates that each State and Local Requests: While there recordkeeper will, on average, spend promulgating a rule. FinCEN has are more than 18,000 State and local law determined that it is not required to approximately 4,320 minutes, or enforcement agencies, FinCEN estimates roughly 72 hours per year to comply prepare a written statement under that the number of cases that would section 202. with the recordkeeping requirement in meet the stringent 314(a) submission this proposed rule. C. Regulatory Flexibility Act criteria would be relatively low. The Estimated Total Annual majority of significant money Pursuant to the Regulatory Flexibility Recordkeeping Burden: 1,449,648 laundering and terrorist financing Act (RFA) (5 U.S.C. 601 et seq.), FinCEN annual burden hours (20,134 related cases are worked jointly with × certifies that these proposed regulation recordkeepers 72 average annual Federal investigators and are thus revisions will not have a significant burden hours per recordkeeper). already eligible for 314(a) request economic impact on a substantial An agency may not conduct or submission. FinCEN estimates that there number of small entities. The proposed sponsor, and a person is not required to would be no more than 50 State and revisions would allow certain other respond to, a collection of information agencies to submit 314(a) requests, but unless the collection of information would not change the substance of the 5 The requirement in section 103.100(b)(2), displays a valid OMB control number. concerning reports by financial institutions in Records required to be retained under search and reporting requirements. response to a request from FinCEN on behalf of a Thus, FinCEN estimates that any impact Federal law enforcement agency, is not a collection the Bank Secrecy Act must be retained resulting from the proposal will not be of information for purposes of the Paperwork for five years. significant. Reduction Act. See 5 CFR 1320.4(a)(2). Request for Comments: We 6 These calculations were based on previous specifically invite comments on: (a) D. Paperwork Reduction Act requests for information. A review of incoming Whether the proposed recordkeeping requests from European Union countries revealed The collection of information an average of about 350 cases per year from 2006– requirement is necessary for the proper contained in this proposed rule is being 2008. Of these, approximately 75% (an average of performance of the mission of the submitted to the Office of Management 269) were money laundering and/or terrorism Financial Crimes Enforcement Network, related, however, the majority were not identified and whether the information shall have and Budget for review in accordance as complex cases. Conversations with FinCEN with the Paperwork Reduction Act of personnel responsible for European Union practical utility; (b) the accuracy of our 1995 (44 U.S.C. 3507(d)). Comments on indicated not more than 10% of the money the collection of information should be laundering and/or terrorism related cases would be 7 Estimated requests per annum subject to the significant enough to meet 314(a) use criteria, Paperwork Reduction Act include 10 from FinCEN, sent to: Desk Officer for the Department however, it is anticipated that there may be 50 from State/local enforcement, and 60 from of the Treasury, Office of Information additional requests that would be submitted outside foreign law enforcement agencies, for a total of 120 and Regulatory Affairs, Office of of the normal Financial Intelligence Unit channels. requests.

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estimate of the burden of the proposed The revisions read as follows: section is made to a financial recordkeeping requirement; (c) ways to institution, FinCEN or the appropriate enhance the quality, utility, and clarity § 103.100 Information sharing between Treasury component shall certify in government agencies and financial of the information required to be institutions. writing in the same manner as a maintained; (d) ways to minimize the requesting law enforcement agency that (a) * * * burden of the recordkeeping (4) Law enforcement agency means a each individual, entity or organization requirement, including through the use Federal, State, local, or foreign law about which FinCEN or the appropriate of automated collection techniques or enforcement agency with criminal Treasury component is seeking other forms of information technology; investigative authority, provided that in information is engaged in, or is and (e) estimates of capital or start-up the case of a foreign law enforcement reasonably suspected based on credible costs and costs of operation, agency, such agency is from a evidence of engaging in, terrorist maintenance, and purchase of services jurisdiction that is a party to a treaty activity or money laundering. The to maintain the information. that provides for, or in the certification also must include enough List of Subjects in 31 CFR Part 103 determination of FinCEN is from a specific identifiers, such as date of birth, address, and Social Security number Administrative practice and jurisdiction that otherwise allows, law enforcement agencies in the United that would permit a financial institution procedure, Authority delegations to differentiate between common or (Government agencies), Banks and States reciprocal access to information comparable to that obtainable under this similar names, and identify one person banking, Currency, Foreign banking, at FinCEN or the appropriate Treasury Foreign currencies, Gambling, section. (b) Information requests based on component who can be contacted with Investigations, Law enforcement, credible evidence concerning terrorist any questions relating to its request. Penalties, Reporting and recordkeeping activity or money laundering—(1) In (3) Obligations of a financial requirements, Securities, Taxes. general. A law enforcement agency institution receiving an information Proposed Amendments to the investigating terrorist activity or money request—(i) Record search. Upon Regulations laundering may request that FinCEN receiving an information request from FinCEN under this section, a financial For the reasons set forth above in the solicit, on the investigating agency’s behalf, certain information from a institution shall expeditiously search its preamble, FinCEN proposes to amend records to determine whether it 31 CFR part 103 as follows: financial institution or a group of financial institutions. When submitting maintains or has maintained any PART 103—FINANCIAL such a request to FinCEN, the law account for, or has engaged in any RECORDKEEPING AND REPORTING enforcement agency shall provide transaction with, each individual, OF CURRENCY AND FINANCIAL FinCEN with a written certification, in entity, or organization named in TRANSACTIONS such form and manner as FinCEN may FinCEN’s request. A financial prescribe. At a minimum, such institution may contact the law 1. The authority citation for part 103 certification must: State that each enforcement agency, FinCEN or continues to read as follows: individual, entity, or organization about requesting Treasury component Authority: 12 U.S.C. 1829b and 1951–1959; which the law enforcement agency is representative, or U.S. law enforcement 31 U.S.C. 5311–5314 and 5316–5332; title III, seeking information is engaged in, or is attache´ in the case of a request by a sec. 314, Public Law 107–56, 115 Stat. 307. reasonably suspected based on credible foreign law enforcement agency, which 2. Section 103.90(a) is revised to read evidence of engaging in, terrorist has been named in the information as follows: activity or money laundering; include request provided to the institution by enough specific identifiers, such as date FinCEN with any questions relating to § 103.90 Definitions. of birth, address, and Social Security the scope or terms of the request. Except * * * * * number, that would permit a financial as otherwise provided in the (a) Money laundering means an institution to differentiate between information request, a financial activity criminalized by 18 U.S.C. 1956 common or similar names; and identify institution shall only be required to or 1957, or an activity that would be one person at the agency who can be search its records for: criminalized by 18 U.S.C. 1956 or 1957 contacted with any questions relating to * * * * * if it occurred in the United States. its request. Upon receiving the requisite (iv) * * * * * * * * certification from the requesting law (B)(1) A financial institution shall not 3. Section 103.100 is amended by— enforcement agency, FinCEN may disclose to any person, other than a. Adding new paragraph (a)(4); require any financial institution to FinCEN or the requesting Treasury b. Revising paragraph (b)(1); search its records to determine whether component, the law enforcement agency c. Redesignating paragraphs (b)(2) the financial institution maintains or on whose behalf FinCEN is requesting through (4) as paragraphs (b)(3) through has maintained accounts for, or has information, or U.S. law enforcement (5); attache´ in the case of a request by a d. Adding new paragraph (b)(2); engaged in transactions with, any e. Revising newly redesignated specified individual, entity, or foreign law enforcement agency, which paragraph (b)(3)(i); organization. has been named in the information f. Revising newly redesignated (2) Requests from FinCEN. FinCEN request, the fact that FinCEN has paragraph (b)(3)(iv)(B)(1); may solicit, on its own behalf and on requested or has obtained information g. Revising newly redesignated behalf of appropriate components of the under this section, except to the extent paragraph (b)(3)(iv)(B)(2); Department of the Treasury, whether a necessary to comply with such an h. Revising newly redesignated financial institution or a group of information request. paragraph (b)(3)(iv)(C); financial institutions maintains or has (2) Notwithstanding paragraph i. Revising newly redesignated maintained accounts for, or has engaged (b)(3)(iv)(B)(1) of this section, a financial paragraph (b)(4); and in transactions with, any specified institution authorized to share j. Revising newly redesignated individual, entity, or organization. information under § 103.110 may share paragraph (b)(5). Before an information request under this information concerning an individual,

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entity, or organization named in a ACTION: Notice of proposed rulemaking. rulemaking USCG–2009–0840, indicate request from FinCEN in accordance the specific section of this document to with the requirements of such section. SUMMARY: The Coast Guard proposes to which each comment applies, and However, such sharing shall not modify the drawbridge operation provide a reason for each suggestion or disclose the fact that FinCEN has regulation for the Port of Coos Bay recommendation. You may submit your requested information concerning such Railroad Bridge, Coos Bay, mile 9.0, at comments and material online (http:// individual, entity, or organization. North Bend, Oregon by deleting the www.regulations.gov), or by fax, mail or (C) Each financial institution shall requirement for special sound signals hand delivery, but please use only one maintain adequate procedures to protect used in foggy weather and to change the of these means. If submit a comment the security and confidentiality of name of the owner. This rule is online via http://www.regulations.gov, it requests from FinCEN for information necessary to make the sound signals will be considered received by the Coast used at the bridge consistent with other under this section. The requirements of Guard when you successfully transmit bridges in the area and to eliminate the this paragraph (b)(3)(iv)(C) shall be the comment. If you fax, hand deliver or unnecessary special sound signals. deemed satisfied to the extent that a mail your comment, it will be financial institution applies to such DATES: Comments and related material considered received by the Coast Guard information procedures that the must reach the Coast Guard on or before when it is received at the Docket institution has established to satisfy the January 15, 2010. Management Facility. We recommend requirements of section 501 of the ADDRESSES: You may submit comments that you include your name and a Gramm-Leach-Bliley Act (15 U.S.C. identified by the Coast Guard docket mailing address, an e-mail address, or a 6801), and applicable regulations issued number USCG–2009–0840 using any phone number in the body of your thereunder, with regard to the one of the following methods: document so that we can contact you if protection of its customers’ nonpublic (1) Federal eRulemaking Portal: we have questions regarding your personal information. http://www.regulations.gov. submission. (2) Fax: 202–493–2251. To submit your comment online, go to * * * * * (3) Mail: Docket Management Facility http://www.regulations.gov, click on the (4) Relation to the Right to Financial (M–30), U.S. Department of ‘‘submit a comment’’ box, which will Privacy Act and the Gramm-Leach- Transportation, West Building Ground then become highlighted in blue. In the Bliley Act. The information that a Floor, Room W12–140, 1200 New Jersey ‘‘Document Type’’ drop down menu financial institution is required to report Avenue, SE., Washington, DC 20590– select ‘‘Proposed Rules’’ and insert pursuant to paragraph (b)(3)(ii) of this 0001. ‘‘USCG–2009–0840’’ in the ‘‘Keyword’’ section is information required to be (4) Hand delivery: Same as mail box. Click ‘‘Search’’ then click on the reported in accordance with a federal address above, between 9 a.m. and 5 balloon shape in the ‘‘Actions’’ column. statute or rule promulgated thereunder, p.m., Monday through Friday, except If you submit your comments by mail or for purposes of subsection 3413(d) of Federal holidays. The telephone number hand delivery, submit them in an the Right to Financial Privacy Act (12 is 202–366–9329. unbound format, no larger than 81⁄2 by U.S.C. 3413(d)) and subsection 502(e)(8) To avoid duplication, please use only 11 inches, suitable for copying and of the Gramm-Leach-Bliley Act (15 one of these methods. See the ‘‘Public electronic filing. If you submit them by U.S.C. 6802(e)(8)). Participation and Request for mail and would like to know that they (5) No effect on law enforcement or Comments’’ portion of the reached the Facility, please enclose a regulatory investigations. Nothing in SUPPLEMENTARY INFORMATION section stamped, self-addressed postcard or this subpart affects the authority of a below for instructions on submitting envelope. We will consider all Federal, State or local law enforcement comments. comments and material received during agency or officer, or FinCEN or another FOR FURTHER INFORMATION CONTACT: If the comment period and may change component of the Department of the you have questions on this proposed the proposed rule in view of them. Treasury, to obtain information directly rule, call Austin Pratt, Chief, Bridge from a financial institution. Section, Waterways Management Viewing Comments and Documents Dated: November 9, 2009. Branch, Thirteenth Coast Guard District, To view comments, as well as James H. Freis, Jr., telephone 206–220–7282, e-mail documents mentioned in this preamble Director, Financial Crimes Enforcement address [email protected]. If you as being available in the docket, go to Network. have questions on viewing or submitting http://www.regulations.gov, click on the [FR Doc. E9–27447 Filed 11–13–09; 8:45 am] material to the docket, call Renee V. ‘‘read comments’’ box, which will then BILLING CODE 4810–02–P Wright, Program Manager, Docket become highlighted in blue. In the Operations, telephone 202–366–9826. ‘‘Keyword’’ box insert ‘‘USCG–2009– SUPPLEMENTARY INFORMATION: 0840’’ and click ‘‘Search’’. Click the ‘‘Open Docket Folder’’ in the ‘‘Actions’’ DEPARTMENT OF HOMELAND Public Participation and Request for column. You may also visit either the SECURITY Comments Docket Management Facility in Room Coast Guard We encourage you to participate in W12–140 on the ground floor of the this rulemaking by submitting DOT West Building, 1200 New Jersey 33 CFR Part 117 comments and related materials. All Avenue, SE., Washington, DC 20590, comments received will be posted, between 9 a.m. and 5 p.m., Monday [Docket No. USCG–2009–0840] without change, to http:// through Friday, except Federal holidays. RIN 1625–AA09 www.regulations.gov and will include We have an agreement with the any personal information you have Department of Transportation to use the Drawbridge Operation Regulation; Port provided. Docket Management Facility. of Coos Bay Railroad Bridge, Coos Submitting Comments Privacy Act Bay, North Bend, OR If you submit a comment, please Anyone can search the electronic AGENCY: Coast Guard, DHS. include the docket number for this form of all comments received into any

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of our dockets by the name of the based on 13 of these statutes or Collection of Information individual submitting the comment (or executive orders. This proposed rule would call for no signing the comment, if submitted on Regulatory Planning and Review new collection of information under the behalf of an association, business, labor Paperwork Reduction Act of 1995 (44 union, etc.). You may review a Privacy This proposed rule is not a U.S.C. 3501–3520). Act notice regarding our public dockets ‘‘significant regulatory action’’ under Federalism in the January 17, 2008, issue of the section 3(f) of Executive Order 12866, Federal Register (73 FR 3316). Regulatory Planning and Review, and A rule has implications for federalism Public Meeting does not require an assessment of under Executive Order 13132, potential costs and benefits under Federalism, if it has a substantial direct We do not now plan to hold a public effect on State or local governments and meeting, but you may submit a request section 6(a)(3) of that Order. The Office of Management and Budget has not would either preempt State law or using one of the four methods under impose a substantial direct cost of ADDRESSES. Please explain why one reviewed it under that Order. The Coast Guard has made this finding based on compliance on them. We have analyzed would be beneficial. If we determine this proposed rule under that Order and that one would aid this rulemaking, we the fact that that the rule will have no known impact on the maritime public. have determined that it does not have will hold one at a time and place implications for federalism. announced by a later notice in the Small Entities Federal Register. Unfunded Mandates Reform Act Under the Regulatory Flexibility Act Background and Purpose The Unfunded Mandates Reform Act (5 U.S.C. 601–612), we have considered of 1995 (2 U.S.C. 1531–1538) requires The proposed rule would remove the whether this proposed rule would have Federal agencies to assess the effects of requirement at the Port of Coos Bay a significant economic impact on a their discretionary regulatory actions. In Railroad Bridge, Coos Bay, mile 9.0, at substantial number of small entities. particular, the Act addresses actions North Bend, Oregon for a bell to be rung The term ‘‘small entities’’ comprises that may result in the expenditure by a continuously in foggy weather and for a small businesses, not-for-profit State, local, or tribal government, in the siren to be sounded in foggy weather organizations that are independently aggregate, or by the private sector of when the swingspan is closed. The owned and operated and are not $100,000,000 or more in any one year. movable span is normally kept in the dominant in their fields, and Though this proposed rule will not open position except for the passage of governmental jurisdictions with result in such an expenditure, we do trains or maintenance work. The populations of less than 50,000. discuss the effects of this rule elsewhere proposed rule would also change the in this preamble. regulation to reflect the bridge’s current The Coast Guard certifies under 5 owner as the Port of Coos Bay. U.S.C. 605(b) that this proposed rule Taking of Private Property would not have a significant economic The bell and siren at this drawbridge This proposed rule would not affect a impact on a substantial number of small are not standard requirements at taking of private property or otherwise drawbridges and there is nothing entities because it will have no known have taking implications under specific to the bridge that warrants the impact on any vessel traffic. Executive Order 12630, Governmental continued use of these special sound If you think that your business, Actions and Interference with signals. Vessel traffic through the organization, or governmental Constitutionally Protected Property swingspan includes tugs and tows and jurisdiction qualifies as a small entity Rights. a variety of recreational craft. and that this rule would have a Oceangoing ship traffic has diminished significant economic impact on it, Civil Justice Reform greatly in recent decades. please submit a comment (see This proposed rule meets applicable The operating regulations currently in ADDRESSES) explaining why you think it standards in sections 3(a) and 3(b)(2) of effect for the bridge are found at 33 CFR qualifies and how, and to what degree Executive Order 12988, Civil Justice 117.871. These state that the bridge be this rule would economically affect it. Reform, to minimize litigation, maintained normally in the open eliminate ambiguity, and reduce position except for the passage of trains Assistance for Small Entities burden. or maintenance. The aforementioned Under section 213(a) of the Small Protection of Children sound signals are also prescribed. Business Regulatory Enforcement We have analyzed this proposed rule Discussion of Proposed Rule Fairness Act of 1996 (Pub. L. 104–121), under Executive Order 13045, The Coast Guard proposes to amend we want to assist small entities in Protection of Children from 33 CFR 117.871 by deleting the understanding this proposed rule so that Environmental Health Risks and Safety requirements for the Coos Bay Railroad they can better evaluate its effects on Risks. This rule is not an economically Bridge to use the special sound signals them and participate in the rulemaking. significant rule and would not create an noted above. The rule will also change If the rule would affect your small environmental risk to health or risk to the regulation to reflect that the bridge’s business, organization, or governmental safety that might disproportionately new owner is the Port of Coos Bay. The jurisdiction and you have questions affect children. requirement that the bridge be normally concerning its provisions or options for Indian Tribal Governments maintained in the open position would compliance, please contact Austin Pratt, not be changed. Chief, Bridge Section, Waterways This proposed rule does not have Management Branch, Thirteenth Coast tribal implications under Executive Regulatory Analyses Guard District, at (206) 220–7282. The Order 13175, Consultation and We developed this proposed rule after Coast Guard will not retaliate against Coordination with Indian Tribal considering numerous statutes and small entities that question or complain Governments, because it would not have executive orders related to rulemaking. about this rule or any policy or action a substantial direct effect on one or Below we summarize our analyses of the Coast Guard. more Indian tribes, on the relationship

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between the Federal Government and List of Subjects in 33 CFR Part 117 DATES: Comments and related material Indian tribes, or on the distribution of Bridges. must reach the Coast Guard on or before power and responsibilities between the January 15, 2010. For the reasons discussed in the Federal Government and Indian tribes. ADDRESSES: preamble, the Coast Guard proposes to You may submit comments Energy Effects amend 33 CFR part 117 as follows: identified by the Coast Guard docket number USCG–2009–0838 using any We have analyzed this proposed rule PART 117—DRAWBRIDGE one of the following methods: under Executive Order 13211, Actions OPERATION REGULATIONS (1) Federal eRulemaking Portal: Concerning Regulations That http://www.regulations.gov. Significantly Affect Energy Supply, 1. The authority citation for part 117 (2) Fax: 202–493–2251. Distribution, or Use. We have continues to read as follows: (3) Mail: Docket Management Facility determined that it is not a ‘‘significant Authority: 33 U.S.C. 499; 33 CFR 1.05–1; (M–30), U.S. Department of energy action’’ under that order because Department of Homeland Security Delegation Transportation, West Building Ground it is not a ‘‘significant regulatory action’’ No. 0170.1. Floor, Room W12–140, 1200 New Jersey under Executive Order 12866 and is not Avenue, SE., Washington, DC 20590– 2. Amend § 117.871 to read as likely to have a significant adverse effect 0001. follows: on the supply, distribution, or use of (4) Hand delivery: Same as mail energy. The Administrator of § 117.871 Coos Bay. address above, between 9 a.m. and 5 Information and Regulatory Affairs has The draw of the Port of Coos Bay p.m., Monday through Friday, except not designated this as a significant railroad bridge, mile 9.0 at North Bend, Federal holidays. The telephone number energy action. Therefore, it does not shall be maintained in the fully open is 202–366–9329. require a Statement of Energy Effects position, except for the crossing of To avoid duplication, please use only under Executive Order 13211. trains or maintenance. one of these methods. See the ‘‘Public Participation and Request for Technical Standards Dated: October 15, 2009. Comments’’ portion of the The National Technology Transfer G.T. Blore, SUPPLEMENTARY INFORMATION section and Advancement Act (NTTAA) (15 Rear Admiral, U.S. Coast Guard Commander, below for instructions on submitting U.S.C. 272 note) directs agencies to use Thirteenth Coast Guard District. comments. [FR Doc. E9–27354 Filed 11–13–09; 8:45 am] voluntary consensus standards in their FOR FURTHER INFORMATION CONTACT: If regulatory activities unless the agency BILLING CODE 4910–15–P you have questions on this proposed provides Congress, through the Office of rule, call Austin Pratt, Chief, Bridge Management and Budget, with an Section, Waterways Management explanation of why using these DEPARTMENT OF HOMELAND SECURITY Branch, 13th Coast Guard District, standards would be inconsistent with telephone 206–220–7282, e-mail applicable law or otherwise impractical. Coast Guard [email protected]. If you have Voluntary consensus standards are questions on viewing or submitting technical standards (e.g., specifications 33 CFR Part 117 material to the docket, call Renee V. of materials, performance, design, or Wright, Program Manager, Docket operation; test methods; sampling [Docket No. USCG–2009–0838] Operations, telephone 202–366–9826. procedures; and related management SUPPLEMENTARY INFORMATION: systems practices) that are developed or RIN 1625–AA09 adopted by voluntary consensus Public Participation and Request for standards bodies. Drawbridge Operation Regulation; Comments Snohomish River, Steamboat Slough, This proposed rule does not use and Ebey Slough; Everett and We encourage you to participate in technical standards. Therefore, we did Marysville, WA this rulemaking by submitting not consider the use of voluntary comments and related materials. All consensus standards. AGENCY: Coast Guard, DHS. comments received will be posted, Environment ACTION: Notice of proposed rulemaking. without change, to http:// www.regulations.gov and will include We have analyzed this proposed rule SUMMARY: The Coast Guard proposes to any personal information you have under Department of Homeland modify the drawbridge operation provided. Security Management Directive 023–01, regulation for the Burlington Northern and Commandant Instruction Santa Fe Railroad drawbridge across Submitting Comments M16475.lD which guides the Coast Ebey Slough, mile 1.5, in Marysville, If you submit a comment, please Guard in complying with the National Washington so that two-hour notice include the docket number for this Environmental Policy Act of 1969 would be required to open the bridge rulemaking USCG–2009–0838, indicate (NEPA) (42 U.S.C. 4321–4370f), and from 3:30 p.m. to 7 a.m. every day. The the specific section of this document to have made a preliminary determination bridge will be opened on signal at all which each comment applies, and that this action is one of a category of other times. The modification is provide a reason for each suggestion or actions which do not individually or necessary to allow Burlington Northern recommendation. You may submit your cumulatively have a significant effect on Santa Fe Railroad to reduce staffing of comments and material online (http:// the human environment because it the bridge during periods requiring www.regulations.gov), or by fax, mail or simply promulgates the operating infrequent openings. The Coast Guard is hand delivery, but please use only one regulations or procedures for also proposing additional minor of these means. If submit a comment drawbridges. We seek any comments or changes to the drawbridge operation online via http://www.regulations.gov, it information that may lead to the regulations covering the Snohomish will be considered received by the Coast discovery of a significant environmental River system to delete obsolete Guard when you successfully transmit impact from this proposed rule. requirements. the comment. If you fax, hand deliver or

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mail your comment, it will be ADDRESSES. Please explain why one used instead as codified in the general considered received by the Coast Guard would be beneficial. If we determine regulations for drawbridge operations at when it is received at the Docket that one would aid this rulemaking, we Part 117.5 of 33 Code of Federal Management Facility. We recommend will hold one at a time and place Regulations. that you include your name and a announced by a later notice in the The requirement to toll a bell in fog mailing address, an e-mail address, or a Federal Register. when draws are open for vessel passage phone number in the body of your would also be deleted along with the Background and Purpose document so that we can contact you if requirement for constant attendance of we have questions regarding your The proposed rule would modify the drawtenders during freshets at those submission. drawbridge operation regulation for the bridges that are otherwise required to To submit your comment online, go to Burlington Northern Santa Fe Railroad have drawtenders present only to http://www.regulations.gov, click on the drawbridge across Ebey Slough, mile operate upon notice to open. ‘‘submit a comment’’ box, which will 1.5, in Marysville, Washington so that The foregoing are not general then become highlighted in blue. In the two-hour notice would be required to requirements at drawbridges. They were ‘‘Document Type’’ drop down menu open the bridge from 3:30 p.m. to 7 a.m. established decades ago when select ‘‘Proposed Rules’’ and insert every day. The bridge will be opened on commercial navigation, especially log ‘‘USCG–2009–0838’’ in the ‘‘Keyword’’ signal at all other times. The railroad towing, was more frequent on the box. Click ‘‘Search’’ then click on the company requested this change to braided stream system of the lower balloon shape in the ‘‘Actions’’ column. reduce staffing of the drawbridge during Snohomish. Improvements in If you submit your comments by mail periods requiring infrequent openings. navigation, such as radio and radar, or hand delivery, submit them in an The operating regulations currently in have greatly reduced the need for these unbound format, no larger than 81⁄2 by effect for the Ebey Slough Railroad measures. The constant attendance of 11 inches, suitable for copying and Bridge are found at 33 CFR part 117, drawtenders during freshets is not electronic filing. If you submit them by subpart A, the general operating needed because there is less traffic in mail and would like to know that they regulations for drawbridges. The these waterways than when the original reached the Facility, please enclose a regulations require the bridge to open regulations were established. stamped, self-addressed postcard or promptly on signal at any time, which Regulatory Analyses envelope. We will consider all requires constant presence of a comments and material received during drawtender. We developed this proposed rule after the comment period and may change The modification would make the considering numerous statutes and the rule based on them. regulations consistent with most of the executive orders related to rulemaking. other drawbridges in the lower Below we summarize our analyses Viewing Comments and Documents Snohomish River system between based on 13 of these statutes or To view comments, as well as Marysville and Everett, Washington. In executive orders. documents mentioned in this preamble 2008 the draw opened 128 times for Regulatory Planning and Review as being available in the docket, go to vessels. For the first five months of 2009 http://www.regulations.gov, click on the the draw opened 95 times for vessels. This proposed rule is not a ‘‘read comments’’ box, which will then These records indicate that the bridge ‘‘significant regulatory action’’ under become highlighted in blue. In the opens on average less than once a day. section 3(f) of Executive Order 12866, ‘‘Keyword’’ box insert ‘‘USCG–2009– Most vessels that require the swing span Regulatory Planning and Review, and 0838’’ and click ‘‘Search’’. Click the to open are recreational vessels and does not require an assessment of ‘‘Open Docket Folder’’ in the ‘‘Actions’’ occasionally tugboats. potential costs and benefits under column. You may also visit either the The Coast Guard is also proposing section 6(a)(3) of that Order. The Office Docket Management Facility in Room additional minor changes to the of Management and Budget has not W12–140 on the ground floor of the drawbridge operation regulations reviewed it under that Order. The Coast DOT West Building, 1200 New Jersey covering the Snohomish River system to Guard has made this finding based on Avenue, SE., Washington, DC 20590, delete obsolete requirements. the fact that the changes proposed will have little, if any, impact on the ability between 9 a.m. and 5 p.m., Monday Discussion of Proposed Rule through Friday, except Federal holidays. of vessels to transit the areas affected. The Coast Guard proposes to amend We have an agreement with the Small Entities Department of Transportation to use the 33 CFR 117.1059 by adding a Docket Management Facility. drawbridge operation regulation for the Under the Regulatory Flexibility Act Burlington Northern Santa Fe Railroad (5 U.S.C. 601–612), we have considered Privacy Act drawbridge across Ebey Slough, mile whether this proposed rule would have Anyone can search the electronic 1.5, in Marysville, Washington to a significant economic impact on a form of all comments received into any require two-hour notice to open the substantial number of small entities. of our dockets by the name of the bridge from 3:30 p.m. to 7 a.m. every The term ‘‘small entities’’ comprises individual submitting the comment (or day. The bridge will be opened on small businesses, not-for-profit signing the comment, if submitted on signal at all other times. organizations that are independently behalf of an association, business, labor The Coast Guard also proposes to owned and operated and are not union, etc.). You may review a Privacy change the regulations found in 33 CFR dominant in their fields, and Act notice regarding our public dockets 117.1059 to delete obsolete governmental jurisdictions with in the January 17, 2008, issue of the requirements for the bridges over the populations of less than 50,000. Federal Register (73 FR 3316). Snohomish River, Steamboat Slough, The Coast Guard certifies under 5 and Ebey Slough. The changes include U.S.C. 605(b) that this proposed rule Public Meeting the deletion of special sound signals for would not have a significant economic We do not now plan to hold a public the inability of the draw to open. The impact on a substantial number of small meeting, but you may submit a request standard danger signal of five short entities. This proposed rule would affect using one of the four methods under blasts in rapid succession would be the following entities, some of which

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might be small entities: The owners and result in such an expenditure, we do regulatory activities unless the agency operators of vessels needing to transit discuss the effects of this rule elsewhere provides Congress, through the Office of under the bridges affected. The rule will in this preamble. Management and Budget, with an not have a significant economic impact explanation of why using these Taking of Private Property on a substantial number of small standards would be inconsistent with entities, however, because the changes This proposed rule would not affect a applicable law or otherwise impractical. proposed will have little, if any, impact taking of private property or otherwise Voluntary consensus standards are on the ability of vessels to transit under have taking implications under technical standards (e.g., specifications those bridges. Executive Order 12630, Governmental of materials, performance, design, or If you think that your business, Actions and Interference with operation; test methods; sampling organization, or governmental Constitutionally Protected Property procedures; and related management jurisdiction qualifies as a small entity Rights. systems practices) that are developed or and that this rule would have a Civil Justice Reform adopted by voluntary consensus significant economic impact on it, standards bodies. please submit a comment (see This proposed rule meets applicable This proposed rule does not use ADDRESSES) explaining why you think it standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did qualifies and how, and to what degree Executive Order 12988, Civil Justice not consider the use of voluntary this rule would economically affect it. Reform, to minimize litigation, consensus standards. eliminate ambiguity, and reduce Assistance for Small Entities burden. Environment Under section 213(a) of the Small Protection of Children We have analyzed this proposed rule Business Regulatory Enforcement under Department of Homeland Fairness Act of 1996 (Pub. L. 104–121), We have analyzed this proposed rule Security Management Directive 023–01, we want to assist small entities in under Executive Order 13045, and Commandant Instruction understanding this proposed rule so that Protection of Children from M16475.lD which guides the Coast they can better evaluate its effects on Environmental Health Risks and Safety Guard in complying with the National them and participate in the rulemaking. Risks. This rule is not an economically Environmental Policy Act of 1969 If the rule would affect your small significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and business, organization, or governmental environmental risk to health or risk to have made a preliminary determination jurisdiction and you have questions safety that might disproportionately that this action is one of a category of concerning its provisions or options for affect children. actions which do not individually or compliance, please contact Austin Pratt, Indian Tribal Governments cumulatively have a significant effect on Chief, Bridge Section, Waterways the human environment because it Management Branch, 13th Coast Guard This proposed rule does not have simply promulgates the operating District, at (206) 220–7282. The Coast tribal implications under Executive regulations or procedures for Guard will not retaliate against small Order 13175, Consultation and drawbridges. We seek any comments or entities that question or complain about Coordination with Indian Tribal information that may lead to the this rule or any policy or action of the Governments, because it would not have discovery of a significant environmental Coast Guard. a substantial direct effect on one or impact from this proposed rule. more Indian tribes, on the relationship Collection of Information between the Federal Government and List of Subjects in 33 CFR Part 117 This proposed rule would call for no Indian tribes, or on the distribution of Bridges. new collection of information under the power and responsibilities between the For the reasons discussed in the Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. preamble, the Coast Guard proposes to U.S.C. 3501–3520). Energy Effects amend 33 CFR part 117 as follows: Federalism We have analyzed this proposed rule PART 117—DRAWBRIDGE A rule has implications for federalism under Executive Order 13211, Actions OPERATION REGULATIONS under Executive Order 13132, Concerning Regulations That Federalism, if it has a substantial direct Significantly Affect Energy Supply, 1. The authority citation for part 117 effect on State or local governments and Distribution, or Use. We have continues to read as follows: would either preempt State law or determined that it is not a ‘‘significant Authority: 33 U.S.C. 499; 33 CFR 1.05–1; impose a substantial direct cost of energy action’’ under that order because Department of Homeland Security Delegation compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ No. 0170.1. this proposed rule under that Order and under Executive Order 12866 and is not 2. Revise § 117.1059 to read as have determined that it does not have likely to have a significant adverse effect follows: implications for federalism. on the supply, distribution, or use of energy. The Administrator of § 117.1059 Drawbridge Operation Unfunded Mandates Reform Act Information and Regulatory Affairs has Regulation; Snohomish River, Steamboat The Unfunded Mandates Reform Act not designated this as a significant Slough, and Ebey Slough; Everett and of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not Marysville, WA. Federal agencies to assess the effects of require a Statement of Energy Effects (a) The draws of the twin, SR529 their discretionary regulatory actions. In under Executive Order 13211. highway bridges across the Snohomish particular, the Act addresses actions River, mile 3.6, at Everett shall open on that may result in the expenditure by a Technical Standards signal if at least one-hour notice is State, local, or tribal government, in the The National Technology Transfer given. Monday through Friday, notice aggregate, or by the private sector of and Advancement Act (NTTAA) (15 for opening shall be given to the $100,000,000 or more in any one year. U.S.C. 272 note) directs agencies to use drawtender at the SR529 highway Though this proposed rule will not voluntary consensus standards in their bridge across Ebey Slough, at

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Marysville, and at all other times to the FEDERAL COMMUNICATIONS company’s website, http:// drawtender at the twin SR529 highway COMMISSION www.bcpiweb.com. bridges at Everett. This document does not contain 47 CFR Part 73 (b) The draw of the SR2 highway proposed information collection bridge across the Snohomish River, mile requirements subject to the Paperwork [DA 09–2270; MB Docket No. 09–189; RM– Reduction Act of 1995, Public Law 104– 6.9, at Everett, shall open on signal if at 11564] 13. In addition, therefore, it does not least four hours notice is given. contain any proposed information Radio Broadcasting Services, Kahuku, (c) The draw of the Burlington collection burden ’’for small business HI Northern Santa Fe railroad bridge across concerns with fewer than 25 the Snohomish River, mile 15.5, at AGENCY: Federal Communications employees,’’ pursuant to the Small Snohomish need not open for the Commission. Business Paperwork Relief Act of 2002, passage of vessels. ACTION: Proposed rule. Public Law 107–198, see 44 U.S.C. (d) The draw of the Burlington 3506(c)(4). Northern Santa Fe railroad bridge across SUMMARY: The Audio Division seeks Provisions of the Regulatory Steamboat Slough, mile 1.0, near comments on a petition filed by Kona Flexibility Act of 180 do not apply to Marysville, shall open on signal if at Coast Radio, LLC, proposing the this proceeding. least four hours notice is given. allotment of FM Channel 296C3 at Members of the public should note Kahuku, Hawaii. The reference that from the time a Notice of Proposed (e) The draws of the twin, SR529 coordinates for Channel 296C3 at Rule Making is issued until the matter highway bridges across Steamboat Kahuku are 21–40–48 NL and 157–57– is no longer subject to Commission Slough, miles 1.1 and 1.2, near 03 WL. consideration or court review, all ex Marysville shall open on signal if at DATES: Comments must be filed on or parte contacts are prohibited in least four hours notice is given. Monday before December 14, 2009, and reply Commission proceedings, such as this through Friday, notice for openings comments on or before December 29, one, which involve channel allotments. shall be given to the drawtender at the 2009. See 47 CFR 1.1204(b) for rules SR529 highway bridge across Ebey governing permissible ex parte contact. ADDRESSES: Slough, at Marysville, and at all other Federal Communications For information regarding proper filing Commission, 445 12th Street, SW, times to the drawtender at the twin procedures for comments, see 47 CFR Washington, DC 20554. In addition to SR529 highway bridges at Everett. 1.4125 and 1.420. filing comments with the FCC interested (f) The draw of the Burlington parties should serve the petitioner, as List of Subjects in 47 CFR Part 73 Northern Santa Fe railroad bridge across follows: Victor A. Michael, Jr., 87 Jasper Radio, Radio broadcasting. Ebey Slough, mile 1.5, at Marysville Lake Road, Loveland, CO 80537 For the reasons discussed in the shall open on signal if two hours notice (Principal of Petitioner). preamble, the Federal Communications is given from 3:30 p.m. to 7 a.m. and FOR FURTHER INFORMATION CONTACT: Commission proposes to amend 47 CFR promptly on signal at all other times. Andrew J. Rhodes, Media Bureau, (202) part 73 as follows: (g) The draws of the SR529 highway 418–2180. bridge across Ebey Slough, mile 1.6, at SUPPLEMENTARY INFORMATION: This is a PART 73 – RADIO BRAODCAST Marysville, shall open on signal if at summary of the Commission’s Notice of SERVICES least one hour notice is given. Monday Proposed Rule Making, MB Docket No. 1. The authority citation for part 73 through Friday, notice for openings 09–189, adopted October 21, 2009, and continues to read as follows: shall be given to the drawtender at this released October 23, 2009. The full text Authority: 47 U.S.C. 154, 303, 334, 336 bridge and at all other times to the of this Commission document is drawtender at the SR529 highway available for inspection and copying § 73.202 [Amended] bridges across the Snohomish River at during normal business hours in the 2. Section 73.202(b), the Table of FM Everett. FCC Reference Information Center Allotments under Hawaii, is amended (Room CY–A257), 445 12th Street, SW., by adding Kahuku, Channel 296C3. Dated: October 15, 2009. Washington, DC. G.T. Blore, The complete text of this decision Federal Communications Commission. Rear Admiral, U.S. Coast Guard Commander, may also be purchased from the John A. Karousos, Thirteenth Coast Guard District. Commission’s copy contractor, Best Assistant Chief, Audio Division, Media [FR Doc. E9–27355 Filed 11–13–09; 8:45 am] Copy and Printing, Inc., 445 12th Street, Bureau. BILLING CODE 9110–04–P SW, Room CY–B402, Washington, DC [FR Doc. E9–27368 Filed 11–13–09; 8:45 am] 20554, 800–378–3160 or via the BILLING CODE 6712–01–S

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Notices Federal Register Vol. 74, No. 219

Monday, November 16, 2009

This section of the FEDERAL REGISTER docket in our reading room. The reading In accordance with the regulations, contains documents other than rules or room is located in room 1141 of the APHIS restricts the importation of live proposed rules that are applicable to the USDA South Building, 14th Street and fish, fertilized eggs, and gametes of SVC- public. Notices of hearings and investigations, Independence Avenue SW., susceptible species and the importation committee meetings, agency decisions and Washington, DC. Normal reading room of diagnostic specimens or research rulings, delegations of authority, filing of petitions and applications and agency hours are 8 a.m. to 4:30 p.m., Monday materials containing viable SVC virus. statements of organization and functions are through Friday, except holidays. To be The regulations involve information examples of documents appearing in this sure someone is there to help you, collection activities, including import section. please call (202) 690-2817 before permit applications, health certificates, coming. diagnostic specimen applications, Other Information: Additional refusal of entry orders to dispose of fish, DEPARTMENT OF AGRICULTURE information about APHIS and its customs declarations for an import or programs is available on the Internet at intransit permit, cleaning and Animal and Plant Health Inspection (http://www.aphis.usda.gov). disinfection certificates, 72-hour Service FOR FURTHER INFORMATION CONTACT: For notification to APHIS before arrival of [Docket No. APHIS-2009-0081] information on regulations for the shipments in the United States, and importation of live fish, fertilized eggs, recordkeeping. Notice of Request for Extension of and gametes, contact Dr. Betzaida We are asking the Office of Approval of an Information Collection; Lopez, Staff Veterinarian, Technical Management and Budget (OMB) to Spring Viremia of Carp; Import Trade Services—Animals, National approve our use of these information Restrictions on Certain Live Fish, Center for Import and Export, VS, collection activities for an additional 3 Fertilized Eggs, and Gametes APHIS, 4700 River Road Unit 39, years. Riverdale MD 20737; (301) 734-5677. The purpose of this notice is to solicit AGENCY: Animal and Plant Health For copies of more detailed information comments from the public (as well as Inspection Service, USDA. on the information collection, contact affected agencies) concerning our ACTION: Extension of approval of an Mrs. Celeste Sickles, APHIS’ information collection. These comments information collection; comment Information Collection Coordinator, at will help us: request. (301) 851-2908. (1) Evaluate whether the collection of information is necessary for the proper SUMMARY: In accordance with the SUPPLEMENTARY INFORMATION: Title: Spring Viremia of Carp; Import performance of the functions of the Paperwork Reduction Act of 1995, this Agency, including whether the notice announces the Animal and Plant Restrictions on Certain Live Fish, Fertilized Eggs, and Gametes. information will have practical utility; Health Inspection Service’s intention to (2) Evaluate the accuracy of our request an extension of approval of an OMB Number: 0579-0301. Type of Request: Extension of estimate of the burden of the collection information collection associated with approval of an information collection. of information, including the validity of regulations for the importation of live Abstract: Under the Animal Health the methodology and assumptions used; fish, fertilized eggs, and gametes to Protection Act (7 U.S.C. 8301 et seq.), (3) Enhance the quality, utility, and prevent the introduction of spring the Animal and Plant Health Inspection clarity of the information to be viremia of carp into the United States. Service (APHIS) of the United States collected; and DATES: We will consider all comments Department of Agriculture is authorized, (4) Minimize the burden of the that we receive on or before January 15, among other things, to prohibit or collection of information on those who 2010. restrict the importation and interstate are to respond, through use, as ADDRESSES: You may submit comments movement of animals and animal appropriate, of automated, electronic, by either of the following methods: products to prevent the introduction mechanical, and other collection ∑ Federal eRulemaking Portal: Go to into and dissemination within the technologies; e.g., permitting electronic (http://www.regulations.gov/ United States of livestock diseases and submission of responses. fdmspublic/component/ pests. To carry out this mission, APHIS Estimate of burden: The public main?main=DocketDetail&d=APHIS- regulates the importation of animals and reporting burden for this collection of 2009-0081) to submit or view comments animal products into the United States. information is estimated to average and to view supporting and related The regulations are contained in title 9, 0.102823 hours per response. materials available electronically. parts 92 through 98, of the Code of Respondents: Importers of SVC- ∑ Postal Mail/Commercial Delivery: Federal Regulations. APHIS regulations susceptible live fish, fertilized eggs, and Please send two copies of your comment in part 93 contain requirements to gametes and cultures/diagnostic to Docket No. APHIS-2009-0081, prevent the introduction of spring specimens containing SVC virus. Regulatory Analysis and Development, viremia of carp (SVC) into the United Estimated annual number of PPD, APHIS, Station 3A-03.8, 4700 States. respondents: 462. River Road Unit 118, Riverdale, MD SVC is a disease of certain species of Estimated annual number of 20737-1238. Please state that your finfish, caused by an eponymous responses per respondent: 42.484848. comment refers to Docket No. APHIS- rhabdovirus. The disease is considered Estimated annual number of 2009-0081. extremely contagious, and there are responses: 19,628. Reading Room: You may read any currently no U.S.-approved vaccines or Estimated total annual burden on comments that we receive on this treatments for the virus. respondents: 2,018.21 hours. (Due to

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averaging, the total annual burden hours Independence Avenue SW., The purpose of this notice is to solicit may not equal the product of the annual Washington, DC. Normal reading room comments from the public (as well as number of responses multiplied by the hours are 8 a.m. to 4:30 p.m., Monday affected agencies) concerning our reporting burden per response.) through Friday, except holidays. To be information collection. These comments All responses to this notice will be sure someone is there to help you, will help us: summarized and included in the request please call (202) 690-2817 before (1) Evaluate whether the collection of for OMB approval. All comments will coming. information is necessary for the proper also become a matter of public record. Other Information: Additional performance of the functions of the Done in Washington, DC, this 9th day information about APHIS and its Agency, including whether the of November 2009. programs is available on the Internet at information will have practical utility; (http://www.aphis.usda.gov). (2) Evaluate the accuracy of our Kevin Shea, FOR FURTHER INFORMATION CONTACT: For estimate of the burden of the collection Acting Administrator, Animal and Plant of information, including the validity of Health Inspection Service. information on regulations for the importation of live swine, pork, and the methodology and assumptions used; [FR Doc. E9–27400 Filed 11–13–09; 8:45 am] (3) Enhance the quality, utility, and pork products from Chile, contact Dr. BILLING CODE 3410–34–S clarity of the information to be Magde Elshafie, Staff Veterinarian, collected; and Technical Trade Services—Products, (4) Minimize the burden of the DEPARTMENT OF AGRICULTURE National Center for Import and Export, collection of information on those who VS, APHIS, 4700 River Road Unit 40, are to respond, through use, as Animal and Plant Health Inspection Riverdale MD 20737; (301) 734-3277. appropriate, of automated, electronic, Service For copies of more detailed information mechanical, and other collection on the information collection, contact [Docket No. APHIS-2009-0080] technologies; e.g., permitting electronic Mrs. Celeste Sickles, APHIS’ submission of responses. Notice of Request for Extension of Information Collection Coordinator, at Estimate of burden: The public Approval of an Information Collection; (301) 851-2908. reporting burden for this collection of Classical Swine Fever Status of Chile SUPPLEMENTARY INFORMATION: information is estimated to average 1 Title: Classical Swine Fever Status of hour per response. AGENCY: Animal and Plant Health Chile. Respondents: Chilean veterinary Inspection Service, USDA. OMB Number: 0579-0235. officers. ACTION: Extension of approval of an Type of Request: Extension of Estimated annual number of information collection; comment approval of an information collection. respondents: 4. request. Abstract: Under the Animal Health Estimated annual number of Protection Act (7 U.S.C. 8301 et seq.), responses per respondent: 8. SUMMARY: In accordance with the the Animal and Plant Health Inspection Estimated annual number of Paperwork Reduction Act of 1995, this Service (APHIS) of the United States responses: 32. notice announces the Animal and Plant Department of Agriculture is authorized, Estimated total annual burden on Health Inspection Service’s intention to among other things, to prohibit or respondents: 32 hours. (Due to request an extension of approval of an restrict the importation and interstate averaging, the total annual burden hours information collection associated with movement of animals and animal may not equal the product of the annual regulations for the importation of live products to prevent the introduction number of responses multiplied by the swine, pork, and pork products from into and dissemination within the reporting burden per response.) Chile. United States of livestock diseases and All responses to this notice will be DATES: We will consider all comments pests. To carry out this mission, APHIS summarized and included in the request that we receive on or before January 15, regulates the importation of animals and for OMB approval. All comments will 2010. animal products into the United States. also become a matter of public record. Done in Washington, DC, this 9th day ADDRESSES: You may submit comments The regulations are contained in title 9, by either of the following methods: parts 92 through 98, of the Code of of November 2009. ∑ Federal eRulemaking Portal: Go to Federal Regulations. Kevin Shea, (http://www.regulations.gov/ Part 94, § 94.25, allows the Acting Administrator, Animal and Plant fdmspublic/component/ importation, subject to certain Health Inspection Service. main?main=DocketDetail&d=APHIS- conditions, of live swine, pork, and pork [FR Doc. E9–27401 Filed 11–13–09; 8:45 am] 2009-0080) to submit or view comments products from certain regions, including BILLING CODE 3410–34–S and to view supporting and related Chile, that are free of classical swine materials available electronically. fever (CSF). Among the conditions is a ∑ Postal Mail/Commercial Delivery: requirement for a certificate that must DEPARTMENT OF AGRICULTURE Please send two copies of your comment be completed by Chilean veterinary to Docket No. APHIS-2009-0080, authorities prior to export. The Commodity Credit Corporation Regulatory Analysis and Development, certificate must identify both the region PPD, APHIS, Station 3A-03.8, 4700 of export and the region of origin as Notice of Request for an Extension of River Road Unit 118, Riverdale, MD regions designated in §§ 94.9 and 94.10 a Currently Approved Information 20737-1238. Please state that your as free of CSF at the time the live swine, Collection comment refers to Docket No. APHIS- pork, or pork products were in the AGENCY: Commodity Credit Corporation, 2009-0080. regions. USDA. Reading Room: You may read any We are asking the Office of ACTION: Notice and request for comments that we receive on this Management and Budget (OMB) to comments. docket in our reading room. The reading approve our use of these information room is located in room 1141 of the collection activities for an additional 3 SUMMARY: In accordance with the USDA South Building, 14th Street and years. Paperwork Reduction Act of 1995, this

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notice announces the Commodity Credit information on any amendments to the Signed at Washington, DC on November 3, Corporation’s (CCC) intention to request sales. Form FAS–359, ‘‘Declaration of 2009. an extension of a currently approved Sale,’’ is the written record, signed by Michael V. Michener, information collection procedure in the commodity supplier, of the terms of Administrator, Foreign Agricultural Service support of the Regulations—Financing sale as reported by telephone. Shipping and Vice President, Commodity Credit Commercial Sales of Agricultural agents nominated by importing Corporation. Commodities under Title I, Public Law countries must submit information to [FR Doc. E9–27353 Filed 11–13–09; 8:45 am] 83–480; Request for Vessel Approval, allow identification of possible conflicts BILLING CODE 3410–10–P Form CCC–105 and Request for Vessel of interest. Shipping agents or embassies Approval, Form CCC–105 (cotton); and submit pertinent shipping information DEPARTMENT OF AGRICULTURE Declaration of Sale, Form FAS–359. on Form CCC–105 to facilitate approval DATES: Comments on this notice must be by CCC of shipping arrangements. This Animal and Plant Health Inspection received by January 15, 2010. approval is necessary to assure Service ADDRESSES: Mail or deliver comments to compliance with cargo preference Ronald Croushorn, Director, Food requirements at the lowest cost to CCC. [Docket No. APHIS-2009-0058] Assistance Division, Office of Capacity USDA must receive this document Availability of an Environmental Building and Development, Foreign before it can generate the CCC–106, Agricultural Service, U.S. Department of Assessment for a Biological Control which must be issued before an ocean Agent for Water Hyacinth Agriculture, Stop 1034, 1400 carrier can receive payment for ocean Independence Ave., SW., Washington, freight. The information collected is AGENCY: Animal and Plant Health DC 20250–1034, or to the Desk Officer used by CCC to manage, plan, evaluate Inspection Service, USDA. for Agriculture, Office of Information and account for government resources. ACTION: Notice of availability and and Regulatory Affairs, Office of The reports and records are required to request for comments. Management and Budget, Washington, ensure the proper and judicious use of SUMMARY: DC 20503. public funds. We are advising the public FOR FURTHER INFORMATION CONTACT: that the Animal and Plant Health Ronald Croushorn, Director, Food Estimate Number of Respondents: 9. Inspection Service has prepared an Assistance Division, Office of Capacity Estimate Number of Responses per environmental assessment relative to Building and Development, Foreign Respondent: 2. the control of water hyacinth Agricultural Service, U.S. Department of Estimated Burden of Hours per (Eichhornia crassipes). The Agriculture, Stop 1034, 1400 Response: .58. environmental assessment considers the Independence Ave., SW., Washington, effects of, and alternatives to, the release DC 20250–1034, or by telephone at (202) Estimated Total Annual Burden on of an insect, Megamelus scutellaris, into 720–3038, or by e-mail at Respondents: 11 hours. the continental United States for use as [email protected]. Copies of this information collection a biological control agent to reduce the severity of water hyacinth infestations. SUPPLEMENTARY INFORMATION: can be obtained from Tamoria Title: Regulations—Financing Thompson-Hall, the Agency Information We are making the environmental Commercial Sales of Agricultural Collection Coordinator, at (202) 690– assessment available to the public for Commodities under Title I, Public Law 1690. review and comment. 83–480. Request for Comments: Send DATES: We will consider all comments OMB Numbers: 0551–0005 (Records comments regarding (a) whether the that we receive on or before December and Rule Keeping), 0551–0008 (Request proposed collection of information is 16, 2009. for Vessel Approval Form), and 0551– necessary for the proper performance of ADDRESSES: You may submit comments 0009 (Declaration of Sale Form) were by either of the following methods: the functions of the agency, including ∑ combined into OMB Number 0551–0005 whether the information will have Federal eRulemaking Portal: Go to in 2003. practical utility; (b) the accuracy of the (http://www.regulations.gov/ fdmspublic/component/ Expiration Date of Approval: January agency’s estimate of the burden of the 31, 2010. main?main=DocketDetail&d=APHIS- proposed collection of information; (c) Type of Request: Extension of a 2009-0058) to submit or view comments ways to enhance the quality, utility, and currently approved information and to view supporting and related clarity of the information to be collection. materials available electronically. Abstract: Title I of the Food for Peace collected; and (d) ways to minimize the ∑ Postal Mail/Commercial Delivery: Act authorizes the CCC to finance the burden of the collection of information Please send two copies of your comment sale and exportation of agricultural on those who are to respond, including to Docket No. APHIS-2009-0058, commodities on concessional credit through the use of automated, Regulatory Analysis and Development, terms. This program was previously electronic, mechanical, or other PPD, APHIS, Station 3A-03.8, 4700 authorized by Title I of the Agricultural technological collection techniques or River Road Unit 118, Riverdale, MD Trade Development and Assistance Act other forms of information technology. 20737-1238. Please state that your of 1954 (Pub. L. 83–480). Suppliers of Persons with disabilities who require an comment refers to Docket No. APHIS- commodities and ocean transportation alternative means for communication of 2009-0058. must retain records for 3 years. information (Braille, large print, Reading Room: You may read any Prospective commodity suppliers must audiotape, etc.) should contact USDA’s comments that we receive on the provide information to the U.S. Target Center at (202) 720–2600 (voice environmental assessment in our Department of Agriculture (USDA) to and TDD). All responses to this notice reading room. The reading room is determine eligibility. Commodity will be summarized and included in the located in room 1141 of the USDA suppliers must report by telephone request for OMB approval. All South Building, 14th Street and details of sales for price approval and comments will also become a matter of Independence Avenue SW., submit to USDA, for approval, public record. Washington, DC. Normal reading room

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hours are 8 a.m. to 4:30 p.m., Monday Delphacidae), for Biological Control of SUMMARY: RUS and NTIA announce the through Friday, except holidays. To be Water Hyacinth Eichhornia crassipes release of a joint Request for Information sure someone is there to help you, Mart. (Solms) (Pontederiales: (RFI) seeking public comment on certain please call (202) 690-2817 before Pontederiaceae) in the Continental issues relating to the implementation of coming. United States’’ (July 2009). We are the Broadband Initiatives Program (BIP) Other Information: Additional making the EA available to the public and the Broadband Technology information about APHIS and its for review and comment. We will Opportunities Program (BTOP). This is programs is available on the Internet at consider all comments that we receive the second joint RFI that the agencies (http://www.aphis.usda.gov). on or before the date listed under the have issued since the enactment of the FOR FURTHER INFORMATION CONTACT: Dr. heading DATES at the beginning of this American Recovery and Reinvestment Shirley Wager-Page, Chief, Pest notice. Act of 2009 (Recovery Act), which Permitting Branch, PPQ, APHIS, 4700 The EA may be viewed on the established these broadband initiatives. River Road Unit 133, Riverdale, MD Regulations.gov Web site or in our The input the agencies expect to receive 20737-1237; (301) 734-8453. reading room (see ADDRESSES above for from this process is intended to inform the second round of funding. In SUPPLEMENTARY INFORMATION: instructions for accessing Regulations.gov and information on the particular, the agencies seek to gather Background location and hours of the reading room). information that will help them improve The Animal and Plant Health You may request paper copies of the EA the broadband programs by enhancing Inspection Service (APHIS) is proposing by calling or writing to the person listed the applicant experience and making to issue permits for the release of an under FOR FURTHER INFORMATION targeted revisions to the first Notice of insect, Megamelus scutellaris, into the CONTACT. Please refer to the title of the Funds Availability (NOFA), if continental United States for use as a EA when requesting copies. necessary. biological control agent to reduce the The EA has been prepared in DATES: Comments must be received by severity of water hyacinth infestations. accordance with: (1) The National November 30, 2009 at 5:00 p.m. Eastern Water hyacinth originated in lowland Environmental Policy Act of 1969 Standard Time. tropical South America and was first (NEPA), as amended (42 U.S.C. 4321 et ADDRESSES: Interested parties are introduced into the United States in the seq.), (2) regulations of the Council on encouraged to file comments late 1800s. Its erect, free-floating habit Environmental Quality for electronically via e-mail to and attractive flowers made its use implementing the procedural provisions [email protected]. Paper popular in ornamental ponds and of NEPA (40 CFR parts 1500-1508), (3) comments should be sent to: Broadband garden pools which inevitably led to the USDA regulations implementing NEPA Initiatives Program, Rural Utilities spread of the plant by humans. The (7 CFR part 1b), and (4) APHIS’ NEPA Service, U.S. Department of Agriculture, individual rosettes reproduce to form Implementing Procedures (7 CFR part 1400 Independence Avenue, SW, Stop extensive floating mats which, in 372). 1599, Washington, DC 20250, and mature stands, extend a meter or more Done in Washington, DC, this 9th day Broadband Technology Opportunities above the water’s surface. The of November 2009. Program, National Telecommunications invasiveness of water hyacinth results Kevin Shea, and Information Administration, U.S. from its rapid growth, its ability to Acting Administrator, Animal and Plant Department of Commerce, HCHB Room reinfest via seeds or plant fragments, Health Inspection Service. 4887, 1401 Constitution Avenue, NW, and its lack of natural enemies. [FR Doc. E9–27393 Filed 11–13–09 8:45 am] Washington, DC 20230. Infestations negatively affect water FOR FURTHER INFORMATION CONTACT: BILLING CODE 3410–34–S For traffic, water quality, infrastructure for general inquiries regarding BIP, contact pumping and hydroelectric operations, David J. Villano, Assistant water use, and biodiversity. The plant DEPARTMENT OF AGRICULTURE Administrator, Telecommunications can also cause property damage during Program, Rural Utilities Service, email: floods, water loss due to Rural Utilities Service [email protected], telephone: (202) evapotranspiration, and an increase in 690–0525. For general inquiries mosquito populations. RIN: 0572–ZA01 regarding BTOP, contact Anthony Existing water hyacinth management Wilhelm, Deputy Associate options include chemical control, Administrator, Infrastructure Division, draining, and harvesting. However, DEPARTMENT OF COMMERCE Office of Telecommunications and these management measures are Information Applications, National ineffective, expensive, temporary, have National Telecommunications and Telecommunications and Information non-target impacts, or disturb the life Information Administration Administration, email: cycles of the currently released insects Docket Number: 0907141137–91375–05 [email protected], telephone: (202) used for biological control of water 482–2048. RIN: 0660–ZA28 hyacinth. Thus, a permit application has SUPPLEMENTARY INFORMATION: On been submitted to APHIS for the Broadband Initiatives Program and February 17, 2009, President Obama purpose of releasing an insect, M. signed the Recovery Act into law.1 The scutellaris, into the continental United Broadband Technology Opportunities Program Recovery Act establishes five statutory States for use as a biological control purposes: to preserve and create jobs agent to reduce the severity of water AGENCIES: Rural Utilities Service (RUS), and promote economic recovery; to hyacinth infestations. Department of Agriculture, and National assist those most impacted by the APHIS’ review and analysis of the Telecommunications and Information recession; to provide investments proposed action are documented in Administration (NTIA), Department of needed to increase economic efficiency detail in an environmental assessment Commerce.s (EA) titled ‘‘Field Release of Megamelus 1 ACTION: Joint Request for Information. American Recovery and Reinvestment Act of scutellaris, Berg (Hemiptera: 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009).

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by spurring technological advances in states, five territories, and the District of public computer center and sustainable science and health; to invest in Columbia. adoption projects through the transportation, environmental Before initiating the second round of application process? protection, and other infrastructure that funding, RUS and NTIA are requesting 1. New Entities. will provide long-term economic additional public comment on certain benefits; and to stabilize state and local aspects of BIP and BTOP. RUS and What type of information should RUS government budgets.2 NTIA seek to improve the applicant and NTIA request from new businesses, Consistent with these statutory experience and strengthen the program particularly those that have been newly purposes, the Recovery Act provides impact of BIP and BTOP in achieving created for the purpose of applying for RUS and NTIA with $7.2 billion to Recovery Act objectives. Please note grants under the BIP and BTOP expand access to broadband services in that topics discussed in this request for programs? For example, should the the United States. In so doing, it information will not apply to the initial agencies eliminate the requirement to recognizes the growing importance of funding round, but will apply only to provide historical financial statements access to broadband services to the second round. for recently-created entities? Matters To Be Considered: economic development and to the 2. Consortiums and Public-Private Information is being sought on the quality of life of all Americans. Partnerships. Specifically, the Recovery Act expands topics discussed herein. Interested RUS’s existing authority to make loans parties are invited to submit comments Similarly, how should the application and provides new authority to make for the record on these topics. be revised to reflect the participation of grants for the deployment and Comments must be received by consortiums or public-private construction of broadband systems in November 30, 2009 at 5:00 p.m. Eastern partnerships in the application process? rural America. The purpose of the Standard Time. Should certain critical information be requested from all members of such expanded RUS broadband authority is I. The Application and Review Process to improve access to broadband in rural groups, in addition to the designated areas without service or that lack A. Streamlining the Applications. lead applicant, to sufficiently evaluate the application? If so, what type of sufficient access to high-speed For the first round of funding, information should RUS and NTIA broadband service, and to facilitate applicants were required to complete a request? economic development. In addition, the broadband infrastructure application, Recovery Act requires NTIA to establish public computer center application, or 3. Specification of Service Areas. BTOP, which makes available grants for sustainable broadband adoption The broadband infrastructure deploying broadband infrastructure in application, depending on the type of application required applicants to unserved and underserved areas in the project being proposed. For each submit data on a census block level in United States, enhancing broadband application, the NOFA required order to delineate the proposed funded capacity at public computer centers, and applicants to respond to a number of service areas. Some applicants found promoting sustainable broadband questions and submit certain data. this requirement burdensome. What adoption. In facilitating the expansion Those applicants considered highly level of data collection and of broadband communications services qualified after completion of step one of documentation should be required of and infrastructure, both programs will the review process were required to applicants to establish the boundaries of advance the objectives of the Recovery submit additional information during a the proposed funded service areas? Act by spurring job creation and step two ‘‘due diligence’’ phase to stimulating long-term economic growth substantiate the representations 4. Relationship between BIP and BTOP. and opportunity. provided in the application.3 Some The Recovery Act prohibits a project On March 9, 2009, RUS and NTIA stakeholders, especially applicants from receiving funding from NTIA in jointly issued an initial RFI seeking completing the broadband infrastructure areas where RUS has funded a project.4 public comment on issues relating to the application, stated during the first Section VI.C.1.a.i of the NOFA required implementation of these programs. More round application process that that infrastructure applications than 1,000 public comments were completing the initial application was consisting of proposed funded service received in response to the RFI and overly burdensome based on the areas which are at least 75 percent rural these comments were used to develop questions asked and the number of be submitted to and considered under the NOFA, which was published in the attachments required. RUS and NTIA BIP, with the option of additional Federal Register on July 9, 2009. The tentatively conclude that the application consideration under BTOP.5 According NOFA allocated up to $4 billion in process should be streamlined. In what to the NOFA, NTIA will not fund such funding for BIP and BTOP projects, ways should RUS and NTIA streamline an application unless RUS has declined including Broadband Infrastructure the applications to reduce the burden on to fund it.6 RUS and NTIA are presently projects, Public Computer Center applicants, while still obtaining the reviewing joint applications consistent projects, and Sustainable Broadband requisite information to fulfill the with the process set forth in the NOFA. Adoption projects. It also set forth key statutory requirements set forth in the Should these kinds of rural definitions that are used in the Recovery Act? Should the agencies infrastructure applications continue to programs, established basic eligibility modify the two-step review process, and be required to be submitted to RUS or requirements and evaluation criteria, if so, how? Should certain attachments should the agencies permit rural and provided additional information for be eliminated, and if so, which ones? applications to be submitted directly to applicants on how to obtain funding. In Should the agencies re-examine the use NTIA, without having to be submitted to response to the NOFA, RUS and NTIA of a single application for applicants RUS as well, and if so, how should received over 2,200 applications applying to both BIP and BTOP to fund NTIA and RUS proceed in a manner that requesting nearly $28 billion in funding, infrastructure projects? How should with projects reaching across all 50 NTIA link broadband infrastructure, 4 Recovery Act, div. A, tit. I, 123 Stat. at 118-19. 5 74 Fed. Reg. at 33113. 2 Recovery Act § 3(a), 123 Stat. at 115-16. 3 74 Fed. Reg. at 33107. 6 Id. at 33105.

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rewards the leveraging of resources and II. Policy Issues Addressed in the community colleges, schools, libraries, the most efficient use of Federal funds? NOFA health care facilities, and public safety organizations, have high-speed Are there situations where it is better to A. Funding Priorities and Objectives. give a loan to an applicant as opposed connectivity to the Internet can to a grant? Are there applicants for Section IV.B of the NOFA establishes contribute to sustainable community which a loan would not be acceptable, the funding limits for the first round of growth and prosperity. Such projects 8 and if so, how should the programs BIP and BTOP funding. In particular, also have the potential to stimulate the consider them? RUS set aside approximately $2.4 development of last mile services that billion in funding, with up to $1.2 would directly reach end users in B. Transparency and Confidentiality. billion available for last mile projects, unserved and underserved areas. up to $800 million available for middle Additionally, installing such middle Consistent with the Administration’s mile projects and up to $325 million policy and the Recovery Act’s objective mile facilities could have a available for a national reserve. NTIA transformative impact on community to ensure greater transparency in allocated up to $1.2 billion for development by driving economic government operations, RUS and NTIA broadband infrastructure projects, up to growth. are considering whether they should $50 million for public computer center permit greater access, consistent with projects, up to $150 million for Should we give priority to those applicable Federal laws and regulations, sustainable broadband adoption middle mile projects in which there are to certain applicant information to other projects, and up to $200 million as a commitments from last mile service applicants, policymakers, and the national reserve. Many parties have providers to use the middle mile public, including state and tribal publicly made suggestions as to how the network to serve end users in the governments. Should the public be NOFA could be modified to ensure that community? Should the agencies’ goal given greater access to application data the Recovery Act funds make the be to fund middle mile projects that submitted to BIP and BTOP? Which data greatest impact possible. RUS and NTIA provide new coverage of the greatest should be made publicly available and welcome suggestions for targeted population and geography so that we which data should be considered funding proposals and seek comment on can be assured that the benefits of confidential or proprietary? For how they can better target their broadband are reaching the greatest example, RUS and NTIA tentatively remaining funds to achieve the goals of number of people? Should we target conclude that the application’s the Recovery Act. Below we set forth projects that create ‘‘comprehensive executive summary should be made some examples of types of projects we communities’’ by installing high publicly available for the second round could specifically target. We seek capacity middle mile facilities between of funding. comment on these proposals as well as anchor institutions that bring essential any others. health, medical, and educational C. Outreach and Support. RUS and NTIA request commenters services to citizens that they may not that are proposing a more targeted have today? Should certain institutions, For the initial round of funding, RUS approach for round 2 projects to support such as educational facilities, be given and NTIA provided multiple means of their proposal with quantitative greater weight to reflect their impact on applicant support and outreach, estimates of the projected benefits of economic development or a greater need including hosting national workshops adopting such an approach. For or use for broadband services? If so, and minority outreach seminars, example, commenters should quantify what specific information should RUS publicly releasing an application the impact of their proposal based on and NTIA request from these guidance manual, posting responses to such metrics as the number of institutions? Frequently Asked Questions on community anchor institutions www.broadbandusa.gov, and committing to service, the number of To the extent that RUS and NTIA do establishing a Help Desk that fielded last mile providers committing to utilize focus the remaining funds on thousands of telephone and e-mail middle mile projects, the number of end ‘‘comprehensive community’’ projects, inquiries. What method of support and users reached by the proposal, the what attributes should the agencies be outreach was most effective? What number of new jobs created, directly looking for in such projects? For should be done differently in the next and indirectly, and the projected example, are they most sustainable to the extent that they are public-private round of funding to best assist increase in broadband adoption rates, as partnerships through which the applicants? well as any other metrics necessary to justify the adoption of their proposal interests of the community are fully D. NTIA Expert Review Process. and ensure that the benefits of the represented? Should we consider the number of existing community anchor During the first round of funding, Recovery Act are being realized. Commenters should explain the basis institutions that intend to connect to the NTIA utilized panels of at least three middle mile network as well as the independent reviewers to evaluate and method of calculation for the quantifications they provide. number of unserved and underserved BTOP applications.7 A number of communities and vulnerable stakeholders have questioned whether 1. Middle Mile ‘‘Comprehensive populations (i.e., elderly, low-income, this is the most effective approach to Community’’ Projects. minority) that it will cover? How should evaluating BTOP applications. To Should RUS and/or NTIA focus on or RUS and NTIA encourage appropriate further the efficient and expeditious limit round 2 funding on projects that levels of non-Federal (State, local, and disbursement of BTOP funds, should will deliver middle mile infrastructure private) matching funds to be NTIA continue to rely on unpaid facilities into a group of communities contributed so that the potential impact experts as reviewers? Or, should we and connect key anchor institutions of Federal funds is maximized? In consider using solely Federal or within those communities? Ensuring addition, should we consider the extent contractor staff? that anchor institutions, such as of the geographic footprint as well as any overlap with existing service 7 Id. at 33107. 8 Id. at 33110. providers?

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2. Economic Development. allocation of funding resources best be affordability of broadband service or the Should RUS and/or NTIA allocate a accomplished under the statutory socioeconomic makeup of a given portion of the remaining funds available requirements of each program? Should defined service area, and, if so, how under the BIP and BTOP programs to libraries be targeted as sites for public should such factors be measured? promote a regional economic computer access, and if so, how would Should the agencies adopt more development approach to broadband BTOP funding interact with e-Rate objective and readily verifiable deployment? This option would focus funding provided through the Schools measures, and if so, what would they the Federal broadband investment on and Libraries program? be? How should satellite-based proposals be evaluated against these communities that have worked together 4. Other Changes. on a regional basis to develop an criteria? To the extent that we do target the With respect to the definition of economic development plan. It would funds to a particular type of project or broadband, some stakeholders criticized encompass a strategy for broadband funding proposal, how if at all, should the speed thresholds that were adopted deployment, and would link how we modify our evaluation criteria? How and some argued that they were various economic sectors benefit from should we modify the application to inadequate to support many advanced broadband opportunities. Such a accommodate these types of targeted broadband applications, especially the regional approach would seek to ensure funding proposals? For example, should needs of large institutional users. that communities have the ‘‘buy-in,’’ any steps be undertaken to adjust Should the definition of broadband and the capacity, and the long-term applications for satellite systems that include a higher speed and should the vision to maximize the benefits of provide nationwide service, but are speeds relate to the types of projects? broadband deployment. Using this primarily intended to provide access in Should the agencies incorporate actual option, NTIA and RUS could target remote areas and other places not served speeds into the definition of broadband funding toward both the short term by landline or wireless systems? Are and forego using advertised speeds? If stimulus of project construction and the there any other mechanisms the so, how should actual speeds be reliably region’s longer term development of agencies should be exploring to ensure and consistently measured? sustainable growth and quality jobs. For remaining funds have the broadest The NOFA defines ‘‘remote area’’ as instance, rather than look at broadband benefit? How might the agencies best an unserved, rural area 50 miles from investments in both rural and urban leverage existing broadband the limits of a non-rural area.10 The communities as stand-alone actions, infrastructure to reach currently rural remote concept aims to address the should RUS and NTIA seek applications unserved and underserved areas? Are prohibitive costs associated with for projects that would systematically there practical means to ensure that broadband deployment in communities link broadband deployment to a variety subsidies are appropriately tailored to that are small in size and substantially of complementary economic actions, each business case? For example, distant from urban areas and their such as workforce training or should the agencies examine applicant resources. The definition adopted in the entrepreneurial development, through cost and revenue estimates, and adjust NOFA was intended to ensure that the targeted regional economic development the required match accordingly? Could most isolated, highest-cost to serve, strategic plans? Should funds be elements of an auction-like approach be unserved communities could receive the targeted toward areas, either urban or developed for a particular class of benefit of up to 100 percent grant rural, with innovative economic applications or region? If so, how would financing. The geographic factor upon strategies, or those suffering exceptional the agencies implement such an which an area was determined to be economic hardship? Should states or approach in a manner that is practical eligible was its distance from a non- regions with high unemployment rates within program constraints and rural area; in this case, 50 miles. RUS be specifically targeted for funding? timeliness? heard from many interested parties, including members of Congress, on this 3. Targeted Populations. B. Program Definitions. definition. Many believed it was overly Should RUS and NTIA allocate a Section III of the NOFA describes restrictive, thereby eliminating too portion of the remaining funds to several key definitions applicable to BIP many areas that were not 50 miles or specific population groups? For and BTOP, such as ‘‘unserved area,’’ more from a non-rural area but were example, should the agencies revise ‘‘underserved area,’’ and ‘‘broadband.’’9 nonetheless a fair distance away and elements of the BIP and BTOP programs These definitions were among the most unserved. Comment is requested on the to ensure that tribal entities, or entities commented upon aspects of the NOFA. definition of remote area, as well as proposing to serve tribal lands, have For example, a number of applicants whether this concept should be a factor sufficient resources to provide these have suggested that the definitions of in determining award decisions. Should historically unserved and underserved unserved and underserved are unclear factors other than distance be areas with access to broadband service? and overly restrictive; that they kept considered, such as income levels, Similarly, should public housing many worthy projects, particularly those geographic barriers, and population authorities be specifically targeted for in urban areas, from being eligible for densities? funding as entities serving low-income support; that there was insufficient time populations that have traditionally been to conduct the surveys or market C. Public Notice of Service Areas. unserved or underserved by broadband analyses needed to determine the status Section VII.B of the NOFA allowed for service? How can funds for Public of a particular census block area; and existing broadband service providers to Computer Centers and Sustainable that they discouraged applicants from comment on the applicants’ assertions Broadband Adoption projects be leveraging private investment for that their proposed funded service areas targeted to increase broadband access infrastructure projects. In what ways are unserved or underserved.11 Some and use among vulnerable populations? should these definitions be revised? stakeholders have suggested that this Should NTIA shift more BTOP funds Should they be modified to include a rule may reduce incentives for into public computer centers than is specific factor relating to the required by the Recovery Act? In what 10 Id. at 33109. ways would this type of targeted 9 Id. at 33108. 11 Id. at 33122.

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applicants to participate in the BIP and participation in BIP and BTOP. Should (10) or more pages are strongly BTOP programs because of the risk that this section be revised to adopt a more encouraged to submit them their applications may be disqualified flexible approach toward awardee electronically. Comments provided via from funding on the basis of information mergers, consistent with USDA and e-mail may be submitted in one or more submitted by existing broadband service DOC regulations, while still ensuring of the formats specified below. providers that they have no means to that awardees are not receiving unjust Comments must be received by substantiate or rebut. How should the enrichment from the sale of award- November 30, 2009 at 5:00 p.m. Eastern public notice process be refined to funded assets for profit?14 Standard Time. address this concern? What alternative Paper comments should be sent to: verification methods could be F. Cost Effectiveness. Broadband Initiatives Program, Rural established that would be fair to the How should NTIA and RUS assess the Utilities Service, U.S. Department of applicant and the entity questioning the cost effectiveness or cost reasonableness Agriculture, 1400 Independence applicant’s service area? Should the of a particular project? For example, in Avenue, SW, Stop 1599, Washington, public notice process be superseded the context of infrastructure projects, DC 20250, and Broadband Technology where data becomes available through how should we consider whether the Opportunities Program, National the State Broadband Data and costs of deploying broadband facilities Telecommunications and Information Development Grant Program that may be are excessive? In BTOP, one of the Administration, U.S. Department of used to verify unserved and Project Benefits that NTIA considers is Commerce, HCHB Room 4887, 1401 underserved areas? What type of ‘‘cost effectiveness,’’ when scoring an Constitution Avenue, NW, Washington, information should be collected from application. This is measured based on DC 20230. Please note that all material the entity questioning the service area the ratio of the total cost of the project sent via the U.S. Postal Service and what should be publicly disclosed? to households passed. However, such (including ‘‘Overnight’’ or ‘‘Express costs will necessarily vary based on the D. Interconnection and Mail’’) is subject to delivery delays of up particular circumstances of a proposed Nondiscrimination Requirements. to two weeks due to mail security project. For example, extremely rural procedures. All written comments Section V.C.2.c of the NOFA companies typically have much higher received will be posted at http:// establishes the nondiscrimination and construction costs than more densely www.ntia.doc.gov/broadbandgrants/ 12 interconnection requirements. These populated ones. Also, geographic areas commentsround2.cfm. Paper requirements generated a substantial that experience extreme weather or are submissions should also include a CD or amount of debate among applicants and characterized by difficult terrain will DVD in HTML, ASCII, or Word format other stakeholders. Although RUS and dictate higher per household costs. (please specify version). CDs or DVDs NTIA are not inclined to make Similarly, the technology that is chosen should be labeled with the name and significant changes to the to provide the service (e.g., fiber vs. organizational affiliation of the filer, and interconnection and nondiscrimination wireless) would influence the costs. the name of the word processing requirements, are any minor And finally, smaller companies as program used to create the document. adjustments to these requirements measured by subscriber count would necessary? In particular, should they necessarily have a higher cost per Jonathan S. Adelstein, continue to be applied to all types of subscriber than larger companies. How Administrator, Rural Utilities Service. infrastructure projects regardless of the should the agencies take these various Dated: November 9, 2009. nature of the entity? Should the scope factors into consideration when Lawrence E. Strickling, of the reasonable network management evaluating broadband infrastructure Assistant Secretary for Communications and and managed services exceptions be projects? What evidence should we Information. modified, and if so, in what way? Is it require from applicants to ensure that [FR Doc. E9–27359 Filed 11–13–09; 8:45 am] necessary to clarify the term unnecessary costs have not been added BILLING CODE 3510–60–S ‘‘interconnection’’ or the extent of the to the project? interconnection obligation? G. Other. E. Sale of Project Assets. DEPARTMENT OF COMMERCE What other substantive changes to the Section IX.C.2 of the NOFA generally NOFA should RUS and NTIA consider Bureau of the Census prohibits the sale or lease of award- that would encourage applicant [Docket Number 0910281384–91385–01] funded broadband facilities, unless the participation, enhance the programs, sale or lease meets certain conditions.13 and satisfy the goals of the Recovery 2009 Company Organization Survey Specifically, the agencies may approve Act? a sale or lease if it is for adequate AGENCY: Bureau of the Census, consideration, the purchaser agrees to III. Status Commerce. fulfill the terms and conditions relating Interested parties are invited to ACTION: Notice of determination. to the project, and either the applicant submit written comments. Written includes the proposed sale or lease in its comments that exceed five pages should SUMMARY: The Bureau of the Census is application as part of its original request include a one-page executive summary. conducting the 2009 Company for grant funds or the agencies waive Submissions containing ten (10) or more Organization Survey. The survey’s data this provision for any sale or lease pages of text must include a table of are needed, in part, to update the occurring after the tenth year from the contents and an executive summary. multilocation companies in the date the grant, loan, or loan/grant award Interested parties are encouraged to file Business Register. The survey, which is issued. Some stakeholders have comments electronically via e-mail to has been conducted annually since suggested that this rule is overly [email protected]. Parties 1974, is designed to collect information restrictive and is a barrier to submitting documents containing ten on the number of employees, payroll, geographic location, current operational 12 Id. at 33110. 14 See, e.g., 15 C.F.R. §§ 14.32-37; 7 C.F.R. Part status, and kind of business for each 13 Id. at 33123. 3015. establishment of companies with more

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than one location. We have determined DEPARTMENT OF COMMERCE all, or a sample of establishments that annual data collected from this engaged in the production of the survey are needed to aid the efficient Bureau of the Census products covered by the following list of performance of essential governmental [Docket Number 0909301330–91331–01] surveys: functions, and that this data have significant application to the needs of Annual Surveys in the Manufacturing SURVEY TITLE the public and industry. The data Area derived from this survey are not MA311D ..... Confectionery. available from any other source. AGENCY: Bureau of the Census, MA314Q ..... Carpets and Rugs. MA321T ...... Lumber Production and Mill ADDRESSES: The Census Bureau will Department of Commerce. ACTION: Notice of determination. Stocks. furnish report forms to organizations MA325F ...... Paints and Allied Products. included in the survey, and additional SUMMARY: MA325G ..... Pharmaceutical Preparations, copies are available on written request The Bureau of the Census (Census Bureau) is conducting the 2009 except Biologicals. to the Director, Bureau of the Census MA327C ..... Refractories. Bureau, Washington, DC 20233–0101. Annual Surveys in the Manufacturing MA327E ..... Consumer, Scientific, Tech- Area. The 2009 Annual Surveys consist FOR FURTHER INFORMATION CONTACT: nical, and Industrial Glass- of the Current Industrial Report surveys, Cynthia M. Wrenn-Yorker, U.S. Bureau ware. the Annual Survey of Manufactures, the MA331B ..... Steel Mill Products. of the Census, Room 8K319, Business Research & Development MA332Q ..... Antifriction Bearings. Washington, DC 20233–6100 (or by e- (R&D) and Innovation Survey, and the MA333A ..... Farm Machinery and Lawn and mail at: Cynthia.M.Wrenn- Manufacturers’ Unfilled Orders Survey. Garden Equipment. [email protected]). The annual data collected from these MA333D ..... Construction Machinery. MA333F ...... Mining Machinery. SUPPLEMENTARY INFORMATION: Sections surveys are needed to aid the efficient MA333M ..... Refrigeration, Air-conditioning, 182, 195, 224, and 225 of title 13 of the performance of essential governmental and Warm Air Heating United States Code (U.S.C.) authorize functions and have significant Equipment. the Census Bureau to undertake Surveys application to the needs of the public MA333N ..... Fluid Power Products for Mo- necessary to furnish current data on the and industry. The data derived from tion Control (Including Aero- subjects covered by the major censuses. these surveys, most of which have been space). This survey will provide continuing and conducted for many years, are not MA333P ..... Pumps and Compressors. timely national statistical data for the publicly available from MA334A ..... Analytical and Biomedical In- period between economic censuses. The nongovernmental or other governmental struments. next economic censuses will be MA334C ..... Control Instruments and Sys- sources. tems. conducted for the year 2012. The data ADDRESSES: The Census Bureau will MA334D ..... Defense, Navigational and collected in this survey will be within furnish report forms to organizations Aerospace Electronics. the general scope, type, and character of included in each survey. Additional MA334M ..... Consumer Electronics. those that are covered in the economic copies of the surveys are available upon MA334Q ..... Electronics Components. censuses. Forms NC–99001 and NC– written request to the Director, U.S. MA334T ...... Meters and Test Devices. 99007 (for single-location companies) Census Bureau Washington, DC 20233– MA335E ..... Electric Housewares and Fans. MA335F ...... Major Household Appliances. will be used to collect the desired data. 0101. Notwithstanding any other provision MA335J ...... Insulated Wire and Cable. FOR FURTHER INFORMATION CONTACT: of law, no person is required to respond MA335K ..... Wiring Devices and Supplies. Thomas E. Zabelsky, Chief, MA336G ..... Aerospace Industry (Orders, to, nor shall a person be subject to a Manufacturing and Construction Sales and Backlog). penalty for failure to comply with, a Division, at (301) 763–4598 or by e-mail collection of information subject to the at [email protected]. The Census Bureau conducts an requirements of the Paperwork annual counterpart for the following Reduction Act unless that collection of SUPPLEMENTARY INFORMATION: Title 13, United States Code (U.S.C.), Sections monthly and quarterly Current information displays a current, valid Industrial Report (CIR) surveys and the Office of Management and Budget 61, 81, 131, 182, 193, 224, and 225 authorizes the Census Bureau to annual counterpart will cover only (OMB) control number. In accordance those establishments that are not with the Paperwork Reduction Act, 44 conduct mandatory surveys necessary to furnish current data on the subjects canvassed, or do not report in the more U.S.C., Chapter 35, the OMB approved frequent surveys. There is no Forms NC–99001 and NC–99007 on covered by the major censuses. These surveys provide continuing and timely duplication in reporting by December 21, 2004 under OMB Control establishments participating in the Number 0607–0444. We will furnish national statistical data on manufacturing for the period between counterpart survey. The content of these report forms to organizations included annual counterpart surveys are identical in the survey, and additional copies will economic censuses. The data collected in the surveys will be within the general to that of the more frequently monthly be available on written request to the and quarterly CIR surveys listed below: Director, Bureau of the Census, scope and nature of those inquiries covered in the economic census. The Washington, DC 20233–0101. SURVEY TITLE I have, therefore, directed that the next economic census will be conducted for the year 2012. 2009 Company Organization Survey be M311C ...... Corn (Wet & Dry Producers of conducted for the purpose of collecting Current Industrial Reports Ethanol). these data. M311H ...... Animal & Vegetable Fats and Most of the following commodity or Dated: November 6, 2009. Oil (Warehouse Stocks). product surveys provide data on M311J ...... Oilseeds, Beans, and Nuts Robert M. Groves, shipments or production, stocks, (Primary Producers). Director, Bureau of the Census. unfilled orders, orders booked, M311L ...... Fats and Oils. [FR Doc. E9–27398 Filed 11–13–09; 8:45 am] consumption, and similar information. M311M ...... Animal & Vegetable Fats and BILLING CODE 3510–07–P Survey questionnaires will be mailed to Oil (Consumption & Stocks).

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SURVEY TITLE—Continued Orders Survey data will also be used by Antidumping and Countervailing Duty the Census Bureau to determine Administrative Reviews and Requests M311N ...... Animal & Vegetable Fats and whether it is necessary to collect for Revocation in Part, 73 FR 56794, Oil (Production, Consump- unfilled orders data for specific tion, & Stocks). 56796 (September 30, 2008). On M313N ...... Cotton and Raw Linters in industries on a monthly basis; some September 8, 2009, the Department Public Storage. industries are not requested to provide published the preliminary results of this M313P ...... Consumption on the Cotton unfilled orders data on the M3 Survey. review. See Certain Corrosion–Resistant System and Stocks. Notwithstanding any other provision Carbon Steel Flat Products from the M336G ...... New Civil Aircraft and Aircraft of law, no person is required to respond Republic of Korea: Notice of Preliminary Engines. to, nor shall a person be subject to a MQ311A ..... Flour Milling Products. Results of the Antidumping Duty penalty for failure to comply with, a Administrative Review, 74 FR 46110 MQ313A ..... Textiles. collection of information subject to the MQ315A ..... Apparel. (September 8, 2009). The final results of requirements of the Paperwork MQ315B ..... Socks Production. this review are currently due no later Reduction Act (PRA) unless that MQ325A ..... Inorganic Chemicals. than January 6, 2010. MQ325B ..... Fertilizers and Related Chemi- collection of information displays a cals. current, valid Office of Management and Extension of Time Limit of the Final MQ325F ..... Paint, Varnish, and Lacquer. Budget (OMB) control number. In Results MQ327D ..... Clay Construction Products. accordance with the PRA, 44 U.S.C. MQ333W .... Metalworking Machinery. 3501–3520, the OMB approved the 2008 Section 751(a)(3)(A) of the Tariff Act MQ334P ..... Telecommunications. of 1930, as amended (Act), requires the MQ334R ..... Computers and Peripheral Annual Surveys under the following Equipment. OMB control numbers: Current Department to issue the final results of Industrial Reports—0607–0476; Annual a review within 120 days after the date Annual Survey of Manufactures Survey of Manufactures—0607–0449, on which the preliminary results are Business R&D and Innovation Survey— published. However, if it is not The Annual Survey of Manufactures 0607–0912; and Manufacturers’ Unfilled practicable to complete the review collects industry statistics, such as total Orders Survey—0607–0561. within that time period, section value of shipments, employment, Based upon the foregoing, I have 751(a)(3)(A) of the Act allows the payroll, workers’ hours, inventories, directed that the Annual Surveys in the capital expenditures, cost of materials Department to extend the time limit for Manufacturing Area be conducted for the final results to a maximum of 180 consumed, supplemental labor costs, the purpose of collecting these data. etc. This is a sample survey covering all days. See also 19 CFR 351.213(h)(2). manufacturing industries including data Dated: November 6, 2009. We determine that it is not practicable on plants under construction but not yet Robert M. Groves, to complete the final results of this in operation. Director, Bureau of the Census. review within the original time limit [FR Doc. E9–27397 Filed 11–13–09; 8:45 am] Business R&D and Innovation Survey because an issue concerning of BILLING CODE 3510–07–P application of quarterly costs in this The Business R&D and Innovation case arose late in the review and Survey (BRDIS) measures annual requires additional time for analyses of spending on R&D and innovative DEPARTMENT OF COMMERCE certain information. Therefore, the activities by U.S. businesses. This survey replaces the Survey of Industrial International Trade Administration Department is fully extending the time limit for the final results. The final Research and Development in 2008. The (A–580–816) BRDIS collects global as well as results are now due not later than March domestic R&D spending, more detailed Corrosion–Resistant Carbon Steel Flat 7, 2010. As that day falls on a Sunday, information about the R&D workforce, Products from the Republic of Korea: the final results are due no later than and information regarding innovation Notice of Extension of Time Limit for March 8, 2010. See Notice of and intellectual property. The Census the Final Results of Antidumping Duty Clarification: Application of ‘‘Next Bureau collects and compiles this Administrative Review Business Day’’ Rule for Administrative information in accordance with a joint Determination Deadlines Pursuant of project agreement between the National AGENCY: Import Administration, the Tariff Act of 1930, As Amended, 70 Science Foundation (NSF) and the International Trade Administration, FR 24533 (May 10, 2005). Department of Commerce. Census Bureau. The NSF publishes the This extension is in accordance with results in its publication series. FOR FURTHER INFORMATION CONTACT: section 751(a)(3)(A) of the Act and 19 Pursuant to title 13 of the U.S.C., this is Victoria Cho at (202) 482–3797, AD/ CFR 351.213(h)(2). This notice is CVD Operations, Office 3, Import a mandatory data collection. published pursuant to section 751(a)(1) Administration, International Trade Manufacturers’ Unfilled Orders Survey and 777(i)(1) of the Act. Administration, U.S. Department of The Manufacturers’ Unfilled Orders Commerce, 14th Street and Constitution Dated: November 6, 2009. Survey will collect data on Ave, NW, Washington, DC 20230. Edward G. Yang, manufacturing sales and unfilled orders Background Acting Deputy Assistant Secretary for in order to provide annual benchmarks Antidumping and Countervailing Duty for unfilled orders for the monthly On September 30, 2008, the U.S. Operations. Manufacturers’ Shipments, Inventories, Department of Commerce (Department) [FR Doc. E9–27445 Filed 11–13–09; 8:45 am] and Orders (M3) survey. The annual published a notice of initiation of the benchmarks for the shipments and administrative review of the BILLING CODE 3510–DS–S inventory data in the Manufacturers’ antidumping duty order on corrosion– Unfilled Orders Survey are provided by resistant carbon steel flat products from the Annual Survey of Manufactures Korea, covering the period August 1, (ASM). The Manufacturers’ Unfilled 2007, to July 31, 2008. See Initiation of

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DEPARTMENT OF COMMERCE Scope of the Order Room 1117, and is accessible on the The merchandise subject to this Web at http://ia.ita.doc.gov/frn/ International Trade Administration antidumping duty order is PRCBs which index.html. The paper copy and may be referred to as t–shirt sacks, electronic version of the Decision Memo A–557–813 merchandise bags, grocery bags, or are identical in content. checkout bags. The subject merchandise Polyethylene Retail Carrier Bags From Sales Below Cost in the Home Market is defined as non–sealable sacks and Malaysia: Final Results of Antidumping The Department conducted an bags with handles (including Duty Administrative Review investigation to determine whether Euro drawstrings), without zippers or integral Plastics made home–market sales at extruded closures, with or without AGENCY: Import Administration, prices below the cost of production. See International Trade Administration, gussets, with or without printing, of Preliminary Results, 74 FR at 32882. As Department of Commerce. polyethylene film having a thickness no a result of its investigation, the greater than 0.035 inch (0.889 mm) and SUMMARY: On July 9, 2009, the Department disregarded certain below– no less than 0.00035 inch (0.00889 mm), cost home–market sales for the Department of Commerce (the and with no length or width shorter Department) published the preliminary preliminary results. For the final results, than 6 inches (15.24 cm) or longer than in accordance with section 773(b)(1) of results of the administrative review of 40 inches (101.6 cm). The depth of the the antidumping duty order on the Tariff Act of 1930, as amended (the bag may be shorter than 6 inches (15.24 Act), the Department has continued to polyethylene retail carrier bags (PRCBs) cm) but not longer than 40 inches (101.6 from Malaysia. The review covers disregard certain below–cost home– cm). market sales. exports of this merchandise to the PRCBs are typically provided without United States by Euro Plastics Malaysia any consumer packaging and free of Changes Since the Preliminary Results Sdn. Bhd. (Euro Plastics) for the period charge by retail establishments, e.g., Based on our analysis of comments of review August 1, 2007, through July grocery, drug, convenience, department, 31, 2008. received and based on our own analysis specialty retail, discount stores, and of the Preliminary Results, we have We gave interested parties an restaurants, to their customers to made revisions that have changed the opportunity to comment on the package and carry their purchased results for Euro Plastics. We have preliminary results. Based on our products. The scope of the order corrected programming and ministerial analysis of the comments and the excludes (1) polyethylene bags that are errors in the margin calculations we revised cost information we received not printed with logos or store names included in the Preliminary Results. A from Euro Plastics, we have made and that are closeable with drawstrings detailed discussion of each correction changes to the margin calculation for made of polyethylene film and (2) we made is in the final analysis the final results of this review. The final polyethylene bags that are packed in memorandum for Euro Plastics which is weighted–average margin is listed below consumer packaging with printing that on file in the CRU of the main in the ‘‘Final Results of Review’’ section refers to specific end–uses other than Department of Commerce building, of this notice. packaging and carrying merchandise Room 1117. EFFECTIVE DATE: November 16, 2009. from retail establishments, e.g., garbage bags, lawn bags, trash–can liners. Final Results of Review FOR FURTHER INFORMATION CONTACT: Imports of the subject merchandise As a result of our review, we Jerrold Freeman or Yang Jin Chun, AD/ are currently classifiable under determine that a margin of 56.13 percent CVD Operations, Office 5, Import statistical category 3923.21.0085 of the exists for Euro Plastics for the period Administration, International Trade Harmonized Tariff Schedule of the August 1, 2007, through July 31, 2008. Administration, U.S. Department of United States (HTSUS). This th Commerce, 14 Street and Constitution subheading also covers products that are Assessment Rates Avenue, NW, Washington, DC 20230; outside the scope of the order. The Department shall determine, and telephone: (202) 482–0180 and (202) Furthermore, although the HTSUS U.S. Customs and Border Protection 482–5760, respectively. subheading is provided for convenience (CBP) shall assess antidumping duties SUPPLEMENTARY INFORMATION: and customs purposes, the written on all appropriate entries of description of the scope of the order is merchandise produced and/or exported Background dispositive. by Euro Plastics. In accordance with 19 CFR 351.212(b)(1), we have calculated, On July 9, 2009, the Department Analysis of the Comments Received published the preliminary results of whenever possible, an importer/ review and invited parties to comment. All issues raised in the case briefs by customer–specific assessment rate or See Polyethylene Retail Carrier Bags parties to this review are addressed in value for subject merchandise. See also From Malaysia: Preliminary Results of the ‘‘Issues and Decision Memorandum’’ section 751(a)(2)(C) of the Act. Antidumping Duty Administrative (Decision Memo) from Acting Deputy With respect to export–price (EP) Review, 74 FR 32880 (July 9, 2009) Assistant Secretary John M. Andersen to sales, we divided the total dumping (Preliminary Results). On August 10, Acting Assistant Secretary Ronald K. margins for each importer or customer 2009, Euro Plastics and the petitioners1 Lorentzen dated November 6, 2009, by the total number of units the exporter filed case briefs. On August 17, 2009, which is hereby adopted by this notice. sold to that importer or customer. We Euro Plastics and the petitioners filed A list of the issues which parties have will direct CBP to assess the resulting rebuttal briefs. There was no hearing raised and to which we have responded per–unit dollar amount against each requested or conducted for this is in the Decision Memo and attached to unit of merchandise on each of that administrative review. this notice as an Appendix. The importer’s or customer’s entries during Decision Memo, which is a public the period of review. For constructed 1 The Polyethylene Retail Carrier Bag Committee document, is on file in the Central export–price (CEP) sales, we divided the and its individual members, Hilex Poly Co., LLC, Records Unit (CRU) of the main total dumping margins for the reviewed and Superbag Corporation. Department of Commerce building, sales by the total entered value of those

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reviewed sales for each importer. We of antidumping duties prior to (NOAA’s) Damage Assessment, will direct CBP to assess the resulting liquidation of the relevant entries Remediation, and Restoration Program percentage margin against the entered during this review period. Failure to (DARRP) is announcing new indirect customs values for the subject comply with this requirement could cost rates on the recovery of indirect merchandise on each of that importer’s result in the Department’s presumption costs for its component organizations entries during the period of review. that reimbursement of antidumping involved in natural resource damage The Department clarified its duties occurred and the subsequent assessment and restoration activities for ‘‘automatic assessment’’ regulation on assessment of doubled antidumping fiscal years (FY) 2007 and 2008. The May 6, 2003. See Antidumping and duties. See 19 CFR 351.402(f)(3). indirect cost rates for these fiscal years Countervailing Duty Proceedings: and dates of implementation are Notification Regarding APOs Assessment of Antidumping Duties, 68 provided in this notice. More FR 23954 (May 6, 2003) (Assessment of This notice also serves as a reminder information on these rates and the Antidumping Duties). This clarification to parties subject to administrative DARRP policy can be found at the will apply to entries of subject protective orders (APO) of their DARRP Web site at http:// merchandise during the period of responsibility concerning the www.darrp.noaa.gov. disposition of proprietary information review produced by Euro Plastics for FOR FURTHER INFORMATION CONTACT: For disclosed under APO as explained in which it did not know its merchandise further information, contact LaTonya the APO itself. See also 19 CFR was destined for the United States. In Burgess at 301–713–4248, ext. 211, by 351.305(a)(3). Timely written such instances, we will instruct CBP to fax at 301–713–4389, or e-mail at notification of the destruction of APO liquidate unreviewed entries at the all– [email protected]. others rate if there is no rate for the materials or conversion to judicial intermediate company(ies) involved in protective order is hereby requested. SUPPLEMENTARY INFORMATION: The the transaction. For a full discussion of Failure to comply with the regulations mission of the DARRP is to restore this clarification, see Assessment of and terms of an APO is a sanctionable natural resource injuries caused by Antidumping Duties. violation. releases of hazardous substances or oil The Department intends to issue We are publishing these final results under the Comprehensive appropriate assessment instructions of administrative review and notice in Environmental Response, directly to CBP 15 days after publication accordance with sections 751(a)(1) and Compensation, and Liability Act of the final results of review. 777(i)(1) of the Act. (CERCLA) (42 U.S.C. 9601 et seq.), the Dated: November 6, 2009. Oil Pollution Act of 1990 (OPA) (33 Cash–Deposit Requirements U.S.C. 2701 et seq.), and support Ronald K. Lorentzen, The following deposit requirements restoration of physical injuries to will be effective upon publication of Acting Assistant Secretary for Import National Marine Sanctuary resources Administration. this notice of final results of under the National Marine Sanctuaries administrative review for all shipments Appendix Act (NMSA) (16 U.S.C. 1431 et seq.). of PRCBs entered, or withdrawn from 1. Product-Specific Resin Cost The DARRP consists of three component warehouse, for consumption on or after 2. G&A and Financial Expenses organizations: the Office of Response the publication date of the final results, 3. Product-Specific Yield Losses and Restoration (ORR) within the as provided by section 751(a)(2)(C) of 4. Home-Market Sales Tax and Import National Ocean Service; the Restoration the Act: (1) the cash–deposit rate for Duties Center within the National Marine Euro Plastics will be 56.13 percent; (2) 5. Home-Market Freight Expenses Fisheries Service; and the Office of the for previously investigated companies 6. Home-Market Credit Expense General Counsel for Natural Resources not listed above, the cash–deposit rate 7. Standard Weight versus Actual (GCNR). The DARRP conducts Natural will continue to be the company– Weight Resource Damage Assessments (NRDAs) specific rate published in the Notice of 8. U.S. Indirect Selling Expenses as a basis for recovering damages from Final Determination of Sales at Less 9. U.S. Discounts responsible parties, and uses the funds Than Fair Value: Polyethylene Retail [FR Doc. E9–27440 Filed 11–13–09; 8:45 am] recovered to restore injured natural Carrier Bags From Malaysia, 69 FR BILLING CODE 3510–DS–S resources. 34128, 34129 (June 18, 2004) (Final Consistent with Federal accounting Determination); (3) if the exporter is not requirements, the DARRP is required to a firm covered in this review or the DEPARTMENT OF COMMERCE account for and report the full costs of less–than-fair–value investigation but its programs and activities. Further, the the manufacturer is, the cash–deposit National Oceanic and Atmospheric DARRP is authorized by law to recover rate will be the rate established for the Administration reasonable costs of damage assessment most recent period for the manufacturer and restoration activities under Notice of Indirect Cost Rates for the of the merchandise; (4) if neither the CERCLA, OPA, and the NMSA. Within Damage Assessment, Remediation, exporter nor the manufacturer has its the constraints of these legal provisions and Restoration Program for Fiscal own rate, the cash–deposit rate will be and their regulatory applications, the Years 2007 and 2008 84.94 percent, the all–others rate for this DARRP has the discretion to develop proceeding published in the Final AGENCY: National Oceanic and indirect cost rates for its component Determination. These deposit Atmospheric Administration (NOAA), organizations and formulate policies on requirements shall remain in effect until Commerce. the recovery of indirect cost rates further notice. ACTION: Notice of indirect cost rates for subject to its requirements. Notification to Importers the Damage Assessment, Remediation, The DARRP’s Indirect Cost Effort and Restoration Program for Fiscal This notice serves as a final reminder Years 2007 and 2008. In December 1998, the DARRP hired to importers of their responsibility the public accounting firm Rubino & under 19 CFR 351.402(f)(2) to file a SUMMARY: The National Oceanic and McGeehin, Chartered (R&M) to: Evaluate certificate regarding the reimbursement Atmospheric Administration’s the DARRP cost accounting system and

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allocation practices; recommend the Cotton concluded that the cost DARRP indirect rates for FY 2002 was appropriate indirect cost allocation accounting system and allocation published on October 6, 2003 (68 FR methodology; and determine the practices of the DARRP component 57672), a fourth notice for the FY 2003 indirect cost rates for the three organizations are consistent with indirect cost rates appeared on May 20, organizations that comprise the DARRP. Federal accounting requirements. 2005 (70 FR 29280), and a fifth notice A Federal Register notice on R&M’s Consistent with R&M’s previous for the FY 2004 indirect cost rates was effort, their assessment of the DARRP’s analyses, Cotton also determined that published on March 16, 2006 (71 FR cost accounting system and practice, the most appropriate indirect allocation 13356). The notice for the FY 2005 and their determination regarding the method continues to be the Direct Labor indirect cost rates was published on most appropriate indirect cost Cost Base for all three DARRP February 9, 2007 (72 FR 6221). The last methodology and rates for FYs 1993 component organizations. The Direct notice for the FY 2006 rates was through 1999 was published on Labor Cost Base is computed by published on June 3, 2008 (73 FR December 7, 2000 (65 FR 76611). The allocating total indirect cost over the 31679). Cotton’s reports on these notice and report by R&M can also be sum of direct labor dollars, plus the indirect rates can also be found on the found on the DARRP Web site at http:// application of NOAA’s leave surcharge DARRP Web site at http:// www.darrp.noaa.gov. www.darrp.noaa.gov. R&M continued its assessment of and benefits rates to direct labor. Direct DARRP’s indirect cost rate system and labor costs for contractors from I.M. Cotton reaffirmed that the Direct structure for FYs 2000 and 2001. A Systems Group (IMSG) were included in Labor Cost Base is the most appropriate second federal notice specifying the the direct labor base because Cotton indirect allocation method for the DARRP indirect rates for FYs 2000 and determined that these costs have the development of the FY 2007 and FY 2001 was published on December 2, same relationship to the indirect cost 2008 indirect cost rates. 2002 (67 FR 71537). pool as NOAA direct labor costs. IMSG The DARRP’s Indirect Cost Rates and In October 2002, DARRP hired the provided on-site support to the DARRP Policies accounting firm of Cotton and Company in the areas of injury assessment, LLP (Cotton) to review and certify natural resource economics, restoration The DARRP will apply the indirect DARRP costs incurred on cases for planning and implementation, and cost rates for FY 2007 and FY 2008 as purposes of cost recovery and to policy analysis. IMSG continues to recommended by Cotton for each of the develop indirect rates for FY 2002 and provide on-site support to the DARRP. DARRP component organizations as subsequent years. As in the prior years, A third federal notice specifying the provided in the following table:

FY2007 FY2008 DARRP component indirect rate indirect rate organization (percent) (percent)

Office of Response and Restoration (ORR) ...... 154.72 122.31 Restoration Center (RC) ...... 130.78 133.87 General Counsel for Natural Resources (GCNR) ...... 156.68 94.08

These rates are based on the Direct settlement documents are not finalized, ACTION: Proposed addition to Labor Cost Base allocation methodology. the costs will not be recalculated. procurement list. The FY 2007 rates will be applied to The DARRP indirect cost rate policies all damage assessment and restoration and procedures published in the SUMMARY: The Committee is proposing case costs incurred between October 1, Federal Register on December 7, 2000 to add to the Procurement List a service 2006 and September 30, 2007. The FY (65 FR 76611), on December 2, 2002 (67 to be furnished by nonprofit agencies 2008 rates will be applied to all damage FR 71537), October 6, 2003 (68 FR employing persons who are blind or assessment and restoration case costs 57672), May 20, 2005 (70 FR 29280), have other severe disabilities. incurred between October 1, 2007 and March 16, 2006 (71 FR 13356), February Comments Must Be Received on or September 30, 2008. DARRP will use 9, 2007 (72 FR 6221), and June 3, 2008 the FY 2008 indirect cost rates for future (73 FR 31679), remain in effect except Before: 12/14/2009. fiscal years, beginning with FY 2009, as updated by this notice. ADDRESSES: Committee for Purchase until subsequent year-specific rates can Dated: October 30, 2009. From People Who Are Blind or Severely be developed. David Westerholm, Disabled, Jefferson Plaza 2, Suite 10800, For cases that have settled and for Director, Office of Response and Restoration. 1421 Jefferson Davis Highway, cost claims paid prior to the effective [FR Doc. E9–27236 Filed 11–13–09; 8:45 am] Arlington, Virginia 22202–3259. date of the fiscal year in question, the DARRP will not re-open any resolved BILLING CODE 3510–JE–P FOR FURTHER INFORMATION OR TO SUBMIT matters for the purpose of applying the COMMENTS CONTACT: Barry S. Lineback, revised rates in this policy for these Telephone: (703) 603–7740, Fax: (703) fiscal years. For cases not settled and 603–0655, or e-mail COMMITTEE FOR PURCHASE FROM [email protected]. cost claims not paid prior to the PEOPLE WHO ARE BLIND OR effective date of the fiscal year in SEVERELY DISABLED SUPPLEMENTARY INFORMATION: This question, costs will be recalculated notice is published pursuant to 41 U.S.C using the revised rates in this policy for Procurement List; Proposed Addition these fiscal years. Where a responsible 47(a)(2) and 41 CFR 51–2.3. Its purpose party has agreed to pay costs using AGENCY: Committee for Purchase From is to provide interested persons an previous year’s indirect rates, but has People Who Are Blind or Severely opportunity to submit comments on the not yet made the payment because the Disabled. proposed actions.

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Addition ACTION: Notice. access to classified information of If the Committee approves the contractors, licensees, and grantees and SUMMARY: In compliance with Section their respective employees. The proposed addition, the entities of the 3506(c)(2)(A) of the Paperwork Federal Government identified in this Executive Agent has the authority to Reduction Act of 1995, the Defense issue, after consultation with affected notice will be required to procure the Security Service (DSS) announces a new service listed below from nonprofit agencies, standard forms or other public information collection and seeks standardization that will promote the agencies employing persons who are public comments on the provision blind or have other severe disabilities. implementation of the NISP. The thereof. Comments are invited on: (a) Cognizant Security Agency (CSA), Regulatory Flexibility Act Certification Whether the proposed collection is designated by the NISPOM, is necessary for the proper performance of I certify that the following action will responsible for determining the the functions of the agency, including not have a significant impact on a frequency of Security Reviews which whether the information shall have substantial number of small entities. may be increased or decreased for practical utility; (b) the accuracy of the The major factors considered for this sufficient reason, consistent with risk agency’s estimate of the burden hours of certification were: management principles. Department of the information to be collected; and (c) 1. If approved, the action will not Defense Directive 5105.42, ‘‘Defense ways to enhance the quality, utility and result in any additional reporting, Security Service,’’ dated May 13, 1999, clarity of the information to be recordkeeping or other compliance delineates the mission, functions and collected; and (d) ways to minimize the requirements for small entities other responsibilities of DSS. DSS functions burden of the information collection on than the small organizations that will and responsibilities include the respondents. furnish the service to the Government. administration and implementation of 2. If approved, the action will result DATES: Consideration will be given to all the Defense portion of the NISP. This in authorizing small entities to furnish comments received by January 15, 2010. survey will provide feedback on how the service to the Government. ADDRESSES: You may submit comments, well DSS is doing with respect to the 3. There are no known regulatory identified by docket number and title, administration and implementation of alternatives which would accomplish by any of the following methods: the NISP. Participation in the survey is the objectives of the Javits-Wagner- • Federal Rule Making Portal: http:// strictly voluntary. O’Day Act (41 U.S.C. 46–48c) in www.regulations.gov. Follow the Affected Public: All active and cleared connection with the service proposed instructions for submitting comments. businesses, or other profit and non- for addition to the Procurement List. • Mail: Federal Docket Management profit organizations under Department Comments on this certification are System Office, 1160 Defense Pentagon, of Defense Security Cognizance, invited. Commenters should identify the Room 3C843, Washington, DC 20301– approved for storage of classified statement(s) underlying the certification 1160 materials. on which they are providing additional Instructions: All submissions received Annual Burden Hours: 6469. information. must include agency name, docket Number of Respondents: 12,938. number and title for this Federal Responses per Respondent: 1. End of Certification Register document. The general policy Average Burden per Response: 30 The following service is proposed for of comments and other submissions minutes. addition to Procurement List for from members of the public is to make Frequency: Annually. production by the nonprofit agencies these submissions available for public SUPPLEMENTARY INFORMATION: listed: viewing on the Internet at http:// www.regulations.gov as they are Summary of Information Collection Service: received without change, including any This collection of information Service Type/Location: Custodial personal identifiers or contract requests the assistance of the Facility Service, MC Smith Post Federal information. Security Officer or Senior Management Bldg & Courthouse, 202 Harlow FOR FURTHER INFORMATION CONTACT: To Official to provide feedback as to how Street, Bangor, ME. request more information on this well DSS is doing with respect to the NPA: Northern New England proposed information collection or to administration and implementation of Employment Services, Portland, obtain a copy of the proposal and the NISP. The survey will be distributed ME. associated collection instruments, electronically via a web-based Contracting Activity: GSA/Public commercial survey tool. Buildings Service Region 1, Boston, please write to Defense Security Service, MA. ATTN: Ms. Linda Johnston, Industrial Dated: October 26, 2009. Security Field Operations, 1340 Patricia L. Toppings, Barry S. Lineback, Braddock Place, Alexandria, VA 22314, OSD Federal Register Liaison Officer, Director, Business Operations. or call 703–494–5869. Department of Defense. [FR Doc. E9–27399 Filed 11–13–09; 8:45 am] Title; Associated Form; and OMB [FR Doc. E9–27372 Filed 11–13–09; 8:45 am] BILLING CODE 6353–01–P Number: Voice of Industry Survey; OMB BILLING CODE 5001–06–P Control Number 0704–TBD. Needs and Uses: Executive Order DEPARTMENT OF DEFENSE 12829, ‘‘National Industrial Security DEPARTMENT OF EDUCATION Program (NISP)’’ Section 202 (a) Office of the Secretary stipulates that the Secretary of Defense Submission for OMB Review; shall serve as the Executive Agent for Comment Request [Docket ID DoD–2009–OS–0173] inspecting and monitoring the AGENCY: Department of Education. Proposed Collection; Comment contractors, licensees, and grantees who Request require or will require access to or who SUMMARY: The Director, Information store or will store classified information; Collection Clearance Division, AGENCY: Defense Security Service, DoD. and for determining the eligibility for Regulatory Information Management

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Services, Office of Management invites Burden Hours: 810. DEPARTMENT OF EDUCATION comments on the submission for OMB Abstract: Section 1202 of the review as required by the Paperwork Notice of Proposed Information Reduction Act of 1995. Elementary and Secondary Act describes information to be included in Collection Requests DATES: Interested persons are invited to the annual performance report required submit comments on or before AGENCY: Department of Education. of Reading First grantees. Submission of December 16, 2009. the annual performance report (APR) via SUMMARY: The Director, Information ADDRESSES: Written comments should the data collection site has been taking Collection Clearance Division, be addressed to the Office of place since 2004 and will continue to Regulatory Information Management Information and Regulatory Affairs, occur between October 15 and Services, Office of Management, invites Attention: Education Desk Officer, November 30 of each year. If APR data comments on the proposed information Office of Management and Budget, 725 submitted during this timeframe are collection requests as required by the 17th Street, NW., Room 10222, New Paperwork Reduction Act of 1995. Executive Office Building, Washington, incomplete or inaccurate or if re- DC 20503, be faxed to (202) 395–5806 or submission of data is requested by state DATES: Interested persons are invited to send e-mail to education agencies (SEAs), additional submit comments on or before January [email protected]. data collection may occur at other times 15, 2010. throughout the year. The Government SUPPLEMENTARY INFORMATION: SUPPLEMENTARY INFORMATION: Section Performance and Results Act (GPRA) Section 3506 of the Paperwork Reduction Act of report provides national-level 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires 1995 (44 U.S.C. Chapter 35) requires achievement data for all comprehension that the Office of Management and that the Office of Management and and fluency outcome measures for each Budget (OMB) provide interested Budget (OMB) provide interested year of program implementation. The Federal agencies and the public an early Federal agencies and the public an early national-level information includes an opportunity to comment on information opportunity to comment on information average of the percentage of proficient collection requests. OMB may amend or collection requests. OMB may amend or students in SEAs administering the waive the requirement for public waive the requirement for public Dynamic Indicators of Basic Early consultation to the extent that public consultation to the extent that public Literacy Skills (DIBELS) Oral Reading participation in the approval process participation in the approval process Fluency measure and the number of would defeat the purpose of the would defeat the purpose of the SEAs showing improvement in information collection, violate State or information collection, violate State or proficiency rates on each SEA’s Federal law, or substantially interfere Federal law, or substantially interfere comprehension measure from the with any agency’s ability to perform its with any agency’s ability to perform its previous year to the current year. All statutory obligations. The IC Clearance statutory obligations. The Director, Official, Regulatory Information schools are included in the GPRA Information Collection Clearance Management Services, Office of report, regardless of when schools began Division, Regulatory Information Management, publishes that notice implementation of the Reading First Management Services, Office of containing proposed information program. Management, publishes that notice collection requests prior to submission Requests for copies of the information containing proposed information of these requests to OMB. Each collection submission for OMB review proposed information collection, collection requests prior to submission may be accessed from http:// grouped by office, contains the of these requests to OMB. Each edicsweb.ed.gov, by selecting the following: (1) Type of review requested, proposed information collection, e.g. new, revision, extension, existing or ‘‘Browse Pending Collections’’ link and grouped by office, contains the reinstatement; (2) Title; (3) Summary of by clicking on link number 4124. When following: (1) Type of review requested, the collection; (4) Description of the you access the information collection, e.g. new, revision, extension, existing or need for, and proposed use of, the click on ‘‘Download Attachments ’’ to reinstatement; (2) Title; (3) Summary of information; (5) Respondents and view. Written requests for information the collection; (4) Description of the frequency of collection; and (6) should be addressed to U.S. Department need for, and proposed use of, the Reporting and/or Recordkeeping of Education, 400 Maryland Avenue, information; (5) Respondents and burden. OMB invites public comment. SW., LBJ, Washington, DC 20202–4537. frequency of collection; and (6) Reporting and/or Recordkeeping Dated: November 9, 2009. Requests may also be electronically mailed to the Internet address burden. OMB invites public comment. Angela C. Arrington, [email protected] or faxed to 202– Director, Information Collection Clearance The Department of Education is Division, Regulatory Information 401–0920. Please specify the complete especially interested in public comment Management Services, Office of Management. title of the information collection when addressing the following issues: (1) Is making your request. this collection necessary to the proper Office of Elementary and Secondary functions of the Department; (2) will Education Comments regarding burden and/or the collection activity requirements this information be processed and used Type of Review: Extension. should be electronically mailed to in a timely manner; (3) is the estimate Title: Annual Performance Report for [email protected]. Individuals who of burden accurate; (4) how might the Reading First. use a telecommunications device for the Department enhance the quality, utility, Frequency: Annually. deaf (TDD) may call the Federal and clarity of the information to be Affected Public: Businesses or other Information Relay Service (FIRS) at collected; and (5) how might the for-profit; State, Local, or Tribal Gov’t. 1–800–877–8339. Department minimize the burden of this Reporting and Recordkeeping Hour collection on the respondents, including Burden: [FR Doc. E9–27409 Filed 11–13–09; 8:45 am] through the use of information Responses: 54. BILLING CODE 4000–01–P technology.

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Dated: November 9, 2009. ACTION: Notice of availability. to such a facility. The Act also requires Angela C. Arrington, DOE to assess fees based upon the pro SUMMARY: This document provides Director, Information Collection Clearance rata costs of long-term management and Division, Regulatory Information general guidance with respect to storage. Management Services, Office of Management. standards and procedures necessary to DOE is developing a capability for the support the packaging, transportation, safe and secure long-term management Office of Postsecondary Education receipt, management, and long-term and storage of elemental mercury as Type of Review: New. storage of elemental mercury generated required by the Act. Accordingly, DOE Title: IEPS Language Resource Center in the United States (U.S.) as required needs to identify an appropriate facility (LRC) Customer Surveys. by the Mercury Export Ban Act of 2008 or facilities to host this activity. To this Frequency: On Occasion. (the Act). Section 5 of the Act, Long- end, DOE is preparing an environmental Affected Public: Individuals or Term Storage, requires the Department impact statement (EIS) in accordance households. of Energy (DOE) to prepare guidance with the National Environmental Policy Reporting and Recordkeeping Hour that ‘‘establishes procedures and Act (NEPA) of 1969, regulations of the Burden: standards for the receipt, management, President’s Council on Environmental Responses: 416. and long term storage of elemental Quality (40 CFR parts 1500–1508) and Burden Hours: 194. mercury.’’ DOE’s implementing procedures (10 Abstract: The purpose of this ADDRESSES: Ms. Letitia O’Conor, CFR part 1021). This EIS will evaluate assessment is to assess the impact of the Elemental Mercury Storage Guidance alternatives for such a facility or LRC program in enhancing the foreign Document Manager, Office of facilities in order to have the requisite language capacity of the United States. Environmental Compliance (EM–41), capability operational by January 1, Three surveys will be conducted: a U.S. Department of Energy, 1000 2013, as stipulated in the Act. The U.S. survey of LRC Project Directors; a Independence Avenue, SW., Environmental Protection Agency (EPA) survey of all members of the National Washington, DC 20585. The guidance is a cooperating agency for this EIS. In Association of District Supervisors of document will be available at the DOE July, DOE published a Notice of Intent Foreign Languages; and a survey of LRC Web site at http://www.em.doe.gov/ and to prepare an EIS for the Long-Term Summer workshop participants. Results http://www.mercurystorageeis.com. Management and Storage of Elemental from the three surveys will inform the Mercury in the Federal Register (74 FR FOR FURTHER INFORMATION CONTACT: For writing of a final report determining the 31723, July 2, 2009). DOE expects to impact of the LRC program. further information about the guidance document, please contact Ms. Letitia issue a Draft EIS in December 2009. Requests for copies of the proposed As required by the Act, DOE has O’Conor, Office of Environmental information collection request may be prepared the U.S. Department of Energy Compliance (EM–41), U.S. Department accessed from http://edicsweb.ed.gov, Interim Guidance on Packaging, of Energy, 1000 Independence Avenue, by selecting the ‘‘Browse Pending Transportation, Receipt, Management, Collections’’ link and by clicking on SW., Washington, DC 20585. You can and Long Term Storage of Elemental link number 4172. When you access the contact Ms. O’Conor at (202) 586–6570 Mercury (the Interim Guidance) in information collection, click on or by e-mail at: consultation with EPA and state ‘‘Download Attachments’’ to view. letitia.o’[email protected]. agencies. The Interim Guidance Written requests for information should SUPPLEMENTARY INFORMATION: provides a framework for the standards be addressed to U.S. Department of Background and procedures associated with the Education, 400 Maryland Avenue, SW., long-term management of elemental LBJ, Washington, DC 20202–4537. Mercury exposure can cause a number mercury and the operation of a DOE- Requests may also be electronically of adverse effects on human health. In designated elemental mercury storage mailed to [email protected] or faxed an effort to reduce global mercury use facility with a focus on the federal to 202–401–0920. Please specify the and releases, and in order to eventually Resource Conservation and Recovery complete title of the information achieve reduced contamination levels in Act (RCRA) compliance of such a collection when making your request. the environment, the Act was passed by facility. The Interim Guidance may be Comments regarding burden and/or Congress and signed into law by the supplemented and, as appropriate, the collection activity requirements President on October 14, 2008 (Pub. L. superseded by the host State’s RCRA should be electronically mailed to No. 110–414, enacted October 14, 2008). permitting of the future elemental [email protected]. Individuals who The Act prohibits the sale, distribution, mercury storage facility. use a telecommunications device for the or transfer of elemental mercury by This Interim Guidance provides deaf (TDD) may call the Federal Federal agencies to any other Federal standards and procedures to: (1) Information Relay Service (FIRS) at 1– agency, any State or local government Generators who will assure the purity of 800–877–8339. agency, or any private individual or the mercury and the integrity of the entity that is under the control of a containers; (2) transporters who will [FR Doc. E9–27410 Filed 11–13–09; 8:45 am] federal agency (with certain limited load, secure, and transfer the mercury to BILLING CODE 4000–01–P exceptions). It also prohibits the export the storage facility; and (3) operators of of elemental mercury from the U.S. the storage facility who will be effective January 1, 2013 (subject to responsible for unloading the mercury DEPARTMENT OF ENERGY certain essential use exceptions). from the transport vehicle, verifying that Notice of Availability of the U.S. Section 5 of the Act, Long-Term Storage, waste acceptance requirements have Department of Energy Interim directs DOE to designate a facility or been met, and operating the storage Guidance on Packaging, facilities for the long-term management facility. Transportation, Receipt, Management, and storage of elemental mercury This Interim Guidance is intended to and Long-Term Storage of Elemental generated within the U.S. DOE’s facility be a reference for a wide variety of Mercury or facilities must be operational by individual users, industries, and January 1, 2013, and be ready to accept regulatory organizations impacted by AGENCY: Department of Energy. custody of elemental mercury delivered the Act. Specifically, potential users of

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this guidance document may include infrastructure issues along the U.S. Kentucky. Under the terms of the the following: border with Mexico. Purpose of proposed consent decree, EPA has • Past generators, current owners, and Meeting: The purpose of this agreed to respond to the petitions by custodians of elemental mercury; teleconference is to discuss and approve December 14, 2009. • Recyclers of mercury bearing the Good Neighbor Environmental DATES: Written comments on the materials, wastes, and products (e.g., Board’s draft advice letter to the proposed consent decree must be companies that recover dental President on the environmental effects received by December 16, 2009. amalgam); of the U.S.-Mexico border fence and ADDRESSES: Submit your comments, • Major industrial generators of associated infrastructure. The Board identified by Docket ID number EPA– mercury, including the minerals mining will also continue discussion on the HQ–OGC–2009–0671, online at http:// industry (especially gold), chlor-alkali Thirteenth Report to the President. www.regulations.gov (EPA’s preferred (chlorine and caustic soda production) SUPPLEMENTARY INFORMATION: If you method); by e-mail to industry, and electrical lighting (e.g., wish to make oral comments or submit [email protected]; by mail to EPA fluorescent lamp) industry; written comments to the Board, please Docket Center, Environmental • Private and government contractors contact Dolores Wesson at least five Protection Agency, Mailcode: 2822T, managing stockpiled mercury; days prior to the meeting. 1200 Pennsylvania Ave., NW., • Shippers of elemental mercury; General Information: Additional Washington, DC 20460–0001; or by • State and Federal regulatory information concerning the GNEB can hand delivery or courier to EPA Docket agencies (e.g., EPA); and be found on its Web site at http:// Center, EPA West, Room 3334, 1301 • Future operators of an elemental www.epa.gov/ocem/gneb. Constitution Ave., NW., Washington, mercury storage facility (or facilities) for Meeting Access: For information on DC, between 8:30 a.m. and 4:30 p.m. DOE. access or services for individuals with Monday through Friday, excluding legal As required by the Act, this Interim disabilities, please contact Dolores holidays. Comments on a disk or CD– Guidance outlines existing requirements Wesson at (202) 564–1351 or e-mail her ROM should be formatted in Word or and standards and applicable at: [email protected]. To request ASCII file, avoiding the use of special procedures for the receipt (including accommodation of a disability, please characters and any form of encryption, acceptance criteria and packaging/ contact Dolores Wesson at least 10 days and may be mailed to the mailing transfer/transport requirements), prior to the meeting to give EPA as address above. management, and long-term storage of much time as possible to process your FOR FURTHER INFORMATION CONTACT: elemental mercury by DOE. request. Mark Kataoka, Air and Radiation Law Issued in Washington, DC, on November 9, Dated: November 3, 2009. Office (2344A), Office of General 2009. Dolores Wesson, Counsel, U.S. Environmental Protection Frank Marcinowski, Designated Federal Officer. Agency, 1200 Pennsylvania Ave., NW., Acting Deputy Assistant Secretary for [FR Doc. E9–27417 Filed 11–13–09; 8:45 am] Washington, DC 20460; telephone: (202) Technical and Regulatory Support, Office of BILLING CODE 6560–50–P 564–5584; fax number (202) 564–5603; Environmental Management. e-mail address: [email protected]. [FR Doc. E9–27395 Filed 11–13–09; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 6450–01–P ENVIRONMENTAL PROTECTION I. Additional Information About the AGENCY Proposed Consent Decree ENVIRONMENTAL PROTECTION [FRL–8981–2] This proposed consent decree would resolve a lawsuit alleging that the AGENCY Proposed Consent Decree, Clean Air Administrator failed to perform a Act Citizen Suit [FRL–8981–3] nondiscretionary duty to grant or deny, Good Neighbor Environmental Board AGENCY: Environmental Protection within 60 days of submission, two Agency (EPA). administrative petitions to object to the AGENCY: Environmental Protection ACTION: Notice of proposed consent combined CAA Title V permit and Agency (EPA). decree; request for public comment. Prevention of Significant Deterioration ACTION: Notification of meeting. permit No. V–07–017 issued by the SUMMARY: In accordance with section Kentucky Department of Environmental SUMMARY: Pursuant to the Federal 113(g) of the Clean Air Act, as amended Protection for the proposed Cash Creek Advisory Committee Act, Public Law (‘‘Act’’), 42 U.S.C. 7413(g), notice is Generating Station in Cash Creek, 92–463, notice is hereby given that the hereby given of a proposed consent Kentucky. Under the terms of the Good Neighbor Environmental Board decree, to address a lawsuit filed by proposed consent decree, EPA has (GNEB) will hold a public Sierra Club and Valley Watch, Inc. agreed to respond to the petitions by teleconference on December 1, 2009 (collectively ‘‘Plaintiffs’’) in the United December 14, 2009, or within 3 days from 1 p.m. to 3 p.m. Eastern Standard States District Court for the District of after entry of the consent decree, Time. The meeting is open to the public. Columbia: Sierra Club, et al. v. Jackson, whichever date is later. In addition, the For further information regarding the No. 1:09–cv–00312 (D.D.C). Plaintiffs proposed consent decree states that, teleconference and background filed suit to compel the Administrator to after EPA fulfills its obligations under materials, please contact Dolores respond to two administrative petitions the decree, and the Plaintiffs’ claims for Wesson at the number listed below. seeking EPA’s objection to a combined costs of litigation have been resolved Background: GNEB is a federal CAA Title V operating permit and pursuant to the process described in the advisory committee chartered under the Prevention of Significant Deterioration decree, the case shall be dismissed with Federal Advisory Committee Act, Public permit No. V–07–017 issued by the prejudice. Law 92463. GNEB provides advice and Kentucky Department of Environmental For a period of thirty (30) days recommendations to the President and Protection for the proposed Cash Creek following the date of publication of this Congress on environmental and Generating Station in Cash Creek, notice, the Agency will accept written

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comments relating to the proposed be placed in EPA’s electronic public ENVIRONMENTAL PROTECTION consent decree from persons who were docket but will be available only in AGENCY not named as parties or intervenors to printed, paper form in the official public [FRL–8981–5] the litigation in question. EPA or the docket. Although not all docket Department of Justice may withdraw or materials may be available Proposed Consent Decree withhold consent to the proposed electronically, you may still access any consent decree if the comments disclose of the publicly available docket AGENCY: Environmental Protection facts or considerations that indicate that materials through the EPA Docket Agency (EPA). such consent is inappropriate, Center. ACTION: Notice of proposed consent improper, inadequate, or inconsistent B. How and To Whom Do I Submit decree; request for public comment. with the requirements of the Act. Unless Comments? EPA or the Department of Justice SUMMARY: In accordance with section determines, based on any comment You may submit comments as 113(g) of the Clean Air Act, as amended submitted, that consent to this consent provided in the ADDRESSES section. (‘‘Act’’), 42 U.S.C. 7413(g), notice is decree should be withdrawn, the terms Please ensure that your comments are hereby given of a proposed consent of the decree will be affirmed. submitted within the specified comment decree to address a lawsuit filed by the Environmental Integrity Project and II. Additional Information About period. Comments received after the close of the comment period will be Sierra Club (collectively ‘‘Plaintiffs’’) in Commenting on the Proposed Consent the United States District Court for the Decree marked ‘‘late.’’ EPA is not required to consider these late comments. District of Columbia: Environmental Integrity Project, et al. v. EPA, No. 1:09– A. How Can I Get a Copy of the Consent If you submit an electronic comment, CV–00218 (D. D.C.). On or about Decree? EPA recommends that you include your February 4, 2009, Plaintiffs filed a The official public docket for this name, mailing address, and an e-mail deadline suit alleging that EPA failed to action (identified by Docket ID No. address or other contact information in perform a non-discretionary duty to EPA–HQ–OGC–2009–0671) contains a the body of your comment and with any review, and if appropriate revise, 40 copy of the proposed consent decree. disk or CD ROM you submit. This CFR part 60, subpart G, New Source The official public docket is available ensures that you can be identified as the Performance Standards for Nitric Acid for public viewing at the Office of submitter of the comment and allows Plants. Under the terms of the proposed Environmental Information (OEI) Docket EPA to contact you in case EPA cannot consent decree, on or before November in the EPA Docket Center, EPA West, read your comment due to technical 15, 2010, EPA will sign and submit for Room 3334, 1301 Constitution Ave., difficulties or needs further information publication in the Federal Register one NW., Washington, DC. The EPA Docket on the substance of your comment. Any or a combination of the following: (a) A Center Public Reading Room is open identifying or contact information proposed rule containing revisions to from 8:30 a.m. to 4:30 p.m., Monday provided in the body of a comment will NSPS Subpart G pursuant to CAA through Friday, excluding legal be included as part of the comment that 111(b)(1)(B); and/or (b) a proposed and/ holidays. The telephone number for the is placed in the official public docket, or final determination under CAA Public Reading Room is (202) 566–1744, and made available in EPA’s electronic 111(b)(1)(B) not to revise NSPS Subpart and the telephone number for the OEI public docket. If EPA cannot read your G. If EPA signs a proposed rule or Docket is (202) 566–1752. comment due to technical difficulties proposed determination, then on or An electronic version of the public and cannot contact you for clarification, before November 15, 2011, EPA will docket is available through http:// EPA may not be able to consider your sign and submit for publication in the www.regulations.gov. You may use the comment. Federal Register, one or a combination http://www.regulations.gov to submit or Use of the http://www.regulations.gov view public comments, access the index of the following: (a) A final rule Web site to submit comments to EPA containing revisions to NSPS Subpart G listing of the contents of the official electronically is EPA’s preferred method public docket, and to access those pursuant to CAA 111(b)(1)(B); and/or for receiving comments. The electronic (b) a final determination under CAA documents in the public docket that are public docket system is an ‘‘anonymous available electronically. Once in the 111(b)(1)(B) not to revise NSPS access’’ system, which means EPA will Subpart G. system, key in the appropriate docket not know your identity, e-mail address, DATES: Written comments on the identification number then select or other contact information unless you proposed consent decree must be ‘‘search’’. provide it in the body of your comment. received by December 16, 2009. It is important to note that EPA’s In contrast to EPA’s electronic public policy is that public comments, whether docket, EPA’s electronic mail (e-mail) ADDRESSES: Submit your comments, submitted electronically or in paper, system is not an ‘‘anonymous access’’ identified by Docket ID number EPA– will be made available for public system. If you send an e-mail comment HQ–OGC–2009–0854, online at http:// viewing online at http:// directly to the Docket without going www.regulations.gov (EPA’s preferred www.regulations.gov without change, through http://www.regulations.gov, method); by e-mail to unless the comment contains your e-mail address is automatically [email protected]; by mail to EPA copyrighted material, CBI, or other captured and included as part of the Docket Center, Environmental information whose disclosure is comment that is placed in the official Protection Agency, Mailcode: 2822T, restricted by statute. Information public docket, and made available in 1200 Pennsylvania Ave., NW., claimed as CBI and other information EPA’s electronic public docket. Washington, DC 20460–0001; or by whose disclosure is restricted by statute hand delivery or courier to EPA Docket is not included in the official public Dated: November 5, 2009. Center, EPA West, Room 3334, 1301 docket or in the electronic public Richard B. Ossias, Constitution Ave., NW., Washington, docket. EPA’s policy is that copyrighted Associate General Counsel. DC, between 8:30 a.m. and 4:30 p.m. material, including copyrighted material [FR Doc. E9–27415 Filed 11–13–09; 8:45 am] Monday through Friday, excluding legal contained in a public comment, will not BILLING CODE 6560–50–P holidays. Comments on a disk or CD–

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ROM should be formatted in Word or decree should be withdrawn, the terms Please ensure that your comments are ASCII file, avoiding the use of special of the decree will be affirmed. submitted within the specified comment characters and any form of encryption, period. Comments received after the II. Additional Information About and may be mailed to the mailing close of the comment period will be Commenting on the Proposed Consent address above. marked ‘‘late.’’ EPA is not required to Decree FOR FURTHER INFORMATION CONTACT: consider these late comments. Scott Jordan, Air and Radiation Law A. How Can I Get a Copy of the Consent If you submit an electronic comment, Office (2344A), Office of General Decree? EPA recommends that you include your Counsel, U.S. Environmental Protection The official public docket for this name, mailing address, and an e-mail Agency, 1200 Pennsylvania Ave., NW., action (identified by Docket ID No. address or other contact information in Washington, DC 20460; telephone: (202) EPA–HQ–OGC–2009–0854) contains a the body of your comment and with any 564–7508; fax number (202) 564–5603; copy of the proposed consent decree. disk or CD ROM you submit. This e-mail address: [email protected]. The official public docket is available ensures that you can be identified as the SUPPLEMENTARY INFORMATION: for public viewing at the Office of submitter of the comment and allows Environmental Information (OEI) Docket EPA to contact you in case EPA cannot I. Additional Information About the in the EPA Docket Center, EPA West, read your comment due to technical Proposed Consent Decree Room 3334, 1301 Constitution Ave., difficulties or needs further information This proposed consent decree would NW., Washington, DC. The EPA Docket on the substance of your comment. Any settle a deadline suit filed by Plaintiffs Center Public Reading Room is open identifying or contact information for EPA’s failure to review, and if from 8:30 a.m. to 4:30 p.m., Monday provided in the body of a comment will appropriate revise, 40 CFR part 60, through Friday, excluding legal be included as part of the comment that subpart G, New Source Performance holidays. The telephone number for the is placed in the official public docket, Standards for Nitric Acid Plants. Under Public Reading Room is (202) 566–1744, and made available in EPA’s electronic the terms of the proposed consent and the telephone number for the OEI public docket. If EPA cannot read your decree, on or before November 15, 2010, Docket is (202) 566–1752. comment due to technical difficulties EPA will sign and submit for An electronic version of the public and cannot contact you for clarification, publication in the Federal Register one docket is available through http:// EPA may not be able to consider your or a combination of the following: (a) A www.regulations.gov. You may use the comment. proposed rule containing revisions to http://www.regulations.gov to submit or Use of the http://www.regulations.gov NSPS Subpart G pursuant to CAA view public comments, access the index Web site to submit comments to EPA 111(b)(1)(B); and/or (b) a proposed and/ listing of the contents of the official electronically is EPA’s preferred method or final determination under CAA public docket, and to access those for receiving comments. The electronic 111(b)(1)(B) not to revise NSPS Subpart documents in the public docket that are public docket system is an ‘‘anonymous G. If EPA signs a propose rule or available electronically. Once in the access’’ system, which means EPA will propose determination, then on or system, select ‘‘search,’’ then key in the not know your identity, e-mail address, before November 15, 2011, EPA will appropriate docket identification or other contact information unless you sign and submit for publication in the number. provide it in the body of your comment. Federal Register, one or a combination It is important to note that EPA’s In contrast to EPA’s electronic public of the following: (a) A final rule policy is that public comments, whether docket, EPA’s electronic mail (e-mail) containing revisions to NSPS Subpart G submitted electronically or in paper, system is not an ‘‘anonymous access’’ pursuant to CAA 111(b)(1)(B); and/or (b) will be made available for public system. If you send an e-mail comment a final determination under CAA viewing online at http:// directly to the Docket without going 111(b)(1)(B) not to revise NSPS Subpart www.regulations.gov without change, through http://www.regulations.gov, G. If EPA signed a final determination unless the comment contains your e-mail address is automatically under CAA 111(b)(1)(B) not to revise copyrighted material, CBI, or other captured and included as part of the NSPS Subpart G, then EPA shall have information whose disclosure is comment that is placed in the official no obligation to take action. The restricted by statute. Information public docket, and made available in proposed consent decree states that, claimed as CBI and other information EPA’s electronic public docket. after EPA fulfills its obligations under whose disclosure is restricted by statute Dated: November 9, 2009. the decree, the case shall be dismissed is not included in the official public Richard B. Ossias, with prejudice. docket or in the electronic public Associate General Counsel. For a period of thirty (30) days docket. EPA’s policy is that copyrighted [FR Doc. E9–27412 Filed 11–13–09; 8:45 am] following the date of publication of this material, including copyrighted material notice, the Agency will accept written contained in a public comment, will not BILLING CODE 6560–50–P comments relating to the proposed be placed in EPA’s electronic public consent decree from persons who were docket but will be available only in ENVIRONMENTAL PROTECTION not named as parties or intervenors to printed, paper form in the official public AGENCY the litigation in question. EPA or the docket. Although not all docket Department of Justice may withdraw or materials may be available withhold consent to the proposed electronically, you may still access any [FRL–8981–1] consent decree if the comments disclose of the publicly available docket Proposed Settlement Agreement, facts or considerations that indicate that materials through the EPA Docket Clean Air Act Citizen Suit such consent is inappropriate, Center. improper, inadequate, or inconsistent AGENCY: B. How and To Whom Do I Submit Environmental Protection with the requirements of the Act. Unless Agency (EPA). EPA or the Department of Justice Comments? ACTION: Notice of proposed settlement determines, based on any comment You may submit comments as agreement; request for public comment. submitted, that consent to this consent provided in the ADDRESSES section.

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SUMMARY: In accordance with section 112(e)(1)(E) of the CAA, 42 U.S.C. view public comments, access the index 113(g) of the Clean Air Act, as amended 7412(e)(1)(E). listing of the contents of the official (‘‘Act’’), 42 U.S.C. 7413(g), notice is The settlement agreement provides public docket, and access those hereby given of a proposed settlement that within 10 days after the agreement documents in the public docket that are agreement, to address a lawsuit filed by is executed both parties will jointly available electronically. Once in the Mossville Environmental Action Now, notify the Court of this settlement system, key in the appropriate docket Louisiana Environmental Action agreement and request that the case be identification number then select Network, and Sierra Club (collectively, held in abeyance. The settlement ‘‘search’’. ‘‘Plaintiffs’’) in the United States District agreement states that EPA shall sign a It is important to note that EPA’s Court for the District of Columbia: proposed rule to establish PVC policy is that public comments, whether Mossville Environmental Action Now, et Standards no later than October 29, submitted electronically or on paper, al. v. EPA, No. 1:08–cv–01803 (D.D.C.). 2010, and that EPA shall sign a final will be made available for public On October 22, 2008, Plaintiffs filed a rule to establish PVC Standards no later viewing online at http:// complaint alleging that EPA failed to than July 29, 2011. The settlement www.regulations.gov without change, promulgate emission standards for agreement further states if EPA fulfills unless the comment contains major sources of hazardous air pollutant its obligations under the agreement than copyrighted material, CBI, or other emissions from polyvinyl chloride and Plaintiffs shall file a motion for information whose disclosure is copolymers production facilities (‘‘PVC voluntary dismissal of the complaint restricted by statute. Information Standards’’) as required under section with prejudice. Furthermore, the claimed as CBI and other information 112(e)(1)(E) of the CAA, 42 U.S.C. agreement states that EPA shall whose disclosure is restricted by statute 7412(e)(1)(E). The proposed settlement reimburse Plaintiffs for their litigation is not included in the official public agreement establishes deadlines by costs and attorneys’ fees. docket or in the electronic public which the Administrator must sign the For a period of thirty (30) days docket. EPA’s policy is that copyrighted proposed and final rules for PVC following the date of publication of this material, including copyrighted material Standards. notice, the Agency will receive written contained in a public comment, will not DATES: Written comments on the comments relating to the proposed be placed in EPA’s electronic public proposed settlement agreement must be settlement agreement. EPA or the docket but will be available only in received by December 16, 2009. Department of Justice may withdraw or printed, paper form in the official public docket. Although not all docket ADDRESSES: Submit your comments, withhold consent to the proposed materials may be available identified by Docket ID number EPA– settlement agreement if the comments electronically, you may still access any HQ–OGC–2009–0848, online at http:// disclose facts or considerations that of the publicly available docket www.regulations.gov (EPA’s preferred indicate that such consent is inappropriate, improper, inadequate, or materials through the EPA Docket method); by e-mail to Center. [email protected]; by mail to EPA inconsistent with the requirements of Docket Center, Environmental the Act. Unless EPA or the Department B. How and to Whom Do I Submit Protection Agency, Mailcode: 2822T, of Justice determines, based on any Comments? comment which may be submitted, that 1200 Pennsylvania Ave., NW., You may submit comments as consent to the settlement agreement Washington, DC 20460–0001; or by provided in the ADDRESSES section. should be withdrawn, the terms of the hand delivery or courier to EPA Docket Please ensure that your comments are agreement will be affirmed. Center, EPA West, Room 3334, 1301 submitted within the specified comment Constitution Ave., NW., Washington, II. Additional Information About period. Comments received after the DC, between 8:30 a.m. and 4:30 p.m. Commenting on the Proposed close of the comment period will be Monday through Friday, excluding legal Settlement Agreement marked ‘‘late.’’ EPA is not required to holidays. Comments on a disk or CD– consider these late comments. ROM should be formatted in Word or A. How Can I Get a Copy of the If you submit an electronic comment, ASCII file, avoiding the use of special Settlement Agreement? EPA recommends that you include your characters and any form of encryption, Direct your comments to the official name, mailing address, and an e-mail and may be mailed to the mailing public docket for this action under address or other contact information in address above. Docket ID No. EPA–HQ–OGC–2009– the body of your comment and with any FOR FURTHER INFORMATION CONTACT: 0848, which contains a copy of the disk or CD–ROM you submit. This Mark Kataoka, Air and Radiation Law settlement agreement. The official ensures that you can be identified as the Office (2344A), Office of General public docket is available for public submitter of the comment and allows Counsel, U.S. Environmental Protection viewing at the Office of Environmental EPA to contact you in case EPA cannot Agency, 1200 Pennsylvania Ave., NW., Information (OEI) Docket in the EPA read your comment due to technical Washington, DC 20460; telephone: (202) Docket Center, EPA West, Room 3334, difficulties or needs further information 564–5584; fax number (202) 564–5603; 1301 Constitution Ave., NW., on the substance of your comment. Any e-mail address: [email protected]. Washington, DC. The EPA Docket identifying or contact information SUPPLEMENTARY INFORMATION: Center Public Reading Room is open provided in the body of a comment will from 8:30 a.m. to 4:30 p.m., Monday be included as part of the comment that I. Additional Information About the through Friday, excluding legal is placed in the official public docket, Proposed Settlement holidays. The telephone number for the and made available in EPA’s electronic The settlement agreement resolves a Public Reading Room is (202) 566–1744, public docket. If EPA cannot read your lawsuit alleging that EPA failed to and the telephone number for the OEI comment due to technical difficulties promulgate emission standards for Docket is (202) 566–1752. and cannot contact you for clarification, major sources of hazardous air pollutant An electronic version of the public EPA may not be able to consider your emissions from polyvinyl chloride and docket is available through http:// comment. copolymers production facilities (‘‘PVC www.regulations.gov. You may use Use of the http://www.regulations.gov Standards’’) as required under section http://www.regulations.gov to submit or Web site to submit comments to EPA

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electronically is EPA’s preferred method Facility’s normal hours of operation holidays. The Docket Facility telephone for receiving comments. The electronic (8:30 a.m. to 4 p.m., Monday through number is (703) 305–5805. public docket system is an ‘‘anonymous Friday, excluding legal holidays). FOR FURTHER INFORMATION CONTACT: A access’’ system, which means EPA will Special arrangements should be made contact person is listed at the end of not know your identity, e-mail address, for deliveries of boxed information. The each registration application summary or other contact information unless you Docket Facility telephone number is and may be contacted by telephone or provide it in the body of your comment. (703) 305–5805. e-mail. The mailing address for each In contrast to EPA’s electronic public Instructions: Direct your comments to contact person listed is: Registration docket, EPA’s electronic mail (e-mail) docket ID number specified for the Division (7505P), Office of Pesticide system is not an ‘‘anonymous access’’ pesticide of interest as shown in the Programs, Environmental Protection system. If you send an e-mail comment registration application summaries. Agency, 1200 Pennsylvania Ave., NW., directly to the Docket without going EPA’s policy is that all comments Washington, DCD 20460–0001. through http://www.regulations.gov, received will be included in the docket SUPPLEMENTARY INFORMATION: your e-mail address is automatically without change and may be made captured and included as part of the available on-line at http:// I. General Information www.regulations.gov, including any comment that is placed in the official A. Does this Action Apply to Me? public docket, and made available in personal information provided, unless EPA’s electronic public docket. the comment includes information You may be potentially affected by claimed to be Confidential Business this action if you are an agricultural Dated: November 6, 2009. Information (CBI) or other information producer, food manufacturer, or Patricia A. Embrey, whose disclosure is restricted by statute. pesticide manufacturer. Potentially Acting Associate General Counsel. Do not submit information that you affected entities may include, but are [FR Doc. E9–27418 Filed 11–13–09; 8:45 am] consider to be CBI or otherwise not limited to: BILLING CODE 6560–50–P protected through regulations.gov or e- • Crop production (NAICS code mail. The regulations.gov website is an 111). ‘‘anonymous access’’ system, which • Animal production (NAICS code ENVIRONMENTAL PROTECTION means EPA will not know your identity 112). AGENCY or contact information unless you • Food manufacturing (NAICS code [EPA–HQ–OPP–2009–0735; FRL–8797–8] provide it in the body of your comment. 311). If you send an e-mail comment directly • Pesticide manufacturing (NAICS Pesticide Products; Registration to EPA without going through code 32532). Applications regulations.gov, your e-mail address This listing is not intended to be will be automatically captured and exhaustive, but rather provides a guide AGENCY: Environmental Protection included as part of the comment that is for readers regarding entities likely to be Agency (EPA). placed in the docket and made available affected by this action. Other types of ACTION: Notice. on the Internet. If you submit an entities not listed in this unit could also electronic comment, EPA recommends be affected. The North American SUMMARY: This notice announces receipt that you include your name and other Industrial Classification System of applications to register new uses for contact information in the body of your (NAICS) codes have been provided to pesticide products containing currently comment and with any disk or CD-ROM assist you and others in determining registered active ingredients, pursuant you submit. If EPA cannot read your whether this action might apply to to the provisions of section 3(c) of the comment due to technical difficulties certain entities. If you have any Federal Insecticide, Fungicide, and and cannot contact you for clarification, questions regarding the applicability of Rodenticide Act (FIFRA), as amended. EPA may not be able to consider your this action to a particular entity, consult EPA is publishing this notice of such comment. Electronic files should avoid the person listed under FOR FURTHER applications, pursuant to section 3(c)(4) the use of special characters, any form INFORMATION CONTACT. of FIFRA. of encryption, and be free of any defects DATES: Comments must be received on B. What Should I Consider as I Prepare or viruses. My Comments for EPA? or before December 16, 2009. Docket: All documents in the docket ADDRESSES: Submit your comments, are listed in the docket index available 1. Submitting CBI. Do not submit this identified by docket identification (ID) at http://www.regulations.gov. Although information to EPA through number specified in Unit II. of the listed in the index, some information is regulations.gov or e-mail. Clearly mark SUPPLEMENTARY INFORMATION by one of not publicly available, e.g., CBI or other the part or all of the information that the following methods: information whose disclosure is you claim to be CBI. For CBI • Federal eRulemaking Portal: restricted by statute. Certain other information in a disk or CD-ROM that http://www.regulations.gov. Follow the material, such as copyrighted material, you mail to EPA, mark the outside of the on-line instructions for submitting is not placed on the Internet and will be disk or CD-ROM as CBI and then comments. publicly available only in hard copy identify electronically within the disk or • Mail: Office of Pesticide Programs form. Publicly available docket CD-ROM the specific information that is (OPP) Regulatory Public Docket (7502P), materials are available either in the claimed as CBI. In addition to one Environmental Protection Agency, 1200 electronic docket at http:// complete version of the comment that Pennsylvania Ave., NW., Washington, www.regulations.gov, or, if only includes information claimed as CBI, a DC 20460–0001. available in hard copy, at the OPP copy of the comment that does not • Delivery: OPP Regulatory Public Regulatory Public Docket in Rm. S– contain the information claimed as CBI Docket (7502P), Environmental 4400, One Potomac Yard (South Bldg.), must be submitted for inclusion in the Protection Agency, Rm. S–4400, One 2777 S. Crystal Dr., Arlington, VA. The public docket. Information so marked Potomac Yard (South Bldg.), 2777 S. hours of operation of this Docket will not be disclosed except in Crystal Dr., Arlington, VA. Deliveries Facility are from 8:30 a.m. to 4 p.m., accordance with procedures set forth in are only accepted during the Docket Monday through Friday, excluding legal 40 CFR part 2.

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2. Tips for preparing your comments. 5B; turnip greens; carrot; cucumber; Program Land (CRP), and switchgrass When submitting comments, remember okra; bulb onion subgroup 3–07A; and establishment and maintenance. to: green onion subgroup 3–07B. Contact: Contact: Hope Johnson, (703) 305–5410, i. Identify the document by docket ID Kathryn Montague, (703) 305–1243, [email protected]. number and other identifying [email protected] 9. Registration Number/File Symbol: information (subject heading, Federal 3. Registration Number/File Symbol: 46386–2. Docket Number: EPA–HQ– Register date and page number). If you 100–1131. Docket Number: EPA–HQ– OPP–2008–0773. Company name and are commenting in a docket that OPP–2008–0811. Company name and address: Verolit Chemical addresses multiple products, please address: Syngenta Crop Protection, Inc., Manufacturers, Ltd. c/o Makhteshim indicate to which registration number(s) P.O. Box 18300, Greensboro, NC 27419. Agan of North America, Inc., 4515 Falls your comment applies. Active ingredient: Mesotrione. Proposed of Neuse Rd., Suite 300, Raleigh, NC ii. Follow directions. The Agency may Use: Soybean. Contact: James M. Stone, 27609. Active ingredient: Prometryn. ask you to respond to specific questions (703) 305–7391, [email protected]. Proposed Uses: Carrot; celeriac; cilantro; or organize comments by referencing a 4. Registration Number/File Symbol: leaf petioles subgroup 4B; okra; parsley. Code of Federal Regulations (CFR) part 264–660. Docket Number: EPA–HQ– Contact: Mindy Ondish, (703) 605– or section number. OPP–2009–0813. Company name and 0723, [email protected]. iii. Explain why you agree or disagree; address: Bayer CropScience, P.O. Box 10. Registration Number/File Symbol: suggest alternatives and substitute 12014, 2 T.W. Alexander Drive, 59639–RAL. Docket Number: EPA–HQ– language for your requested changes. Research Triangle Park, NC 27709. OPP–2009–0796. Company name and iv. Describe any assumptions and Active ingredient: Glufosinate- address: Valent U.S.A. Corporation, provide any technical information and/ ammonium. Proposed Use: Sweet corn. 1600 Riviera Ave, Suite 200, Walnut or data that you used. Contact: James M. Stone, (703) 305– Creek, CA 94596. Active ingredient: v. If you estimate potential costs or 7391, [email protected]. Bispyribac-sodium. Proposed Uses: burdens, explain how you arrived at 5. Registration Number/File Symbol: Selective management of surface, your estimate in sufficient detail to 279–3189, 279–3149, 279–3220. Docket submersed and emergent aquatic weeds allow for it to be reproduced. Number: EPA–HQ–OPP–2008–0125. in bayous, canals, drainage ditches, vi. Provide specific examples to Company name and address: FMC lakes, marshes, non-irrigation canals, illustrate your concerns and suggest Corporation, 1735 Market Street, ponds, reservoirs and other slow alternatives. Philadelphia, PA 19103. Active moving or quiescent bodies of water. vii. Explain your views as clearly as ingredient: Sulfentrazone. Proposed Contact: Hope Johnson, (703) 305–5410, possible, avoiding the use of profanity Uses: Head and stem brassica subgroup [email protected]. or personal threats. 5A; leafy brassica greens subgroup 5B; 11. Registration Number/File Symbol: viii. Make sure to submit your melon subgroup 9A; fruiting vegetables 59639–2, 59639–83, 59639–132, 59639– comments by the comment period Group 8; okra; succulent pea; flax; 148. Docket Number: EPA–HQ–OPP– deadline identified. strawberry; and tuberous and corm 2009–0307. Company name and vegetables subgroup 1C. Contact: address: Valent U.S.A. Corporation, II. Registration Applications Dianne L. Morgan, (703) 305–6217, 1600 Riviera Ave, Suite 200, Walnut EPA received applications as follows [email protected]. Creek, CA 94596. Active ingredient: to register pesticide products containing 6. Registration Number/File Symbol: Clethodim. Proposed Uses: Caneberry currently registered active ingredients 352–IRO. Docket Number: EPA–HQ– subgroup 13–07A; bushberry subgroup pursuant to the provisions of section OPP–2009–0057. Company name and 13–07B; peach; artichoke, globe. 3(c) of FIFRA, and is publishing this address: E.I du Pont de Nemours and Contact: James M. Stone, (703) 305– notice of such applications pursuant to Company, DuPont Crop Protection, 7391, [email protected]. section 3(c)(4) of FIFRA. Notice of Stine-Haskell Research Center, P.O. Box 12. Registration Number/File Symbol: receipt of these applications does not 30, Newark, DE 19714. Active 59639–97, 59639–99, 59639–119, imply a decision by the Agency on the ingredient: Nicosulfuron. Proposed Use: Docket Number: EPA–HQ–OPP–2008– applications. Established bermudagrass pastures. 0885. Company name and address: 1. Registration Number/File Symbol: Contact: Mindy Ondish, (703) 605– Valent U.S.A. Corporation, 1600 Riviera 100–542, 100–620. Docket Number: 0723, [email protected]. Ave, Suite 200, Walnut Creek, California EPA–HQ–OPP–2008–0773. Company 7. Registration Number/File Symbol: 94596. Active ingredient: Flumioxazin. name and address: Syngenta Crop 352–529, 352–633. Docket Number: Proposed Uses: Cucurbit group 9; leaf Protection, Inc., P.O. Box 18300, EPA–HQ–OPP–2009–0134. Company petioles subgroup 4B; hops. Contact: Greensboro, NC 27419. Active name and address: E.I du Pont de James M. Stone, (703) 305–7391, ingredient: Prometryn. Proposed Uses: Nemours and Company, DuPont Crop [email protected]. Carrot; celeriac; cilantro; leaf petioles Protection, Stine-Haskell Research 13. Registration Number/File Symbol: subgroup 4B; okra; parsley. Contact: Center, P.O. Box 30, Newark, DE 19714. 62719–80, 62719–81, 62719–84. Docket Mindy Ondish, (703) 605–0723, Active ingredient: Thifensulfuron Number: EPA–HQ–OPP–2009–0092. [email protected]. methyl. Proposed Use: Safflower. Company name and address: Dow 2. Registration Number/File Symbol: Contact: Mindy Ondish, (703) 605– AgroSciences, 9330 Zionsville Road, 100–815, 100–816. Docket Number: 0723, [email protected]. Indianapolis, IN 46268–1054. Active EPA–HQ–OPP–2009–0814. Company 8. Registration Number/File Symbol: ingredient: Clopyralid. Proposed Uses: name and address: Syngenta Crop 7969–113. Docket Number: EPA–HQ– Swiss chard; bushberry subgroup 13– Protection, PO Box 18300, Greensboro, OPP–2008–0937. Company name and 07B; Annual strawberry. Contact: James NC 27419. Active ingredient: S- address: BASF Corporation, 26 Davis M. Stone, (703) 305–7391, metolachlor. Proposed Use: Sesame; Drive, P.O. Box 13528, Research [email protected]. melon subgroup 9A; bushberry Triangle Park, NC 27709–3528. Active 14. Registration Number/File Symbol: subgroup 13–07B; lowbush blueberry; ingredient: Quinclorac. Proposed Uses: 63588–12. Docket Number: EPA–HQ– caneberry subgroup 13–07A; sweet Pastures (including pastures grown for OPP–2009–0796. Company name and sorghum; leafy brassica greens subgroup hay), Rangeland, Conservation Reserve address: K-1 Chemical U.S.A., Inc., 11

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Martine Avenue, Suite 970, White apple, and okra. Contact: Erik Kraft, If you anticipate that you will be Plains, NY 10606. Active ingredient: (703) 308–9358, [email protected]. submitting comments, but find it Bispyribac-sodium. Proposed Uses: For 20. Registration Number/File Symbol: difficult to do so within the period of formulation of herbicides for selective 59639–135. Docket Number: EPA-HQ- time allowed by this notice, you should management of surface, submersed and OPP–2009–0013. Company name and advise the contact listed below as soon emergent aquatic weeds in bayous, address: Valent U.S.A. Corporation, as possible. canals, drainage ditches, lakes, marshes, 1600 Riviera Avenue, Suite 200, Walnut ADDRESSES: Direct all PRA comments to non-irrigation canals, ponds, reservoirs Creek, CA 94596. Active ingredient: Nicholas A. Fraser, Office of and other slow moving or quiescent Dinotefuran. Proposed Uses: Turnip Management and Budget (OMB), via fax bodies of water. Contact: Hope Johnson, greens. Contact: Rita Kumar, (703) 308– at (202) 395–5167, or via the Internet at (703) 305–5410, [email protected]. 8291, [email protected]. [email protected] and 15. Registration Number/File Symbol: List of Subjects to Judith B. Herman, Federal 66222–15. Docket Number: EPA–HQ– Communications Commission (FCC). To OPP–2008–0773. Company name and Environmental protection, Pesticides submit your PRA comments by e–mail address: Makhteshim Agan of North and pest. send then to: [email protected]. To view a America, Inc., 4515 Falls of Neuse Rd., Dated: November 4, 2009. copy of this information collection Suite 300, Raleigh, NC 27609. Active Lois Rossi, request (ICR) submitted to OMB: (1) Go ingredient: Prometryn. Proposed Uses: Director, Registration Division, Office of to web page: http://www.reginfo.gov/ Carrot; celeriac; cilantro; leaf petioles Pesticide Programs. public/do/PRAMain, (2) look for the subgroup 4B; okra; parsley. Contact: [FR Doc. E9–27423 Filed 11–13–09; 8:45 am] section of the web page called Mindy Ondish, (703) 605–0723, BILLING CODE 6560–50–S ’’Currently Under Review’’, (3) click on [email protected]. the downward–pointing arrow in the 16. Registration Number/File Symbol: ’’Select Agency’’ box below the 66222–35 (Rimon 10 EC); 11678–57 FEDERAL COMMUNICATIONS ’’Currently Under Review’’ heading, (4) (Rimon Technical). Docket Number: COMMISSION select ’’Federal Communications EPA–HQ–OPP–2009–0273. Company Commission’’ from the list of agencies name and address: Makhteshim-Agan of Notice of Public Information Collection presented in the ’’Select Agency’’ box, North America, Inc., 4515 Falls of Neuse Being Reviewed by the Federal (5) click the ’’Submit’’ button to the Rd., Raleigh, NC 27609. Active Communications Commission Under right of the ’’Select Agency’’ box, and (6) ingredient: Novaluron. Proposed Uses: Delegated Authority, Comments when the FCC list appears, look for the Vegetables, cucurbit; vegetables, Requested title of this ICR (or its OMB Control fruiting; beans (dry); Beans snap, Number, if there is one) and then click succulent; berries, low growing, November 5, 2009. on the ICR. subgroup 13–07G; swiss chard; and SUMMARY: The Federal Communications FOR FURTHER INFORMATION CONTACT: sorghum. Contact: Jennifer Gaines (703) Commission, as part of its continuing Judith B. Herman, OMD, 202–418–0214. 305–5967, [email protected]. effort to reduce paperwork burden For additional information about the 17. Registration Number/File Symbol: invites the general public and other information collection(s) send an e–mail 71512–4;a 71512–6. Docket Number: Federal agencies to take this to [email protected] or contact Judith B. EPA–HQ–OPP–2009–0826. Company opportunity to comment on the Herman, 202–418–0214. following information collection(s), as name and address: ISK Biosciences SUPPLEMENTARY INFORMATION: required by the Paperwork Reduction Corporation, 7470 Auburn Road, Suite OMB Control No: 3060–1129. A, Concord, OH 440077. Active Act of 1995, 44 U.S.C. 3501–3520. An Title: Broadband Speed Test and ingredient: Fosthiazate. Proposed Uses: agency may not conduct or sponsor a Unavailability Registry. Potato and peanut. Contact: Rita Kumar, collection of information unless it Form No.: N/A. (703) 308–8291, [email protected]. displays a currently valid control Type of Review: Extension of a 18. Registration Number/File Symbol: number. No person shall be subject to currently approved collection. 73049–UAT. Docket Number: EPA–HQ– any penalty for failing to comply with Respondents: Individuals or OPP–2009–0262. Company name and a collection of information subject to the households. address: Valent BioSciences Paperwork Reduction Act (PRA) that Number of Respondents: 7,300 Corporation, 870 Technology Way, does not display a valid control number. respondents; 7,300 responses. Libertyville, IL 60048. Active ingredient: Comments are requested concerning (a) Estimated Time Per Response: .017 Clothianidin. Proposed Uses: Poultry whether the proposed collection of hours. houses. Contact: Kable Bo Davis, (703) information is necessary for the proper Frequency of Response: One–time and 306–0415, [email protected]. performance of the functions of the on occasion reporting requirements and 19. Registration Number/File Symbol: Commission, including whether the third party disclosure requirement. 81880–2, 81880–15, 81880–18. Docket information shall have practical utility; Obligation to Respond: Voluntary. Number: EPA–HQ–OPP–2009–0797. (b) the accuracy of the Commission’s Statutory authority is contained in the Company name and address: Gowan burden estimate; (c) ways to enhance Broadband Data Improvement Act of Company, P.O. Box 5569, Yuma, AZ the quality, utility, and clarity of the 2008, Pub. L. No. 110–385 and the 85366–5569. Active ingredient: information collected; and (d) ways to American Reinvestment and Recovery Halosulfuron-methyl. Proposed Uses: minimize the burden of the collection of Act of 2009, Pub. L. No. 111–5. Selective herbicide used for the control information on the respondents, Total Annual Burden: 124 Hours. of weeds including nutsedge in pea and including the use of automated Privacy Act Impact Assessment: Yes. bean, succulent shelled, subgroup 6B; collection techniques or other forms of The FCC is concerned about the pea and bean, dried shelled, except information technology. potential risks and effects of collecting, soybean, subgroup 6C; vegetables, DATES: Persons wishing to comments on maintaining, and disseminating the tuberous and corm, subgroup 1C; this information collection should personally identifiable information (PII) rhubarb; bushberry subgroup 13–07B; submit comments on January 15, 2010. that is being collected as part of the

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Broadband Plan and the Broadband Map received OMB approval for the minimize the burden of the collection of and their related impact studies and emergency request on October 27, 2009. information on the respondents, filing processes. The PII that will be Emergency approvals are valid for six including the use of automated collected are the street address of speed months only. Therefore, the collection techniques or other forms of test and registry participants. Therefore, Commission is seeking an extension of information technology. the Commission intends to do the this collection (no change in reporting DATES: Persons wishing to comments on following: and/or third party disclosure this information collection should 1) create a system of records to cover requirements) in order to obtain the full submit comments on January 15, 2010. the PII that is being collected as part of three year clearance from the OMB. If you anticipate that you will be these information collection The Commission will use the submitting comments, but find it requirements; information collected to help determine difficult to do so within the period of 2) conduct a Privacy Impact the extent of broadband build–out and time allowed by this notice, you should Assessment (PIA) in accordance with availability. The street address level advise the contact listed below as soon OMB Memorandum M–03–22 to collection will provide the Commission as possible. examine and evaluate the protections with additional data to help create an ADDRESSES: Direct all PRA comments to for handling the PII as part of this new accurate National Broadband Map. The Nicholas A. Fraser, Office of information collection; and speed test and quality of service data Management and Budget (OMB), via fax 3) publish the system of records will provide the Commission with an at (202) 395–5167, or via the Internet at notice (SORN) in the Federal Register as additional informational resource to [email protected] and required by 5 U.S.C. 552a(e). consider that will be relevant to the Nature and Extent of Confidentiality: to Judith B. Herman, Federal National Broadband Plan and other No personally identifiable information Communications Commission (FCC). To proceedings. (PII) will be shared outside the FCC. submit your PRA comments by e–mail However, the Commission will retain Federal Communications Commission. send then to: [email protected]. To view a the street address information. As noted Marlene H. Dortch, copy of this information collection in Question 1 of the Supporting Secretary, request (ICR) submitted to OMB: (1) Go Statement, which will be submitted to Office of the Secretary, to web page: http://www.reginfo.gov/ the OMB, the FCC is committed to Office of Managing Director. public/do/PRAMain, (2) look for the protecting the PII that is being collected, [FR Doc. E9–27369 Filed 11–13–09; 8:45 am] section of the web page called ’’Currently Under Review’’, (3) click on stored, maintained, and used as part of BILLING CODE 6712–01–S the Broadband Plan and the Broadband the downward–pointing arrow in the Map and the related impact studies and ’’Select Agency’’ box below the filing processes. The FCC intends to FEDERAL COMMUNICATIONS ’’Currently Under Review’’ heading, (4) create a system of records, to perform a COMMISSION select ’’Federal Communications Privacy Act Impact analysis, and to Commission’’ from the list of agencies publish the System of Records Notice Notice of Public Information Collection presented in the ’’Select Agency’’ box, (SORN) in the Federal Register. Being Reviewed by the Federal (5) click the ’’Submit’’ button to the The information collected through the Communications Commission for right of the ’’Select Agency’’ box, and (6) voluntary Registry and speed tests, with Extension Under Delegated Authority, when the FCC list appears, look for the the exception of any personally Comments Requested title of this ICR (or its OMB Control identifiable information, may be shared Number, if there is one) and then click with public–private partnerships and November 5, 2009. on the ICR. SUMMARY: The Federal Communications with the Telecommunications Program FOR FURTHER INFORMATION CONTACT: Commission, as part of its continuing of the United States Department of Judith B. Herman, OMD, 202–418–0214. effort to reduce paperwork burden Agriculture (USDA) Rural Development For additional information about the invites the general public and other Agency. This sharing regime is information collection(s) send an e–mail Federal agencies to take this described in the Commission’s to [email protected] or contact Judith B. opportunity to comment on the Broadband Data Gathering Order of Herman, 202–418–0214. 2008 (FCC 08–89). following information collection(s), as SUPPLEMENTARY INFORMATION: Need and Uses: The purpose of this required by the Paperwork Reduction collection is to enable citizens to Act of 1995, 44 U.S.C. 3501–3520. An OMB Control No: 3060–1128. voluntarily report the unavailability of agency may not conduct or sponsor a Title: National Broadband Plan broadband service at the household collection of information unless it Survey of Consumers. street address level and to test the speed displays a currently valid control Form No.: N/A. and quality of their broadband service. number. No person shall be subject to Type of Review: Extension of a This collection will provide the any penalty for failing to comply with currently approved collection. Commission with unique data on a collection of information subject to the Respondents: Individuals or household availability of broadband and Paperwork Reduction Act (PRA) that households; business or other for–profit. on relative broadband speeds. does not display a valid control number. Number of Respondents: 5,100 The FCC’s 2008 Broadband Data Comments are requested concerning (a) respondents; 5,100 responses. Gathering Order instructs the whether the proposed collection of Estimated Time Per Response: .33 Commission to ‘‘design and implement information is necessary for the proper hours. a voluntary system that households may performance of the functions of the Frequency of Response: On occasion use to report unavailability and speed of Commission, including whether the reporting requirement. broadband Internet access service at information shall have practical utility; Obligation to Respond: Voluntary. their premises.’’ (b) the accuracy of the Commission’s Statutory authority for this collection of The Commission sought emergency burden estimate; (c) ways to enhance information is contained in the OMB approval for this new collection the quality, utility, and clarity of the Broadband Data Improvement Act of on October 20, 2009. The Commission information collected; and (d) ways to 2008, Pub. L. No. 110–385 and the

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American Reinvestment and Recovery Federal Communications Commission. FEDERAL RESERVE SYSTEM Act of 2009, Pub. L. No. 111–5. Marlene H. Dortch, Total Annual Burden: 1,683 hours. Secretary, Formations of, Acquisitions by, and Office of the Secretary, Mergers of Bank Holding Companies Privacy Act Impact Assessment: No Office of Managing Director. personally identified information will The companies listed in this notice [FR Doc. E9–27370 Filed 11–13–09; 8:45 am] be transmitted to the Commission from have applied to the Board for approval, BILLING CODE 6712–01–S the survey contractor as a matter of pursuant to the Bank Holding Company vendor policy. Act of 1956 (12 U.S.C. 1841 et seq.) Nature and Extent of Confidentiality: (BHC Act), Regulation Y (12 CFR Part There is no need for confidentiality. FEDERAL RESERVE SYSTEM 225), and all other applicable statutes and regulations to become a bank Need and Uses: The Broadband Data Change in Bank Control Notices; Improvement Act of 2008, Pub. L. No. holding company and/or to acquire the Acquisition of Shares of Bank or Bank assets or the ownership of, control of, or 110–385, Stat 4096 § 103(c)(1) directs Holding Companies the Commission to collect the the power to vote shares of a bank or information on the types of technology The notificants listed below have bank holding company and all of the used to provide broadband to applied under the Change in Bank banks and nonbanking companies consumers, the price of such services, Control Act (12 U.S.C. 1817(j)) and owned by the bank holding company, actual data transmission speeds, and the § 225.41 of the Board’s Regulation Y (12 including the companies listed below. reasons for non–adoption of broadband CFR 225.41) to acquire a bank or bank The applications listed below, as well service. holding company. The factors that are as other related filings required by the considered in acting on the notices are Board, are available for immediate The Commission requested set forth in paragraph 7 of the Act (12 emergency OMB approval in October for inspection at the Federal Reserve Bank U.S.C. 1817(j)(7)). indicated. The applications also will be this new information collection. The The notices are available for Commission received OMB approval on available for inspection at the offices of immediate inspection at the Federal the Board of Governors. Interested October 19, 2009. The Commission is Reserve Bank indicated. The notices persons may express their views in now requesting an extension (no change also will be available for inspection at writing on the standards enumerated in in the reporting requirement) in order to the office of the Board of Governors. the BHC Act (12 U.S.C. 1842(c)). If the obtain the full three year clearance from Interested persons may express their the OMB. views in writing to the Reserve Bank proposal also involves the acquisition of indicated for that notice or to the offices a nonbanking company, the review also This collection of information will be includes whether the acquisition of the accomplished through a national of the Board of Governors. Comments must be received not later than nonbanking company complies with the telephone survey of 5,000 consumers standards in section 4 of the BHC Act and face–to–face workshops with November 27, 2009. A. Federal Reserve Bank of (12 U.S.C. 1843). Unless otherwise approximately 100 individuals noted, nonbanking activities will be throughout the United States. Consistent Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 conducted throughout the United States. with one of the key reasons for this Hennepin Avenue, Minneapolis, Additional information on all bank information collection, workshop Minnesota 55480–0291: holding companies may be obtained participants will be non–adopters of 1. Gary R. Howell, Malta, Montana; to from the National Information Center broadband. The reason for holding these acquire voting shares of Milk River website at www.ffiec.gov/nic/. workshops is to elicit more in–depth Banquo, Inc., and thereby indirectly Unless otherwise noted, comments responses from individuals to the acquire voting shares of Malta Banquo, questions being asked of non–adopters regarding each of these applications Inc., and First Security Bank of Malta, must be received at the Reserve Bank in the telephone survey. The workshops all of Malta, Montana, and Valley Bank indicated or the offices of the Board of will add a narrative dimension to the of Glasgow, Glasgow, Montana. Governors not later than December 8, reasons for non–adoption to the B. Federal Reserve Bank of Kansas 2009. statistical information being collected in City (Todd Offenbacker, Assistant Vice the telephone survey. President) 1 Memorial Drive, Kansas A. Federal Reserve Bank of Cleveland The Commission’s Office of Strategic City, Missouri 64198–0001: (Nadine Wallman, Vice President) 1455 Planning (OSP) will use the information 1. The William R. Oliver GST Exempt East Sixth Street, Cleveland, Ohio collected under this survey to help Trust, the Jackson T. Oliver GST Exempt 44101–2566: determine the extent of broadband Trust, and Thomas M. Annesley, 1. The St. Henry Bancorp, Inc., St. Internet adoption, and use the data to Norman, Oklahoma, as trustee of the Henry, Ohio; to become a bank holding inform policy recommendations under William R. Oliver GST Exempt Trust company by acquiring 100 percent of and the Jackson T. Oliver GST Exempt the National Broadband Plan. the voting shares of The St. Henry Bank, Trust; to retain control of Valliance Information on consumers without St. Henry, Ohio. Financial Corp, and thereby indirectly broadband Internet at home will be used retain control of Valliance Bank, both in Board of Governors of the Federal Reserve to carefully identify the nature and Oklahoma City, Oklahoma. System, November 9, 2009. extent of the problem and used to Robert deV. Frierson, develop policy recommendations Board of Governors of the Federal Reserve System, November 9, 2009. Deputy Secretary of the Board. through the National Broadband Plan [FR Doc. E9–27356 Filed 11–13–09; 8:45 am] which is due to congress by February Robert deV. Frierson, 17, 2010. Deputy Secretary of the Board. BILLING CODE 6210–01–S [FR Doc. E9–27357 Filed 11–13–09; 8:45 am] BILLING CODE 6210–01–S

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FEDERAL MARITIME COMMISSION CONTACT PERSON FOR MORE INFORMATION: Information Collection: This project Karen V. Gregory, Secretary, (202) 523– involves annual follow-up by telephone Meetings; Sunshine Act 5725. of participants in the ARIC study, review of their medical records, and TIME AND DATE: November 19, 2009—10 Karen V. Gregory, interviews with doctors and family to a.m. Secretary. identify disease occurrence. PLACE: 800 North Capitol Street, NW., [FR Doc. E9–27602 Filed 11–12–09; 4:15 pm] Interviewers will contact doctors and First Floor Hearing Room, Washington, BILLING CODE 6730–01–P DC. hospitals to ascertain participants’ cardiovascular events. Information STATUS: A portion of the meeting will be in Open Session and the remainder of gathered will be used to further describe DEPARTMENT OF HEALTH AND the risk factors, occurrence rates, and the meeting will be in Closed Session. HUMAN SERVICES consequences of cardiovascular disease MATTERS TO BE CONSIDERED: National Institutes of Health in middle aged and older men and Open Session women. Frequency of Response: The 1. Docket No. 09–02: Notice of Proposed Collection; Comment participants will be contacted annually. Proposed Rulemaking—Repeal of Request; The Atherosclerosis Risk in Affected Public: Individuals or Marine Terminal Agreement Exemption. Communities Study (ARIC) households; Businesses or other for 2. Discussion of Notice of Inquiry profit; Small businesses or SUMMARY: In compliance with the Concerning Ocean Transportation organizations. Type of Respondents: requirement of Section 3506(c)(2)(A) of Intermediary Agents. Individuals or households; doctors and 3. FY 2010 Budget Status Update. the Paperwork Reduction Act of 1995, for opportunity for public comment on staff of hospitals and nursing homes. Closed Session proposed data collection projects, the The annual reporting burden is as follows: Estimated Number of 1. Section 15 Order on Competition, National Heart, Lung, and Blood Respondents: 11,992; Estimated Number Rates and Services in the U.S.— Institute (NHLBI), the National of Responses per Respondent: 1.0; Australia/New Zealand Northbound and Institutes of Health (NIH) will publish Southbound Trades. periodic summaries of proposed Average Burden Hours Per Response: 2. Passenger Vessel Operator projects to be submitted to the Office of 0.2399; and Estimated Total Annual Regulatory Initiatives. Management and Budget (OMB) for Burden Hours Requested: 2,877.4. The 3. Docket No. 07–02: Anderson review and approval. annualized cost to respondents is International Transport and Owen Proposed Collection: Title: The estimated at $54,583, assuming Anderson Possible Violations of Atherosclerosis Risk in Communities respondents’ time at the rate of $17.0 Sections 8(a) and 10 of the Shipping Act Study (ARIC). Type of Information per hour and physician time at the rate of 1984—Petition to Reopen Proceeding Collection Request: Revision of a of $75 per hour. There are no Capital and Remand Proceeding to currently approved collection (OMB No. Costs to report. There are no Operating Administrative Law Judge. 0925–0281). Need and Use of or Maintenance Costs to report.

ESTIMATE OF ANNUAL HOUR BURDEN [2010–2013]

Number of Frequency of Average hours Annual burden Type of response respondents response per response hours

Participant Follow-up ...... 10,735 1.0 0.2500 2,683.8 Physician (or coroner) (for CHD) 1 ...... 491 1.0 0.1667 81.8 Physician (for heart failure) 1 ...... 190 1.0 0.0833 15.8 Participant’s next-of-kin 1 ...... 575 1.0 0.1667 95.9

Total ...... 11,992 1.0 0.2399 2,877.4 1 Annual burden is placed on doctors, hospitals, and respondent relatives/informants through requests for information which will help in the compilation of the number and nature of new fatal and nonfatal events.

Request for Comments: Written Ways to minimize the burden of the request, including your address to: comments and/or suggestions from the collection of information on those who [email protected]. public and affected agencies are invited are to respond, including the use of Comments Due Date: Comments on one or more of the following points: appropriate automated, electronic, regarding this information collection are mechanical, or other technological (1) Whether the proposed collection of best assured of having their full effect if collection techniques or other forms of information is necessary for the proper received within 60 days of the date of performance of the function of the information technology. this publication. agency, including whether the FOR FURTHER INFORMATION CONTACT: To information will have practical utility; request more information on the (2) The accuracy of the agency’s proposed project or to obtain a copy of estimate of the burden of the proposed the data collection plans and collection of information, including the instruments, contact Dr. Hanyu Ni, validity of the methodology and Project Officer, NIH, NHLBI, 6701 assumptions used; (3) Ways to enhance Rockledge Drive, MSC 7934, Bethesda, the quality, utility, and clarity of the MD 20892–7934, or call non-toll-free information to be collected; and (4) number (301) 435–0448 or e-mail your

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Dated: October 29, 2009. DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND Michael Lauer, HUMAN SERVICES HUMAN SERVICES Director, Division of Cardiovascular Sciences, National Institutes of Health. National Institutes of Health National Institutes of Health Dated: November 4, 2009. National Institute of Neurological Center for Scientific Review; Notice of Suzanne Freeman, Disorders and Stroke; Notice of Closed Closed Meetings Chief, FOIA, NHLBI, National Institutes of Meetings Health. Pursuant to section 10(d) of the [FR Doc. E9–27439 Filed 11–13–09; 8:45 am] Pursuant to section 10(d) of the Federal Advisory Committee Act, as BILLING CODE 4140–01–P Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is amended (5 U.S.C. App.), notice is hereby given of the following meetings. hereby given of the following meetings. The meetings will be closed to the DEPARTMENT OF HEALTH AND The meetings will be closed to the public in accordance with the HUMAN SERVICES public in accordance with the provisions set forth in sections provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and as amended. The grant applications and the discussions could disclose Center for Scientific Review; Notice of the discussions could disclose confidential trade secrets or commercial Closed Meeting confidential trade secrets or commercial property such as patentable material, property such as patentable material, and personal information concerning Pursuant to section 10(d) of the and personal information concerning individuals associated with the grant Federal Advisory Committee Act, as individuals associated with the grant applications, the disclosure of which amended (5 U.S.C. App.), notice is applications, the disclosure of which would constitute a clearly unwarranted hereby given of the following meeting. would constitute a clearly unwarranted invasion of personal privacy. The meeting will be closed to the invasion of personal privacy. Name of Committee: Center for Scientific public in accordance with the Name of Committee: National Institute of Review Special Emphasis Panel; AMCB and provisions set forth in sections Neurological Disorders and Stroke; Special ACE Member Conflicts. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Emphasis Panel Stroke Clinical Trial. Date: December 2, 2009. as amended. The grant applications and Date: December 2, 2009. Time: 10 a.m. to 12 p.m. Time: 2 p.m. to 4 p.m. the discussions could disclose Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. confidential trade secrets or commercial applications. property such as patentable material, Place: National Institutes of Health, 6701 Place: National Institutes of Health, Rockledge Drive, Bethesda, MD 20892 and personal information concerning Neuroscience Center, 6001 Executive (Telephone Conference Call). individuals associated with the grant Boulevard, Rockville, MD 20852, (Telephone Contact Person: Eduardo A. Montalvo, applications, the disclosure of which Conference Call) PhD, Scientific Review Officer, Center for would constitute a clearly unwarranted Contact Person: Richard D. Crosland, PhD, Scientific Review, National Institutes of invasion of personal privacy. Scientific Review Administrator, Scientific Health, 6701 Rockledge Drive, Room 5108, Review Branch, Division of Extramural MSC 7852, Bethesda, MD 20892, (301) 435– Name of Committee: Center for Scientific Research, NINDS/NIH/DHHS/Neuroscience 1168, [email protected]. Review Special Emphasis Panel; NAED Center, 6001 Executive Blvd., Suite 3208, Member Conflicts. MSC 9529, Bethesda, MD 20892–9529, 301– Name of Committee: Center for Scientific Date: November 18, 2009. 594–0635, [email protected]. Review Special Emphasis Panel; ACE Member Conflicts. Time: 12 p.m. to 2:30 p.m. Name of Committee: National Institute of Agenda: To review and evaluate grant Date: December 2, 2009. Neurological Disorders and Stroke; Special Time: 2 p.m. to 4 p.m. applications. Emphasis Panel Resident Research RFA. Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant Date: December 11, 2009. applications. Rockledge Drive, Bethesda, MD 20892 Time: 8 a.m. to 5 p.m. (Telephone Conference Call). Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant Rockledge Drive, Bethesda, MD 20892 Contact Person: Eduardo A. Montalvo, applications. (Virtual Meeting). PhD, Scientific Review Officer, Center for Place: The Fairmont Washington, DC, 2401 Contact Person: Eduardo A. Montalvo, Scientific Review, National Institutes of M Street, NW., Washington, DC 20037. PhD, Scientific Review Officer, Center for Health, 6701 Rockledge Drive, Room 5108, Contact Person: Raul A. Saavedra, PhD, Scientific Review, National Institutes of MSC 7852, Bethesda, MD 20892, (301) 435– Scientific Review Administrator, Scientific Health, 6701 Rockledge Drive, Room 5108, 1168, [email protected]. Review Branch, Division of Extramural MSC 7852, Bethesda, MD 20892, (301) 435– This notice is being published less than 15 Research, NINDS/NIH/DHHS, NSC; 6001 1168, [email protected]. days prior to the meeting due to the timing Executive Blvd., Ste. 3208, Bethesda, MD limitations imposed by the review and 20892–9529, 301–496–9223, Name of Committee: Center for Scientific funding cycle. [email protected]. Review Special Emphasis Panel; RFA–OD– 09–007: ARRA AREA Grants Panel 01. (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance Date: December 10, 2009. Program Nos. 93.306, Comparative Medicine; Program Nos. 93.853, Clinical Research Time: 8 a.m. to 5 p.m. 93.333, Clinical Research, 93.306, 93.333, Related to Neurological Disorders; 93.854, Agenda: To review and evaluate grant 93.337, 93.393–93.396, 93.837–93.844, Biological Basis Research in the applications. 93.846–93.878, 93.892, 93.893, National Neurosciences, National Institutes of Health, Place: Renaissance Mayflower Hotel, 1127 Institutes of Health, HHS) HHS) Connecticut Avenue, NW., Washington, DC Dated: November 9, 2009. Dated: November 9, 2009. 20036. Anna Snouffer, Anna Snouffer, Contact Person: George W. Chacko, PhD, Scientific Review Officer, Center for Deputy Director, Office of Federal Advisory Deputy Director, Office of Federal Advisory Scientific Review, National Institutes of Committee Policy. Committee Policy. Health, 6701 Rockledge Drive, Room 5170, [FR Doc. E9–27456 Filed 11–13–09; 8:45 am] [FR Doc. E9–27458 Filed 11–13–09; 8:45 am] MSC 7849, Bethesda, MD 20892, 301–435– BILLING CODE 4140–01–P BILLING CODE 4140–01–P 1245, [email protected].

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(Catalogue of Federal Domestic Assistance Name of Committee: Center for Scientific 2009, 3 p.m. to November 11, 2009, 5 Program Nos. 93.306, Comparative Medicine; Review Special Emphasis Panel; p.m., National Institutes of Health, 93.333, Clinical Research, 93.306, 93.333, Fellowships: Pre-doctoral Diversity. Neuroscience Center, 6001 Executive 93.337, 93.393–93.396, 93.837–93.844, Date: December 1, 2009. Boulevard, Rockville, MD 20852 which 93.846–93.878, 93.892, 93.893, National Time: 8 a.m. to 5 p.m. Institutes of Health, HHS) Agenda: To review and evaluate grant was published in the Federal Register applications. on October 2, 2009, 74 FR 50975. Dated: November 9, 2009. Place: Doubletree Hotel Bethesda, 8120 The meeting will be held on Anna Snouffer, Wisconsin Avenue, Bethesda, MD 20814. November 30, 2009. The time and the Deputy Director, Office of Federal Advisory Contact Person: Alexander Gubin, PhD, location of the meeting remains the Committee Policy. Scientific Review Officer, Center for same. The meeting is closed to the [FR Doc. E9–27434 Filed 11–13–09; 8:45 am] Scientific Review, National Institutes of public. Health, 6701 Rockledge Drive, Room 4196, BILLING CODE 4140–01–P MSC 7812, Bethesda, MD 20892, 301–435– Dated: November 6, 2009. 2902, [email protected]. Jennifer Spaeth, DEPARTMENT OF HEALTH AND Name of Committee: Center for Scientific Director, Office of Federal Advisory HUMAN SERVICES Review Special Emphasis Panel; Shared Committee Policy. Instrumentation: Proteomics. [FR Doc. E9–27437 Filed 11–13–09; 8:45 am] Date: December 2–3, 2009. National Institutes of Health BILLING CODE 4140–01–P Time: 8 a.m. to 7 p.m. Center for Scientific Review; Amended Agenda: To review and evaluate grant applications. Notice of Meeting Place: National Institutes of Health, 6701 DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given of a change in Rockledge Drive, Bethesda, MD 20892 the meeting of the Center for Scientific (Virtual Meeting). Contact Person: Alessandra M. Bini, PhD, National Institutes of Health Review Special Emphasis Panel, Scientific Review Officer, Center for November 19, 2009, 6 p.m. to November Scientific Review, National Institutes of National Cancer Institute; Notice of 19, 2009, 10 p.m., Beacon Hotel and Health, 6701 Rockledge Drive, Room 5142, Meeting Corporate Quarters, 1615 Rhode Island MSC 7840, Bethesda, MD 20892, 301–435– Pursuant to section 10(a) of the Avenue, NW., Washington, DC, 20036 1024, [email protected]. Federal Advisory Committee Act, as which was published in the Federal Name of Committee: Center for Scientific amended (5 U.S.C. App.), notice is Register on November 3, 2009, 74 FR Review Special Emphasis Panel; Diabetes, hereby given of a meeting of the 56855. Obesity, and Endocrinology. The meeting time has been changed to Date: December 8–9, 2009. President’s Cancer Panel. The meeting will be open to the 8:30 a.m. to 5:30 p.m. on November 19, Time: 8 a.m. to 6 p.m. public, with attendance limited to space 2009. The meeting date and location Agenda: To review and evaluate grant applications. available. Individuals who plan to remain the same. The meeting is closed Place: National Institutes of Health, 6701 attend and need special assistance, such to the public. Rockledge Drive, Bethesda, MD 20892 as sign language interpretation or other Dated: November 5, 2009. (Virtual Meeting). reasonable accommodations, should Jennifer Spaeth, Contact Person: Ann A. Jerkins, PhD, Scientific Review Officer, Center for notify the Contact Person listed below Director, Office of Federal Advisory Scientific Review, National Institutes of in advance of the meeting. Committee Policy. Health, 6701 Rockledge Drive, Room 6154, Name of Committee: President’s Cancer [FR Doc. E9–27436 Filed 11–13–09; 8:45 am] MSC 7892, Bethesda, MD 20892, 301–435– Panel. BILLING CODE 4140–01–P 4514, [email protected]. Date: December 9, 2009. (Catalogue of Federal Domestic Assistance Time: 8 a.m. to 2:35 p.m. Program Nos. 93.306, Comparative Medicine; Agenda: America’s Demographic and DEPARTMENT OF HEALTH AND 93.333, Clinical Research, 93.306, 93.333, Cultural Transformation: Implications for the HUMAN SERVICES 93.337, 93.393–93.396, 93.837–93.844, Cancer Enterprise 93.846–93.878, 93.892, 93.893, National Place: DoubleTree Wilmington, 700 N. National Institutes of Health Institutes of Health, HHS) King Street, Wilmington, DE 19801. Contact Person: Abby B. Sandler, PhD, Dated: November 6, 2009. Center for Scientific Review; Notice of Executive Secretary, Chief, Institute Review Jennifer Spaeth, Office, Office of the Director, 6116 Executive Closed Meetings Director, Office of Federal Advisory Blvd., Suite 220, MSC 8349, National Cancer Pursuant to section 10(d) of the Committee Policy. Institute, NIH, Bethesda, MD 20892–8349, Federal Advisory Committee Act, as [FR Doc. E9–27438 Filed 11–13–09; 8:45 am] (301) 451–9399, [email protected]. Any interested person may file written amended (5 U.S.C. App.), notice is BILLING CODE 4140–01–P comments with the committee by forwarding hereby given of the following meetings. the statement to the Contact Person listed on The meetings will be closed to the this notice. The statement should include the public in accordance with the DEPARTMENT OF HEALTH AND name, address, telephone number and when provisions set forth in sections HUMAN SERVICES applicable, the business or professional 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., affiliation of the interested person. as amended. The grant applications and National Institutes of Health Information is also available on the Institute’s/Center’s home page: the discussions could disclose National Institute of Neurological confidential trade secrets or commercial deainfo.nci.nih.gov/advisory/pcp/pcp.htm, Disorders and Stroke; Amended Notice where an agenda and any additional property such as patentable material, of Meeting information for the meeting will be posted and personal information concerning when available. individuals associated with the grant Notice is hereby given of a change in (Catalogue of Federal Domestic Assistance applications, the disclosure of which the meeting of the National Institute of Program Nos. 93.392, Cancer Construction; would constitute a clearly unwarranted Neurological Disorders and Stroke 93.393, Cancer Cause and Prevention invasion of personal privacy. Special Emphasis Panel, November 11, Research; 93.394, Cancer Detection and

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Diagnosis Research; 93.395, Cancer Time: December 1, 2009, 9 a.m. to 5:30 in the public interest to attempt to list these Treatment Research; 93.396, Cancer Biology p.m.; December 2, 2009, 8:30 a.m. to 4:15 programs. Such a list would likely require Research; 93.397, Cancer Centers Support; p.m. several additional pages. In addition, NIH 93.398, Cancer Research Manpower; 93.399, Agenda: The Recombinant DNA Advisory could not be certain that every Federal Cancer Control, National Institutes of Health, Committee will review and discuss selected program would be included as many Federal HHS) human gene transfer protocols as well as agencies, as well as private organizations, both national and international, have elected Dated: November 9, 2009. related data management activities. Protocols to be reviewed include a protocol for Leber to follow the NIH Guidelines. In lieu of the Jennifer Spaeth, congenital amaurosis using an AAV vector, a individual program listing, NIH invites Director, Office of Federal Advisory protocol for adenosine deaminase severe readers to direct questions to the information Committee Policy. combined immunodeficiency disease (ADA address above about whether individual [FR Doc. E9–27435 Filed 11–13–09; 8:45 am] SCID) using a lentiviral vector and a protocol programs listed in the Catalog of Federal Domestic Assistance are affected. BILLING CODE 4140–01–P for alpha 1 antitrypsin deficiency using an AAV vector. Additional discussions include (Catalogue of Federal Domestic Assistance an update on a trial that used a lentiviral Program Nos. 93.14, Intramural Research DEPARTMENT OF HEALTH AND vector for beta-thalassemia and sickle cell Training Award; 93.22, Clinical Research disease and a discussion of proposed final Loan Repayment Program for Individuals HUMAN SERVICES changes to the NIH Guidelines for Research from Disadvantaged Backgrounds; 93.232, Involving Recombinant DNA to address Loan Repayment Program for Research National Institutes of Health synthetic nucleic acids. Finally, an Generally; 93.39, Academic Research experiment involving the introduction of Enhancement Award; 93.936, NIH Acquired Center for Scientific Review; Amended tetracycline resistance into non-ocular strains Immunodeficiency Syndrome Research Loan Notice of Meeting of Chlamydia trachomatis will be discussed Repayment Program; 93.187, Undergraduate Notice is hereby given of a change in as required under Section III–A–1 of the NIH Scholarship Program for Individuals from Guidelines for Research Involving Disadvantaged Backgrounds, National the meeting of the Center for Scientific Recombinant DNA Molecules. Further Institutes of Health, HHS) Review Special Emphasis Panel, information on this research can be found in Dated: November 9, 2009. December 4, 2009, 8 a.m. to December the October 28, 2009 Federal Register (74 FR Anna Snouffer, 4, 2009, 7 p.m., Hyatt Regency Bethesda, 55568). An agenda for the meeting will be One Bethesda Metro Center, 7400 available on the OBA Web site (http:// Deputy Director, Office of Federal Advisory Wisconsin Avenue, Bethesda, MD, oba.od.nih.gov/rdna_rac/rac_meetings.html). Committee Policy. 20814 which was published in the Place: National Institutes of Health, [FR Doc. E9–27485 Filed 11–13–09; 8:45 am] Federal Register on November 2, 2009, Natcher Building, 45 Center Drive, Bethesda, BILLING CODE 4140–01–P 74 FR 56652–56653. MD 20892. The meeting will be held at The Contact Person: Laurie Lewallen, Advisory Committee Coordinator, Office of Renaissance M Street Hotel, 1143 New DEPARTMENT OF HEALTH AND Biotechnology Activities, National Institutes HUMAN SERVICES Hampshire Avenue, NW., Washington, of Health, 6705 Rockledge Drive, Room 750, DC 20037. The meeting date and time Bethesda, MD 20892–7985, 301–496–9839, Centers for Disease Control and remain the same. The meeting is closed [email protected]. Prevention to the public. Any interested person may file written comments with the committee by forwarding Dated: November 9, 2009. Request for Information on Source the statement to the Contact Person listed on Capture Ventilation Systems (SCVS) Anna Snouffer, this notice. The statement should include the Deputy Director, Office of Federal Advisory name, address, telephone number and when Units for Use in Nail Salons, Including Committee Policy. applicable, the business or professional Downdraft Vented Nail Tables and [FR Doc. E9–27433 Filed 11–13–09; 8:45 am] affiliation of the interested person. Portable SCVS In the interest of security, NIH has BILLING CODE 4140–01–P AGENCY: National Institute for instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, Occupational Safety and Health including taxicabs, hotel, and airport shuttles (NIOSH) of the Centers for Disease DEPARTMENT OF HEALTH AND Control and Prevention (CDC), HUMAN SERVICES will be inspected before being allowed on campus. Visitors will be asked to show one Department of Health and Human National Institutes of Health form of identification (for example, a Services (HHS). government-issued photo ID, driver’s license, ACTION: Request for information. Office of the Director, National or passport) and to state the purpose of their visit. SUMMARY: Institutes of Health; Notice of Meeting The National Institute for Information is also available on the Occupational Safety and Health Pursuant to section 10(a) of the Institute’s/Center’s home page: http:// (NIOSH) of the Centers for Disease Federal Advisory Committee Act, as oba.od.nih.gov/rdna/rdna.html, where an Control and Prevention (CDC) is agenda and any additional information for amended (5 U.S.C. App.), notice is the meeting will be posted when available. conducting an evaluation of source hereby given of a meeting of the OMB’s ‘‘Mandatory Information capture ventilation systems (SCVS) Recombinant DNA Advisory Committee. Requirements for Federal Assistance Program units for use in nail salons, including The meeting will be open to the Announcements’’ (45 FR 39592, June 11, downdraft vented nail tables and public, with attendance limited to space 1980) requires a statement concerning the portable SCVS. This notice invites available. Individuals who plan to official government programs contained in developers, manufacturers, distributors, attend and need special assistance, such the Catalog of Federal Domestic Assistance. and vendors of downdraft vented nail as sign language interpretation or other Normally NIH lists in its announcements the tables and portable nail salon SCVS that reasonable accommodations, should number and title of affected individual feature local exhaust recirculation to notify the Contact Person listed below programs for the guidance of the public. Because the guidance in this notice covers submit new, unused units for in advance of the meeting. virtually every NIH and Federal research evaluation. A supply of filters sufficient Name of Committee: Recombinant DNA program in which DNA recombinant to provide ventilation during 6 months Advisory Committee. molecule techniques could be used, it has of daily operation (as recommended by Date: December 1–2, 2009. been determined not to be cost effective or the developer or manufacturer), should

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be submitted to the NIOSH laboratory in the responsibility of the submitter. any time. All submissions must include Cincinnati, OH, together with the table NIOSH reserves the right to decide the Docket Number (DHS–2009–0135) or portable SCVS. which submissions will be evaluated and may be submitted by any one of the Operational characteristics and based on compliance with the following methods: effectiveness in reducing levels of a specifications described above. NIOSH • Federal eRulemaking Portal: http:// source point tracer gas at standard also reserves the right not to proceed in www.regulations.gov. Follow the distances from the vent will be this manner. instructions for submitting comments. • evaluated. Evaluation parameters for the Note: As a government entity, we cannot E-mail: [email protected]. units will include, but are not limited endorse any specific product directly, Include the Docket Number (DHS– to: Airflow and capture characteristics, indirectly, or by implication. NIOSH will not 2009–0135) in the subject line of the and noise level. A separate evaluation of be responsible for any costs related to usage, message. filters when new and at intervals of use wear and tear or accidental damage to the • Fax: (703) 483–2999. will also be conducted. Manufacturers, downdraft table or portable SCVS units • Mail: Martha K. Landesberg, distributors, vendors and developers during transport or while they are at NIOSH. Executive Director, Data Privacy and who wish to submit units with filters for Used filters will not be returned or replaced Integrity Advisory Committee, evaluation are invited to respond to this by NIOSH. Department of Homeland Security, announcement. A report on each unit FOR FURTHER INFORMATION CONTACT: Washington, DC 20528. submitted for evaluation, including Susan Reutman, NIOSH, Robert A. Taft Instructions: All submissions must feedback on the evaluation parameters Laboratories, MS–C23, 4676 Columbia include the words ‘‘Department of and staff recommendations, will be sent Parkway, Cincinnati, OH 45226, Homeland Security Data Privacy and to the submitter. Results of the telephone (513) 533–8286. Integrity Advisory Committee’’ and the evaluation will potentially be used to Docket Number (DHS–2009–0135). Dated: November 6, 2009. develop educational materials for nail Comments will be posted without technicians and may also be John Howard, alteration at http://www.regulations.gov, disseminated through reports, Director, National Institute for Occupational including any personal information publications, presentations, or other Safety and Health, Centers for Disease Control provided. and Prevention. media. NIOSH does not intend to Docket: For access to the docket to identify manufacturers in its [FR Doc. E9–27387 Filed 11–13–09; 8:45 am] read background documents or publications, but testing information BILLING CODE 4163–19–P comments received by the DHS Data referencing particular manufacturers Privacy and Integrity Advisory would be releasable if requested under Committee, go to http:// the Freedom of Information Act. DEPARTMENT OF HOMELAND www.regulations.gov. SECURITY DATES: The deadline for receipt of FOR FURTHER INFORMATION CONTACT: downdraft vented nail table and Office of the Secretary Martha K. Landesberg, Executive portable SCVS unit (with filters) Director, DHS Data Privacy and Integrity submissions at NIOSH is February 28, [Docket No. DHS–2009–0135] Advisory Committee, Department of 2010. A written description of the units Homeland Security, Washington, DC DHS Data Privacy and Integrity must be submitted prior to table 20528, by telephone (703) 235–0780, by Advisory Committee shipment (see SUPPLEMENTARY fax (703) 235–0442, or by e-mail to INFORMATION below). Evaluations will AGENCY: Privacy Office, DHS. [email protected]. begin subject to the dates submissions ACTION: Notice of Federal Advisory SUPPLEMENTARY INFORMATION: Notice of are received. The SCVS will be retained Committee meeting. this meeting is given under the Federal for up to 10 months while being Advisory Committee Act (FACA), 5 evaluated, after which they will be SUMMARY: The DHS Data Privacy and U.S.C. App. (Pub. L. 92–463). During the returned. Integrity Advisory Committee will meet meeting, the Chief Privacy Officer will on December 3, 2009, in Washington, ADDRESSES: Manufacturers, distributors, provide the DHS Data Privacy and DC. The meeting will be open to the vendors, and developers who wish to Integrity Advisory Committee an update public. submit downdraft vented nail table or on the activities of the DHS Privacy portable SCVS units with filters for DATES: The DHS Data Privacy and Office. The Committee will also hear evaluation are invited to respond to this Integrity Advisory Committee will meet reports on the DHS Privacy Office’s notice by sending a written reply to on Thursday, December 3, 2009, from Electronic Complaint Tracking System Susan Reutman, NIOSH, Robert A. Taft 8:30 a.m. to 2 p.m. Please note that the and on other matters related to DHS Laboratories, MS–C23, 4676 Columbia meeting may end early if the Committee redress programs generally. In addition, Parkway, Cincinnati, OH 45226 or e- has completed its business. the Committee’s subcommittees will mail [email protected]. ADDRESSES: The meeting will be held at discuss their ongoing work. The agenda SUPPLEMENTARY INFORMATION: Please 490 L’Enfant Plaza, SW., (L’Enfant Plaza will be posted in advance of the meeting respond to Susan Reutman regarding East, Suite 3207) Washington, DC. on the Committee’s Web site at http:// intent to submit a unit and the written Written materials, requests to make oral www.dhs.gov/privacy. Please note that unit description, including the presentations, and requests to have a the meeting may end early if all manufacturer, schedule of availability of copy of your materials distributed to business is completed. the unit and filters for evaluation, and each member of the Committee prior to If you wish to attend the meeting, the a statement of the terms under which the meeting should be sent to Martha K. DHS Privacy Office encourages you to the SCVS will be made available for Landesberg, Executive Director, DHS register in advance by contacting Martha evaluation, and shipment date. Data Privacy and Integrity Advisory K. Landesberg, Executive Director, DHS Shipping and handling costs (including Committee, by November 23, 2009. Data Privacy and Integrity Advisory insurance) to ship the table or portable Persons who wish to submit comments Committee, at SCVS units to NIOSH and for NIOSH to and who are not able to attend or speak [email protected]. Advance return the units to the submitter will be at the meeting may submit comments at registration is voluntary. The Privacy

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Act Statement below explains how DHS under its following authorities: 5 U.S.C. employed by the CCSFs and validation uses the registration information you 301; the Federal Records Act, 44 U.S.C. firms; (3) implementation of a standard may provide and how you may access 3101; FACA, 5 U.S.C. App. (Pub. L. 92– security program or submission of a or correct information retained by DHS, 463); 5 U.S.C., App. 2 Sec. 10; E.O. proposed modified security program; (4) if any. 9397; 14 U.S.C. 632; The Omnibus information on the amount of cargo At the discretion of the Chair, Budget Reconciliation Act of 1987, screened; (5) recordkeeping members of the public may make brief Public Law 101–103, Section 9503(c), requirements for CCSFs and validation (i.e., no more than three minutes) oral 101 Stat. 1330, 1330–381 (1987) firms; and (6) submission of validation presentations from 11:45 a.m. to 12:15 (codified at 19 U.S.C. 2071 note). reports to TSA. TSA is seeking the p.m. If you would like to make an oral Effects of Not Providing Information: renewal of the ICR for the continuation presentation at the meeting, we request You may choose not to provide the of the program in order to secure that you register in advance or sign up requested information or to provide passenger aircraft carrying cargo by the on the day of the meeting. The names only some of the information DHS deadlines set out in the Implementing and affiliations, if any, of individuals requests. If you choose not to provide Recommendations of the 9/11 who address the Committee are some or all of the requested information, Commission Act of 2007. included in the public record of the DHS may not be able to contact you for DATES: Send your comments by January meeting. If you wish to provide written purposes related to the meeting. 15, 2010. materials to be distributed to each Accessing and Correcting ADDRESSES: member of the Committee in advance of Information: If you are unable to access Comments may be e-mailed the meeting, please submit them, or correct this information by using the to [email protected] or delivered to the preferably in electronic form to facilitate method that you originally used to TSA Paperwork Reduction Act (PRA) distribution, to Martha K. Landesberg, submit it, you may direct your request Officer, Office of Information Executive Director, DHS Data Privacy in writing to the DHS Deputy Chief Technology (OIT), TSA–40, and Integrity Advisory Committee, by FOIA Officer at [email protected]. Transportation Security Administration, November 23, 2009. Additional instructions are available at 601 South 12th Street, Arlington, VA http://www.dhs.gov/foia and in the 20598–6040. Information on Services for Individuals DHS/ALL–002 System of Records FOR FURTHER INFORMATION CONTACT: With Disabilities Notice referenced above. Please e-mail [email protected] with For information on services for Dated: November 9, 2009. questions or comments. individuals with disabilities or to Mary Ellen Callahan SUPPLEMENTARY INFORMATION: request special assistance, contact Chief Privacy Officer, Department of Comments Invited Martha K. Landesberg, Executive Homeland Security. Director, DHS Data Privacy and Integrity In accordance with the Paperwork [FR Doc. E9–27407 Filed 11–13–09; 8:45 am] Advisory Committee, as soon as Reduction Act of 1995 (44 U.S.C. 3501 possible. BILLING CODE 9110–9L–P et seq.), an agency may not conduct or sponsor, and a person is not required to Privacy Act Statement: DHS’s Use of respond to, a collection of information Your Information DEPARTMENT OF HOMELAND SECURITY unless it displays a valid OMB control Principal Purposes: When you register number. The ICR documentation is to attend a DHS Data Privacy and Transportation Security Administration available at http://www.reginfo.gov. Integrity Advisory Committee meeting, Therefore, in preparation for OMB DHS collects your name, contact [Docket No. TSA–2009–0018] review and approval of the following information, and the organization you Intent To Request Renewal From OMB information collection, TSA is soliciting represent, if any. We use this of One Current Public Collection of comments to— information to contact you for purposes Information: Certified Cargo Screening (1) Evaluate whether the proposed related to the meeting, such as to Program information requirement is necessary for confirm your registration, to advise you the proper performance of the functions of any changes in the meeting, or to AGENCY: Transportation Security of the agency, including whether the assure that we have sufficient materials Administration, DHS. information will have practical utility; to distribute to all attendees. We may ACTION: 60-day notice. (2) Evaluate the accuracy of the also use the information you provide for agency’s estimate of the burden; public record purposes such as posting SUMMARY: The Transportation Security (3) Enhance the quality, utility, and publicly available transcripts and Administration (TSA) invites public clarity of the information to be meeting minutes. comment on one currently approved collected; and Routine Uses and Sharing: In general, Information Collection Request (ICR), (4) Minimize the burden of the DHS will not use the information you OMB control number 1652–0053, collection of information on those who provide for any purpose other than the abstracted below that we will submit to are to respond, including using Principal Purposes, and will not share the Office of Management and Budget appropriate automated, electronic, this information within or outside the (OMB) for renewal in compliance with mechanical, or other technological agency. In certain circumstances, DHS the Paperwork Reduction Act. The ICR collection techniques or other forms of may share this information on a case-by- describes the nature of the information information technology. case basis as required by law or as collection and its expected burden. The necessary for a specific purpose, as collections include: (1) Applications Information Collection Requirement described in the DHS Mailing and Other from entities that wish to become OMB Control Number 1652–0053, Lists System of Records Notice, DHS/ Certified Cargo Screening Facilities Certified Cargo Screening Program, 49 ALL–002 (73 FR 71659). (CCSF) or operate as a TSA-approved CFR parts 1515, 1520, 1522, 1540, 1544, DHS Authority to Collect This validation firm; (2) personal information 1546, 1548, and 1549. TSA is seeking Information: DHS requests that you to allow TSA to conduct security threat renewal of an expiring collection of voluntarily submit this information assessments on key individuals information. Section 1602 of the

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Implementing Recommendations of the A firm interested in operating as a for an average of 312,433 applications 9/11 Commission Act of 2007 (Pub. L. TSA-approved validation firm must also annually. STA application requirements 110–53, 121 Stat. 266, 278, August 3, apply for TSA approval. Thus, this ICR result in an annual burden of 2007) requires the development of a also covers the following additional approximately 78,108 (312,433 × 0.25). collections for validation firms: (1) system to screen 50 percent of the cargo 4. Security Programs. TSA estimates transported on a passenger aircraft by Applications from entities seeking to that a total 16,989 CCSFs and validation February 2009, and to screen 100 become TSA-approved validation firms; firms will be required to maintain and percent of such cargo by August 2010. (2) personal information so individuals In September 2009, TSA issued an performing, assisting or supervising update their security programs. Each interim final rule (IFR) amending 49 validation assessments, and security firm will devote approximately 4 hours CFR to implement this statutory coordinators can undergo STAs; (3) each annually, beginning in the second requirement. See 74 FR 47672 implementation of a standard security year, updating their security programs. (September 16, 2009). TSA submitted an program provided by TSA or TSA estimates 31,589 security program ICR to OMB for the collections of submission of a proposed modified updates in the first three years for an information contained in the IFR and security program; (4) recordkeeping average of 10,530 updates per year. The received six months approval from requirements, including that validation annual hour burden is 42,119 (10,530 × OMB. TSA now seeks to extend this firms maintain assessment reports; and 4). approval from OMB. Accordingly, TSA (5) submission of validation reports 5. Recordkeeping requirements. All must proceed with this ICR for this conducted by validators in TSA- CCSFs and validation firms, or 16,989, approved validation firms to TSA. program in order to meet the will be required to maintain records of Congressional mandate. The ICR will The forms used for this collection of information include the CCSF Facility compliance with the IFR. TSA estimates allow TSA to collect several categories a time burden of approximately five of information as explained below. Profile Application (TSA Form 419B), CCSF Principal Attestation (TSA Form minutes annually per employee who is Data Collection 419D), Security Profile (TSA Form required to have an STA to file training records and other records of TSA will certify qualified facilities as 419E), Security Threat Assessment compliance. This includes validation CCSFs. Companies seeking to become Application (TSA Form 419F), TSA CCSFs are required to submit an Approved Validation Firms Application firm filings of validation assessment application to TSA at least 90 days (TSA Form 419G), Aviation Security reports, resulting in a total of 937,300 before the intended date of operation. Known Shipper Verification (TSA Form record updates in the first three years All CCSF applicants will submit 419H), and the Cargo Reporting for an average of 312,433 record updates applications and related information Template. per year. TSA estimates an annual either electronically through e-mail or Estimated Burden Hours burden of approximately 25,932 hours through the online Air Cargo Document (312,433 × 0.083). As noted above, TSA has identified Management System. TSA will also several separate information collections 6. Validation Assessment Reports. accept applications by postal mail. Once under this ICR. These collections will TSA estimates it will take individual TSA approves the application, TSA will affect an estimated total of 16,989 validators four hours to write up a allow the regulated entity to operate as unique respondents, including the CCSP validation report. In addition, TSA a CCSF in accordance with a TSA- pilot respondents, over the three years estimated this will result in 5,635 approved security program. Prior to of the PRA analysis. Collectively, these validations being completed annually, certification, the CCSF must also submit information collections represent an resulting in an annual burden of 22,541 to an assessment by a TSA-approved estimated average of 723,312 responses hours. (5,635 × 4). validator. annually, for an average annual hour 7. Cargo Reporting. TSA estimates TSA will also require CCSFs and burden of 718,255 hours. validation firms to accept and that all CCSFs will complete monthly 1. CCSF Application. TSA estimates cargo volume reports at an estimated implement a standard security program that it will receive 22,541 applications time of one hour per week. The average provided by TSA or to submit a in 3 years, for an average of 7,514 annual responses, based on one proposed modified security program to applications annually and that these the designated TSA official for approval. applications will require an average of response per firm per month, are 67,624 TSA will require CCSF applicants to (5,635 × 12). The estimated annual 2 hours each to complete, resulting in × ensure that individuals performing an annual burden of 15,028 hours (7,514 burden is 293,037 hours (5,646 52). screening and related functions under × 2). Issued in Arlington, Virginia, on November the IFR have successfully completed a 2. Validation Firm Applications. TSA 9, 2009. security threat assessment (STA) estimates that it will receive 83 Joanna Johnson, conducted by TSA. In addition, Security applications in 3 years, for an average of Coordinators and their alternates for TSA Paperwork Reduction Act Officer, Office 28 applications annually. Each of Information Technology. CCSFs must undergo STAs. CCSFs must application will require an average of 30 [FR Doc. E9–27348 Filed 11–13–09; 8:45 am] submit personally identifiable minutes to complete, resulting in an information on these individuals to TSA annual burden of 14 hours (28 × 0.5) on BILLING CODE 9110–05–P so that TSA can conduct an STA. the validation firms. CCSF facilities must provide 3. STA Applications. All CCSP information on the amount of cargo participants subject to 49 CFR parts screened and other cargo screening 1544, 1546, 1548, and 1549, as well as metrics at an approved facility. CCSFs TSA-approved validation firms, will be must also maintain screening, training, required to have certain employees and other security-related records of undergo security threat assessments compliance with the IFR and make them (STAs). TSA estimates it will receive a available for TSA inspection. total of 937,300 applications in 3 years,

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DEPARTMENT OF HOMELAND unless it displays a valid OMB control security measures for the protection of SECURITY number. The ICR documentation is the traveling public. available at http://www.reginfo.gov. Data Collection Transportation Security Administration Therefore, in preparation for OMB This information collection requires [Docket No. TSA–2004–19515] review and approval of the following information collection, TSA is soliciting the ‘‘regulated entities,’’ who may Intent To Request Renewal From OMB comments to— include passenger and all-cargo aircraft of One Current Public Collection of (1) Evaluate whether the proposed operators, foreign air carriers, and Information: Air Cargo Security information requirement is necessary for indirect air carriers (IACs), to Requirements the proper performance of the functions implement a standard security program of the agency, including whether the or to submit modifications to TSA for AGENCY: Transportation Security information will have practical utility; approval, and update such programs as Administration, DHS. (2) Evaluate the accuracy of the necessary. The regulated entities must ACTION: 60-day Notice. agency’s estimate of the burden; also collect personal information and (3) Enhance the quality, utility, and submit such information to TSA so that SUMMARY: The Transportation Security clarity of the information to be TSA may conduct security threat Administration (TSA) invites public collected; and assessments (STA) for individuals with comment on one currently approved (4) Minimize the burden of the unescorted access to cargo. This Information Collection Request (ICR), collection of information on those who includes each individual who is a OMB control number 1652–0040, are to respond, including using general partner, officer or director of an abstracted below that we will submit to appropriate automated, electronic, IAC or an applicant to be an IAC, and the Office of Management and Budget mechanical, or other technological certain owners of an IAC or an applicant (OMB) for renewal in compliance with collection techniques or other forms of to be an IAC; and any individual who the Paperwork Reduction Act. The ICR information technology. has responsibility for screening cargo describes the nature of the information Information Collection Requirement under 49 CFR parts 1544, 1546, or 1548. collection and its expected burden. The Aircraft operators and foreign air collections of information that make up OMB Control Number 1652–0040 Air carriers must report the volume of this ICR involve five broad categories Cargo Security requirements, 49 CFR accepted and screened cargo transported affecting airports, passenger aircraft parts 1540, 1542, 1544, 1546, and 1548. on passenger aircraft. Further, TSA will operators, foreign air carriers, indirect TSA is seeking renewal of an expiring collect identifying information for both air carriers operating under a security collection of information. Congress set companies and individuals whom program, and all-cargo carriers: security forth in the Aviation and Transportation aircraft operators, foreign air carriers, programs, security threat assessments Security Act (ATSA), Public Law 107– and IACs have qualified to ship cargo on (STA), known shipper data via the 71, two specific requirements for TSA in passenger aircraft, also referred to as Known Shipper Management System the area of air cargo security: (1) To ‘‘known shippers.’’ This information is (KSMS), cargo screening reporting, and provide for screening of all property, primarily collected electronically via evidence of compliance recordkeeping. including U.S. mail, cargo, carry-on and the Known Shipper Management TSA seeks continued OMB approval in checked baggage, and other articles, that System (KSMS). Whenever the order to secure passenger aircraft will be carried aboard a passenger information cannot be entered on carrying cargo as authorized in the aircraft; and (2) to establish a system to KSMS, the regulated entity must Aviation and Transportation Security screen, inspect, report, or otherwise conduct a physical visit of the shipper Act, and to meet the screening ensure the security of all cargo that is to using the Aviation Security Known requirements for cargo transported on be transported in all-cargo aircraft as Shipper Verification Form and passenger aircraft within the deadlines soon as practicable. In the Implementing subsequently enter that information into established in the Implementing Recommendations of the 9/11 KSMS. These regulated entities must Recommendations of the 9/11 Commission Act of 2007, Public Law also maintain records including records Commission Act of 2007. 110–53, Congress requires that 50 pertaining to security programs, percent of cargo transported on DATES: Send your comments by January training, and compliance. The forms passenger aircraft be screened by 15, 2010. used in this collection of information February 2009, and 100 percent of such include the Aviation Security Known ADDRESSES: Comments may be e-mailed cargo be screened by August 2010. Shipper Verification Form, Cargo to [email protected] or delivered to the While aviation security requirements Reporting Template, and the Security TSA Paperwork Reduction Act (PRA) have greatly reduced the vulnerability of Threat Assessment Application. Officer, Office of Information the air cargo system, TSA, in Technology (OIT), TSA–40, cooperation with industry stakeholders, Estimated Burden Hours Transportation Security Administration, identified additional gaps in the existing The hour burden associated with the 601 South 12th Street, Arlington, VA cargo security requirements that must be initial submission of security programs 20598–6040. filled to reduce the likelihood of cargo is estimated by TSA to be 4 hours for FOR FURTHER INFORMATION CONTACT: tampering or unauthorized access to the each of the 152 new aircraft operator, Please e-mail [email protected] with aircraft with malicious intent. TSA must foreign air carrier and IAC average questions or comments. proceed with this ICR for this program annual regulated entites for an average SUPPLEMENTARY INFORMATION: in order to meet the Congressional annual hour burden of 606 hours. mandates and current regulations (49 The hour burden associated with the Comments Invited CFR 1542.209, 1544.205, 1546.205, and security program updates is estimated In accordance with the Paperwork part 1548) that enable them to accept, by TSA to be 4 hours for each of the Reduction Act of 1995 (44 U.S.C. 3501 screen, and transport air cargo. The 4,509 aircraft operators, foreign air et seq.), an agency may not conduct or uninterrupted collection of this carriers, and IACs for an average annual sponsor, and a person is not required to information will allow TSA to continue hour burden of 18,036 hours. TSA respond to, a collection of information to ensure implementation of these vital estimates one percent of IACs (42) will

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file an appeal at 5 hours per appeal for determination CBP concluded that final determination within 30 days of an average annual hour burden of 210 Japan is the country of origin of the publication of such determination in the hours. subject toner cartridges and the United Federal Register. For the STA requirement, based on a States is the country of origin of the Dated: November 9, 2009. 15-minute estimate for each of the subject image drums for purposes of Sandra L. Bell, average 40,003 annual responses, TSA U.S. Government procurement. Executive Director, Office of Regulations and estimates that the average annual DATES: The final determination was Rulings, Office of International Trade. burden will be 10,001 hours. issued on November 9, 2009. A copy of Attachment For the Known Shipper Management the final determination is attached. Any System (KSMS), given that the IAC or party-at-interest, as defined in 19 CFR HQ W563548 aircraft operator must input a name, 177.22(d), may seek judicial review of November 9, 2009 address, and telephone number, TSA this final determination within MAR–2–05 RR:CTF:VS W563548 KSG estimates it will take 2 minutes for the December 16, 2009. 792,000 electronic submissions for a FOR FURTHER INFORMATION CONTACT: CATEGORY: Marking total annual burden of 26,400 hours. Karen S. Greene, Valuation and Special Mr. Stephen E. Becker Also for KSMS, TSA estimates it will Programs Branch, Regulations and Pillsbury Winthrop Shaw Pittman LLP take one hour for the 8,000 manual Rulings, Office of International Trade 2300 N Street, N.W., submissions for a total annual burden of (202–325–0041). Washington, DC 20037–1122 8,000 hours. RE: U.S. Government Procurement; Title III, SUPPLEMENTARY INFORMATION: Notice is TSA estimates out of the 480 total Trade Agreements Act of 1979 (19 U.S.C. hereby given that on November 9, 2009, aircraft operators and foreign air carriers § 2511); Subpart B, Part 177, Customs and pursuant to subpart B of part 177, Border Protection Regulations (19 CFR impacted by TSA regulations, 135 Customs Regulations (19 CFR part 177, § 177); Final Determination; country of aircraft operators and foreign air carriers subpart B), CBP issued a final origin of remanufactured toner cartridges will submit cargo screening reporting determination concerning the country of and image drums information because not all aircraft origin of certain toner cartridges and Dear Mr. Becker: operators and foreign air carriers image drums to be offered to the United transport cargo. TSA estimates this will This is in response to your letter dated July States Government under an 28, 2006, requesting a final determination on take an estimated one hour per week (52 undesignated government procurement behalf of Oki Data Americas, Inc. (‘‘Oki hours per year) for a total average contract. This final determination, in Data’’), pursuant to subpart B of Part 177, annual burden of 6,994 hours. For HQ W563548, was issued at the request Customs Regulations (19 C.F.R. § 177.21 et recordkeeping, based on a 5-minute seq.). Under these regulations, which of Oki Data Americas, Inc. under estimate for each of the 40,003 average implement Title III of the Trade Agreements procedures set forth at 19 CFR part 177, annual responses, TSA estimates that Act of 1979, as amended (19 U.S.C. § 2511 et subpart B, which implements Title III of the total average annual burden will be seq.), U.S. Customs and Border Protection the Trade Agreements Act of 1979, as 3,320 hours. (‘‘CBP’’) issues country of origin advisory amended (19 U.S.C. 2511–18). rulings and final determinations on whether Issued in Arlington, Virginia, on The final determination concluded an article is or would be a product of a November 9, 2009. that, based upon the facts presented, the designated foreign country or instrumentality Joanna Johnson, replacement in the United States of for the purpose of granting waivers of certain ‘‘Buy American’’ restrictions in U.S. law or TSA Paperwork Reduction Act Officer, Office minor components of U.S. and foreign practice for products offered for sale to the of Information Technology. origin and the addition of Japanese- U.S. Government. [FR Doc. E9–27349 Filed 11–13–09; 8:45 am] origin toner to a Chinese-origin toner This final determination concerns the BILLING CODE 9110–05–P cartridge do not substantially transform country of origin of certain remanufactured the toner cartridge into a product of the toner cartridges and image drums. We note United States. Therefore, the last that Oki Data is a party-at-interest within the DEPARTMENT OF HOMELAND country in which the toner cartridge meaning of 19 C.F.R. § 177.22(d)(1) and is SECURITY undergoes a substantial transformation entitled to request this final determination. In is based on the essential character of the issuing this final determination, we have given consideration to the arguments Bureau of Customs and Border toner cartridge, which is the toner from Protection presented during a meeting at our offices on Japan. Based upon the facts presented, November 17, 2006, and your additional the final determination also concluded Notice of Issuance of Final submissions dated September 12, 2006, that the disassembly in the United Determination Concerning Toner September 28, 2006, November 17, 2006, and States of a Thai-origin image drum, the November 30, 2006, which include Cartridges and Image Drums cleaning and reassembly of salvageable photographs of the articles at various stages AGENCY: U.S. Customs and Border parts, and the replacement of a of the processes performed. Protection, Department of Homeland significant number of parts essential to FACTS: Security. the functionality of the image drum I. Toner Cartridges ACTION: Notice of final determination. result in a substantial transformation of You advise us that Oki Data will the components into a product of the remanufacture C7300/7500 Series toner SUMMARY: This document provides United States. cartridges at its facility in Mount Laurel, New notice that the Bureau of U.S. Customs Section 177.29, Customs Regulations Jersey. You state that the spent toner and Border Protection (‘‘CBP’’) has (19 CFR 177.29), provides that notice of cartridges were originally manufactured in issued a final determination concerning final determinations shall be published China and that the toner cartridges were used the country of origin of certain toner in the Federal Register within 60 days in printers in the United States. You also indicate that the actual cartridges lack any cartridges and image drums to be of the date the final determination is notation of their origin. offered to the United States Government issued. Section 177.30, CBP Regulations You advise that the toner cartridge is under an undesignated government (19 CFR 177.30), provides that any comprised of 52 parts plus toner. The procurement contract. Based upon the party-at-interest, as defined in 19 CFR remanufactured cartridge will consist of 20 facts presented, in the final 177.22(d), may seek judicial review of a newly manufactured parts: 14 from the

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United States, 1 from the United Kingdom, previous remanufacturing statuses are American’’ restrictions in U.S. law or and 5 from China. Such parts include, among verified. Acceptable image drums undergo practice for products offered for sale to the others, the stopper film, the toner cap, the the following key remanufacturing U.S. Government. lever stopper, the left and right lockout operations: (1) the top cover of the image Under the rule of origin set forth under 19 plates, and, if damaged, the foam seal cap, drum is removed and cleaned; (2) the U.S.C. § 2518(4)(B): and seal sponge. In addition, the developer blade assembly is removed and the An article is a product of a country or remanufactured cartridges will be filled with blade is discarded; (3) the left side plate is instrumentality only if (i) it is wholly the new toner of Japanese origin, which you removed to expose the OPC drum, the growth, product, or manufacture of that advise is the most valuable component of the cleaning blade, and the charge, developer, country or instrumentality, or (ii) in the case remanufactured cartridge. Thirty-two parts and sponge rollers; (4) the charge roller is of an article which consists in whole or in will be salvaged from the used cartridges and removed and discarded; (5) the right side part of materials from another country or reused in the remanufactured toner cartridge. plate is removed; (6) the developer roller and instrumentality, it has been substantially When the depleted cartridges arrive at the gear are removed and discarded; (7) the toner transformed into a new and different article facility in New Jersey, they are inspected for powder is removed from the sponge roller of commerce with a name, character, or use salvage. Acceptable cartridges will undergo assembly; (8) the OPC drum is removed and distinct from that of the article or articles the following key remanufacturing discarded; (9) the roller sponge assembly is from which it was so transformed. operations: (1) the exterior of the cartridge is removed, the mixing bar and plastic plates See also, 19 C.F.R. 177.22(a). vacuumed; (2) the seal tape, lever stopper, are saved, and the roller sponge, six gears, In determining whether the combining of and remaining toner are removed; (3) the left the sponge seals, felt sponges, and sub- parts or materials constitutes a substantial side plate and spiral rod are removed and sponge roller are discarded; (10) the cleaning transformation, the determinative issue is the cleaned; (4) if necessary, the foam seal cap blade assembly is removed and discarded; extent of operations performed and whether and seal sponge are replaced; (5) the cartridge (11) the spring spiral is removed from the the parts lose their identity and become an interior is vacuumed and cleaned; (6) the frame base; (12) the disassembled parts are integral part of the new article. Belcrest stopper film is removed from the inner cleaned; (13) the left side plate is Linens v. United States, 6 Ct. Int’l Trade 204, shutter and replaced with a new stopper film; reassembled using a new gear belt, belt toner, 573 F. Supp. 1149 (1983), aff’d, 741 F.2d (7) the inner shutter is reassembled; (8) the spiral part, e-ring, and new gear idles and 1368 (Fed. Cir. 1984). If the manufacturing or toner cap is removed; (9) the mixing bar and electrical contacts (certain revision levels combining process is a minor one which spiral rod are reinserted; (10) the left side will receive a new left side plate and frame leaves the identity of the imported articles plate is reassembled, and the technician base); (14) a new cleaning blade and cleaning intact, a substantial transformation has not verifies that the mixing bar and spiral rod gear are installed into the frame base; (15) a occurred. Uniroyal Inc. v. United States, 3 Ct. engage with the mixing boss of the left side new roller sponge, new sponge seals and felt Int’l Trade 220, 542 F. Supp. 1026 (1982). In plate; (11) the partition film is reset; (12) seal sponges, and the salvaged mixing bar and Uniroyal, a country of origin marking case, tape is applied to the cartridge; (13) new plastic plates are used to assemble a new the court considered whether the addition of toner is added to the cartridge; (14) a new roller sponge assembly, which is then outsoles in the United States to imported toner cap and new lever stopper are installed; attached to the frame base; (16) a new OPC shoe uppers from Indonesia effected a (15) the cartridge exterior is vacuumed and drum, roller developer, and fuse assembly are substantial transformation of the uppers. In cleaned; (16) the cartridge is inspected for installed into the frame base; (17) the right finding that the upper was the ‘‘very leakage; (17) a bar code is printed and side plate is reattached to the frame base; (18) essence’’ of the completed shoe, the court applied to the cartridge; (18) the cartridge a new charge roller is installed in the right held that a substantial transformation of the and light-emitting diode (‘‘LED’’) lens cleaner side plate assembly; (19) the left side plate are placed into a black poly bag, which is assembly is attached to the frame base; (20) uppers did not occur, as the attachment of then heat sealed; (19) the bagged cartridge is a new blade developer is installed into the the outsoles to the uppers was a minor placed in a box, and a duplicate bar code frame base assembly; (21) new toner is added manufacturing or combining process that left label is applied to the box; and (20) in some to the toner hopper of the blade developer; the identity of the uppers intact. Hence, the instances, four boxed cartridges are inserted (22) the top cover is reattached to the frame uppers were required to be marked with into labeled four-pack boxes, which are base; (23) the image drum’s print quality is Indonesia as their country of origin. placed on pallets. tested; (24) the image drum is wrapped in I. Disassembly and Remanufacturing II. Image Drums two types of protective sheeting and a new Operations toner cover is installed; (25) a serial number CBP has examined disassembly and Oki Data will remanufacture the C7300/ label and date code label are applied to the C7500 Series image drums at its facility in remanufacture of articles under a variety of image drum; (26) the image drum is placed circumstances. In some instances, CBP has Mount Laurel, New Jersey. You state that the into a black bag and packed into a labeled used image drums originally were found a substantial transformation to occur box, along with the warranty sheet, ecology when articles are disassembled and used in manufactured in Thailand and that the image sheet, and shipping label; and (27) three drums were used in printers in the United the assembly of articles. In HRL 734213, single-pack boxes are placed into a labeled dated February 20, 1992, CBP held that the States. You also indicate that the actual overpack box, which is loaded onto a pallet. image drums lack any notation of their disassembly of an imported computer Essentially, the spent image drum is almost origin. monitor and the installation of a U.S. completely disassembled, and the new parts You advise that the image drum is touchscreen constituted a substantial mentioned above are used to construct a comprised of 110 component parts. Of this transformation of the monitor for marking functioning image drum. number, 56 parts will be newly manufactured purposes. In New York Ruling Letter (‘‘NY’’) in various countries: 12 in the United States, ISSUE: 183759, dated June 28, 2002, CBP found that 1 in Canada, 5 in Japan, and 38 in Thailand. What are the countries of origin of the fuel tank assemblies disassembled from Several of the newly manufactured parts that remanufactured toner cartridges and image completed motor vehicles in Germany and will replace the worn parts of the used image drums for purposes of U.S. Government imported into the United States were drum are significant to the functionality of procurement? substantially transformed when the the product and include, among others, the assemblies and the motor vehicle bodies organic photoreceptor drum (‘‘OPC’’), the LAW AND ANALYSIS: were assembled into completed motor developing roller, the charge roller, and the Pursuant to Subpart B of Part 177, 19 vehicles and sold in the United States. See cleaning blade. All of these parts and the new C.F.R. § 177.21 et seq., which implements also HRL 561322, dated May 11, 1999 (an lubricating toner powder originate in Japan. Title III of the Trade Agreements Act of 1979, aircraft fuselage, imported disassembled, was You state that the OPC drum is the most as amended (19 U.S.C.§ 2511 et seq.), CBP substantially transformed into a product of valuable component of the image drum. issues country of origin advisory rulings and the United States when it was reassembled Fifty-four parts will be salvaged from the final determinations on whether an article is and combined with engines, avionics, and used image drums. or would be a product of a designated landing gear to make a completed aircraft). In When the used image drums arrive at the country or instrumentality for the purposes NY G87305, dated March 12, 2001, CBP New Jersey facility, their revision levels and of granting waivers of certain ‘‘Buy found that two laser printer cartridge models,

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originally manufactured in either China or wires, and cleaning blades, were discarded in essential components added to it before it Japan were to be marked as products of China almost every case. CBP only looked to the could function as an aircraft. as a result of remanufacturing operations used toner cartridge as the ‘‘foreign material’’ As such, the described remanufacturing performed in that country. CBP noted that that did not undergo the requisite tariff shift. operations do not substantially transform the these models were not simple toner Applying the hierarchy of the NAFTA used toner cartridge into a product of the cartridges, but models containing both Marking Rules, CBP found that the used United States. In considering the last country development units and cleaning units. toner cartridge was the material that in which the toner cartridge underwent a During the remanufacturing process, the imparted the essential character of the good, substantial transformation, we believe that cartridges were disassembled into over 30 but because of the lack of reliable data as to the new, imported toner imparts the essential individual parts or subassemblies, inspected, the origin of the toner cartridge, the origin character of the remanufactured toner cleaned and reconditioned, and sorted by was determined under 19 CFR 102.11(d) as cartridge. You also state that the toner, by far, type into bins. The essential identity of the the last country in which the cartridges is the most valuable component of the used cartridges was not maintained. Then, underwent production. We note that remanufactured cartridge. Therefore, we find each cartridge received a new OPC drum, pursuant to 19 U.S.C. 1625(c)(1), HRL 561412 that the remanufactured toner cartridge is a new toner, and a special foam part unique to and HRL 560768 dated May 26, 1998 product of Japan for purposes of U.S. the remanufacturing process, as well as other (another ruling concerning the origin of Government procurement. new components. In addition, a special seal remanufactured cartridges), were revoked to III. Image Drums assembly, a part also unique to the allow consideration to not only the used remanufacturing process, was added to some cartridge as a ‘‘foreign material,’’ but to new In contrast to the remanufacturing of the models. CBP found that significant value was parts incorporated into the remanufactured subject toner cartridges, the remanufacturing added to the remanufactured laser printer cartridge in determining the origin of the operations for the image drums involve the cartridges and accounted for most of the cost remanufactured cartridge. Accordingly, in assembly of numerous new parts that are of the finished cartridges. H012926 dated March 31, 2009, CBP took essential to the functionality of the image In some instances, CBP has not found a into consideration the used cartridges and drum. The image drums require the substantial transformation when non- the new component parts in the replacement of the OPC drum, charge roller, functioning articles were disassembled and remanufactured cartridges. As no one single roller sponge, developer roller, cleaning returned to their functionality. In HRL material imported the essential character to blade, developer blade, fuse, electrical contacts, and gears, as well as many other 559740, dated October 3, 1996, CBP the remanufactured cartridge, the origin was parts. The toner also must be replenished. It determined that failed power transformers determined to be the last country in which appears that most of the components that shipped to Brazil for repair did not qualify the remanufactured cartridge underwent contribute to the functionality of the image for treatment under the GSP, as they did not production, pursuant to 19 CFR 102.11(d)(3). drum will be removed from the used image undergo a substantial transformation. The You also claim that in light of the recent drum at the remanufacturing facility in New repair operations consisted of the new free trade agreements concerning Jersey and replaced with new parts. In disassembly of the failed core/coil assembly, recovered and remanufactured goods, that essence, the housing of the image drum and the reuse of the core, if possible, the the toner cartridges and image drums should other minor components are being reused in replacement and/or repair of parts, and the be considered to be substantially transformed in the U.S. the remanufacture of the image drum, but the mounting of the repaired core assembly into majority of the parts that impart the the old tank shell. However, as the essential II. Toner Cartridges functionality of the image drum are new identity of the transformers was retained In the instant case, parts from the toner components. This scenario is similar to the throughout the operations, CBP found that cartridge are removed and inspected, and imported fuselage, or empty aircraft shell, the transformers qualified for treatment salvageable parts are cleaned for reassembly. described in HRL 561322, supra, where the under subheading 9802.00.50, HTSUS. See The toner appears to be the only significant addition of an interior, two engines, avionics, also, HRL 555313, dated June 19, 1990 (a component replaced during the and landing gear was necessary to transform substantial transformation did not occur remanufacturing operation. Other the product into a functioning aircraft. when non-functional air conditioning components having a mechanical function Moreover, in the instant case, depending compressors were exported to Mexico for such as the shutters, mixing gear, mixing bar, upon the revision level of the used image disassembly, reconditioning, and reassembly and spiral attachment are not replaced. These drum, the remanufacturing process also may with new parts into functional compressors; operations are not as significant as the require the replacement of the frame base and but, the repaired compressors were not operations described in NY G87305, where side plates. eligible for subheading 9802.00.50, HTSUS, the cartridges were completely disassembled, These operations appear to be significantly treatment as their component parts were salvageable parts were sorted into bins, more extensive than the operations described separated without regard to maintaining the cleaned and reconditioned, major in NY G87305, supra, where CBP found that integrity of the original units); and HRL components of the cartridges, including the used cartridges receiving new OPC drums, 557991, dated October 17, 1994, (used OPC drum and toner were replaced, and new toner, special parts unique to the photocopier drum cartridges were eligible for other new components, unique to the remanufacturing process, and other new subheading 9802.00.50, HTSUS, treatment, as remanufactured product, were added. components were substantially transformed replacing new corona wires, new Moreover, the operations are not as extensive into products of China. Moreover, they photoreceptor drums, new cleaning blades, as the repair operations described in HRL involve the replacement of many more parts and new mylar sealing tape did not destroy 557991, where the replacement of the that are essential to the functionality of the the essential identity of the exported photoreceptor drum, cleaning blade, corona image drum than the repair operations cartridges). wire, and mylar sealing tape did not destroy described in HRL 557991, supra. You also cite HRL 561412, dated January the identity of the article and was deemed to Thus, based on the facts provided, we 31, 2000, which examined the NAFTA be not so extensive as to create a new or believe that the disassembly of the used toner marking requirements for remanufactured different article. cartridge, the cleaning and reassembly of toner cartridges, in support of your position In contrast to the operations performed on salvageable parts, and the replacement of a that the toner cartridges and image drums are the imported fuselage in HRL 561322, the significant number of parts essential to the substantially transformed in the United subject cartridges essentially are in their functionality of the drum are sufficient to States. In that case, spent toner cartridges finished form at the beginning of the substantially transform the non-functioning were completely disassembled in Canada and remanufacturing process. To restore their used image drum into a product of the no effort was made to preserve the essential functionality, the toner is recharged, minor United States. We also note that the identity of the spent cartridges. During the components are replaced, salvageable parts remanufacturing operations for the image remanufacturing process, the photoreceptor are cleaned, and the restored cartridge is drum are complex, require technical skill, drum was discarded in nearly 100 percent of tested. These operations are significantly less and add significant value to the image drums. all cases and other key components, which substantial than the operations described in HOLDING: contributed to the functionality of the HRL 561322, where the imported fuselage Based upon the specific facts of this case, cartridges, such as magnetic rollers, corona was an empty shell that needed several we find that the toner cartridges are not

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substantially transformed as a result of the Room 6230, Washington, DC 20410– SUMMARY: On May 4, 2009, HUD posted described remanufacturing operations 8000; telephone number 202–708–0001 its NSP2 NOFA at http://www.hud.gov/ performed in the United States. The country (this is not a toll-free number). Persons nsp and announced the availability of of origin of the remanufactured toner with hearing or speech impairments the NOFA on May 7, 2009 (74 FR cartridges for purposes of U.S. Government procurement is Japan. may access this number through TTY by 21377). The NSP2 NOFA announced the We find that the image drums are calling the toll-free Federal Information availability of approximately $1.93 substantially transformed into products of Relay Service at 800–877–8339. billion available in competitive grants the United States when they undergo the SUPPLMENTARY INFORMATION: authorized under the American described remanufacturing operations in the Recovery and Reinvestment Act of 2009 United States. Therefore, the country of I. Background (Pub. L. 111–5, approved February 17, origin of the remanufactured image drums is Title XII of Division A of the 2009). The NSP2 NOFA was corrected the United States. American Recovery and Reinvestment by Notice posted on the HUD website Notice of this final determination will be Act of 2009 (Pub. L. 111–5) (Recovery and announced on June 11, 2009 (74 FR given in the Federal Register as required by 28715). Today’s Federal Register 19 C.F.R. § 177.29. Any party-at-interest other Act) authorizes funding for GRP, a than the party which requested this final Recovery Act program by which HUD publication announces that HUD has determination may request, pursuant to 19 makes loans and grants and takes a posted a notice making further C.F.R. § 177.31, that CBP reexamine the variety of other actions to facilitate corrections to the NSP2 NOFA. matter anew and issue a new final utility-saving retrofits and other retrofits Specifically, the Notice (1) corrects an determination. Any party-at-interest may, that produce environmental benefits, in inconsistency in the NSP2 NOFA within 30 days after publication of the certain existing HUD-assisted regarding when the lead member of a Federal Register notice referenced above, multifamily housing. The funding consortium must enter into consortium seek judicial review of this final funding agreements with consortium determination before the Court of provided for retrofits is designed to result in property that reduces energy members; and (2) extends the deadline International Trade. for submitting such agreements to HUD Sincerely, demand, costs less to operate, improves Sandra L. Bell, the residents’ quality of life, and to January 29, 2010. This notice only Executive Director, Office of Regulations and reduces its impact on the environment. affects applications for funding that Rulings, Office of International Trade. By notice issued May 13, 2009, HUD have already been submitted to HUD by announced the availability of funding consortium applicants. HUD notes that [FR Doc. E9–27350 Filed 11–13–09; 8:45 am] the deadline for applications was July BILLING CODE 9111–14–P GRP. (See http://www.hud.gov/offices/ adm/hudclips/notices/hsg/files/09– 17, 2009, and, as a result, will not 02HSGN.pdf). In the May 13, 2009, accept new applications for funding. notice, HUD announced that GRP would The notice correcting the NSP2 NOFA is DEPARTMENT OF HOUSING AND available on the HUD Web site at URBAN DEVELOPMENT be administered by the Office of Affordable Housing Preservation. In the http://www.hud.gov/recovery. [Docket No. FR–5312–N–02] May 13, 2009, notice, HUD also FOR FURTHER INFORMATION CONTACT: announced that it would begin Stanley Gimont, Director, Office of Recovery Act—Green Retrofit Program accepting applications for GRP funding Block Grant Assistance, Department of for Multifamily Housing, Notice of on June 15, 2009, on a first come, first Housing and Urban Development, Room Closing of Application Solicitation serve basis, and would continue to 7286, 451 Seventh Street, SW., Washington, DC 20410, telephone AGENCY: Office of the Assistant accept applications subject to the Secretary for Housing—Federal Housing availability of funding. number (202) 708–3587. Persons with Commissioner, HUD. In this notice, HUD announces that, hearing or speech impairments may access this number via TTY by calling ACTION: Notice. based on remaining GRP funds available, HUD will cease accepting the Federal Information Relay Service at SUMMARY: By notice issued May 13, applications as of November 18, 2009. (800) 877–8339. FAX inquiries may be sent to Mr. Gimont at (202) 401–2044. 2009, HUD announced the availability Dated: November 9, 2009. (Except for the ‘‘800’’ number, these of funding for the Green Retrofit Theodore K. Toon, Program for Multifamily Housing (GRP), telephone numbers are not toll-free.) Deputy Assistant Secretary for Affordable a program authorized by the American Housing Preservation. Dated: November 9, 2009. Recovery and Reinvestment Act of 2009, [FR Doc. E9–27416 Filed 11–13–09; 8:45 am] Mercedes M. Ma´rquez, for the purpose of making, primarily, BILLING CODE 4210–67–P Assistant Secretary for Community Planning loans and grants to facilitate utility- and Development. saving retrofits and other retrofits that [FR Doc. E9–27414 Filed 11–13–09; 8:45 am] produce environmental benefits in DEPARTMENT OF HOUSING AND BILLING CODE 4210–67–P certain existing HUD-assisted URBAN DEVELOPMENT multifamily housing. In the May 13, 2009, notice, HUD announced that it [Docket No. FR–5321–C–03] DEPARTMENT OF THE INTERIOR would begin soliciting applications beginning on June 15, 2009. This notice Notice of Fund Availability (NOFA) for Geological Survey announces that, based on the funds Fiscal Year 2009 Neighborhood remaining available, HUD will cease Stabilization Program 2 Under the Agency Information Collection accepting applications as of November American Recovery and Reinvestment Activities; Proposals, Submissions, 18, 2009. Act of 2009; Correction and Approvals FOR FURTHER INFORMATION CONTACT: AGENCY: Office of the Assistant AGENCY: U.S. Geological Survey, Office of Affordable Housing Secretary for Community Planning and Interior. Preservation, Office of Housing, Development, HUD. ACTION: Notice of an extension of an Department of Housing and Urban ACTION: Notice. information collection (1028–0090). Development, 451 7th Street, SW.,

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SUMMARY: The U.S. Geological Survey is application must be submitted via your entire comment, including your requesting renewal of an existing Grants.gov. Grant recipients must personal identifying information, may information collection that received complete a final technical report at the be made publicly available at any time. emergency clearance on August 8, 2009. end of the project period. Narrative and While you can ask OMB in your We will ask the Office of Management report guidance is available through comment to withhold your personal and Budget (OMB) to approve the http://volcanoes.usgs.gov/ and at http:// identifying information from public information collections (IC) described www.Grants.gov. review, we cannot guarantee that it will below. As required by the Paperwork be done. To comply with the public II. Data Reduction Act of 1995 (PRA) and as part process, we publish this Federal of our continued effort to reduce OMB Control Number: 1028–0090. Register notice announcing that we will paperwork and respondent burden, we Title: Volcano Hazards Program submit this ICR to OMB for approval. invite the general public and other (VHP). The notice provided the required 60 day federal agencies to take this opportunity Type of Request: Extension of public comment period. currently approved collection. to comment on this IC. We may not Dated: November 5, 2009. conduct or sponsor and a person is not Respondent Obligation: Required to Suzette Kimball, required to respond to a collection of receive benefits. information unless it displays a Frequency of Collection: Annually. Associate Director for Geology. currently valid OMB control number. Description of Respondents: State [FR Doc. E9–27421 Filed 11–13–09; 8:45 am] Geological Surveys and academic DATES: You must submit comments on BILLING CODE 4311–AM–P institutions. or before January 15, 2010. Estimated Number of Annual ADDRESSES: Send your comments on Responses: 20 applications and 12 final DEPARTMENT OF THE INTERIOR this information collection directly to reports. Phadrea Ponds, Information Collections Estimated Annual Reporting and Geological Survey Clearance Officer, U.S. Geological Recordkeeping ‘‘Hour’’ Burden: 796 Survey, 2150–C Center Avenue, Fort hours. We expect to receive Agency Information Collection Activity Collins, CO 80525 (mail); (970) 226– approximately 20 applications. It will AGENCY: 9230 (fax); or FAX: [email protected] United States Geological take each applicant approximately 35 Survey (USGS). (e-mail). Use Information Collection hours to complete the narrative and ACTION: Notice of a new information Number 1028–0051 in the subject line. present supporting documents. This collection. FOR FURTHER INFORMATION CONTACT: To includes the time for project conception request additional information please and development, proposal writing, SUMMARY: To comply with the contact William C. Burton at (703) 648– reviewing, and submitting the proposal Paperwork Reduction Act of 1995 6904 or by mail at U.S. Geological application through Grants.gov (totaling (PRA), we are notifying the public that Survey, 926A National Center, Sunrise 700 burden hours). We anticipate we have submitted to the Office of Valley Drive, Reston, VA 20192. awarding 12 grants per year. The award Management and Budget (OMB) a new SUPPLEMENTARY INFORMATION: recipients must submit a final report at information collection request (ICR) for I. Abstract the end of the project. We estimate that approval of the paperwork requirements it will take approximately 8 hours to for the National Institutes for Water During FY09 and FY10, the Volcano complete the requirement for that report Resources (NIWR)–USGS competitive Hazards Program (VHP) will provide (totaling 96 hours). grant program conducted in conjunction funding under the American Recovery Estimated Reporting and with the State Water Resources Research and Reinvestment Act (ARRA) for Recordkeeping ‘‘Non-Hour Cost’’ Institutes. improvement of the volcano and other Burden: There are no ‘‘non-hour cost’’ monitoring systems and other DATES: You must submit comments on burdens associated with this collection or before December 16, 2009. monitoring-related activities that of information. contribute to mitigation of volcano ADDRESSES: Please submit comments on hazards. This notice concerns the III. Request for Comments this information collection directly to collection of information that is We are soliciting comments as to: (a) the Office of Management and Budget, sufficient and relevant to evaluate and Whether the proposed collection of Office of Information and Regulatory select proposals for funding under the information is necessary for the agency Affairs, Attention: Desk Officer for the VHP. We will accept proposals from to perform its duties, including whether Department of the Interior, via e-mail _ State geological surveys and academic the information is useful; (b) the [OIRA [email protected]] or fax institutions requesting funds to assist in accuracy of the agency’s estimate of the (202) 395–5806; and identify your the monitoring of active volcanoes and burden of the proposed collection of submission as 1028–NEW (NIWR). to conduct volcano-related research. information; (c) how to enhance the Please also submit a copy of your Financial assistance will be awarded on quality, usefulness, and clarity of the comments to Phadrea Ponds, USGS a competitive basis following the information to be collected; and (d) how Information Collection Clearance evaluation and ranking of State and to minimize the burden on the Officer, 2150–C Center Avenue, Fort academic proposals. VHP proposals will respondents, including the use of Collins, CO 80525 (mail); (970) 226– be reviewed by a peer panel of six (6) automated collection techniques or 9230 (fax); or [email protected] (e-mail). members. Five (5) members will be other forms of information technology. Please reference Information Collection Department of the Interior Please note that the comments 1028–NEW, NIWR in the subject line. representatives; and one (1) member submitted in response to this notice are FOR FURTHER INFORMATION CONTACT: John will be an external representative. To a matter of public record. Before E. Schefter, Chief Office of External submit a proposal, you must follow the including your address, phone number, Research, U.S. Geological Survey, 12201 written guideline (that will be made e-mail address, or other personal Sunrise Valley Drive, MS 424, Reston, available at http://www.Grants.gov) and identifying information in your Virginia 20192 (mail) at (703) 648–6800 complete a project narrative. The comment, you should be aware that (Phone); or [email protected] (e-mail).

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SUPPLEMENTARY INFORMATION: final report at the end of the project. We ACTION: Notice of availability of the estimate that it will take approximately proposed NOS for proposed Sale 213. I. Abstract 12 hours to complete the requirement The NIWR–USGS National for that report (totaling 84 hours). SUMMARY: The MMS announces the Competitive Grant Program issues an Annual Reporting and Recordkeeping availability of the proposed NOS for annual call for proposals to support ‘‘Non-Hour Cost’’: We have not proposed Sale 213 in the CPA. This research on water problems and issues identified any ‘‘non-hour cost’’ burdens Notice is published pursuant to 30 CFR of a regional or interstate nature beyond associated with this collection of 256.29(c) as a matter of information to those of concern only to a single state information. the public. With regard to oil and gas and which relate to specific program leasing on the OCS, the Secretary of the priorities identified jointly by the USGS III. Request for Comments Interior, pursuant to section 19 of the and the state water resources research On October 7, 2008, we published a OCS Lands Act, provides the affected institutes authorized by the Water Federal Register notice (73 FR 51645) states the opportunity to review the Resources Research Act of 1984, as announcing that we would submit this proposed Notice. The proposed Notice amended (42 U.S.C. 10301 et seq.). Any information collection to OMB for sets forth the proposed terms and investigator at an accredited institution approval. The notice provided a 60-day conditions of the sale, including of higher learning in the United States comment period ending on December 7, minimum bids, royalty rates, and is eligible to apply for a grant through 2008. We did not receive any comments rentals. a water research institute or center in response to that notice. DATES: Comments on the size, timing, or established under the provisions of the We again invite comments concerning location of proposed Sale 213 are due Act. Proposals involving substantial this ICR on: (a) Whether the proposed from the affected states within 60 days collaboration between the USGS and collection of information is necessary following their receipt of the proposed university scientists are encouraged. for the agency to perform its duties, Notice. The final NOS will be published Proposals may be for projects of 1 to 3 including whether the information is in the Federal Register at least 30 days years in duration and may request up to useful; (b) the accuracy of the agency’s prior to the date of bid opening. Bid $250,000 in federal funds. Successful estimate of the burden of the proposed opening is currently scheduled for applicants must match each dollar of collection of information; (c) ways to March 17, 2010. the federal grant with one dollar from enhance the quality, usefulness, and Please address any comments or nonfederal sources. This program is clarity of the information to be questions related to the proposed authorized by the Water Resources collected; and (d) ways to minimize the changes to the lease terms as presented Research Act of 1984, as amended (42 burden on the respondents, including below to Dr. Marshall Rose, MMS, U.S.C. 10303(g)). The membership of the the use of automated collection Chief, Economics Division, at (703) 787– National Institutes for Water Resources techniques or other forms of information 1536 or [email protected] within consists solely of the State Water technology. Comments that you submit 30 days. Resources Research Institutes. NIWR in response to this notice are a matter SUPPLEMENTARY INFORMATION: The MMS cooperates with the USGS in the of public record. Before including your address, phone number, e-mail address will use the recently revised Form identification of the research priorities MMS–2005 (October 2009) to convey and the solicitation and review of the or other personal identifying information in your comment, you leases. The form is available on the proposals submitted to the NIWR–USGS Internet at http://www.gomr.mms.gov/ National Competitive Grant Program. should be aware that your entire comment including your personal homepg/mmsforms/FormMMS- II. Data identifying information, may be made 2005.pdf. OMB Control Number: 1028–NEW. publicly available at any time. While The proposed NOS for Sale 213 and Title: NIWR–USGS National you can ask us in your comment to a ‘‘Proposed Notice of Sale Package’’ Competitive Grant Program. withhold your personal identifying containing information essential to Respondent Obligation: Voluntary, information from public review, we potential bidders may be obtained from necessary to obtain benefits. cannot guarantee that we will be able to the Public Information Unit, Gulf of Frequency of Collection: Annually. do so. Mexico Region, Minerals Management Description of Respondents: Eligible Service, 1201 Elmwood Park Boulevard, applicants to this program are restricted Dated: November 9, 2009. New Orleans, Louisiana 70123–2394, to the 54 land grant universities housing John E. Schefter, Telephone: (504) 736–2519. the state water resources research Water Resources Research Act Program The MMS is accepting comments on institutes. Coordinator. the proposed revisions of the initial Estimated Number of Annual [FR Doc. E9–27422 Filed 11–13–09; 8:45 am] lease terms for blocks in water depths of Responses: 72. We expect to receive BILLING CODE 4311–AM–P 400 to less than 800 meters and 800 approximately 65 applications and meters to less than 1600 meters. The award 7 grants per year. proposed 5+3 term in 400 to less than Annual Burden Hours: 3,984 hours. DEPARTMENT OF THE INTERIOR 800 meters supersedes and replaces the We expect to receive approximately 65 previous 8-year lease term provisions applications. It will take each applicant Minerals Management Service for these water depths as provided by approximately 60 hours to complete the Notice of Availability of the Proposed regulations at 30 CFR 256.37(a)(3) where narrative and supporting documents. Notice of Sale (NOS) for Outer commencement of an exploratory well This includes the time for project Continental Shelf (OCS) Oil and Gas is required within the first 5 years of the conception and development, proposal Lease Sale 213 in the Central Planning initial 8-year term to avoid lease writing, reviewing, and submitting the Area (CPA) in the Gulf of Mexico cancellation. The 10-year initial lease proposal application through Grants.gov (GOM) term in 800 to less than 1600 meters is (totaling 3,900 burden hours). We proposed to be changed to a 7-year anticipate awarding 7 grants per year. AGENCY: Minerals Management Service, initial lease term (commencement of an The award recipients must submit a Interior. exploratory well within the initial

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primary lease term would extend the Baldwin County, Alabama, coast; and the 5-Year Program. In September 2008, lease term to 10 years). Please address no action) based on any new MMS published a Supplemental EIS any comments or questions related to information regarding potential impacts (OCS EIS/EA MMS 2008–041) that this matter to Dr. Marshall Rose, MMS, and issues that were not available at the addressed seven proposed Federal Chief, Economics Division, at (703) 787– time the Supplemental EIS was actions that would offer for lease areas 1536 or [email protected] within prepared. This EA for proposed Lease on the GOM OCS that may contain 30 days. Sale 213 also examined the potential economically recoverable oil and gas Dated: October 30, 2009. environmental effects of the addition of resources. An additional NEPA review S. Elizabeth Birnbaum, two small areas within the Central (an EA) was conducted for proposed Planning Area (CPA), located greater Director, Minerals Management Service. Lease Sale 213 to address any new than 100 miles from the coasts of information relevant to the proposed [FR Doc. E9–27489 Filed 11–13–09; 8:45 am] Alabama and Florida, that were not lease sale. Additional NEPA reviews BILLING CODE 4310–MR–P previously examined by the will also be conducted prior to Supplemental EIS (OCS EIS/EA MMS decisions on each of the four subsequent DEPARTMENT OF THE INTERIOR 2008–041) or Multisale EIS (OCS EIS/ proposed lease sales. The purpose of EA MMS 2007–018) but that were these EAs is to determine whether to Minerals Management Service included in the OCS Oil and Gas prepare a FONNSI or a Supplemental Leasing Program: 2007–2012 (5-Year EIS. For each proposed lease sale, MMS Gulf of Mexico, Outer Continental Program). prepares a Consistency Determination Shelf, Central Planning Area, Oil and No new significant impacts were (CD) to determine whether the lease sale Gas Lease Sale 213 (2010) identified for proposed Lease Sale 213 is consistent with each affected state’s Environmental Assessment that were not already assessed in the federally approved, coastal zone Multisale EIS or Supplemental EIS. As management program. Finally, MMS AGENCY: Minerals Management Service, a result, MMS determined that an Interior. solicits comments via the Proposed additional Supplemental EIS is not Notice of Sale (NOS) from the governors ACTION: Notice of availability of an required and prepared a Finding of No environmental assessment. of the affected states on the size, timing, New Significant Impact (FONNSI). and location of the lease sale. The SUMMARY: The Minerals Management FOR FURTHER INFORMATION CONTACT: Mr. tentative schedule for the prelease Service (MMS) is issuing this notice to Bruce Baird, Minerals Management decision process for Lease Sale 213 is as advise the public, pursuant to the Service, Gulf of Mexico OCS Region, follows: CDs sent to affected states, National Environmental Policy Act of 1201 Elmwood Park Boulevard, MS October 2009; Proposed NOS sent to 1969 (NEPA), as amended, 42 U.S.C. 5410, New Orleans, Louisiana 70123– governors of the affected states, 4321 et seq., that MMS has prepared an 2394. You may also contact Mr. Baird by November 2009; Final NOS published environmental assessment (EA) for telephone at (504) 731–1489. in the Federal Register, February 2010; proposed Outer Continental Shelf (OCS) SUPPLEMENTARY INFORMATION: In April and Lease Sale 213, March 2010. 2007, MMS published a Multisale EIS oil and gas Lease Sale 213 in the Central Public Comments: Within 30 days of that addressed 11 proposed Federal Gulf of Mexico (GOM) Planning Area this Notice’s publication, interested actions that would offer for lease areas (Lease Sale 213) scheduled for March parties are requested to send comments on the GOM OCS that may contain 2010. The preparation of this EA is an on this EA/FONNSI. Comments may be economically recoverable oil and gas important step in the decision process submitted in one of the following two resources. Federal regulations allow for for Lease Sale 213. The proposal for ways: Lease Sale 213 was identified by the several related or similar proposals to be Call for Information and Nominations analyzed in one EIS (40 CFR 1502.4). 1. In written form enclosed in an published in the Federal Register on Since each proposed lease sale and its envelope labeled ‘‘Comments on CPA October 9, 2008, and was analyzed in projected activities are very similar each Lease Sale 213 EA’’ and mailed (or hand the Gulf of Mexico OCS Oil and Gas year for each planning area, a single EIS carried) to the Regional Supervisor, Lease Sales: 2007–2012; Western was prepared for the 11 Western Leasing and Environment (MS 5410), Planning Area Sales 204, 207, 210, 215, Planning Area (WPA) and CPA lease Minerals Management Service, Gulf of and 218; Central Planning Area Sales sales scheduled in the proposed 5–Year Mexico OCS Region, 1201 Elmwood 205, 206, 208, 213, 216, and 222—Final Program. The Multisale EIS (OCS EIS/ Park Boulevard, New Orleans, Louisiana Environmental Impact Statement; EA MMS 2007–018) addressed WPA 70123–2394. Volumes I and II (Multisale EIS, OCS Sale 204 in 2007, Sale 207 in 2008, Sale 2. Electronically to the MMS e-mail EIS/EA MMS 2007–018), and in the Gulf 210 in 2009, Sale 215 in 2010, and Sale address: [email protected]. of Mexico OCS Oil and Gas Lease Sales: 218 in 2011; and CPA Sale 205 in 2007, All comments received will be 2009–2012; Central Planning Area Sales Sale 206 in 2008, Sale 208 in 2009, Sale considered in the decisionmaking 208, 213, 216, and 222; Western 213 in 2010, Sale 216 in 2011, and Sale process for proposed Lease Sale 213. Planning Area Sales 210, 215, and 222 in 2012. However, the Gulf of 218—Final Supplemental Mexico Energy Security Act of 2006 EA Availablity: To obtain a copy of Environmental Impact Statement repealed the Congressional moratorium this EA, you may contact the Minerals (Supplemental EIS, OCS EIS/EA MMS on approximately 5.8 million acres Management Service, Gulf of Mexico 2008–041). located in the southeastern part of the OCS Region, Attention: Public This EA for proposed Lease Sale 213 CPA. Therefore, it was necessary to Information Office (MS 5034), 1201 analyzed the potential environmental prepare additional NEPA Elmwood Park Boulevard, Room 114, effects of the proposed lease sale and its documentation to address the MMS New Orleans, Louisiana 70123–2394 alternatives (excluding the unleased proposal to expand the CPA by the 5.8 (1–800–200–GULF). You may also view blocks near biologically sensitive million acre area. A Supplemental EIS this EA on the MMS Web site at http:// topographic features; excluding the was prepared for the remaining seven www.gomr.mms.gov/homepg/regulate/ unleased blocks within 15 miles of the CPA and WPA lease sales scheduled in environ/nepa/nepaprocess.html.

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Dated: October 30, 2009. take, interstate and foreign commerce to Canada, for the purpose of enhancement Chris C. Oynes, include Elds deer (Recurvus eldii), red of the survival of the species. Associate Director for Offshore Energy and lechwe (Kobus leche) and Arabian oryx The following applicants each request Minerals Management. (Oryx leucoryx) from his captive herd a permit to import the sport-hunted [FR Doc. E9–27488 Filed 11–13–09; 8:45 am] for the purpose of enhancement of the trophy of one male scimitar-horned oryx BILLING CODE 4310–MR–P survival of the species. This notification (Oryx dammah) culled from a captive covers activities conducted by the herd in the Republic of South Africa, for applicant over a 5–year period. the purpose of enhancement of the DEPARTMENT OF THE INTERIOR Applicant: Pauline L. Kamath, survival of the species. Fish and Wildlife Service University of California at Berkeley, Berkeley, CA, PRT-218825 Applicant: Wilson W. Crook III, [FWS–R9–IA–2009–N247] Kingwood, TX, PRT-223349 [96300–1671–0000–P5] The applicant requests a permit to import biological samples from Black Applicant: Jorge L. Medina, Hawthorne, Receipt of Applications for Permit rhinoceros (Diceros bicornis) from CA, PRT-228690 Etosha Ecological Institute, Okaukuejo, The following applicants each request AGENCY: Fish and Wildlife Service, Namibia, for the purpose of scientific Interior. a permit to import the sport-hunted research. This notification covers trophy of one male bontebok ACTION: Notice of receipt of applications activities conducted by the applicant for permit. (Damaliscus pygargus pygargus) culled over a 5–year period. from a captive herd maintained under SUMMARY: We, the U.S. Fish and Applicant: Molly M. Hedgecock, High the management program of the Wildlife Service, invite the public to Point, NC, PRT-220671 Republic of South Africa, for the comment on the following applications purpose of enhancement of the survival The applicant requests a permit to for permits to conduct certain activities of the species. import the sport-hunted trophy of one with endangered species and/or marine leopard (Panthera pardus) taken from mammals. Both the Endangered Species Applicant: Edward D. Pylman, Byron the wild in the Central African Act and the Marine Mammal Protection Center, MI, PRT-230602 Republic, for the purpose of Act require that we invite public enhancement of the survival of the Applicant: Robert B. Spencer, Gilmer, comment on these permit applications. species. TX, PRT-231522 DATES: Written data, comments or Marine Mammals requests must be received by Applicant: Brooks J. Puckett, Plano, TX, December 16, 2009. PRT-226347 The public is invited to comment on ADDRESSES: Documents and other The applicant requests a permit to the following application for a permit to information submitted with these import the sport-hunted trophy of one conduct certain activities with marine applications are available for review, male black-footed cat (Felis nigripes) mammals. The application was subject to the requirements of the taken from the wild in the Republic of submitted to satisfy requirements of the Privacy Act and Freedom of Information South Africa, for the purpose of Marine Mammal Protection Act of 1972, Act, by any party who submits a written enhancement of the survival of the as amended (16 U.S.C. 1361 et seq.), and request for a copy of such documents species. the regulations governing marine within 30 days of the date of publication mammals (50 CFR Part 18). Submit your Applicant: David K. Reinke, Crawford, of this notice to: U.S. Fish and Wildlife written data, comments, or requests for CO, PRT-229051 Service, Division of Management copies of the complete applications or Authority, 4401 North Fairfax Drive, The applicant requests a permit to requests for a public hearing on these Room 212, Arlington, Virginia 22203; import the sport-hunted trophy of one applications to the address shown in fax 703/358–2281. male black Rhinoceros (Diceros ADDRESSES. If you request a hearing, FOR FURTHER INFORMATION CONTACT: bicornis) taken from the wild in give specific reasons why a hearing Division of Management Authority, Namibia, for the purpose of would be appropriate. The holding of telephone 703/358–2104. enhancement of the survival of the such a hearing is at the discretion of the SUPPLEMENTARY INFORMATION: species. Director. Endangered Species Applicant: National Zoological Park, Applicant: David E. Clapham, M.D., Smithsonian Institution, Washington, Ph.D, Department of Cardiology, The public is invited to comment on D.C., PRT-231152 the following applications for a permit Children’s Hospital Boston, MA, PRT- to conduct certain activities with The applicant requests a permit to 227386 export one male and one female captive- endangered species. This notice is The applicant requests a permit to born Clouded leopard (Neofelis provided pursuant to Section 10(c) of import tissue samples and biological the Endangered Species Act of 1973, as nebulosa) to Howletts Wild Animal Park, United Kingdom, for the purpose specimens created from tissue samples amended (16 U.S.C. 1531 et seq.). collected from wild polar bears (Ursus Submit your written data, comments, or of enhancement of the survival of the maritimus) for the purpose of scientific requests for copies of the complete species. research. applications to the address shown in Applicant: Seneca Park Zoo, Rochester, ADDRESSES. Concurrent with publishing this NY, PRT-231594 notice in the Federal Register, we are Applicant: Ricardo E. Longoria, Encinal, The applicant requests a permit to forwarding copies of the above TX, PRT-192403 export one male bred-in-captivity applications to the Marine Mammal The applicant request renewal and Brazilian ocelot (Leopardus pardalis Commission and the Committee of amendment of his permit authorizing mitis) to the Granby Zoo, Quebec, Scientific Advisors for their review.

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Dated: November 6, 2009. Federal Register of September 29, 2009 Street, SW., Washington, DC 20436, Lisa J. Lierheimer, (74 FR 49889). The conference was held telephone (202) 205–2000. General Senior Permit Biologist, Branch of Permits, in Washington, DC, on October 14, information concerning the Commission Division of Management Authority 2009, and all persons who requested the may also be obtained by accessing its [FR Doc. E9–27362 Filed 11–13–09; 8:45 am] opportunity were permitted to appear in Internet server at http://www.usitc.gov. BILLING CODE 4310–55–S person or by counsel. The public record for this investigation The Commission transmitted its may be viewed on the Commission’s determinations in these investigations to electronic docket (EDIS) at http:// INTERNATIONAL TRADE the Secretary of Commerce on edis.usitc.gov. Hearing-impaired COMMISSION November 9, 2009. The views of the persons are advised that information on Commission are contained in USITC this matter can be obtained by [Investigation Nos. 701–TA–472 and 731– Publication 4109 (November 2009), contacting the Commission’s TDD TA–1171–1172 (Preliminary)] entitled Certain Standard Steel terminal on (202) 205–1810. Certain Standard Steel Fasteners From Fasteners from China and Taiwan: SUPPLEMENTARY INFORMATION: The China and Taiwan; Determinations Investigation Nos. 701–TA–472 and Commission instituted this investigation 731–TA–1171–1172 (Preliminary). on March 4, 2008, based on a complaint 1 On the basis of the record developed By order of the Commission. filed by Sharp Corporation (‘‘Sharp’’) of in the subject investigations, the United Issued: November 9, 2009. Japan. 73 FR 11678. The complaint, as States International Trade Commission Marilyn R. Abbott, amended and supplemented, alleges (Commission) determines, pursuant to violations of section 337 of the Tariff sections 703(a) and 733(a) of the Tariff Secretary to the Commission. [FR Doc. E9–27375 Filed 11–13–09; 8:45 am] Act of 1930, as amended, 19 U.S.C. Act of 1930 (19 U.S.C. 1671b(a) and 1337, in the importation into the United 1673b(a)) (the Act), that there is no BILLING CODE 7020–02–P States, the sale for importation, and the reasonable indication that an industry sale within the United States after in the United States is materially importation of certain liquid crystal injured or threatened with material INTERNATIONAL TRADE COMMISSION display devices, products containing injury, or that the establishment of an same, and methods for using the same industry in the United States is [Investigation No. 337–TA–634] by reason of infringement of certain materially retarded, by reason of claims of U.S. Patent Nos. 6,879,364 In the Matter of Certain Liquid Crystal imports from China and Taiwan of (‘‘the ’364 patent’’); 6,952,192 (‘‘the ’192 Display Modules, Products Containing certain standard steel fasteners patent’’); 7,304,703 (‘‘the ’703 patent’’); Same, and Methods Using the Same; (‘‘CSSF’’), provided for in subheadings and 7,304,626 (‘‘the ’626 patent’’). The Final Commission Determination of 7318.15.20, 7318.15.80, and 7318.16.00 complaint further alleges the existence Violation; Issuance of a Limited of the Harmonized Tariff Schedule of of a domestic industry. The Exclusion Order and Cease and Desist the United States. CSSF imported from Commission’s notice of investigation Orders; and Termination of the China are alleged to be subsidized and named the following respondents: Investigation sold in the United States at less than fair Samsung Electronics Co., Ltd. of Korea; value (LTFV). CSSF imported from AGENCY: U.S. International Trade Samsung Electronics America, Inc. of Taiwan are alleged to be sold in the Commission. Ridgefield Park, New Jersey; and United States at LTFV. ACTION: Notice. Samsung Semiconductor, Inc. of San Background Jose, California (collectively, SUMMARY: Notice is hereby given that ‘‘Samsung’’). On September 23, 2009, petitions the U.S. International Trade On June 12, 2009, the ALJ issued his were filed with the Commission and Commission has terminated the above- final ID finding a violation of section Commerce by Nucor Fastener Division, captioned investigation with a finding 337 by Samsung. He also issued his St. Joe, Indiana, alleging that an of violation of section 337, and has recommendation on remedy and industry in the United States is issued a limited exclusion order bonding during the period of materially injured and threatened with directed against products of respondents Presidential review. On June 29, 2009, material injury by reason of LTFV and Samsung Electronics Co., Ltd. of Korea; Samsung and the Commission subsidized imports of CSSF from China Samsung Electronics America, Inc. of investigative attorney (‘‘IA’’) filed and LTFV imports of CSSF from Ridgefield Park, New Jersey; and petitions for review of the final ID. The Taiwan. Accordingly, effective Samsung Semiconductor, Inc. of San IA and Sharp filed responses to the September 23, 2009, the Commission Jose, California; and has issued cease petitions on July 7, 2009. On September instituted countervailing duty and desist orders against Samsung 9, 2009, the Commission issued notice investigation No. 701–TA–472 and Electronics America, Inc. and Samsung of its determination not to review the antidumping duty investigations Nos. Semiconductor, Inc. ALJ’s final ID and requested written 731–TA–1171–1172 (Preliminary). FOR FURTHER INFORMATION CONTACT: submissions on the issues of remedy, Notice of the institution of the the public interest, and bonding from Commission’s investigations and of a Clint Gerdine, Esq., Office of the the parties and interested non-parties. public conference to be held in General Counsel, U.S. International 74 FR 47616–17 (Sept. 16, 2009). connection therewith was given by Trade Commission, 500 E Street, SW., On September 16 and 23, 2009, posting copies of the notice in the Office Washington, DC 20436, telephone (202) respectively, complainant Sharp, the of the Secretary, U.S. International 708–2310. Copies of non-confidential Samsung respondents, and the IA filed Trade Commission, Washington, DC, documents filed in connection with this briefs and reply briefs on the issues for and by publishing the notice in the investigation are or will be available for inspection during official business which the Commission requested 1 The record is defined in sec. 207.2(f) of the hours (8:45 a.m. to 5:15 p.m.) in the written submissions. On September 21, Commission’s Rules of Practice and Procedure (19 Office of the Secretary, U.S. 2009, Samsung filed a petition for CFR 207.2(f)). International Trade Commission, 500 E reconsideration of the Commission’s

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determination not to review certain contained in section 337 of the Tariff —Evaluate whether the proposed portions of the final ID. On October 19, Act of 1930, as amended (19 U.S.C. collection of information is necessary 2009, the Commission issued an order 1337), and in sections 210.42, 210.45, for the proper performance of the denying the petition for reconsideration. and 210.50 of the Commission’s Rules of functions of the agency, including On October 30, 2009, Samsung filed a Practice and Procedure (19 CFR 210.42, whether the information will have supplemental submission on the issues 210.45, 210.50). practical utility; of remedy, the public interest, and Issued: November 9, 2009. —Evaluate the accuracy of the agency’s bonding. On November 2 and 3, 2009, estimate of the burden of the By order of the Commission. respectively, Sharp and the IA filed a proposed collection of information, response to Samsung’s supplemental Marilyn R. Abbott, including the validity of the submission. Secretary to the Commission. methodology and assumptions used; The Commission has made its [FR Doc. E9–27374 Filed 11–13–09; 8:45 am] —Enhance the quality, utility, and determination on the issues of remedy, BILLING CODE 7020–06–P clarity of the information to be the public interest, and bonding. The collected; and Commission has determined that the —Minimize the burden of the collection appropriate form of relief is both: (1) A DEPARTMENT OF JUSTICE of information on those who are to limited exclusion order prohibiting the respond, including through the use of unlicensed entry of LCD devices, Bureau of Alcohol, Tobacco, Firearms appropriate automated, electronic, including display panels and modules, and Explosives mechanical, or other technological and products containing the same that collection techniques or other forms infringe one or more of (i) claims 5–7 of [OMB Number 1140–0074] of information technology, e.g., the ’364 patent; (ii) claims 1 and 4 of the permitting electronic submission of ’192 patent; (iii) claims 1–2, 6–8, 13–14, Agency Information Collection responses. and 16–17 of the ’703 patent; and (iv) Activities: Proposed Collection; claims 10, 17, and 20 of the ’626 patent, Comments Requested Overview of This Information where the infringing LCD devices are Collection manufactured abroad by or on behalf of, ACTION: 30-day Notice of Information (1) Type of Information Collection: or are imported by or on behalf of, Collection Under Review: List of Extension of a currently approved Samsung, or any of its affiliated Responsible Persons. collection. companies, parents, subsidiaries, (2) Title of the Form/Collection: List licensees, contractors, or other related The Department of Justice (DOJ), of Responsible Persons. business entities, or successors or Bureau of Alcohol, Tobacco, Firearms (3) Agency form number, if any, and assigns; and (2) cease and desist orders and Explosives (ATF) will be submitting the applicable component of the prohibiting Samsung Electronics the following information collection Department of Justice sponsoring the America, Inc. and Samsung request to the Office of Management and collection: Form Number: None. Bureau Semiconductor, Inc. from conducting Budget (OMB) for review and approval of Alcohol, Tobacco, Firearms and any of the following activities in the in accordance with the Paperwork Explosives. United States: Importing, selling, Reduction Act of 1995. The proposed (4) Affected public who will be asked marketing, advertising, distributing, information collection is published to or required to respond, as well as a brief offering for sale, transferring (except for obtain comments from the public and abstract: Primary: Individuals or exportation), and soliciting U.S. agents affected agencies. This proposed households. Other: Business or other or distributors for, LCD devices, information collection was previously for-profit. Abstract: All persons holding including display panels and modules, published in the Federal Register ATF explosives licenses or permits must and products containing the same that Volume 74, Number 173, pages 46466– report any change in responsible infringe one or more of (i) Claims 5–7 46467, on September 9, 2009, allowing persons or employees authorized to of the ’364 patent; (ii) claims 1 and 4 of for a 60-day comment period. possess explosive materials to ATF. the ’192 patent; (iii) claims 1–2, 6–8, The purpose of this notice is to allow Such report must be submitted within 13–14, and 16–17 of the ’703 patent; and for an additional 30 days for public 30 days of the change and must include (iv) claims 10, 17, and 20 of the ’626 comment until December 16, 2009. This appropriate identifying information for patent. process is conducted in accordance with each responsible person. The Commission further determined 5 CFR 1320.10. (5) An estimate of the total number of that the public interest factors Written comments and/or suggestions respondents and the amount of time enumerated in section 337(d)(1) (19 regarding the items contained in this estimated for an average respondent to U.S.C. 1337(d)(1)) do not preclude notice, especially the estimated public respond: There will be an estimated issuance of the limited exclusion order burden and associated response time, 50,000 respondents; it will take 1 hour or the cease and desist order. Finally, should be directed to The Office of to complete the report. the Commission determined that a 100 Management and Budget, Office of (6) An estimate of the total burden (in percent bond of the entered value of the Information and Regulatory Affairs, hours) associated with the collection: covered products is required to permit Attention Department of Justice Desk There are an estimated 100,000 total temporary importation during the Officer, Washington, DC 20503. burden hours associated with this period of Presidential review (19 U.S.C. Additionally, comments may be collection. 1337(j)). The Commission’s orders and submitted to OMB via facsimile to (202) If additional information is required opinion were delivered to the President 395–5806. contact: Lynn Bryant, Department and to the United States Trade Written comments and suggestions Clearance Officer, United States Representative on the day of their from the public and affected agencies Department of Justice, Policy and issuance. concerning the proposed collection of Planning Staff, Justice Management The Commission has terminated this information are encouraged. Your Division, Suite 1600, Patrick Henry investigation. The authority for the comments should address one or more Building, 601 D Street, NW., Commission’s determination is of the following four points: Washington, DC 20530.

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Dated: November 9, 2009. —Evaluate the accuracy of the agencies DEPARTMENT OF JUSTICE Lynn Bryant, estimate of the burden of the Department Clearance Officer, PRA, United proposed collection of information, Bureau of Alcohol, Tobacco, Firearms States Department of Justice. including the validity of the and Explosives [FR Doc. E9–27378 Filed 11–13–09; 8:45 am] methodology and assumptions used; [OMB Number 1140–0081] BILLING CODE 4410–FY–P —Enhance the quality, utility, and clarity of the information to be Agency Information Collection collected; and Activities: Proposed Collection; DEPARTMENT OF JUSTICE —Minimize the burden of the collection Comments Requested of information on those who are to Bureau of Alcohol, Tobacco, Firearms respond, including through the use of ACTION: 30-day notice of information and Explosives appropriate automated, electronic, collection under review: Appeals of [OMB Number 1140–0094] mechanical, or other technological background checks. collection techniques or other forms Agency Information Collection The Department of Justice (DOJ), of information technology, e.g., Bureau of Alcohol, Tobacco, Firearms Activities: Proposed Collection; permitting electronic submission of Comments Requested and Explosives (ATF) will be submitting responses. the following information collection ACTION: 30-day notice of information Overview of This Information request to the Office of Management and collection under review: Extension of a Collection Budget (OMB) for review and approval currently approved collection; in accordance with the Paperwork (1) Type of Information Collection: certification of Qualifying State Relief Reduction Act of 1995. The proposed Extension of a currently approved From Disabilities Program. information collection is published to collection. obtain comments from the public and The Department of Justice (DOJ), (2) Title of the Form/Collection: affected agencies. This proposed Bureau of Alcohol, Tobacco, Firearms Certification of Qualifying State Relief information collection was previously and Explosives (ATF) has submitted the from Disabilities Program. published in the Federal Register following information collection request (3) Agency form number, if any, and Volume 74, Number 173, page 46466 on to the Office of Management and Budget the applicable component of the September 9, 2009, allowing for a 60 (OMB) for review and approval in Department of Justice sponsoring the day comment period. accordance with the Paperwork collection: Form Number: ATF F The purpose of this notice is to allow Reduction Act of 1995. The proposed 3210.12. Bureau of Alcohol, Tobacco, for an additional 30 days for public information collection is published to Firearms and Explosives. comment until December 16, 2009. This obtain comments from the public and (4) Affected public who will be asked process is conducted in accordance with affected agencies. This proposed or required to respond, as well as a brief 5 CFR 1320.10. information collection was previously abstract: Primary: State, Local, or Tribal Written comments and/or suggestions published in the Federal Register Government. Other: None. Abstract: The regarding the items contained in this Volume 74, Number 82, page 19985 on purpose of the information is to notice, especially the estimated public April 30, 2009, allowing for a 60-day determine whether a State has certified, burden and associated response time, comment period. to the satisfaction of the Attorney should be directed to The Office of The purpose of this notice is to allow General, that it has established a relief Management and Budget, Office of for an additional 30 days for public from disabilities program in accordance Information and Regulatory Affairs, comment until December 16, 2009. This with the requirements of the National Attention Department of Justice Desk process is conducted in accordance with Instant Check System Improvement Act. Officer, Washington, DC 20503. 5 CFR 1320.10. (5) An estimate of the total number of Additionally, comments may be Written comments and/or suggestions respondents and the amount of time submitted to OMB via facsimile to (202) regarding the items contained in this estimated for an average respondent to 395–5806. notice, especially the estimated public respond: There will be an estimated 50 Written comments and suggestions burden and associated response time, respondents, who will complete the from the public and affected agency’s should be directed to the Office of form within approximately 15 minutes. concerning the proposed collection of Management and Budget, Office of (6) An estimate of the total burden (in information are encouraged. Your Information and Regulatory Affairs, hours) associated with the collection: comments should address one or more Attention Department of Justice Desk There are an estimated 50 total burden of the following four points: Officer, Washington, DC 20503. hours associated with this collection. —Evaluate whether the proposed Additionally, comments may be If additional information is required collection of information is necessary submitted to OMB via facsimile to (202) contact: Lynn Bryant, Department for the proper performance of the 395–5806. Clearance Officer, United States functions of the agency, including Written comments and suggestions Department of Justice, Policy and whether the information will have from the public and affected agencies Planning Staff, Justice Management practical utility; concerning the proposed collection of Division, Suite 1600, Patrick Henry —Evaluate the accuracy of the agency’s information are encouraged. Your Building, 601 D Street, NW., estimate of the burden of the comments should address one or more Washington, DC 20530. proposed collection of information, of the following four points: including the validity of the —Evaluate whether the proposed Dated: November 9, 2009. methodology and assumptions used; collection of information is necessary Lynn Bryant, —Enhance the quality, utility, and for the proper performance of the Department Clearance Officer, PRA, United clarity of the information to be functions of the agency, including States Department of Justice. collected; and whether the information will have [FR Doc. E9–27383 Filed 11–13–09; 8:45 am] —Minimize the burden of the collection practical utility; BILLING CODE 4410–FY–P of information on those who are to

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respond, including through the use of DEPARTMENT OF JUSTICE (3) Enhance the quality, utility, and appropriate automated, electronic, clarity of the information to be mechanical, or other technological Federal Bureau of Investigation collected; and collection techniques or other forms [OMB Number 1110–0009] (4) Minimize the burden of the of information technology, e.g., collection of information on those who permitting electronic submission of Agency Information Collection are to respond, including through the responses. Activities: Proposed Collection, use of appropriate automated, Comments Requested Overview of This Information electronic, mechanical, or other technological collection techniques of Collection ACTION: 30-day Notice of Information Collection Under Review: Revision of a other forms of information technology, (1) Type of Information Collection: currently approved collection. Law e.g., permitting electronic submission of Extension of a currently approved Enforcement Officers Killed and responses. collection. Assaulted Program; Analysis of Officers Overview of This Information (2) Title of the Form/Collection: Feloniously Killed and Assaulted. Law Collection Appeals of Background Checks. Enforcement Officers Killed and Assaulted Program; Analysis of Officers (1) Type of information collection: (3) Agency form number, if any, and Accidentally Killed. Revision of a currently approved the applicable component of the collection. Department of Justice sponsoring the The Department of Justice, Federal collection: Form Number: None. Bureau Bureau of Investigation, Criminal Justice (2) The title of the form/collection: of Alcohol, Tobacco, Firearms and Information Services Division will be Law Enforcement Officers Killed and Explosives. submitting the following information Assaulted Program; Analysis of Officers Feloniously Killed and Assaulted and (4) Affected public who will be asked collection request to the Office of Management and Budget (OMB) for Law Enforcement Officers Killed and or required to respond, as well as a brief Assaulted Program; Analysis of Officers abstract: Primary: Business or other for- review and clearance in accordance with established review procedures of Accidentally Killed. profit. Other: Individuals. Abstract: The the Paperwork Reduction Act of 1995. (3) The agency form number, if any, purpose of the collection is to allow The proposed information collection is and the applicable component of the applicants, employees, or other affected published to obtain comments from the department sponsoring the collection: personnel the opportunity to appeal in public and affected agencies. This Forms 1–701 and 1–701a; Criminal writing the results of a background proposed information collection was Justice Information Services Division, check conducted to satisfy their previously published in the Federal Federal Bureau of Investigation, eligibility to possess explosive Register, Volume 74, Number 172, page Department of Justice. materials. The appeal request must 46226, on September 8, 2009, allowing include appropriate documentation or (4) Affected public who will be asked for a 60 day comment period. or required to respond, as well as a brief record(s) establishing the legal and/or The purpose of this notice is to allow abstract: Primary: City, county, State, factual basis for the challenge. for an additional 30 days for public Federal and tribal law enforcement comment until December 16, 2009. This (5) An estimate of the total number of agencies. These forms will gather process is conducted in accordance with respondents and the amount of time specific incident data obtained from law 5 CFR 1320.10. estimated for an average respondent to enforcement agencies in which an respond: It is estimated that 500 Written comments and/or suggestions regarding the items contained in this officer was accidentally killed, respondents will spend 2 hours notice, especially the estimated public feloniously killed or assaulted with completing the required documentation burden and associated response time, injury from a firearm or knife or other for the appeal. should be directed to Mr. Gregory E. cutting instrument in the line of duty. (6) An estimate of the total burden (in Scarbro, Unit Chief, Federal Bureau of Data are published annually in the hours) associated with the collection: Investigation, Criminal Justice publication Law Enforcement Officers There are an estimated 1,000 total Information Services (CJIS) Division, Killed and Assaulted. burden hours associated with this Module E–3, 1000 Custer Hollow Road, (5) An estimate of the total number of collection. Clarksburg, West Virginia 26306; respondents and the amount of time If additional information is required facsimile (304) 625–3566. estimated for an average respondent to Written comments and suggestions contact: Lynn Bryant, Department respond: There are approximately 258 from the public and affected agencies Clearance Officer, United States law enforcement agency respondents; concerning the proposed collection of Department of Justice, Policy and calculated estimates indicate 1 hour per information are encouraged. Comments report. Planning Staff, Justice Management should address one or more of the (6) An estimate of the total public Division, Suite 1600, Patrick Henry following four points: burden (in hours) associated with this Building, 601 D Street, NW., (1) Evaluate whether the proposed collection: There are approximately 258 Washington, DC 20530. collection of information is necessary hours, annual burden, associated with for the proper performance of the Dated: November 9, 2009. this information collection. Lynn Bryant, functions of the agency, including whether the information will have If additional information is required Department Clearance Officer, PRA, United practical utility; contact: Ms. Lynn Bryant, Department States Department of Justice. (2) Evaluate the accuracy of the Clearance Officer, Policy and Planning [FR Doc. E9–27385 Filed 11–13–09; 8:45 am] agency’s estimate of the burden of the Staff, Justice Management Division, BILLING CODE 4410–FY–P proposed collection of information, United States Department of Justice, including the validity of the Patrick Henry Building, Suite 1600, 601 methodology and assumptions used; D Street, NW., Washington, DC 20530.

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Dated: November 9, 2009. including the validity of the Dated: November 9, 2009. Lynn Bryant, methodology and assumptions used; Lynn Bryant, Department Clearance Officer, PRA, United Department Clearance Officer, PRA U.S. States Department of Justice. —Enhance the quality, utility, and Department of Justice. [FR Doc. E9–27347 Filed 11–13–09; 8:45 am] clarity of the information to be [FR Doc. E9–27346 Filed 11–13–09; 8:45 am] BILLING CODE 4410–02–P collected; and BILLING CODE 4410–09–P —Minimize the burden of the collection of information on those who are to DEPARTMENT OF JUSTICE respond, including through the use of DEPARTMENT OF JUSTICE appropriate automated, electronic, Drug Enforcement Administration mechanical, or other technological Drug Enforcement Administration [OMB Number 1117–0034] collection techniques or other forms of information technology, e.g., [OMB Number 1117–0029] Agency Information Collection permitting electronic submission of responses. Agency Information Collection Activities: Proposed Collection; Activities: Proposed Collection; Comments Requested; Collection of Overview of This Information Comments Requested: Annual Laboratory Analysis Data on Drug Collection Reporting Requirement for Samples Tested by Non-Federal (State Manufacturers of Listed Chemicals and Local) Crime Laboratories (1) Type of Information Collection: Extension of a currently approved ACTION: 30-day notice of information ACTION: 30-day notice of information collection. collection under review. collection under review. (2) Title of the Form/Collection: Collection of Laboratory Analysis Data The Department of Justice (DOJ), Drug The Department of Justice (DOJ), Drug on Drug Samples Tested by Non-Federal Enforcement Administration (DEA) will Enforcement Administration (DEA), will (State and Local Government) Crime be submitting the following information be submitting the following information Laboratories. collection request to the Office of collection request to the Office of (3) Agency form number, if any, and Management and Budget (OMB) for Management and Budget (OMB) for the applicable component of the review and approval in accordance with review and approval in accordance with Department sponsoring the collection: the Paperwork Reduction Act of 1995. the Paperwork Reduction Act of 1995. Form number: none. The proposed information collection is The proposed information collection is Office of Diversion Control, Drug published to obtain comments from the published to obtain comments from the Enforcement Administration, U.S. public and affected agencies. This public and affected agencies. This Department of Justice. proposed information collection was (4) Affected public who will be asked proposed information collection was previously published in the Federal or required to respond, as well as a brief previously published in the Federal Register Volume 74, Number 177, page abstract: Register Volume 74, Number 174, page 47274 on September 15, 2009, allowing Primary: State, Local or Tribal 46618 on September 10, 2009, allowing for a 60-day comment period. Government. for a 60 day comment period. The purpose of this notice is to allow Other: None. The purpose of this notice is to allow for an additional 30 days for public Abstract: Information is needed from for an additional 30 days for public comment until December 16, 2009. This state and local laboratories to provide comment until December 16, 2009. This process is conducted in accordance with DEA with additional analyzed drug process is conducted in accordance with 5 CFR 1320.10. Written comments and/ information for the National Forensic 5 CFR 1320.10. Written comments and/ or suggestions regarding the items Laboratory Information System. or suggestions regarding the items contained in this notice, especially the (5) An estimate of the total number of contained in this notice, especially the estimated public burden and associated respondents and the amount of time estimated public burden and associated response time, should be directed to the estimated for an average respondent to response time, should be directed to the Office of Management and Budget, respond: It is estimated that there are Office of Management and Budget, Office of Information and Regulatory one hundred fifty (150) total Office of Information and Regulatory Affairs, Attention Department of Justice respondents for this information Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. collection. One hundred twenty (120) Desk Officer, Washington, DC 20503. Additionally, comments may be respond monthly at .16 hour (10 Additionally, comments may be submitted to OMB via facsimile to (202) minutes) for each response and thirty submitted to OMB via facsimile to (202) 395–5806. Written comments and (30) respond quarterly at .16 hour (10 395–5806. suggestions from the public and affected minutes) for each response, for a total Written comments and suggestions agencies concerning the proposed number of 1560 respondents. from the public and affected agencies collection of information are (6) An estimate of the total public concerning the proposed collection of encouraged. Your comments should burden (in hours) associated with the information are encouraged. Your address one or more of the following collection: It is estimated that there are comments should address one or more four points: 259 annual burden hours associated of the following four points: —Evaluate whether the proposed with this collection. —Evaluate whether the proposed collection of information is necessary If additional information is required collection of information is necessary for the proper performance of the contact: Lynn Bryant, Department for the proper performance of the functions of the agency, including Clearance Officer, United States functions of the agency, including whether the information will have Department of Justice, Justice whether the information will have practical utility; Management Division, Policy and practical utility; —Evaluate the accuracy of the agencies Planning Staff, Patrick Henry Building, —Evaluate the accuracy of the agencies estimate of the burden of the Suite 1600, 601 D Street NW., estimate of the burden of the proposed collection of information, Washington, DC 20530. proposed collection of information,

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including the validity of the Dated: November 9, 2009. • Enhance the quality, utility, and methodology and assumptions used; Lynn Bryant, clarity of the information to be Department Clearance Officer, PRA, U.S. collected; and —Enhance the quality, utility, and • clarity of the information to be Department of Justice. Minimize the burden of the collected; and [FR Doc. E9–27345 Filed 11–13–09; 8:45 am] collection of information on those who BILLING CODE 4410–09–P are to respond, including through the —Minimize the burden of the collection use of appropriate automated, of information on those who are to electronic, mechanical, or other respond, including through the use of DEPARTMENT OF JUSTICE technological collection techniques or appropriate automated, electronic, other forms of information technology, mechanical, or other technological Drug Enforcement Administration e.g., permitting electronic submission of collection techniques or other forms responses. of information technology, e.g., [OMB Number 1117–0033] permitting electronic submission of Overview of Information Collection Agency Information Collection responses. 1117–0033 Activities: Proposed Collection; Overview of This Information Comments Requested: Report of Mail (1) Type of Information Collection: Collection Order Transaction Extension of a currently approved collection. (1) Type of Information Collection: ACTION: 30-day notice of information (2) Title of the Form/Collection: Extension of a currently approved collection under review. Report of Mail Order Transaction. collection. (3) Agency form number, if any, and The Department of Justice (DOJ), Drug (2) Title of the Form/Collection: the applicable component of the Enforcement Administration (DEA), will Department of Justice sponsoring the Annual Reporting Requirement for be submitting the following information Manufacturers of Listed Chemicals. collection: collection request to the Office of Form Number: none; Office of (3) Agency form number, if any, and Management and Budget (OMB) for Diversion Control, Drug Enforcement the applicable component of the review and approval in accordance with Administration, Department of Justice. Department sponsoring the collection: the Paperwork Reduction Act of 1995. (4) Affected public who will be asked Form number: none. Office of Diversion The proposed information collection is or required to respond, as well as a brief Control, Drug Enforcement published to obtain comments from the abstract: Administration, U.S. Department of public and affected agencies. This Primary: Business or other for-profit. Justice. proposed information collection was Other: Not-for-Profit Institutions; (4) Affected public who will be asked previously published in the Federal State, Local or Tribal Government. or required to respond, as well as a brief Register Volume 74, Number 174, page Abstract: The Comprehensive abstract: 46617, on September 10, 2009, allowing Methamphetamine Control Act of 1996 (Pub. L. 104–237) (MCA) amended the Primary: Business or other for-profit. for a 60-day comment period. The purpose of this notice is to allow Controlled Substances Act to require Other: None. for an additional 30 days for public that each regulated person who engages Abstract: This information collection comment until December 16, 2009. This in a transaction with a non-regulated permits the Drug Enforcement process is conducted in accordance with person which involves ephedrine, Administration to monitor the volume 5 CFR 1320.10. Written comments and/ pseudoephedrine, or and availability of domestically or suggestions regarding the items phenylpropanolamine (including drug manufactured listed chemicals. These contained in this notice, especially the products containing these chemicals) listed chemicals may be subject to estimated public burden and associated and uses or attempts to use the Postal diversion for the illicit production of response time, should be directed to the Service or any private or commercial controlled substances. This information Office of Management and Budget, carrier shall, on a monthly basis, submit collection is required by law. Office of Information and Regulatory a report of each such transaction (5) An estimate of the total number of Affairs, Attention Department of Justice conducted during the previous month to respondents and the amount of time Desk Officer, Washington, DC 20503. the Attorney General. estimated for an average respondent to Additionally, comments may be (5) An estimate of the total number of respond: It is estimated that there are submitted to OMB via facsimile to (202) respondents and the amount of time one hundred (100) total respondents for 395–5806. estimated for an average respondent to this information collection. One Written comments and suggestions respond: It is estimated that there are 16 hundred (100) persons respond at 4 from the public and affected agencies total respondents for this information hours per response. concerning the proposed collection of collection; 11 for paper form at 1 hour information are encouraged. Your for each response; and five (5) via (6) An estimate of the total public comments should address one or more electronic mail at 15 minutes per form. burden (in hours) associated with the of the following four points: The total annual burden is 147 hours collection: It is estimated that there are • Evaluate whether the proposed (132 hours for paper forms and 15 hours 400 annual burden hours associated collection of information is necessary for electronic forms). with this collection. for the proper performance of the (6) An estimate of the total public If additional information is required functions of the agency, including burden (in hours) associated with the contact: Lynn Bryant, Department whether the information will have collection: It is estimated that there are Clearance Officer, United States practical utility; 147 annual burden hours associated Department of Justice, Justice • Evaluate the accuracy of the with this collection. Management Division, Policy and agencies estimate of the burden of the If additional information is required Planning Staff, Patrick Henry Building, proposed collection of information, contact: Lynn Bryant, Department Suite 1600, 601 D Street NW., including the validity of the Clearance Officer, United States Washington, DC 20530. methodology and assumptions used; Department of Justice, Justice

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Management Division, Policy and for the proper performance of the Building, 601 D Street, NW., Planning Staff, Patrick Henry Building, functions of the agency, including Washington, DC 20530. Suite 1600, 601 D Street NW., whether the information will have Dated: November 9, 2009. Washington, DC 20530. practical utility; Lynn Bryant, —Evaluate the accuracy of the agency’s Dated: November 9, 2009. Department Clearance Officer, PRA, United estimate of the burden of the Lynn Bryant, States Department of Justice. proposed collection of information, [FR Doc. E9–27384 Filed 11–13–09; 8:45 am] Department Clearance Officer, PRA, U.S. including the validity of the Department of Justice. methodology and assumptions used; BILLING CODE 4410–FY–P [FR Doc. E9–27344 Filed 11–13–09; 8:45 am] —Enhance the quality, utility, and BILLING CODE 4410–09–P clarity of the information to be DEPARTMENT OF JUSTICE collected; and —Minimize the burden of the collection DEPARTMENT OF JUSTICE Bureau of Alcohol, Tobacco, Firearms of information on those who are to and Explosives respond, including through the use of Bureau of Alcohol, Tobacco, Firearms [OMB Number 1140–0076] and Explosives appropriate automated, electronic, mechanical, or other technological Agency Information Collection [OMB Number 1140–0082] collection techniques or other forms Activities: Proposed Collection; of information technology, e.g., Comments Requested Agency Information Collection permitting electronic submission of Activities: Proposed Collection; responses. ACTION: Comments Requested 30-day notice of information Overview of This Information collection under review: Relief of ACTION: 30-day notice of information Collection disabilities. collection under review: Certification of (1) Type of Information Collection: The Department of Justice (DOJ), knowledge of State laws, submission of Extension of a currently approved Bureau of Alcohol, Tobacco, Firearms Water Pollution Act. collection. and Explosives (ATF) will be submitting (2) Title of the Form/Collection: The Department of Justice (DOJ), the following information collection Certification of Knowledge of State Bureau of Alcohol, Tobacco, Firearms request to the Office of Management and Laws, Submission of Water Pollution and Explosives (ATF) will be submitting Budget (OMB) for review and approval Act. the following information collection in accordance with the Paperwork (3) Agency form number, if any, and Reduction Act of 1995. The proposed request to the Office of Management and the applicable component of the information collection is published to Budget (OMB) for review and approval Department of Justice sponsoring the obtain comments from the public and in accordance with the Paperwork collection: Form Number: None. Bureau affected agencies. This proposed Reduction Act of 1995. The proposed of Alcohol, Tobacco, Firearms and information collection was previously information collection is published to Explosives. published in the Federal Register obtain comments from the public and (4) Affected public who will be asked Volume 74, Number 173, pages 46467– affected agencies. This proposed or required to respond, as well as a brief 46468 on September 9, 2009, allowing information collection was previously abstract: Primary: Individuals or for a 60 day comment period. published in the Federal Register households. Other: None. Abstract: The purpose of this notice is to allow Volume 74, Number 173, page 46465 on Persons who apply for a permit to for an additional 30 days for public September 9, 2009, allowing for a 60- purchase explosives intrastate must comment until December 16, 2009. This day comment period. certify in writing that he is familiar with process is conducted in accordance with The purpose of this notice is to allow and understands all published State 5 CFR 1320.10. for an additional 30 days for public laws and local ordinances relating to Written comments and/or suggestions comment until December 16, 2009. This explosive materials for the location in regarding the items contained in this process is conducted in accordance with which he intends to do business and notice, especially the estimated public 5 CFR 1320.10. submit the certificate required by burden and associated response time, Written comments and/or suggestions section 21 of the Federal Water should be directed to The Office of regarding the items contained in this Pollution Control Act. Management and Budget, Office of notice, especially the estimated public (5) An estimate of the total number of Information and Regulatory Affairs, burden and associated response time, respondents and the amount of time Attention Department of Justice Desk should be directed to The Office of estimated for an average respondent to Officer, Washington, DC 20503. Management and Budget, Office of respond: There will be an estimated Additionally, comments may be Information and Regulatory Affairs, 50,000 respondents; it will take an submitted to OMB via facsimile to (202) Attention Department of Justice Desk estimated time of 30 seconds to submit 395–5806. Officer, Washington, DC 20503. the required information. Written comments and suggestions Additionally, comments may be (6) An estimate of the total burden (in from the public and affected agencies submitted to OMB via facsimile to (202) hours) associated with the collection: concerning the proposed collection of 395–5806. There are an estimated 416 annual total information are encouraged. Your Written comments and suggestions burden hours associated with this comments should address one or more from the public and affected agencies collection. of the following four points: concerning the proposed collection of If additional information is required —Evaluate whether the proposed information are encouraged. Your contact: Lynn Bryant, Department collection of information is necessary comments should address one or more Clearance Officer, United States for the proper performance of the of the following four points: Department of Justice, Policy and functions of the agency, including —Evaluate whether the proposed Planning Staff, Justice Management whether the information will have collection of information is necessary Division, Suite 1600, Patrick Henry practical utility;

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—Evaluate the accuracy of the agencies DEPARTMENT OF JUSTICE —Minimize the burden of the collection estimate of the burden of the of information on those who are to proposed collection of information, Bureau of Alcohol, Tobacco, Firearms respond, including through the use of including the validity of the and Explosives appropriate automated, electronic, methodology and assumptions used; mechanical, or other technological [OMB Number 1140–0077] —Enhance the quality, utility, and collection techniques or other forms clarity of the information to be Agency Information Collection of information technology, e.g., collected; and Activities: Proposed Collection; permitting electronic submission of —Minimize the burden of the collection Comments Requested responses. of information on those who are to respond, including through the use of ACTION: 30-day notice of information Overview of This Information appropriate automated, electronic, collection under review: Report of Lost Collection mechanical, or other technological or Stolen ATF F 5400.30, Intrastate (1) Type of Information Collection: collection techniques or other forms Purchase of Explosives Coupon. Extension of a currently approved of information technology, e.g., permitting electronic submission of The Department of Justice (DOJ), collection. responses. Bureau of Alcohol, Tobacco, Firearms (2) Title of the Form/Collection: and Explosives (ATF) will be submitting Report of Stolen or Lost ATF F 5400.30, Overview of This Information the following information collection Intrastate Purchase of Explosives Collection request to the Office of Management and Coupon. Budget (OMB) for review and approval (1) Type of Information Collection: (3) Agency form number, if any, and in accordance with the Paperwork Extension of a currently approved the applicable component of the collection. Reduction Act of 1995. The proposed information collection is published to Department of Justice sponsoring the (2) Title of the Form/Collection: Relief collection: Form Number: ATF F of Disabilities. obtain comments from the public and affected agencies. This proposed 5400.30. Bureau of Alcohol, Tobacco, (3) Agency form number, if any, and Firearms and Explosives. the applicable component of the information collection was previously Department of Justice sponsoring the published in the Federal Register (4) Affected public who will be asked collection: Form Number: None. Bureau Volume 74, Number 173, page 46468 on or required to respond, as well as a brief of Alcohol, Tobacco, Firearms and September 9, 2009, allowing for a 60- abstract: Primary: Business or other for- Explosives. day comment period. profit. Other: Individuals or households. (4) Affected public who will be asked The purpose of this notice is to allow Abstract: When any Intrastate Purchase or required to respond, as well as a brief for an additional 30 days for public of Explosives Coupon is stolen, lost or abstract: Primary: Business or other for- comment until December 16, 2009. This destroyed, the person losing possession profit. Other: None. Abstract: Any process is conducted in accordance with will, upon discovery of the theft, loss or person prohibited from shipping or 5 CFR 1320.10. destruction, immediately, but in all transporting any explosive in or Written comments and/or suggestions cases before 24 hours have elapsed since affecting interstate or foreign commerce regarding the items contained in this discovery, report the matter to the notice, especially the estimated public or from receiving or possessing any Director, Alcohol, Tobacco Firearms and burden and associated response time, explosive which has been shipped or Explosives. should be directed to The Office of transported in or affecting interstate or (5) An estimate of the total number of foreign commerce may make application Management and Budget, Office of respondents and the amount of time for relief from disabilities. Information and Regulatory Affairs, Attention Department of Justice Desk estimated for an average respondent to (5) An estimate of the total number of Officer, Washington, DC 20503. respond: There will be an estimated 800 respondents and the amount of time Additionally, comments may be respondents will complete a 20-minute estimated for an average respondent to submitted to OMB via facsimile to (202) respond: It is estimated that 50 form. 395–5806. respondents will take 1 minute to (6) An estimate of the total burden (in Written comments and suggestions support documentation for relief. hours) associated with the collection: from the public and affected agencies (6) An estimate of the total burden (in There are an estimated 264 total burden concerning the proposed collection of hours) associated with the collection: hours associated with this collection. information are encouraged. Your The estimated annual total burden comments should address one or more If additional information is required associated with this collection is 1 hour. of the following four points: contact: Lynn Bryant, Department If additional information is required Clearance Officer, United States contact: Lynn Bryant, Department —Evaluate whether the proposed collection of information is necessary Department of Justice, Policy and Clearance Officer, United States Planning Staff, Justice Management Department of Justice, Policy and for the proper performance of the functions of the agency, including Division, Suite 1600, Patrick Henry Planning Staff, Justice Management Building, 601 D Street, NW., Division, Suite 1600, Patrick Henry whether the information will have Washington, DC 20530. Building, 601 D Street NW., practical utility; Washington, DC 20530. —Evaluate the accuracy of the agencies Dated: November 9, 2009. estimate of the burden of the Lynn Bryant, Dated: November 9, 2009. proposed collection of information, Lynn Bryant, including the validity of the Department Clearance Officer, PRA, United Department Clearance Officer, PRA, United methodology and assumptions used; States Department of Justice. States Department of Justice. —Enhance the quality, utility, and [FR Doc. E9–27381 Filed 11–13–09; 8:45 am] [FR Doc. E9–27382 Filed 11–13–09; 8:45 am] clarity of the information to be BILLING CODE 4410–FY–P BILLING CODE 4410–FY–P collected; and

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DEPARTMENT OF JUSTICE respond, including through the use of DEPARTMENT OF JUSTICE appropriate automated, electronic, Bureau of Alcohol, Tobacco, Firearms mechanical, or other technological Bureau of Alcohol, Tobacco, Firearms and Explosives collection techniques or other forms and Explosives [OMB Number 1140–0073] of information technology, e.g., [OMB Number 1140–0079] permitting electronic submission of Agency Information Collection responses. Agency Information Collection Activities: Proposed Collection; Activities: Proposed Collection; Comments Requested Overview of This Information Comments Requested Collection ACTION: 30-day notice of information ACTION: 30-day notice of information collection under review: Furnishing of (1) Type of Information Collection: collection under review: Transactions Samples. Extension of a currently approved among licensee/permittees and collection. transactions among licensees and The Department of Justice (DOJ), (2) Title of the Form/Collection: holders of user permits. Bureau of Alcohol, Tobacco, Firearms Furnishing of Samples. and Explosives (ATF) will be submitting The Department of Justice (DOJ), the following information collection (3) Agency form number, if any, and Bureau of Alcohol, Tobacco, Firearms request to the Office of Management and the applicable component of the and Explosives (ATF) will be submitting Budget (OMB) for review and approval Department of Justice sponsoring the the following information collection in accordance with the Paperwork collection: Form Number: None. Bureau request to the Office of Management and Reduction Act of 1995. The proposed of Alcohol, Tobacco, Firearms and Budget (OMB) for review and approval information collection is published to Explosives. in accordance with the Paperwork obtain comments from the public and (4) Affected public who will be asked Reduction Act of 1995. The proposed affected agencies. This proposed or required to respond, as well as a brief information collection is published to information collection was previously abstract: Primary: Business or other for- obtain comments from the public and published in the Federal Register profit. Other: None. Abstract: Licensed affected agencies. This proposed Volume 74, Number 172, page 46225 on information collection was previously manufacturers and licensed importers September 8, 2009, allowing for a 60- published in the Federal Register and persons who manufacture or import day comment period. Volume 74, Number 173, pages 46465– explosive materials or ammonium The purpose of this notice is to allow 46466 on September 9, 2009, allowing for an additional 30 days for public nitrate must, when required by the for a 60 day comment period. comment until December 16, 2009. This Director, furnish samples of such The purpose of this notice is to allow process is conducted in accordance with explosive materials or ammonium for an additional 30 days for public 5 CFR 1320.10. nitrate; information on chemical comment until December 16, 2009. This Written comments and/or suggestions composition of those products; and any process is conducted in accordance with regarding the items contained in this other information that the Director 5 CFR 1320.10. notice, especially the estimated public determines is relevant to the Written comments and/or suggestions burden and associated response time, identification of the ammonium nitrate. regarding the items contained in this should be directed to The Office of (5) An estimate of the total number of notice, especially the estimated public Management and Budget, Office of respondents and the amount of time burden and associated response time, Information and Regulatory Affairs, estimated for an average respondent to should be directed to The Office of Attention Department of Justice Desk respond: It is estimated 2,350 Management and Budget, Office of Officer, Washington, DC 20503. Information and Regulatory Affairs, respondents will take 30 minutes to Additionally, comments may be Attention Department of Justice Desk submit the samples. submitted to OMB via facsimile to (202) Officer, Washington, DC 20503. 395–5806. (6) An estimate of the total burden (in Additionally, comments may be Written comments and suggestions hours) associated with the collection: submitted to OMB via facsimile to from the public and affected agencies There are an estimated 1,175 total (202)–395–5806. concerning the proposed collection of burden hours associated with this Written comments and suggestions information are encouraged. Your collection. from the public and affected agencies comments should address one or more If additional information is required concerning the proposed collection of of the following four points: contact: Lynn Bryant, Department information are encouraged. Your comments should address one or more —Evaluate whether the proposed Clearance Officer, United States collection of information is necessary of the following four points: Department of Justice, Policy and for the proper performance of the —Evaluate whether the proposed Planning Staff, Justice Management functions of the agency, including collection of information is necessary Division, Suite 1600, Patrick Henry whether the information will have for the proper performance of the practical utility; Building, 601 D Street, NW., functions of the agency, including —Evaluate the accuracy of the agencies Washington, DC 20530. whether the information will have estimate of the burden of the Dated: November 9, 2009. practical utility; proposed collection of information, Lynn Bryant, —Evaluate the accuracy of the agencies estimate of the burden of the including the validity of the Department Clearance Officer, PRA, United proposed collection of information, methodology and assumptions used; States Department of Justice. —Enhance the quality, utility, and including the validity of the clarity of the information to be [FR Doc. E9–27379 Filed 11–13–09; 8:45 am] methodology and assumptions used; collected; and BILLING CODE 4410–FY–P —Enhance the quality, utility, and —Minimize the burden of the collection clarity of the information to be of information on those who are to collected; and

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—Minimize the burden of the collection Dated: November 9, 2009. be sent either by e-mail to: of information on those who are to Lynn Bryant, [email protected], or by FAX to respond, including through the use of Department Clearance Officer, PRA, United (202) 219–0204 by the end of the appropriate automated, electronic, States Department of Justice. scheduled comment period. The mechanical, or other technological [FR Doc. E9–27380 Filed 11–13–09; 8:45 am] applications for exemption and the collection techniques or other forms BILLING CODE 4410–FY–P comments received will be available for of information technology, e.g., public inspection in the Public permitting electronic submission of Documents Room of the Employee responses. DEPARTMENT OF LABOR Benefits Security Administration, U.S. Department of Labor, Room N–1513, Overview of This Information Employee Benefits Security 200 Constitution Avenue, NW., Collection Administration Washington, DC 20210. Notice to Interested Persons (1) Type of Information Collection: Application Nos. and Proposed Extension of a currently approved Exemptions; D–11491, JPMorgan Notice of the proposed exemptions collection. Chase Bank, N.A. (JPMCB or the will be provided to all interested (2) Title of the Form/Collection: Applicant); D–11492, Ivy Asset persons in the manner agreed upon by Transactions Among Licensee/ Management Corporation; and D– the applicant and the Department within 15 days of the date of publication Permittees and Transactions Among 11571, The Bank of New York (BNY in the Federal Register. Such notice Licensees and Holders of User Permits. Mellon or the Applicant), et al. shall include a copy of the notice of (3) Agency form number, if any, and AGENCY: Employee Benefits Security proposed exemption as published in the the applicable component of the Administration, Labor. Federal Register and shall inform Department of Justice sponsoring the ACTION: Notice of proposed exemptions. interested persons of their right to collection: Form Number: None. Bureau comment and to request a hearing SUMMARY: of Alcohol, Tobacco, Firearms and This document contains (where appropriate). notices of pendency before the Explosives. SUPPLEMENTARY INFORMATION: The Department of Labor (the Department) of proposed exemptions were requested in (4) Affected public who will be asked proposed exemptions from certain of the applications filed pursuant to section or required to respond, as well as a brief prohibited transaction restrictions of the 408(a) of the Act and/or section abstract: Primary: Business or other for- Employee Retirement Income Security 4975(c)(2) of the Code, and in profit. Other: None. Abstract: The Safe Act of 1974 (ERISA or the Act) and/or accordance with procedures set forth in Explosives Act requires that an the Internal Revenue Code of 1986 (the 29 CFR part 2570, subpart B (55 FR explosives distributor must verify the Code). 32836, 32847, August 10, 1990). identity of the purchaser; an explosives Written Comments and Hearing Effective December 31, 1978, section purchaser must provide a copy of the Requests 102 of Reorganization Plan No. 4 of license/permit to the distributor prior to All interested persons are invited to 1978, 5 U.S.C. App. 1 (1996), transferred the purchase of explosive materials; the authority of the Secretary of the possessors of explosive materials must submit written comments or requests for a hearing on the pending exemptions, Treasury to issue exemptions of the type provide a list of explosive storage requested to the Secretary of Labor. locations; purchasers of explosive unless otherwise stated in the Notice of Proposed Exemption, within 45 days Therefore, these notices of proposed materials must provide a list of from the date of publication of this exemption are issued solely by the representatives authorized to purchase Federal Register Notice. Comments and Department. on behalf of the distributor; and an requests for a hearing should state: (1) The applications contain explosive purchaser must provide a The name, address, and telephone representations with regard to the statement of intended use of the number of the person making the proposed exemptions which are explosives. comment or request, and (2) the nature summarized below. Interested persons (5) An estimate of the total number of of the person’s interest in the exemption are referred to the applications on file respondents and the amount of time and the manner in which the person with the Department for a complete estimated for an average respondent to would be adversely affected by the statement of the facts and representations. respond: There will be an estimated exemption. A request for a hearing must 50,000 respondents, who will take 30 also state the issues to be addressed and JPMorgan Chase Bank, N.A. (JPMCB or the minutes to comply with the required include a general description of the Applicant), Located in New York, New evidence to be presented at the hearing. York information. [Application No. D–11491] (6) An estimate of the total burden (in ADDRESSES: All written comments and Proposed Exemption hours) associated with the collection: requests for a hearing (at least three There are an estimated 25,000 total copies) should be sent to the Employee The Department is considering burden hours associated with this Benefits Security Administration granting an exemption under the (EBSA), Office of Exemption collection. authority of section 408(a) of the Act Determinations, Room N–5700, U.S. and section 4975(c)(2) of the Code and If additional information is required Department of Labor, 200 Constitution in accordance with the procedures set contact: Lynn Bryant, Department Avenue, NW., Washington, DC 20210. forth in 29 CFR part 2570, Subpart B (55 Clearance Officer, United States Attention: Application No. ll, stated FR 32836, 32847, August 10, 1990). Department of Justice, Policy and in each Notice of Proposed Exemption. Planning Staff, Justice Management Interested persons are also invited to Section I—Transactions Division, Suite 1600, Patrick Henry submit comments and/or hearing If the exemption is granted, the Building, 601 D Street, NW., requests to EBSA via e-mail or FAX. restrictions of sections 406(a), 406(b)(1) Washington, DC 20530. Any such comments or requests should and (b)(2) of the Act, and the sanctions

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resulting from the application of section available in transactions with other (3) Should JPMCB or its affiliates 4975 of the Code, by reason of section similarly situated unrelated third-party refuse to disclose information on the 4975(c)(1)(A) through (E) of the Code commercial clients of JPMCB or of its basis that such information is exempt shall not apply, effective July 1, 2004, to current or future affiliates. from disclosure, pursuant to Section the continued and future provision by C. JPMCB or its affiliates maintain, or II(D)(2) above, JPMCB or its affiliates JPMCB or by its current or future cause to be maintained, for a period of shall, by the close of the thirtieth (30th) affiliates of letters of credit to guarantee six (6) years from the date of any day following the request, provide a the commercial lease obligations of transactions involving letters of credit written notice advising that person of unrelated third-party tenants in described in Section I above such the reasons for the refusal and that the connection with commercial properties records as are necessary to enable the Department may request such owned by a Fund (as defined below in persons, described below in Section information. II(D), to determine whether the Section III) or commercial properties for Section III—Definitions which a Fund has a security interest, conditions of this exemption have been where JPMCB is the manager and trustee met, except that— A. The term ‘‘independent fiduciary’’ (Trustee) of such Funds that hold the (1) No party in interest with respect means Fiduciary Counselors Inc. assets of certain employee benefit plans to a Plan whose assets are involved in (Fiduciary Counselors) or any successor (the Plans), provided that the conditions letter of credit transactions described in Independent Fiduciary, provided that set forth below in Section II are Section I above, other than JPMCB or its Fiduciary Counselors or its successor is: satisfied. affiliates, shall be subject to a civil (1) Independent of, and unrelated to, penalty under section 502(i) of the Act JPMCB and its affiliates, and (2) Section II—Conditions or the taxes imposed by section 4975(a) appointed to act on behalf of each Fund A. With respect to existing or future and (b) of the Code, if such records are for the purposes described in Section letters of credit, each of the Funds is not maintained, or not available for II.A and II.B above. For purposes of this represented by an independent examination, as required below by proposed exemption, a fiduciary will fiduciary to perform the following Section II(D); and not be deemed to be independent of, functions: (2) A separate prohibited transaction and unrelated to, JPMCB if: (i) Such (1) Monitor monthly reports of rental shall not be considered to have occurred fiduciary directly or indirectly, controls, payments of tenants utilizing such if, due to circumstances beyond the is controlled by, or is under common letters of credit issued by JPMCB, or any control of JPMCB or its affiliates, such control with JPMCB; (ii) such fiduciary current or future affiliate of JPMCB, to records are lost or destroyed prior to the directly or indirectly receives any guarantee their lease payments; end of the six-year period. compensation or other consideration in (2) Confirm whether an event has D. (1) Except as provided below in connection with any transaction occurred that calls for a letter of credit Section II(D)(2), and notwithstanding described in this proposed exemption, to be drawn upon; and any provisions of subsections (a)(2) and except that it may receive compensation (3) Represent each of the Funds and (b) of section 504 of the Act, the records for acting as an independent fiduciary the Plans as an independent fiduciary in referred to above in Section II(C) are from JPMCB in connection with the any circumstances with respect to a unconditionally available at their transactions described herein, if the letter of credit which would present a customary location for examination amount or payment of such conflict of interest for the Trustee or during normal business hours by— compensation is not contingent upon, or otherwise violate section 406(b), (i) Any duly authorized employee or in any way affected by such fiduciary’s including but not limited to: the need to representative of the Department, the decision; and (iii) more than 5 percent enforce a remedy against JPMCB or a Internal Revenue Service, the Securities of such fiduciary’s annual gross revenue current or future affiliate with respect to and Exchange Commission (SEC), and in its prior tax year will be paid by its obligations under a letter of credit. any U.S. banking regulatory agency; JPMCB and its affiliates in the B. With respect to future letters of (ii) Any fiduciary of any Plan whose fiduciary’s current tax year with respect credit issued by JPMCB, or any current assets are involved in the letter of credit to any particular 12-month tax period. or future affiliate of JPMCB, the transactions described in Section I B. The term ‘‘affiliate’’ means: (1) Any following additional conditions are met: above, or any duly authorized employee person, directly or indirectly, through (1) JPMCB, or any current or future or representative of such fiduciary; or one or more intermediaries, controlling, affiliate of JPMCB, as the issuer of a (iii) Any employer of participants and controlled by, or under common control letter of credit, has at least an ‘‘A’’ credit beneficiaries and any employee with such person; (2) any officer, rating by at least one nationally organization whose members are director, or partner, employee, or recognized statistical rating service at covered by a Plan whose assets are relative (as defined in section 3(15) of the time of the issuance of the letter of involved in the letter of credit the Act) of such person; and (3) any credit; transactions described in Section I corporation or partnership of which (2) The letter of credit has objective above, or any authorized employee or such person is an officer, director, or market drawing conditions and states representative of these entities; or partner or employee. For purposes of precisely the documents against which (iv) Any participant or beneficiary of this definition, the term ‘‘control’’ payment is to be made; a Plan whose assets are involved in the means the power to exercise a (3) JPMCB and its affiliates do not letter of credit transactions described in controlling influence over the ‘‘steer’’ the Funds’ tenants to JPMCB or Section I above, or duly authorized management or policies of a person its affiliates in order to obtain a letter of employee or representative of such other than an individual. credit; participant or beneficiary; C. The term ‘‘Fund’’ or ‘‘Funds’’ (4) Letters of credit are issued only to (2) None of the persons described means ‘‘collective investment funds,’’ of third-party tenants which are unrelated above in Section II(D)(1)(ii)–(iv) shall be JPMCB and its current or future to JPMCB; and authorized to examine trade secrets of affiliates, within the meaning of (5) The terms of any future letters of JPMCB or its affiliates, or commercial or Prohibited Transaction Class Exemption credit are not more favorable to the financial information which is 91–38 (PTE 91–38) and ‘‘investment tenants than the terms generally privileged or confidential; and funds,’’ of JCMCB and its current or

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future affiliates, within the meaning of Services; and (vi) Treasury & Securities Manhattan Corporation (the Chase Prohibited Transaction Class Exemption Services. According to the Applicant, Merger), which adversely affected (PTE 84–14) and encompasses the only the first business group, Asset & JPMCB’s ability to rely on the following Funds: (i) the Commingled Wealth Management, is relevant to this administrative relief provided under Pension Trust Fund/Strategic Property exemption request. PTE 84–14 and PTE 91–38. Specifically, Fund of JPMorgan Chase Bank, N.A. (the 2. The Applicant represents that entities that may have been parties in Strategic Property Fund); (ii) the JPMCB serves as trustee of various interest with respect to certain Plans Commingled Pension Trust Fund/ funds, which are ‘‘collective investment whose assets were invested in the Special Situation Property Fund of funds’’ within the meaning of PTE 91– Strategic Property Fund and that were JPMorgan Chase Bank, N.A. (the Special 38, and ‘‘investment funds’’ within the involved in certain leases and letters of Situation Property Fund); and (iii) the meaning of PTE 84–14 (collectively the credit transactions became affiliates of Commingled Pension Trust Fund/ Funds). According to the Applicant, JPMCB. In accordance with the Mortgage Private Placement Fund of JPMCB, which meets (as did its requirements of PTE 2003–10, JPMCB JPMorgan Chase Bank, N.A. (the predecessor, Morgan Guaranty Trust retained an independent fiduciary to act Mortgage Fund). Company) the definition of a qualified on behalf of the Strategic Property Fund Effective Date: The exemption is professional asset manager (QPAM) and the participating employee benefit effective as of July 1, 2004. within the meaning of PTE 84–14 and plans with respect to the oversight, which is a bank maintaining a bank negotiation, and approval of certain Summary of Facts and Representations collective investment fund within the leases and letters of credit described in Background meaning of PTE 91–38, has ordinarily PTE 2003–10. relied upon these class exemptions to 5. The Applicant represents that, just 1. JPMorgan Chase & Co. (JPMCC), the conduct the activities of various Funds as the Chase Merger affected JPMCB’s parent company of JPMorgan Chase including the Strategic Property Fund, ability to rely on PTE 84–14 and PTE Bank, N.A. (JPMCB), is headquartered in the Special Situation Property Fund, 91–38, the Bank One Merger also may New York. JPMCC had assets of and the Mortgage Fund. adversely affect JPMCB’s ability to rely approximately $2.2 trillion as of January 3. As of December 31, 2008, the on those class exemptions with respect 15, 2009. JPMCC has operations in more Strategic Property Fund had net assets to substantially similar transactions than 50 countries, and is a leader in of approximately $13.7 billion, which involving letters of credit. Specifically, investment banking, financial services were invested in 152 developed real entities that may be parties in interest for consumers and businesses, financial estate properties, primarily office with respect to the Plans and involved transaction processing, asset and wealth buildings, industrial parks, residential in the subject letters of credit (as management, and private equity. properties, retail properties, and hotels. described below) became affiliates of On January 14, 2004, JPMCC and As of December 31, 2008, the Special JPMCB as a result of the Bank One Bank One Corporation (Bank One), Situation Property Fund had net assets Merger. Consequently, one of the headquartered in Chicago, Illinois, of approximately $2.5 billion, which conditions of each class exemption, that announced that they had agreed to were invested in real estate properties, the party in interest involved in a merge in a strategic business primarily office buildings, industrial transaction may not be related to the combination that established the second parks, residential properties, and retail QPAM of the investment fund (in the largest banking franchise in the United properties. As of December 31, 2008, the case of PTE 84–14) or to the trustee of States, based on core deposits. Mortgage Fund had net assets of the bank collective investment fund (in Completion of the merger (the Bank One approximately $5.4 billion, which were the case of PTE 91–38), is no longer Merger) occurred on July 1, 2004, and invested primarily in whole loans satisfied (except to the extent that the the merged company is still known as collateralized by commercial, grandfather provisions of Part V(i) of JPMorgan Chase & Co. (i.e., JPMCC). The residential and cooperative properties, PTE 84–14 and Section IV(h) of PTE 91– Bank One Merger created an enterprise GNMA Project Loans, and residential 38, respectively, of the exemptions are with a combined market capitalization mortgage-backed securities. otherwise applicable). In addition, the of approximately $130 billion. The As of December 31, 2008, there were Applicant also states that there may be common stock of JPMCC trades on the approximately 290 employee benefit issues that will arise under sections New York Stock Exchange under the plans participating in the Strategic 406(b)(1) and 406(b)(2) of the Act if it trading symbol ‘‘JPM.’’ Property Fund, 125 employee benefit needs to enforce a remedy on behalf of Following the Bank One Merger, plans participating in the Special the Funds against itself or its affiliate JPMCC announced the merger of its Situation Property Fund, and 355 regarding the Applicant’s obligations three lead banks, JPMorgan Chase Bank, employee benefit plans participating in under the Bank One letters of Credit. N.A., Bank One, N.A. (Chicago Illinois), the Mortgage Fund. Collectively, these Accordingly, the Applicant seeks and Bank One, N.A. (Columbus Ohio), participating plans were comprised of exemptive relief with respect to certain effective as of November 13, 2004. both employee benefit plans subject to prohibited transactions involving Bank Immediately prior to such merger, Title I of the Act (hereinafter the Plans), One-issued letters of credit that arose JPMorgan Chase Bank converted its as well as employee benefit plans not from the Bank One Merger. charter to a national bank. The name of subject to the Act, such as government- the surviving entity in the bank merger sponsored plans within the meaning of The Bank One Letters of Credit is JPMorgan Chase Bank, N.A. section 3(32) of the Act. 6. The Applicant represents that a (hereinafter referred to as JPMCB or the 4. The Department previously series of letters of credit were issued by Applicant). provided individual exemptive relief in Bank One, prior to the Bank One JPMCB is internally organized for PTE 2003–10 (68 FR 28031, May 22, Merger, to guarantee payment management reporting purposes into six 2003) with respect to prohibited obligations of unrelated third-party major business groups: (i) Asset & transactions involving certain leases and tenants to pay rent for space leased in Wealth Management; (ii) Card Services; letters of credit that arose from the properties owned by the Funds. The (iii) Commercial Banking; (iv) December 31, 2000 merger of J.P. tenants were not affiliates of JPMCB or Investment Banking; (v) Retail Financial Morgan & Company, Inc. and the Chase Bank One prior to the Bank One Merger

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and are not now affiliates of JPMCB. requirement on the banks part to verify According to the Applicant, the However, once a Bank One letter of the accuracy of the information previously referred to standard credit is drawn upon by a lessor provided. In general, the bank cannot be industry-wide provisions and terms subsequent to the merger, the affiliation sued by the tenant for having paid provide certainty in execution, or identity between the Applicant and a under the letter of credit, absent fraud interpretation, and remedies with JPMCB affiliate issuing the letter of on its part. The Applicant represents respect to the letters of credit. credit would give rise to a prohibited that the Fund is not required to have 1 The applicant also represents that it is transaction. any further involvement with the tenant difficult for the tenants to obtain a letter The Applicant represents that a letter in order to receive payment under the of credit if they do not otherwise have of credit is an instrument issued by a letter of credit from the bank that issued a business banking relationship with a bank or other lending institution, whose the letter of credit. The Bank One letters particular bank. Therefore, if JPMCB or function is similar to that of a guaranty of credit automatically renew annually its affiliate is the tenant’s commercial and is used in commercial leasing until their final stated expiration date, bank, then the Applicant, according to transactions as a substitute for a security and are either cash collateralized by the its own representations, may be that deposit. The Applicant further represents that the lending institution, tenants or, in the case of particularly tenant’s only source to obtain a letter of upon issuing a letter of credit, promises creditworthy tenants, the tenants enter credit. In addition, given the increasing that if actions of the tenant trigger into a reimbursement agreement with number of bank mergers, there are fewer certain default events set forth in the the bank. The Applicant represents that banks available from which to purchase lease, such as bankruptcy of the tenant, the existing Bank One letters of credit a letter of credit. Accordingly, in the it will make such lease payments are cash collateralized. The Applicant absence of an individual exemption, the directly to the applicable Fund up to the further represents that the terms of the Applicant represents that the face amount of the letter of credit. The Bank One letters of credit are governed disqualification of JPMCB or its beneficiary of the letter of credit, one of by the 1993 Uniform Customs and affiliates from the available pool of the Funds, is issued a redeemable Practice for Documentary Credits and letters of credit providers would be instrument that it may take directly to contain standard provisions widely highly disadvantageous to the Funds the issuing lending institution and accepted in the banking industry and the Plans. demand payment merely by stating that promulgated by the International 7. The chart below shows the payment is due pursuant to the terms of Chamber of Commerce Commission on outstanding letters of credit that had the lease. The bank that issued the letter Banking Technique and Practice, which been issued by various Bank One of credit is obligated to pay without most banking institutions incorporate by entities at the time of the Bank One further inquiry and without any reference in their letters of credit. Merger:

Original letter Fund interest Property name Bank One entity name of credit amount

Strategic Property Fund Century Plaza Towers ...... Bank One ...... $98,952 (33.3%). Special Situation Property IDI—Valwood West D (IPF 2, Bank One, N.A. 1717 Main Street, 11th Floor, Dallas, TX 375,000 Fund (50%). LP)—IPA—DUPLIUM. 75201 (1–888–525–9395). Special Situation Property IDI—Corporate Crossing V Bank One, N.A. Global Trade Services, One Bank One 500,000 Fund (50%). (IPF 1, LP)—IPA— Plaza, Mail Code IL1–0236 Chicago, IL 60670–0236 (312– Fairington Transportation, 954–1969) (f/k/a—American National Bank). Inc. Strategic Property Fund Woodfield Corporate Center ... American National Bank ...... 89,000 (100%).

Future Letters of Credit owned properties or in properties with property held by a Fund or in which a 8. The future letters of credit for respect to which a Fund has a security Fund has a security interest. interest. The Applicant represents that which the applicant has requested The Independent Fiduciary exemptive relief include: (i) Any letters the terms of any future letter of credit of credit issued by JPMCB or its will not be more favorable to tenants 9. JPMCB has retained Fiduciary affiliates on or after the effective date of than the terms generally available in Counselors Inc. (Fiduciary Counselors) the Bank One Merger with respect to similar transactions with other similarly of Washington, DC as an independent third-party tenants unrelated to the situated unrelated third-party fiduciary to determine on behalf of all Applicant in Fund-owned properties or commercial clients of JPMCB or its of the Funds and Plans, among other in properties with respect to which a affiliates. The Applicant further things, whether it is appropriate to draw Fund has a security interest; and (ii) represents that an independent on any currently outstanding Bank One Any letters of credit issued by an entity fiduciary will review and approve the letters of credit or on any future letters that is not an affiliate of JPMCB at the extension of Bank One letters of credit of credit previously described herein. time the letter of credit is issued but that as well as any other letters of credit that Fiduciary Counselors also will monitor later becomes an affiliate of JPMCB are issued by the Applicant or an monthly reports of rental payments by pursuant to a future merger, with affiliate (or an entity that later becomes tenants so that it can confirm whether respect to third-party tenants in Fund- an affiliate) to a third party tenant of a such letters of credit should be called.

1 As a result of the Bank One Merger, JPMCB (the Applicant) will technically also be the issuer of the Bank One letters of credit.

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In addition, Fiduciary Counselors will are, or would be, almost completely self- The Applicant represents that JPMCB act in place of JPMCB in any situation executing because there is essentially no met the definition of a QPAM at the where the Funds’ rights need to be discretion on the part of the issuing time that the Original Lease was entered asserted against JPMCB as the issuer of bank with respect to the letters of credit, into between the Strategic Property the existing Bank One letters of credit or and any conflict of interest situations Fund and Bank One Arizona, N.A. The against JPMCB or its affiliates with would be handled by an independent Applicant further represents that, respect to any future letters of credit. fiduciary. The Applicant also represents because the Original Lease that was The Applicant represents that that the continuance and/or future executed in 1997 continued to be in Fiduciary Counselors is a registered availability of the Bank One or JPMCB effect at the time of the 2004 Bank One investment adviser registered under the letters of credit would be in the interest Merger, the Vodaphone Plaza lease Investment Advisers Act of 1940, and of the Funds, the Plans, and their transaction met the requirements of Part acts primarily as an independent beneficiaries because the availability of I (the General Exemption) of PTE 84–14 fiduciary for large pension plans. Since these letters of credit mitigates the risk between July 1, 2004 and the expiration its formation in 1999, Fiduciary of loss of payment to the Funds if the of the Original Lease.3 Counselors has acted as independent applicable tenants default on their rent. 12. The Applicant also represents that fiduciary in transactions involving plan The Applicant further represents that Fiduciary Counselors Inc., acting as an assets totaling more than $4 billion. The the Bank One and JPMCB letters of independent fiduciary, negotiated a Applicant also represents that Fiduciary credit are and would be protective of the renewal of the lease of the Vodaphone Counselors has been involved in a rights of the Funds’ Plan participants Plaza property on behalf of the Strategic variety of transactions requiring an and beneficiaries because they allow the Property Fund in March of 2005, and independent fiduciary, such as certain Funds to recover some or all of lost the lease renewal became effective in prohibited transaction exemptions rental income despite a default by the May of 2005.4 On September 12, 2007, granted by the Department, conversion tenant, and because they incorporate the Vodafone Plaza property was sold of common and collective mutual funds, standard industry-wide terms that by the Strategic Property Fund to an mergers of mutual funds, and ESOP provide certainty in execution, unrelated third party, SVF Oak Road transactions. Fiduciary Counselors has interpretation, and remedies. Walnut Creek Corporation (SVC), a acknowledged its duties, subsidiary of a fund managed by responsibilities and obligations as a Existing Commercial Leases and the American Realty Advisors. fiduciary under ERISA to act for the Bank One Merger The Applicant further represents that, exclusive benefit of the Funds and the 11. Although the Applicant withdrew between the lease renewal and Funds’ participating plans. its request for individual exemptive September 12, 2007, the Vodaphone Ms. Nell Hennessy is the president of relief with respect to two Bank One Plaza lease met the conditions of Part III Fiduciary Counselors, and will lead the leases involving the Strategic Property (the Specific Lease Exemption) of PTE project on behalf of the firm with Fund that were in effect as of the date 84–14 for the leasing of office or respect to the transactions for which of the Bank One Merger, the Applicant commercial space by an investment exemptive relief from the Department is has made the following representations fund managed by a QPAM or its affiliate sought. The Applicant represents that regarding such leases and their to the QPAM, and therefore an neither Fiduciary Counselors nor its renewals. The Applicant represents that, individual exemption is not necessary affiliates are ‘‘affiliates’’ of either JPMCB prior to the Bank One Merger, Bank One to cover the lease renewal. Specifically, or its affiliates or any of the Plans’ Arizona, N.A., an affiliate of Bank One, the Applicant represents that the sponsors within the meaning of 29 CFR leased commercial office space in requirements of Part III of PTE 84–14 2570.31(a). The Applicant further Vodaphone Plaza, a Class A office were satisfied during the renewal period represents that no more than five (5) building in Walnut Creek, California, a because: (1) The Vodaphone Plaza lease percent of Fiduciary Counselors’ annual property wholly owned by the Strategic was for office space; (2) JPMCB is both gross revenue in its prior tax year will Property Fund. The Vodafone Plaza a QPAM with respect to the Strategic be paid by JPMCB and its affiliates in property represented approximately Property Fund (which wholly owned the fiduciary’s current tax year. The 0.39% of the net asset value of the the property that was the subject of the Applicant represents that, in the event Strategic Property Fund. Bank One Vodaphone Plaza lease), and is also an that Fiduciary Counselors terminates its Arizona, N.A. occupied 3,811 square affiliate of Bank One Arizona, N.A., the services as the Independent Fiduciary feet, or 1.9%, of the property under a lessee; (3) The unit of space subject to for purposes of overseeing transactions lease (the Original Lease) that originally the lease was suitable for use by involving the Bank One letters of credit commenced on May 9, 1997 and that different tenants; (4) At the time the and/or future letters of credit, JPMCB expired, by its terms, on May 8, 2005.2 transaction was entered into (and at the will notify the Department of such The Applicant represents that the termination. In this connection, the original terms of the 1997 Bank One 3 The Department has expressed the view that the Applicant represents that any successor lease executed between Bank One, as relief from the restrictions of section 406(a) of the Act that is provided under Part I of PTE 84–14 Independent Fiduciary shall be tenant, and the Strategic Property Fund, independent of JPMCB and its affiliates, would be generally available for a continuing as landlord, was negotiated and entered transaction (e.g., a loan or lease), provided that all shall possess fiduciary experience into between the parties when they were the conditions of the exemption are satisfied on the comparable to that of Fiduciary unrelated and when JPMCB was acting date on which the transaction is entered into, notwithstanding the subsequent failure to satisfy Counselors, and shall assume all of the on behalf of the Funds as a fiduciary. fiduciary responsibilities described one or more of the conditions of the class exemption (such as the requirement of Part I of PTE above with respect to the oversight of 2 The Applicant represents that the Original Lease 84–14 that the subject transaction not occur with a current and future letters of credit was modified on February 22, 2000, prior to the party ‘‘related to’’ the QPAM). See Preamble to described herein. Bank One Merger, to increase the amount of space Proposed Amendment to PTE 84–14, 68 FR 52423 10. The Applicant represents that the occupied by Bank One Arizona, N.A. in the (September 3, 2003). Vodaphone Plaza office building to 3,811 square 4 The Department expresses no opinion herein as proposed exemption would be feet. The lease was amended on May 5, 2005 (i.e., to whether the 2005 renewal of the Vodafone Plaza administratively feasible because the the date upon which the negotiations were lease by the Fund may have violated any of the Bank One and JPMCB letters of credit finalized). provisions of Part 4 of Title I of the Act.

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time of any subsequent renewal or The Applicant further represents that, the following additional conditions: (1) modification that required the consent on December 28, 2000, pursuant to a 50/ JPMCB, or any current or future affiliate of the Trustee as QPAM), the terms of 50 joint venture by Dugan Texas of JPMCB, as the issuer of a letter of the transaction were not more favorable Acquisition LLC (of which the Strategic credit, has at least an ‘‘A’’ credit rating to the lessee, Bank One Arizona, N.A., Property Fund is the sole member) and by at least one nationally recognized than the terms generally available in an Duke Weeks, a real estate operating statistical rating service at the time of arm’s length transaction between company known as Dugan Texas LLC the issuance of the letter of credit; (2) unrelated parties; 5 (5) No commission was formed. The Applicant represents The letter of credit has objective market or other fee was paid by the Strategic that Dugan Texas LLC was established drawing conditions and states precisely Property Fund in connection with the to operate and manage thirteen the documents against which payment Vodaphone Plaza lease to the QPAM, commercial real estate properties is to be made; (3) JPMCB and its nor was any commission or fee paid to (including the Texas Plaza I property) affiliates do not ‘‘steer’’ the Funds’ any person or entity (or any affiliate) that were initially contributed to it by tenants to JPMCB or its affiliates in who made the decision to have, or had Duke Weeks on December 28, 2000. The order to obtain a letter of credit; (4) the direct authority to direct, any Plan Applicant represents that, since its Letters of credit are issued only to third- to invest in the Strategic Property Fund; establishment on December 28, 2000, party tenants which are unrelated to and (6) The amount of space covered by Dugan Texas LLC has operated so as to JPMCB; and (5) The terms of any future the lease (i.e., 3,811 square feet, or 1.9% qualify as a real estate operating letters of credit are not more favorable of the rentable area of the Vodaphone company (REOC), within the meaning of to the tenants than the terms generally Plaza property) did not exceed the the Department’s ‘‘plan asset available in transactions with other greater of 7,500 square feet or one regulation’’ at 29 CFR 2510.3–101.8 similarly situated unrelated third-party percent (1%) of the available space of 14. In summary, the transactions for commercial clients of JPMCB or of its the Vodaphone Plaza property.6 which exemptive relief is sought meet current or future affiliates; and (C) 13. The Applicant also represents the statutory criteria of section 408(a) of JPMCB or its affiliates will maintain that, prior to the Bank One Merger, the the Act because: (A) With respect to records that are sufficient for regulatory Banc One Trust Company, an affiliate of existing or future letters of credit authorities and independent third Bank One, leased commercial office described herein, each of the Funds is parties to determine whether the space in the Dugan Texas—Texas Plaza represented by an independent conditions of this proposed exemption I, an industrial building located in fiduciary to perform the following have been met. Irving, Texas. The Strategic Property functions: (1) Monitor monthly reports Notice to Interested Persons: Notice of Fund has a 50% ownership interest in of rental payments of tenants utilizing the proposed exemption shall be given this property. Banc One Trust Company such letters of credit issued by JPMCB, to all interested persons in the manner occupies 54,146 square feet, or 46.7% of or any current or future affiliate of agreed upon by the Applicant and the the net rentable area, of the Texas Plaza JPMCB, to guarantee their lease Department within 15 days of the date I property under a lease which payments; (2) Confirm whether an event of publication in the Federal Register. commenced on July 15, 1999 and which has occurred that calls for a letter of Comments and requests for a hearing are was renewed upon its expiration on credit to be drawn upon; and (3) due forty-five (45) days after publication August 14, 2006. Prior to the renewal of Represent each of the Funds and the of the notice in the Federal Register. For Further Information Contact: Mr. the lease, Banc One Trust Company Plans as an independent fiduciary in any circumstances with respect to a Mark Judge of the Department at (202) paid rent in the amount of $10.25 per letter of credit which would present a 693–8550. (This is not a toll-free square foot per year for the Texas Plaza conflict of interest for the Trustee or number). I property.7 The Applicant represents otherwise violate section 406(b), that JPMCB, in its capacity as trustee of The Bank of New York Mellon (BNY Mellon including but not limited to: The need the Strategic Property Fund, was not or the Applicant) Located in New York, to enforce a remedy against itself or a NY involved in the lease renewal decision- current or future affiliate with respect to [Application No. D–11571] making process; rather, the other 50% its obligations under a letter of credit; owner of the Texas Plaza I property (i.e., Proposed Exemption (B) The issuance of future letters of Duke-Weeks Realty Limited Partnership, credit by JPMCB, or any current or The Department is considering now doing business as Duke Realty future affiliate of JPMCB, are subject to granting an exemption under the Limited Partnership and hereinafter authority of section 408(a) of the Act referred to as ‘‘Duke Weeks’’) made the 8 The Department is not providing any opinion in and section 4975(c)(2) of the Code and lease renewal decision without this proposed exemption as to whether Dugan in accordance with the procedures set consulting the Strategic Property Fund Texas LLC, which manages the Texas Plaza I lease, forth in 29 CFR part 2570, subpart B (55 in any manner. qualifies as a REOC, within the meaning of 29 CFR 2510.3–101(e), and therefore is not expressing any FR 32836, 32847, August 10, 1990). If opinion as to whether the Texas Plaza I lease granted, the restrictions of sections 5 This ‘‘arm’s length’’ determination was arrangement constitutes a prohibited transaction 406(a) and 406(b)(1) and 406(b)(2) of the addressed by Fiduciary Counselors in its report pursuant to section 406 of the Act or section 4975 Act (or ERISA) and the sanctions dated April 13, 2009, based upon material compiled of the Code. In this connection, the Department has by CB Richard Ellis on January 21, 2005. noted in 29 CFR 2509.75–2(c) (Interpretive Bulletin resulting from the application of section 6 The Department is not providing any views in 75–2, or IB 75–2) and subsequent opinions 4975 of the Code, by reason of section this proposed exemption as to whether the interpreting IB 75–2 that, although a transaction 4975(c)(1)(A) through (E) of the Code, conditions of PTE 84–14 were met in connection between a party in interest and a corporate entity shall not apply as of February 20, 2009, with the Vodaphone Plaza lease transactions. in which the assets of a plan are invested does not 7 The Applicant represents that the Texas Plaza I generally give rise to a prohibited transaction, a to the cash sale of certain floating rate lease executed between Banc One Trust Company, violation of section 406 of the Act or section 4975 securities (the Securities) issued by as tenant, and the Strategic Property Fund, as of the Code may occur in instances where a plan Lehman Brothers Holdings, Inc. or its landlord, was originally negotiated and entered into invests in a corporation as part of an arrangement affiliates (together, Lehman) for an between the contracting parties when they were or understanding under which it is expected that completely unrelated and when JPMCB was acting the corporation will engage in a transaction with a aggregate purchase price of on behalf of the Strategic Property Fund as an party in interest. See Advisory Opinion 2006–01A $235,737,419.05 by the EB Temporary independent ERISA fiduciary. (January 6, 2006). Investment Fund—Lehman (Liquidating

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Fund), the EB SMAM Short Term excess amount promptly to the close of the thirtieth (30th) day Investment Fund—Lehman (Liquidating Liquidating Funds (after deducting all following the request, provide a written Fund), the DF Temporary Investment reasonable expenses incurred in notice advising that person of the Fund—Lehman (Liquidating Fund) and connection with the recovery); reasons for the refusal and that the the Pooled Employee Daily Liquidity (g) BNY Mellon and its affiliates, as Department may request such Fund—Lehman (Liquidating Fund) applicable, maintain, or cause to be information. (collectively, the ‘‘Liquidating Funds’’) maintained, for a period of six (6) years Effective Date: If granted, this to the Bank of New York Mellon from the date of any covered transaction proposed exemption will be effective as Corporation (BNYMC), a party in such records as are necessary to enable of February 20, 2009. interest with respect to employee the person described below in Summary of Facts and Representations benefit plans (the Plans) invested, paragraph (h)(1), to determine whether directly or indirectly, in the Liquidating the conditions of this exemption have 1. BNY Mellon is a state bank subject Funds, provided that the following been met, except that— to regulation by the State of New York. conditions are met: (1) No party in interest with respect As of December 31, 2008, BNY Mellon (a) The sale was a one-time to a Plan which engages in the covered managed assets in excess of $210 transaction for cash; transaction, other than BNY Mellon and billion, a substantial part of which (b) The Liquidating Funds received an its affiliates, as applicable, shall be consisted of Plans subject to the Act. amount for the sale of the Securities, subject to a civil penalty under section BNY Mellon is a subsidiary of BNYMC. which was equal to the sum of (1) the 502(i) of the Act or the taxes imposed 2. BNYMC is the parent of BNY par value of the Securities plus (2) by section 4975(a) and (b) of the Code, Mellon by reason of its 100% ownership accrued but unpaid interest through if such records are not maintained, or of BNY Mellon. BNYMC has a number September 12, 2008, determined at the not available for examination, as of subsidiaries and affiliates. It is a contract rate, plus (3) accrued and required, below, by paragraph (h)(1); Delaware financial services company unpaid interest from September 15, (2) A separate prohibited transaction that provides a wide range of banking 2008 through the earlier of (i) the date shall not be considered to have occurred and fiduciary services to a broad array of sale or (ii) the maturity date of the solely because due to circumstances of clients, including employee benefit Securities, determined at the investment beyond the control of BNY Mellon or its plans subject to the Act and section earnings rate of the collective fund (the affiliates, as applicable, such records are 4975 of the Code. As of December 31, Collective Fund) from which the lost or destroyed prior to the end of the 2008, BNYMC had total assets of $237.5 Securities were transferred to the six-year period. billion. Liquidating Fund for the period from (h)(1) Except as provided, below, in 3. The EB Temporary Investment September 15, 2008 to the earlier of the paragraph (h)(2), and notwithstanding Fund, the EB SMAM Short Term maturity date of the Security or any provisions of subsections (a)(2) and Investment Fund, the DF Temporary February 20, 2009; (b) of section 504 of the Act, the records Investment Fund and the Pooled (c) The Liquidating Funds did not referred to, above, in paragraph (g) are Employee Daily Liquidity Fund are bear any commissions, fees, transaction unconditionally available at their either collective investment funds or costs or other expenses in connection customary location for examination common trust funds trusteed and with the sale of the Securities; during normal business hours by— managed by BNY Mellon. BNY Mellon (d) BNY Mellon, as trustee of the (A) Any duly authorized employee or serves as a discretionary trustee for each Liquidating Funds, determined that the representative of the Department, the of the Collective Funds. Three of the sale of the Securities was appropriate Internal Revenue Service, or the Collective Funds are group trusts that for and in the best interests of the Securities and Exchange Commission; are exempt from federal income tax Liquidating Funds, and the Plans or pursuant to Rev. Rul. 81–100. invested, directly or indirectly, in the (B) Any fiduciary of any Plan that Accordingly, all of the investors in these Liquidating Funds, at the time of the engages in the covered transaction, or Collective Funds, including three BNY 9 transaction; any duly authorized employee or Mellon/BNYMC in-house Plans, are (e) BNY Mellon took all appropriate representative of such fiduciary; or either qualified plans or eligible actions necessary to safeguard the (C) Any employer of participants and government plans. There are no interests of the Liquidating Funds, and beneficiaries and any employee individual retirement accounts in any of the Plans invested, directly or organization whose members are these Collective Funds. indirectly, in the Liquidating Funds, in covered by a Plan that engages in the The DF Temporary Investment Fund connection with the transaction; covered transaction, or any authorized is a common trust fund that is exempt (f) If the exercise of any of BNYMC’s employee or representative of these from federal income tax pursuant to rights, claims or causes of action in entities; or section 584 of the Code. The investors connection with its ownership of the (D) Any participant or beneficiary of in this Collective Fund as to which BNY Securities results in BNYMC recovering a Plan that engages in the covered Mellon or one of its affiliates is the from Lehman, the issuer of the transaction, or duly authorized trustee include trusts for individuals, Securities, or from any third party, an employee or representative of such nuclear decommissioning trusts, trusts aggregate amount that is more than the participant or beneficiary; for endowments, private foundations sum of: (2) None of the persons described, and other tax exempt institutional (1) The purchase price paid for the above, in paragraph (h)(1)(B)–(D) shall investors, and certain employee benefit Securities by BNYMC; and be authorized to examine trade secrets trusts subject to the Act (e.g., VEBA (2) interest on the par value of the of BNY Mellon or its affiliates, or trusts). Securities from and after the date commercial or financial information Each of the Collective Funds is a BNYMC purchased the Securities from which is privileged or confidential; and short-term investment fund that values the Liquidating Funds, determined at (3) Should BNY Mellon refuse to 9 According to the Applicant, the in-house Plans’ the last-published interest rate on the disclose information on the basis that investments in the Collective Funds range from 0% Securities preceding the Lehman’s such information is exempt from for the DF Temporary Investment Fund to less than bankruptcy filing, BNYMC refunds such disclosure, BNY Mellon shall, by the 4% of the EB Temporary Investment Fund.

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its assets based on their amortized cost unrelated party, between 2005 and 2007 As of September 15, 2008, the and seeks to maintain a constant unit for acquisition prices ranging from approximate net asset value of each value equal to $1.00. The Collective $7,250,000 to $102,000,000, and for a Collective Fund was as follows: Funds invest in a variety of fixed total investment of $233,250,000. The The EB Temporary Investment Fund income instruments. As of September acquisition prices represented the ($4,527,000); the EB SMAM Short Term 15, 2008, the value of the Collective amortized cost of the Securities. The Investment Fund ($2,070,000); the Funds’ aggregate portfolios was Securities paid interest on a quarterly 10 Pooled Employee Daily Liquidity Fund $19,961,181,990.59. As of September basis, with the result that each 15, 2008 there were in excess of 700 ($12,423,000,000); and the DF Collective Fund collected interest from Temporary Investment Fund investors in the Collective Funds, a the purchase date through either June substantial number of which were Plans ($706,000,000). 23, 2008 or July 22, 2008. The interest subject to the Act. The other investors Set forth below is a table showing payments ranged from $759,804.42 to included government plans. each Collective Fund’s investment in $6,860,087.55 for a total payment of 4. The Collective Funds purchased the Securities prior to Lehman’s $15,459,605.43. No interest was paid the Securities, which were floating rate bankruptcy: securities issued by Lehman, an subsequent to September 15, 2008.

Last published Total interest Fund name Security name, CUSIP and Acquisition Purchase date interest rate received prior maturity date and par price (percent) to 9/15/08

EB Temp. Inv. Fund ...... Lehman Fltr. 52517PW31; 3/23/ $50,000,000 3/22/07 7.413 $3,362,788.21 09. EB SMAM Short Term Inv. Fund .. Lehman Fltr. 52517PW31; 3/23/ 74,000,000 3/22/07 7 .413 4,976,925.25 09. Pooled Employee Daily Liquid Lehman Fltr. 52517PW31; 3/23/ 102,000,000 3/22/07 7 .413 6,860,087.55 Fund. 09. DF Temp. Inv. Fund ...... Lehman Fltr. 52517PC58; 10/22/ 7,250,000 10/24/05 8 .00175 759,804.42 08.

Totals: ...... 233,250,000 ...... $15,959,605.43

5. The decision to invest in the bankruptcy, BNY Mellon determined percent of the interests of its Securities was made by BNY Mellon. that it would be in the best interest of corresponding Liquidating Fund, and, Prior to the investment, BNY Mellon the Collective Funds to segregate the in turn, the account of each direct conducted an investigation of the Securities from the other assets of the investor in such Collective Fund as of potential investment by examining and Collective Funds. Therefore, BNY September 15, 2008, was credited with considering the economic and other Mellon established the Liquidating units of the applicable Liquidating Fund terms of the Securities. BNY Mellon Funds to hold the Securities as of such in lieu of its interests in the Securities. represents that the investment in the date in the following Liquidating Funds: Securities was consistent with the The EB Temporary Investment Fund— 7. The Applicant represents that on applicable investment policies and Lehman (Liquidating Fund), the EB September 30, 2008, the Liquidating objectives of the respective Collective SMAM Short Term Investment Fund— Funds entered into guarantees with Fund. At the time the Securities were Lehman (Liquidating Fund), the DF BNY Mellon pursuant to which BNY acquired, they were rated ‘‘A1’’ by Temporary Investment Fund—Lehman Mellon agreed to provide financial Moody’s and ‘‘A+’’ by S&P rating (Liquidating Fund) and the Pooled support to the Liquidating Funds for an agencies. Based on its consideration of Employee Daily Liquidity Fund— amount up to the par value of the the relevant facts and circumstances, Lehman (Liquidating Fund). BNY Securities and the accrued and unpaid BNY Mellon states that it was prudent Mellon also served as the trustee and interest on the Securities through and appropriate to acquire the the manager of each Liquidating Fund. September 12, 2008.12 The purpose of Securities on behalf of the Collective The Applicant represents that BNY these guarantees was to enable BNY Funds.11 Mellon intended to hold the Securities Mellon and the Collective Funds’ 6. As stated above, on September 15, in the Liquidating Funds pending the investors to value the units of the 2008, Lehman filed for Chapter 11 disposition of the Securities on the Liquidating Funds at one dollar per bankruptcy protection. BNY Mellon market. BNY Mellon further represents unit.13 represents that following the Issuers’ that each Collective Fund held 100

10 It is represented that section 408(b)(8) of the Collective Funds violated any of the fiduciary under the circumstances it is clearly prudent not to Act would apply to the investment by the ERISA- responsibility provisions of Part 4 of Title I of the do so. covered plans in the Collective Funds. Section Act. In this regard, the Department notes that 12 Because September 12 fell on a Friday, the 408(b)(8) of the Act provides a statutory exemption section 404(a) of the Act requires, among other accrued interest on such date included the interest for any transactions between a plan and a common things, that a fiduciary of a plan act prudently, for September 13 and September 14. or collective trust fund maintained by a party in solely in the interest of the plan’s participants and 13 The Applicant represents that the guarantees interest which is a bank or trust company beneficiaries, and for the exclusive purpose of are extensions of credit eligible for exemption supervised by a State or Federal agency if certain providing benefits to participants and beneficiaries under Prohibited Transaction Exemption (PTE) 80– requirements are met. when making investment decisions on behalf of a 26, 66 FR 54541 (Oct. 29, 2001). PTE 80–26, a class 11 The Department is expressing no opinion in plan. Section 404(a) of the Act also states that a plan exemption, permits parties in interest to employee this proposed exemption on whether the fiduciary should diversify the investments of a plan benefit plans to make certain interest free loans to acquisition and holding of the Securities by the so as to minimize the risk of large losses, unless such plans provided certain conditions are met. The

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8. BNY Mellon represents that for September 13th and 14th), and (y) Lehman or any third party arising in following the date of the Lehman’s interest from September 15, 2008 connection with or out of the issuance bankruptcy filing, the market value of through the earlier of February 20, 2009 of the Securities or the acquisition of the the Securities decreased substantially. or the maturity date of the applicable Securities by the Funds. BNY Mellon BNY Mellon further states that on Security at the investment earning rate states further that if the exercise of any February 20, 2009, it obtained pricing achieved by the corresponding of the foregoing rights, claims or causes information from two independent Collective Fund during such period of action results in BNYMC recovering broker-dealers, Barclays and Morgan ($941,407.08).14 BNY Mellon notes that, from Lehman or any third party an Stanley, who confirmed in e-mail in determining the amount of accrued aggregate amount that is more than the messages that the market for the interest subsequent to the date of sum of (a) the purchase price paid for Securities was in extreme distress and Lehman’s bankruptcy filing, BNY the Securities by BNYMC; and (b) that prices for actual trades were Mellon utilized the investment earnings interest on the par value of the substantially lower than the sum of the interest rate earned by the Securities from and after the date par value for the Securities plus accrued corresponding Collective Fund during BNYMC purchased the Securities from and unpaid interest thereon. The broker- such period. On April 21, 2009, the the Liquidating Funds, determined at dealers did not provide written analyses Liquidating Funds were formally the last-published rate on the Securities of their findings. terminated. preceding Lehman’s bankruptcy filing, 9. In view of the foregoing, BNY 12. BNY Mellon, as trustee of the BNYMC will refund such excess amount Mellon determined that it would be Liquidating Funds, believed that the promptly to the Funds (after deducting appropriate and in the best interest of sale of the Securities to BNYMC was in all reasonable expenses incurred in the Liquidating Funds if the Securities the best interests of the Liquidating connection with the recovery). were sold by the Liquidating Funds to Funds, and the Plans invested, directly 15. In summary, the Applicant BNYMC at a price equal to the sum of or indirectly, in the Liquidating Funds, represents that the transaction satisfied (x) their par value and (y) any accrued at the time of the transaction. BNY or will satisfy the statutory criteria for but unpaid interest, as doing so would Mellon states that any sale of the an exemption under section 408(a) of protect the Funds and the investors Securities on the open market would the Act because: having an interest in the Liquidating have produced significant losses for the (a) The sale was a one-time Funds from potential investment losses Liquidating Funds and for the transaction for cash; with respect to the Securities. BNY participating investors in the Funds. (b) The Liquidating Funds received an Mellon also determined that the 13. BNY Mellon represents that the amount for the sale of the Securities, purchase of the Securities by BNYMC sale of the Securities by the Liquidating which was equal to the sum of (1) the would be permissible under applicable Funds to BNYMC benefited the par value of the Securities plus (2) banking law. investors in the Liquidating Funds accrued but unpaid interest through 10. Shortly before the consummation because the purchase price paid by September 12, 2008, determined at the of the transaction on February 19, 2009, BNYMC for the Securities substantially contract rate, plus (3) accrued and BNY Mellon sent written notice to the exceeded the aggregate fair market value unpaid interest from September 15, designated representative of each of the of the Securities. In addition, BNY 2008 through the earlier of (i) the date investors having a direct interest in the Mellon states that the transaction was a of sale or (ii) the maturity date of the Liquidating Funds of BNY Mellon’s one-time sale for cash in connection Securities, determined at the investment intent to cause the Liquidating Funds to with which the Liquidating Funds did earnings rate of the Collective Fund sell the Securities to BNYMC on not bear any brokerage commissions, from which the Securities were February 20, 2009. For purposes of the fees, or other expenses. BNY Mellon transferred to the Liquidating Fund for transaction, the notice stated that the represents that it took all appropriate the period from September 15, 2008 to purchase price would be distributed to actions necessary to safeguard the the earlier of the maturity date of the the unit holders. Such amount would interests of the Liquidating Funds and Security or February 20, 2009; also include an interest component their participating investors in (c) The Liquidating Funds did not based on the period after September 12, connection with the sale of the bear any commissions, fees, transaction 2008. As a result, the notice further Securities. costs or other expenses in connection explained that the investor’s account Accordingly, BNY Mellon has with the sale; would no longer hold units in a requested an administrative exemption (d) BNY Mellon, as trustee of the Liquidating Fund. While the notice did from the Department with respect to the Liquidating Funds, determined that the not require any response, the Applicant sale of the Securities by the Liquidating sale of the Securities was appropriate Funds to BNYMC. If granted, the represents that it did not receive any for and in the best interests of the exemption would be effective as of negative reaction from any of the Liquidating Funds, and the Plans February 20, 2009. invested, directly or indirectly, in the recipients thereof. 14. BNY Mellon states that the sale of 11. On February 20, 2009, BNYMC Liquidating Funds, at the time of the the Securities by the Liquidating Funds purchased the Securities from the transaction; to BNYMC resulted in an assignment of Liquidating Funds for an aggregate lump (e) BNY Mellon took all appropriate all of the Liquidating Funds’ rights, sum payment of $235,737,419.05. This actions necessary to safeguard the claims, and causes of action against amount represented the sum of the par interests of the Liquidating Funds, and value of the Securities ($233,250,000) the employee benefit plans invested, 14 The last published interest rate for each of the directly or indirectly, in the Liquidating plus the accrued but unpaid interest on Securities at the contract rate in effect immediately the Securities (x) through September 12, preceding Lehman’s bankruptcy is set forth herein Funds, in connection with the 2008 ($1,546,011.97) at the contract rate in the table. The investment earnings rate for each transaction; (which also included accrued interest Collective Fund for the relevant period on and after (f) If the exercise of any of BNYMC’s September 15, 2008 is as follows: the EB Temporary rights, claims or causes of action in Investment Fund (1.28707%), the EB SMAM Short connection with its ownership of the Department expresses no opinion herein on Term Investment Fund (0.68443%), the Pooled whether the guarantees satisfy the requirements of Employee Daily Liquidating Fund (0.96503%), and Securities results in BNYMC recovering PTE 80–26. the DF Temporary Investment Fund (2.383131%). from Lehman, or any third party, an

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aggregate amount that is more than the Enhanced Income Fund (the Fund), a consent to the sale by the Fund of the sum of: sub-fund established under the Shares and of the Restricted Shares; (1) The purchase price paid for the Alternative Investment-Master Group (5) On January 29, 2008, Ivy solicited Securities by BNYMC; and Trust (the Group Trust), to Ivy Asset and received from each Unit Holder in (2) interest on the par value of the Management Corporation (Ivy), a party the Fund an affirmative consent to the Securities from and after the date in interest with respect to certain entry into a promissory note (the BNYMC purchased the Securities from employee benefit plans, including a Promissory Note(s)), and as of the the Liquidating Funds, determined at defined benefit plan (the Retirement effective date of this proposed the last-published interest rate on the Plan) sponsored by Ivy’s parent exemption Ivy entered into such Securities preceding Lehman’s corporation, The Bank of New York Promissory Notes; and bankruptcy filing, BNYMC will refund Mellon Corporation,17 (collectively, the (6) Pursuant to the terms of each of such excess amount promptly to the Plan(s)), and certain individual the Promissory Notes entered into Liquidating Funds (after deducting all retirement accounts (the IRA(s)), where between Ivy and each Unit Holder, in reasonable expenses incurred in such Plans and IRAs have interests in the event that Ivy receives redemption connection with the recovery); the Fund; provided that at the time the proceeds in excess of the purchase price (g) BNY Mellon and its affiliates, as Shares were sold, the conditions set paid by Ivy to the Fund for the Shares, applicable, have maintained, or will forth, below, in section I(b)(1)–(6) of this and/or in the event the Affiliate receives cause to be maintained, for a period of proposed exemption, and the general redemption proceeds in excess of the six (6) years from the date of any conditions, set forth, below, in section purchase price paid by the Affiliate to covered transaction such records as are II, of this proposed exemption, were the Fund for the Restricted Shares, Ivy necessary to enable persons such as, satisfied; and will pay, as soon as practicable after employers or representatives of the (b) The sale for cash of certain receipt of such amounts by Ivy and/or Department, plan fiduciaries or plan restricted shares (the Restricted Shares) by the Affiliate, the entirety of such participants, to determine whether the of the D. E. Shaw Composite excess in cash to each Unit Holder in conditions of this exemption have been International Fund, Ltd. (the DE Shaw proportion to each such Unit Holder’s met. Fund), a hedge fund organized outside investment in the Fund; and Ivy will For Further Information Contact: the United States, to Ivy Holding absorb the loss, if the aggregate Anh-Viet Ly of the Department, Cayman, LTS, an affiliate of Ivy (the redemption proceeds are less than the telephone (202) 693–8648. (This is not Affiliate) which is also organized aggregate purchase price from the sale of a toll-free number). outside of the United States, and which the Shares and the sale of the Restricted Shares. Ivy Asset Management Corporation is a party in interest with respect to the Located in Jericho, NY Plans and the IRAs, where such Plans Section II: General Conditions [Application No. D–11492] and IRAs have interests in the Fund; (a) Ivy, as investment manager of the provided that at the time the Restricted Proposed Exemption Fund, represents that the subject Shares were sold to the Affiliate, the transactions are appropriate for and in The Department is considering conditions set forth, below, in section the interest of the Fund, and each of the granting an exemption under the I(b)(1)–(6) of this proposed exemption, Unit Holders which have an interest in authority of section 408(a) of the Act and the general conditions, set forth, and section 4975(c)(2) of the Code and the Fund. below, in section II of this proposed (b) Ivy takes all appropriate actions in accordance with the procedures set exemption, were satisfied: necessary to safeguard the interests of forth in 29 CFR part 2570, subpart B (55 (1) The sale of the Shares to Ivy and the Fund, and the interests of the Unit FR 32836, 32847, August 10, 1990). the sale of the Restricted Shares to the Holders in the Fund, in connection with Section I: Transactions Affiliate were each one-time the subject transactions; transactions for cash; If the proposed exemption is granted, (c) The decision by a Unit Holder as (2) The purchase price paid by Ivy for to whether to engage in the subject the restrictions of sections 406(a)(1)(A) the Shares and the purchase price paid through (D), 406(b)(1) and 406(b)(2) of transactions was made, in the case of a by the Affiliate for the Restricted Shares Plan by the trustee of each such Plan, in the Act and the sanctions resulting from was equal to the value of such shares, the application of section 4975 of the the case of an IRA, by the IRA holder, as reported to the Fund by investment and in the case of the Retirement Plan Code, by reason of section 4975(c)(1)(A) managers of the hedge funds (the through (E) of the Code,15 shall not by the Benefits Investment Committee Manager(s)), who are independent of (the Committee), which serves as the apply, effective December 31, 2008, to: and unrelated to Ivy and any of its (a) The sale for cash of certain equity named fiduciary of the Retirement Plan. affiliates, as set forth on the most recent (d) Notwithstanding affirmative interests (the Shares) in hedge funds statement issued to the Fund consent given by each of the Unit organized outside the United States,16 immediately prior to the effective date Holders to the sale by the Fund of the which Shares are held in the Ivy of this proposed exemption; Shares and of the Restricted Shares, and (3) The Fund did not incur any notwithstanding the entry into the 15 For purposes of this proposed exemption, references to specific provisions of Title I of the commissions or transaction costs with Promissory Notes between Ivy and each Act, unless otherwise specified, refer also to the respect to the sale of the Shares to Ivy Unit Holder: corresponding provisions of the Code. and with respect to the sale of the (i) The Plans and IRAs have not 16 It is represented that to the extent that, prior Restricted Shares to the Affiliate; waived or released and do not waive or to the effective date of the final exemption, the Fund had received distributions from the hedge (4) On January 29, 2008, Ivy solicited release any claims, demands, and/or funds in connection with interests in such hedge and received from each of the Plans and causes of action which such Plans and funds held by the Fund, those proceeds would have IRAs which have an interest in the Fund IRAs may have against BNYMC and/or been distributed by the Fund to each holder of units (the Unit Holder(s)) an affirmative Ivy in connection with the acquisition in the Fund in proportion to each such holder’s interest in the Fund; and accordingly, would not and retention of the Shares and the have been purchased by Ivy or by any affiliate of 17 The Bank of New York Mellon Corporation is acquisition and retention of the Ivy, pursuant to this proposed exemption. hereinafter referred to as BNYMC. Restricted Shares; and

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(ii) The Plans and IRAs have not authorized to examine trade secrets of D units had a tiered management fee waived or released and do not waive or Ivy, or commercial or financial and paid a performance fee. The release any claims, demands, and/or information which is privileged or minimum investment for the holders of causes of action which such Plans and confidential; and Class D units was $500,000. In all other IRAs may have against BNYMC and/or (3) Should Ivy refuse to disclose material respects the Class C units and Ivy in connection with the sale of the information on the basis that such the Class D units were the same. Shares to Ivy and the sale of the information is exempt from disclosure, The Retirement Fund is the only Restricted Shares to the Affiliate; Ivy shall, by the close of the thirtieth holder of Class E units. The Retirement (e) Ivy will maintain, or cause to be (30th) day following the request, Fund invested $25 million in Class E maintained, for a period of six (6) years provide a written notice advising that units in the Fund in 1996 and over time from the date of any of the subject person of the reasons for the refusal and has received in excess of $33,503,000 in transactions such records as are that the Department may request such distributions. Ivy does not receive any necessary to enable the persons information. fees with respect to the Class E units. described, below, in section II(f)(1) of Effective Date: This proposed The net asset value (NAV) of the Fund this proposed exemption, to determine exemption, if granted, will be effective, is determined at the end of each whether the conditions of this proposed December 31, 2008. calendar quarter and at such other times exemption have been met, except that— Summary of Facts and Representations as determined by the investment (1) No party in interest with respect manager. The NAV is equal to the total to a Plan or to an IRA which engaged 1. The applicant for this proposed exemption is Ivy, a Delaware value of the Fund’s assets minus the in the subject transactions, other than total value of its liabilities. The value of Ivy and the Affiliate, shall be subject to corporation. On January 1, 2009, Ivy converted to a Delaware limited liability each unit equals the capital attributable a civil penalty under section 502(i) of to each unit class of the Fund divided the Act or the taxes imposed by section corporation and changed its name to Ivy Asset Management LLC. Ivy is a by the outstanding units for each unit 4975(a) and (b) of the Code, if such class on such valuation date. All records are not maintained, or not registered investment adviser under the laws of Delaware, having its principal outstanding Class C units, Class D units, available for examination, as required, and Class E units were redeemed. below, by section II(f)(1) of this place of business in Garden City, New York. The Fund is a Section 3(c)(1) fund, as proposed exemption; and defined in the Investment Company Act (2) A separate prohibited transaction 2. The Group Trust qualifies as a group trust, pursuant to Revenue Ruling of 1940. The Fund is not a registered shall not be considered to have occurred open-ended investment company. solely because, due to circumstances 81–100. The Group Trust is exempt from taxation under section 501(a) of Rather, it is a privately offered fund of beyond the control of Ivy, such records funds that invests in private investment are lost or destroyed prior to the end of the Code. Ivy is the investment manager of the Group Trust. Custodial Trust vehicles commonly referred to as hedge the six-year period. funds. The Fund is a fund of hedge (f)(1) Except as provided, below, in Company, a wholly-owned subsidiary of funds. All of the holdings in the Fund section II(f)(2) of this proposed Bear Stearns Companies, Inc., was the are equity interests in hedge funds exemption, and notwithstanding any trustee of the Group Trust until July 31, which are sponsored by investment provisions of subsections (a)(2) and (b) 2007. Wells Fargo and Company, a Managers unrelated to Ivy and to any of of section 504 of the Act, the records diversified financial services company, its affiliates. referred to, above, in section II(e) of this became the trustee of the Group Trust The Fund is operated pursuant to proposed exemption, are on August 1, 2007. Commodity Futures Trading unconditionally available at their 3. The Fund is an Investment Fund Commission (CFTC) exemption customary location for examination established under the Group Trust, as Regulation 4.13(a)(4). As such, the during normal business hours by— set forth in Section 4.01 of the Group (A) Any duly authorized employee or Trust Agreement. As required under investment manager of the Fund is not representative of the Department, the Revenue Ruling 81–100, participation in required to register with the CFTC as a Internal Revenue Service, or the the Fund is limited to certain investors commodity pool operator. In this regard, Securities and Exchange Commission; which are themselves exempt from the investment manager is not required or Federal income taxes. In this regard, to deliver a CFTC disclosure document (B) Any fiduciary of any Plan or any each of the Unit Holders in the Fund is and a certified annual report to IRA that engaged in the subject either a Plan or an IRA. As of August 6, participants in the pool. transactions, or any duly authorized 2008, there were eight (8) Plans and four The Fund is subject to tax on the employee or representative of such (4) IRAs each of which had an interest unrelated business taxable income fiduciary; or in the Fund. The Fund does not put a which is generated from income from (C) Any employer of participants and limit on the number of units that may debt financed investments. It is beneficiaries and any employee be issued to the Unit Holders.18 represented that such tax is paid by the organization whose members are The Fund has issued three (3) classes Group Trust, not directly by the covered by a Plan or an IRA that of units, Class C units, Class D units, participants in the Fund. engaged in the subject transactions, or and Class E units. The holders of Class As Ivy, the investment manager of the any authorized employee or C units paid a management fee of 1.5% Fund, is a subsidiary of BNYMC, a representative of these entities; or and paid no performance fees. The United States bank holding company, (D) Any participant or beneficiary of minimum investment for the holders of the Fund is subject to the Bank Holding a Plan or an IRA that engaged in the Class C units was $1 million. The Class Company Act (the BHCA). Due to subject transactions, or duly authorized BNYMC’s regulatory elections, the Fund employee or representative of such 18 The Department is expressing no opinion in is subject to the provisions of the BHCA participant or beneficiary; this proposed exemption regarding whether the governing merchant banking activities acquisition and holding of interests by the Plans (2) None of the persons described, and IRAs in the Group Trust and in the Fund and to the provisions of the Federal above, in section II(f)(1)(B)–(D) of this violated any of the fiduciary responsibility Reserve Board’s Merchant Banking proposed exemption, shall be provisions of Part 4 of Title I of the Act. Regulations. Under such regulations, the

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duration of an investment may be fully disclosed in the Offering date, December 31, 2007. On December limited to 10 years. Memorandum for the class of units 31, 2007, the Fund was terminated. Ivy, as the investment manager of the purchased by the investors and were On January 29, 2008, the Fund sent Fund, makes all investment decisions approved by the fiduciaries of the plans another notice to Unit Holders for the Fund. As of June 30, 2008, the and IRA holders as part of the reiterating that Ivy had terminated the approximate fair market value of the investment process. The fee is variable Fund, effective as of December 31, 2007, Fund’s portfolio was $2,425,200. although it is capped at 60 basis points. and stating that the Fund was in 4. As investment manager for the It is Ivy’s view that this particular liquidation and that all Unit Holders Fund, Ivy has received a quarterly arrangement has been specifically were to be partially redeemed. In this management fee from the Fund. Ivy approved by the Department in footnote regard, all Unit Holders were informed maintains in accordance with the 11 in the Notice of Proposed Exemption that the Fund was unable to distribute provisions of section 408(b)(2) of the which ultimately became Prohibited the full value of each Unit Holder’s Act, it is entitled to payment of its fees Transaction Exemption 99–13.19 Ivy interest in the Fund, because of from the holders of Class C and Class D maintains that the footnote, sets forth undistributed amounts, as described units (which are fully disclosed in the the Department’s position that there is below in paragraphs 9 and 10, which are Offering Memorandum and no prohibited transaction where a plan retained by the six (6) hedge funds (the accompanying Adoption Agreement fiduciary charges less than or waives a Underlying Funds) in which the Fund through which the investors purchased particular fee that has been disclosed in had an interest. units of the Fund). Further, Ivy writing to an independent plan The January 2008 notice further maintains that the payment of these fiduciary and approved by such informed the Unit Holders of the fully disclosed fees is not subject to fiduciary, and then later charges the full intention of the Fund to sell its interest section 406(b) of the Act, because Ivy fee. As a holder of Class E units, the in the Shares and the Restricted Shares, did not exercise any of the power that Retirement Plan does not pay any provided the Department were to grant makes it a fiduciary to cause the Fund research, accounting, and operating a final exemption to permit such to pay it additional fees other than the services fees to Ivy. transactions. As of the same date, the fully disclosed fees which were It is represented that the Fund is no Unit Holders were also informed of Ivy’s approved by each investor at the time longer paying any fees to Ivy, because, intention to enter into the Promissory such investor made its investment in the as discussed more fully below, the Fund Notes with each of the Unit Holders. In addition, in the January 2008 Fund. It is represented that the holder has been terminated.20 of the Class E units, the Retirement 5. As an investment manager with notice, Ivy solicited and received from Plan, paid no fees. discretion over the assets of the Plans each Unit Holder an affirmative consent In addition, Ivy under certain and the assets of the IRAs that have to the proposed sale of the Shares and circumstances has received performance the sale of the Restricted Shares by the interests in the Fund, Ivy is a fiduciary, fees from the Fund. Only holders of Fund and to the proposed entry into the pursuant to section 3(14)(A) of the Act. Class D units paid performance fees. Ivy Promissory Notes between Ivy and each Ivy is also a party in interest and service maintains that the payment of Unit Holder. provider, pursuant to section 3(14)(B) of performance fees to Ivy in connection 7. On August 6, 2008, Ivy submitted the Act. with the Class D units is entirely to the Department an application for an The Affiliate, as a wholly-owned consistent with the Department’s individual exemption. In this regard, Ivy subsidiary of Ivy, is a party in interest advisory opinions with respect to the has requested relief from the provisions with respect to the Plans and the IRAs payment of incentive compensation. In of section 406(a)(1)(A) through (D), that have interests in the Fund, this regard, Ivy represents that its 406(b)(1), and 406(b)(2) of the Act: (i) pursuant to section 3(14)(G) of the Act. performance fee was based on the For the cash sale of the Shares by the 6. In view of the small size of the amount by which the annualized return Fund to Ivy, and (ii) for the cash sale of Fund, Ivy determined that it was in the of the Class D units exceeded the the Restricted Shares by the Fund to the best interest of the Unit Holders to average six (6) month U.S. Treasury rate. Affiliate. terminate the Fund. In connection with The annualized return of the Class D The sale of Shares by the Fund to Ivy the decision to terminate the Fund, the units is determined based on net asset and the sale of the Restricted Shares by Fund sent a notice to each Unit Holder value of each of the underlying hedge the Fund to the Affiliate constitute on October 2, 2007, informing all such funds, as determined by the managers of violations of section 406(a)(1)(A). The those funds, each of whom was Unit Holders of the termination of the subject transactions also constitute a unrelated to Ivy and its affiliates. It is Fund and of the mandatory redemption transfer to, or use by or for the benefit

represented that Ivy took no part in the 19 of a party in interest of any assets of a determination of the net asset values by 64 FR 4131, January 27, 1999. plan, in violation of section 406(a)(1)(D) 20 The Department, herein, is providing no relief the managers of the underlying hedge from the prohibitions, as set forth in section 406 of of the Act. The subject transactions also funds, and thus, Ivy did not determine the Act, for the receipt of fees by Ivy from the Fund, raise issues under the self-dealing and the amount of its own compensation, nor is the Department offering a view, as to whether conflicts of interest provisions of section which was set by external sources. It is the provision of services rendered by Ivy to the 406(b)(1) and 406(b)(2) of the Act, by Fund is covered by the statutory exemption further represented that Ivy, as part of provided in section 408(b)(2) of the Act and the Ivy, as a fiduciary of the assets of the its continuing duty as a fiduciary under Department’s regulations, thereunder, pursuant to Plans and the assets of the IRAs the Act, routinely reviewed the 29 CFR 2550.408b–2. invested in the Fund. valuation practices of those managers. Further, the Department does not concur with 8. Ivy has requested that the Ivy’s conclusion that this particular fee arrangement Ivy also has received reimbursement was specifically approved by the Department in exemption be made retroactive to for research, accounting, and operating footnote 11 of the proposed exemption later December 31, 2008. It is represented services provided to the Fund. It is finalized as PTE 99–13. Footnote 11 was limited to that on December 31, 2008, Ivy did, in represented that the fact that Ivy the need for additional disclosure where the initial fact, purchase the Shares. However, on disclosure noted that the fees were capped at a charged and received research, maximum number of basis points, but that such fees December 31, 2008, Ivy was informed by accounting, and operating services fees, had initially been set at a lower amount, subject to the DE Shaw Fund that, because the DE along with all of its other fees, were later increase. Shaw Fund is an offshore fund, such

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fund would not consent to the sale of and the Restricted Shares which are the had interests in the Fund. In this regard, the Restricted Shares to Ivy, as Ivy is a subject of this proposed exemption. the Unit Holders received from the Delaware entity. Instead, effective 11. Accordingly, effective December Fund a purchase price, which equaled January 1, 2009, the Affiliate purchased 31, 2008, Ivy purchased the Shares from the aggregate value of the Shares and the from the Fund the Restricted Shares of the Fund for cash, and the Affiliate Restricted Shares, respectively, as the DE Shaw Fund. Ivy engaged in the purchased the Restricted Shares from reported to the Fund by the Managers of subject transactions prior to obtaining the Fund for cash, so that the Fund the Underlying Funds who were an exemption, because it believes that in could fully pay out its Unit Holders independent of and unrelated to Ivy and view of the current economic without requiring such Unit Holders to its affiliates. Further, the Unit Holders conditions, it was in the best interest of wait for each of the Underlying Funds did not have to wait for the Underlying the Unit Holders in the Fund that such to pay to the Fund the full redemption Funds to fully pay out redemption Unit Holders received the cash proceeds proceeds. The purchase price paid to proceeds to the Fund. In this regard, the from the sale of the Shares and the sale the Fund by Ivy for the Shares equaled sale of the Shares to Ivy and the sale of of the Restricted Shares, as soon as the value of such Shares, and the the Restricted Shares to the Affiliate possible. purchase price paid to the Fund by the converted a potential stream of 9. In connection with the decision to Affiliate for the Restricted Shares payments from the Fund to the Unit terminate the Fund, Ivy submitted equaled the value of such Restricted Holders into one-time payments in cash. redemption requests to each of the Shares, as reported to Fund by the In addition, if the Unit Holders had hedge funds in which the Fund was Managers of the Underlying Funds, who had to wait until the Underlying Funds invested. As a result, the Fund began are independent of and unrelated to Ivy fully paid out, the redemption proceeds receiving redemption payments from and its affiliates, and as set forth on the received by the Fund would have been such hedge funds in accordance with most recent statement issued to the subject to various administrative the private placement memorandum Fund immediately prior to the effective expenses (such as audit fees and trustee and other governing documents of such date of this proposed exemption. The fees) applicable to any on-going pooled hedge funds. In this regard, it is proposed sale by the Fund of the Shares investment fund. Further, Unit Holders represented that typically hedge funds to Ivy and the proposed sale by the would have had to bear the market risk pay redemption proceeds to a Fund of the Restricted Shares to the that the value of the assets held in the redeeming investor depending on the Affiliate are evidenced by purchase Underlying Fund, some of which are type of investments held by such hedge agreements. illiquid or held in a side pocket of the 12. As a result of the sale by the Fund funds and the terms of the governing Underlying Funds, may have declined of the Shares to Ivy and as a result of documents of such hedge funds. It is in value during 2009 and thereafter. the sale by the Fund of the Restricted It is represented further that the entry represented that the pace at which Shares to the Affiliate, Ivy and the into the Promissory Notes is in the hedge funds pay redemption proceeds Affiliate became shareholders in or interest of Unit Holders, because, such to a redeeming investor depends, for creditors of the respective Underlying Promissory Notes provide that if Ivy or example, on whether the assets of such Funds and will receive the redemption the Affiliate receives redemption hedge funds are illiquid or held in a 21 proceeds from such Underlying Funds proceeds in excess of the purchase price side pocket. Further, during the period at such time as the redemption proceeds paid, respectively, by such parties for when the assets of such hedge funds are are paid out by such Underlying Funds. the Shares and the Restricted Shares, illiquid or held in a side pocket, such With regard to the payment of the Unit holders will receive a hedge funds still owe redemption redemption proceeds by the Underlying proportionate share of such excess. On proceeds to a redeeming investor. The Funds to Ivy and to the Affiliate, it is the other hand, it is represented that if amount due to a redeeming investor will represented that Ivy entered into a Ivy or the Affiliate receives redemption fluctuate as a result of any market gains Promissory Note with each of the Unit proceeds that are less than the purchase and losses on the assets of such hedge Holders of the Fund. Under the terms of price paid, respectively, by such parties funds. each of the Promissory Notes, in the for the Shares and the Restricted Shares, 10. It is represented that for a variety event Ivy receives with respect to the Ivy will absorb the loss. of reasons the Underlying Funds in Shares, or the Affiliate receives with 14. It is represented that the proposed which the Fund, as of December 31, respect to the Restricted Shares sale transactions are feasible in that 2008, had an interest have not fully paid redemption proceeds from the each such sale was a one-time out redemption proceeds. In this regard, Underlying Funds in excess of the transaction for cash. Further, in one of the Underlying Funds is purchase price paid to the Fund by Ivy connection with the sale of the Shares undergoing liquidation, and another is for the Shares and the purchase price to Ivy and the sale the Restricted Shares subject to an extended redemption paid by the Affiliate for the Restricted to the Affiliate, the Fund did not bear payment schedule. Two of the Shares, Ivy will pay, as soon as any commissions or transaction costs. In Underlying Funds have established a practicable after the receipt of such addition, Ivy is responsible for the costs litigation or regulatory reserve, and amounts by Ivy and the Affiliate, of the exemption application and the another has suspended redemptions respectively, the entirety of such excess cost of notifying interested persons. with the intention of making periodic in cash to each Unit Holder in 15. It is represented that the proposed cash distributions to investors on a pro proportion to each such Unit Holder’s transactions are protective of the Unit rata basis, subject to anticipated investment in the Fund. It is Holders, because the purchase price reserves. The Fund’s interests in these represented that if Ivy or if the Affiliate paid by Ivy and by the Affiliate, Underlying Funds constitute the Shares receives redemption proceeds that are respectively, for the Shares and the less than the purchase price paid by Ivy Restricted Shares, equaled the value of 21 It is represented that particular investments or by the Affiliate to the Fund, Ivy will such Shares and Restricted Shares, as made by a hedge fund which the manager of such absorb the loss. reported to the Fund by the Managers of hedge fund has determined are either difficult to value on an on-going basis or should be held until 13. It is represented that the sales each of the Underlying Funds, each of the resolution of a special event or circumstance are transactions were in the interest of the whom is independent of and unrelated commonly referred to as in a ‘‘side pocket.’’ Fund, and the Plans and IRAs which to Ivy and its affiliates. Further, it is

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represented that the decision by a Unit proceeds are less than the purchase 4975(c)(2) of the Code does not relieve Holder as to whether to engage in the price paid for the Shares and the a fiduciary or other party in interest or proposed transactions was made: (a) In Restricted Shares; disqualified person from certain other the case of a Plan, by the trustee of each (g) Ivy, as the investment manager of provisions of the Act and/or the Code, such Plan; (b) in the case of an IRA, by the Fund, represents that the subject including any prohibited transaction the IRA holder, and (c) in the case of the transactions are appropriate for and in provisions to which the exemption does Retirement Plan, by the Committee the interest of the Fund, and the Unit not apply and the general fiduciary which serves as the named fiduciary on Holders which have interests in the responsibility provisions of section 404 behalf of the Retirement Plan for Fund; of the Act, which, among other things, (h) Ivy took all appropriate actions investment matters. It is represented require a fiduciary to discharge his that although, a majority of the members necessary to safeguard the interests of duties respecting the plan solely in the of the Committee are officers of the Fund, and the Unit Holders in the BNYMC, none of the members of the Fund, in connection with the subject interest of the participants and Committee are employed by Ivy. transactions; beneficiaries of the plan and in a 16. In summary, the applicant (i) Ivy will maintain, or cause to be prudent fashion in accordance with represents that the proposed maintained, for a period of six (6) years section 404(a)(1)(b) of the Act; nor does transactions satisfy the statutory criteria from the date of any of the subject it affect the requirement of section of section 408(a) of the Act and section transactions such records as are 401(a) of the Code that the plan must 4975 of the Code because: necessary to determine whether the operate for the exclusive benefit of the (a) The sale of the Shares to Ivy and conditions of this exemption have been employees of the employer maintaining the sale of the Restricted Shares to the met. the plan and their beneficiaries; Affiliate were one-time transactions for (2) Before an exemption may be cash; Notice to Interested Persons granted under section 408(a) of the Act (b) The purchase price paid by Ivy for The persons who may be interested in and/or section 4975(c)(2) of the Code, the Shares, and the purchase price paid the publication in the Federal Register by the Affiliate for the Restricted Shares of the Notice of Proposed Exemption the Department must find that the was equal to the value of such Shares (the Notice) include the trustees of each exemption is administratively feasible, and Restricted Shares, as reported to the of the Unit Holders that is a Plan, the in the interests of the plan and of its Fund by the Managers of each of the custodian of each IRA, and each of the participants and beneficiaries, and Underlying Funds, who are IRA holders, and the Committee which protective of the rights of participants independent of and unrelated to Ivy and serves as the named fiduciary for the and beneficiaries of the plan; its affiliates, and as set forth on the most Retirement Plan. The Applicant has not (3) The proposed exemptions, if recent statement issued to the Fund proposed providing notice to each of the granted, will be supplemental to, and immediately prior to the effective date participants in the Plans, because each not in derogation of, any other of this proposed exemption; Unit Holder has already consented to provisions of the Act and/or the Code, (c) The Fund did not incur any the sale to Ivy, and these are the same including statutory or administrative commissions or transaction costs with persons who made the decision to exemptions and transitional rules. respect to the sale of the Shares to Ivy invest in the first place. Furthermore, the fact that a transaction or the sale of the Restricted Shares to It is represented that each of these is subject to an administrative or the Affiliate; classes of interested persons will be statutory exemption is not dispositive of (d) The decision by a Unit Holder as notified of the publication of the Notice whether the transaction is in fact a to whether to engage in the subject by mail, within fifteen (15) calendar transactions was made, in the case of a days of publication of the Notice in the prohibited transaction; and Plan by the trustee of each such Plan, in Federal Register. Such mailing will (4) The proposed exemptions, if the case of an IRA, by the IRA holder, contain a copy of the Notice, as it granted, will be subject to the express and in the case of the Retirement Plan appears in the Federal Register on the condition that the material facts and by the Committee which serves as the date of publication, plus a copy of the representations contained in each named fiduciary on behalf of the Supplemental Statement, as required, application are true and complete, and Retirement Plan; pursuant to 29 CFR 2570.43(b)(2), which that each application accurately (e) Ivy solicited and received from will advise all interested persons of describes all material terms of the each Unit Holder an affirmative consent their right to comment and to request a transaction which is the subject of the to the sale of the Shares and the hearing. exemption. Restricted Shares by the Fund and to the A11 written comments and/or entry into the Promissory Notes; requests for a hearing must be received Signed at Washington, DC, this 10th day of (f) Pursuant to the terms of the by the Department from interested November 2009. Promissory Notes, in the event that Ivy persons within 45 days of the Ivan Strasfeld, or the Affiliate receives redemption publication of this proposed exemption Director of Exemption Determinations, proceeds with respect to the Shares and in the Federal Register. Employee Benefits Security Administration, the Restricted Shares in excess of the For Further Information Contact: Ms. U.S. Department of Labor. purchase price paid to the Fund by Ivy Angelena C. Le Blanc of the Department, [FR Doc. E9–27404 Filed 11–13–09; 8:45 am] for such Shares or the purchase price telephone (202) 693–8540. (This is not BILLING CODE 4510–29–P paid by the Affiliate for such Restricted a toll-free number.) Shares, Ivy will pay, as soon as practicable after receipt of such General Information amounts, the entirety of such excess in The attention of interested persons is cash to each Unit Holder in proportion directed to the following: to each such Unit Holder’s investment (1) The fact that a transaction is the in the Fund, and Ivy will absorb the subject of an exemption under section loss, if the aggregate redemption 408(a) of the Act and/or section

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DEPARTMENT OF LABOR Signed at Washington, DC, this 10th day of submit comments on the requested November 2009. exemption to the Department. In Employee Benefits Security Ivan L. Strasfeld, addition the notice stated that any Administration Director of Exemption Determinations, interested person might submit a Employee Benefits Security Administration, written request that a public hearing be [Prohibited Transaction Exemption (PTE) U.S. Department of Labor. held (where appropriate). The applicant 2009–24; Exemption Application No. D– [FR Doc. E9–27403 Filed 11–13–09; 8:45 am] has represented that it has complied 11465] BILLING CODE P with the requirements of the notification to interested persons. No requests for a United States Steel and Carnegie hearing were received by the Pension Fund (the Applicant), Located DEPARTMENT OF LABOR Department. Public comments were in New York, NY received by the Department as described Employee Benefits Security in the granted exemption. AGENCY: Employee Benefits Security Administration Administration, U.S. Department of The notice of proposed exemption Labor (the Department). Prohibited Transaction Exemptions was issued and the exemption is being granted solely by the Department ACTION: Notice of technical correction. and Grant of Individual Exemptions Involving: PTE 2009–29, Iron Workers because, effective December 31, 1978, On September 1, 2009, the Local 17 Pension Fun (the Plan), D– section 102 of Reorganization Plan No. Department published PTE 2009–24 in 11432, et al. 4 of 1978, 5 U.S.C. App. 1 (1996), the Federal Register at 74 FR 45294. transferred the authority of the Secretary PTE 2009–24 permits transactions PTE 2009–29, Iron Workers Local 17 Pension of the Treasury to issue exemptions of between parties in interest with respect Fun (the Plan), D–11432; the type proposed to the Secretary of to the Former U.S. Steel Related Plans, PTE 2009–30, Urology Clinics of North Labor. Texas, P,A. 401(k) Profit Sharing Plan and as defined in PTE 2009–24, and an Trust (The Plan), D–11483; Statutory Findings investment fund in which such plans PTE 2009–31, Amendment to Prohibited have an interest, provided that the In accordance with section 408(a) of Transaction Exemption (PTE) 96–22, 61 FR the Act and/or section 4975(c)(2) of the Applicant or its successor has 14828 (April 3, 1996), as amended by PTE discretionary authority or control with 97–34, 62 FR 39021 (July 21, 1997), PTE Code and the procedures set forth in 29 respect to the plan assets involved in 2000–58, 65 FR 67765 (November 13, CFR Part 2570, Subpart B (55 FR 32836, the transaction, and various enumerated 2000), PTE 2002–41, 67 FR 54487 (August 32847, August 10, 1990) and based upon conditions are satisfied. 22, 2002) and PTE 2007–05, 72 FR 13130 the entire record, the Department makes Due to a technical error appearing in (March 20, 2007) as corrected at 72 FR the following findings: 16385 (April 4, 2007) (PTE 2007–05), (PTE (a) The exemption is administratively the final exemption, the Department is 96–22), Involving the Wachovia hereby making a revision to the feasible; Corporation and its affiliates (Wachovia), (b) The exemption is in the interests document. On page 45298 of the grant the Successor of First Union Corporation of the plan and its participants and notice, the first paragraph under the and to PTE 2002–19, 67 FR 14979 (March 28, 2002), as amended by PTE 2007–05 and beneficiaries; and heading Temporary Nature of (c) The exemption is protective of the Exemption is revised to read as follows: PTE 2009–16, 74 FR 30623 (June 26, 2009) (PTE 2002–19), Involving J.P. Morgan rights of the participants and Temporary Nature of Exemption Chase & Company and Its Affiliates, beneficiaries of the plan. The Department has determined that D–11530; Iron Workers Local 17 Pension Fund (the PTE 2009–32, The Alaska Laborers- Plan) Located in Cleveland, Ohio the relief provided by this exemption is Construction Industry Apprenticeship temporary in nature. The exemption is [Prohibited Transaction Exemption 2009–29; Training Trust (the Plan), L–11482. Exemption Application No. D–11432] effective February 15, 2003, and will AGENCY: Employee Benefits Security expire on the day which is five (5) years Exemption Administration, Labor. from the first day of the first fiscal year ACTION: Grant of individual exemptions. The restrictions in sections of UCF after the date of the publication 406(a)(1)(A), 406(a)(1)(D), and 406 (b)(1) of the final exemption in the Federal SUMMARY: This document contains and (b)(2) of the Act and the sanctions Register (i.e., September 1, 2009). exemptions issued by the Department of resulting from the application of section Accordingly, the relief provided by this Labor (the Department) from certain of 4975 of the Code, by reason of section exemption will not be available upon the prohibited transaction restrictions of 4975(c)(1)(A) and 4975(c)(1)(D) through the expiration of such five-year period the Employee Retirement Income (E) of the Code, shall not apply to the for any new or additional transactions, Security Act of 1974 (ERISA or the Act) sale of a leasehold interest, which as described herein, after such date, but and/or the Internal Revenue Code of includes an office building (the would continue to apply beyond the 1986 (the Code). Building) and certain rights pursuant to expiration of such five-year period for A notice was published in the Federal a ground lease, held by the Plan, to the continuing transactions entered into Register of the pendency before the Bridge, Structural and Ornamental Iron before the expiration of the five-year Department of a proposal to grant such Workers Local Union No. 17 (the period. Should the Applicant wish to exemption. The notice set forth a Union), a party in interest with respect extend, beyond the expiration of such summary of facts and representations to the Plan, provided that the following five-year period, the relief provided by contained in the application for conditions are satisfied: this exemption to new or additional exemption and referred interested (a) The terms and conditions of the transactions, the Applicant may submit persons to the application for a sale are at least as favorable to the Plan another application for exemption. complete statement of the facts and as those that the Plan could obtain in an FOR FURTHER INFORMATION CONTACT: Mr. representations. The application has arm’s length transaction with an Gary H. Lefkowitz of the Department at been available for public inspection at unrelated party; (202) 693–8546. (This is not a toll-free the Department in Washington, DC. The (b) The Plan receives the greater of number.) notice also invited interested persons to $285,000 or the fair market value of the

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Building and lot on which the Building parties with respect to the Plan, by the Center for Pediatric Surgery, LLC, (CPS is located (the Lot), as of the date of the individually directed account in the LLC) a Texas limited liability company sale, as determined by a qualified, Plan (the Account) of David Ewalt, M.D. which is the general partner of CPS. The independent appraiser; (Dr. Ewalt), to Dr. Ewalt, a party in Board of Managers of CPS LLC, in (c) The sale is a one-time transaction interest with respect to the Plan. accordance with the governing for cash; This exemption is subject to the documents of CPS, acts as the governing (d) The Plan pays no commissions, following conditions: body for CPS and CPS LLC. In addition, costs, or other expenses in connection (a) The Sale is a one-time transaction the operative language of the final with the sale (other than fees associated for cash; exemption now reflects the additional with the retention of a qualified, (b) the closing date of the Sale (the information submitted in the comments. independent appraiser and the retention Closing Date) occurs within 60 days of The Applicant submitted a of a qualified, independent fiduciary); the Department’s publication of the supplemental appraisal from Vincent (e) The Board of Trustees retains a grant of the final exemption in the Kickirillo (the Appraiser) of VMG qualified, independent fiduciary, who Federal Register; Health, LLC dated August 21, 2009. The will review and approve the (c) the Units are sold to Dr. Ewalt at Appraiser reviewed both the 2.52 methodology used by the qualified, the greater of the fair market value of the percent interest in CPS and the 2.52 independent appraiser, will ensure that Units as of the Closing Date, as interest in CPS LLC and based his such methodology is properly applied determined by a qualified, independent valuation on the division of income in determining the fair market value of appraiser or for $441,000 for the 2.52 between CPS and CPS LLC. The income the Building and Lot as of the date of percent ownership interest in CPS and and profits generated by CPS’ and CPS the sale, and will determine whether it the 2.52 percent ownership interest in LLC’s pediatric services remain is prudent to go forward with the CPS LLC; unchanged from earlier valuations. CPS proposed transaction; and (d) in addition to the sale price LLC, as a distinct legal entity, does not (f) Prior to the publication of this final described above, the Account will have generate any income or losses. For tax exemption in the Federal Register received $408,954.00 in consideration purposes, CPS receives 99.55% and CPS regarding the subject transaction, the for the reduction of the Account’s LLC receives .45% of the total profits Union: (i) Filed Form 5330 (Return of interest in CPS and CPS LLC as a result from their pediatric business. The Excise Taxes Related to Employee of an investment by Cook Children’s Appraiser valued the 2.52 percent Benefit Plans) with the Internal Revenue Health Care System (Cook) in CPS and interest (or 5.55 Units in CPS) at Service (IRS) and paid all applicable CPS LLC; $439,005.00 and the 2.52 percent excise taxes due by reason of its (e) the proceeds from the Sale are interest (or 5.55 Units in CPS LLC) at prohibited past leasing to the Plan of the credited to the Account simultaneously $1,995.00. Therefore, the Appraiser Lot on which the subject Building was with the transfer of the Units’ title to Dr. represented that the Account’s 2.52 constructed by the Plan; and (ii) Ewalt; interest in CPS and 2.52 percent interest provided the Department with copies of (f) neither the Plan nor the Account in CPS LLC resulted in a value of Form 5330 and of the checks submitted pay any fees, commissions, or other $441,000.00. to the IRS indicating that the taxes were costs or expenses associated with the Finally, on September 2, 2009, the correctly computed and paid. Sale; and Applicant clarified its application to For a more complete statement of the (g) the terms and conditions of the note that in August 2008, the ownership facts and representations supporting the Sale remain at least as favorable to the of the CPS and CPS LLC was Department’s decision to grant this Account as the terms and conditions reorganized. The Account now owns a exemption, refer to the notice of obtainable under similar circumstances 2.52 percent ownership interest proposed exemption published on June negotiated at arm’s length with an consisting of 5.55 Class I Units of CPS 26, 2009 at 74 FR 30631. unrelated party. and a 2.52 percent ownership interest Effective Date: This exemption is FOR FURTHER INFORMATION CONTACT: Ms. consisting of 5.55 Class I Units of CPS effective as of the date of publication of Karin Weng of the Department, LLC instead of a 2.52 percent ownership this exemption in the Federal Register. telephone (202) 693–8557. (This is not interest consisting of 5 Class I Units of a toll-free number.) Written Comments CPS and a 2.52 percent ownership Urology Clinics of North Texas, P.A. 401(k) In the Notice of Proposed Exemption interest consisting of 5 Class I Units of Profit Sharing Plan and Trust (The Plan) CPS LLC. Located in Dallas, TX (the Notice), the Department invited all interested persons to submit written The operative language of the final Prohibited Transaction Exemption 2009–30; exemption now reflects the additional [Application No. D–11483] comments and requests for a hearing. During the comment period, the information submitted by the Applicant. Exemption Department received no requests for a Also, the Department has revised The restrictions of sections 406(a), hearing. The Department received paragraphs 7 and 8 as well as footnote 406(b)(1) and (b)(2) of the Act and the comments from the Applicant dated 6 in the Notice. Paragraph 7 of the Summary of Facts sanctions resulting from the application July 24, 2009, August 21, 2009 and and Representations has been revised to of section 4975 of the Code, by reason September 2, 2009. The Applicant cited read as follows: of section 4975(c)(1)(A) through (E) of the following issues with regard to the the Code, will not apply to the proposed Notice. On August 1, 2008, Cook completed a sale (the Sale) of a 2.52 percent In its July 24, 2009 and August 21, capital investment in CPS and CPS LLC that ownership interest comprising 5.55 2009 comments, the Applicant resulted in Cook’s ownership of 51 percent Class I Units issued by the Center for supplemented its original application of the aggregate ownership interest CPS and CPS LLC. Cook is not a party in interest to Pediatric Surgery (CPS) and a 2.52 with additional facts. First, the the Plan. percent ownership interest comprising Applicant explained that in addition to The Cook investment did not represent an 5.55 Class I Units of the Center of its 2.52 percent ownership interest in actual purchase from the Account of any of Pediatric Surgery, LLC (CPS LLC) CPS, the Account also held an identical the Units. Instead, the Cook investment (collectively the ‘‘Units’’), unrelated 2.52 percent ownership interest in the represented an injection of capital into CPS

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which resulted in the issuance of additional For a more complete statement of the Securities representing an interest in the ownership units to Cook and dilution of the facts and representations supporting the Issuer, or an Obligor is a party in then existing investors of CPS and CPS LLC. Department’s decision to grant this interest with respect to such plan; Paragraph 8 of the Summary of Facts exemption, refer to the Notice of (2) The direct or indirect acquisition and Representations has been revised to Proposed Exemption published in the or disposition of Securities by a plan in read as follows: Federal Register on June 26, 2009 at 74 the secondary market for such Prior to the investment by Cook, individual FR 30634. Based on the entire record, Securities; and investors, including the Account, together the Department has determined to grant (3) The continued holding of held an 81 percent aggregate interest in CPS this exemption as revised herein. Securities acquired by a plan pursuant and CPS LLC, while the remaining 19 percent For Further Information Contact: to subsection I.A.(1) or (2). interest was held by Nuettera Holdings, LLC, Anh-Viet Ly of the Department, Notwithstanding the foregoing, (Nuettera) the entity providing business telephone (202) 693–8648 (this is not a section I.A. does not provide an management services to CPS. Following the toll-free number). exemption from the restrictions of investment by Cook, the individual investors’ Amendment to Prohibited Transaction sections 406(a)(1)(E), 406(a)(2) and 407 aggregate interest in CPS and CPS LLC has Exemption (PTE) 96–22, 61 FR 14828 (April of the Act for the acquisition or holding been reduced to 44 percent respectively and 3, 1996), as amended by PTE 97–34, 62 FR of a Security on behalf of an Excluded the interest held by Nuettera Holdings, LLC 39021 (July 21, 1997), PTE 2000–58, 65 FR Plan by any person who has has been reduced to five percent 67765 (November 13, 2000), PTE 2002–41, 67 respectively.6 Due to the Cook investment discretionary authority or renders FR 54487 (August 22, 2002) and PTE 2007– and the resulting dilution and reduction of investment advice with respect to the 05, 72 FR 13130 (March 20, 2007) as the ownership of the individual investors, assets of that Excluded Plan.1 corrected at 72 FR 16385 (April 4, 2007) (PTE the Account’s aggregate interest in CPS and B. Effective December 31, 2008, the 2007–05), (PTE 96–22), Involving the CPS LLC decreased from 4.63 percent to 2.52 restrictions of sections 406(b)(1) and Wachovia Corporation and its affiliates percent respectively. As consideration for (Wachovia), the Successor of First Union 406(b)(2) of the Act and the taxes this dilution of their ownership interest, the imposed by sections 4975(a) and (b) of previous investors received a special cash Corporation and to PTE 2002–19, 67 FR 14979 (March 28, 2002), as amended by PTE the Code, by reason of section distribution from CPS. The Account’s share 4975(c)(1)(E) of the Code, shall not of this cash consideration was $408,954.00. 2007–05 and PTE 2009–16, 74 FR 30623 This amount was deposited in the Account (June 26, 2009) (PTE 2002–19), Involving J.P. apply to: and invested in accordance with Dr. Ewalt’s Morgan Chase & Company and Its Affiliates. (1) The direct or indirect sale, directions. Individual number of units in CPS [Prohibited Transaction Exemption 2009–31; exchange or transfer of Securities in the and CPS LLC held by the Account increased Exemption Application Number D–11530] initial issuance of Securities between the Sponsor or Underwriter and a plan from five to 5.55 units respectively as part of Exemption this transaction. The Applicant submitted a when the person who has discretionary supplemental appraisal from the Appraiser In accordance with section 408(a) of authority or renders investment advice dated August 21, 2009. The Appraiser used the Act and section 4975(c)(2) of the with respect to the investment of plan the division of income between CPS and CPS Code and the procedures set forth in 29 assets in the Securities is (a) an Obligor LLC as basis for his valuation. CPS receives CFR Part 2570, Subpart B (55 FR 32836, 99.55% and CPS LLC receives .45% of the with respect to 5 percent or less of the total profits from their pediatric business. August 10, 1990), the Department fair market value of obligations or Accordingly, the Appraiser valued the 2.52 amends Prohibited Transaction receivables contained in the Issuer, or percent interest or 5.55 Units in CPS at Exemption (PTE) 96–22, 61 FR 14828 (b) an Affiliate of a person described in $439,005.00. The Appraiser valued the 2.52 (April 3, 1996), as amended by PTE 97– (a); if: percent interest or 5.55 Units in CPS LLC at 34, 62 FR 39021 (July 21, 1997), PTE (i) The plan is not an Excluded Plan; $1,995.00. Finally, the Appraiser represented 2000–58, 65 FR 67765 (November 13, (ii) Solely in the case of an acquisition that the Account’s 2.52 interest in CPS and 2000), PTE 2002–41, 67 FR 54487 of Securities in connection with the 2.52 percent interest CPS LLC combined (August 22, 2002) and PTE 2007–05, 72 initial issuance of the Securities, at least equaled $441,000.00. FR 13130 (March 20, 2007) as corrected 50 percent of each class of Securities in Footnote 6 in the Summary of Facts at 72 FR 16385 (April 4, 2007) (PTE which plans have invested is acquired and Representations has been revised to 2007–05), (PTE 96–22) and PTE 2002– by persons independent of the members read as follows: 19, 67 FR 14979 (March 28, 2002) as of the Restricted Group and at least 50 Nuetttera was engaged to provide amended by PTE 2007–05 and PTE percent of the aggregate interest in the management services for the surgery center. 2009–16, 74 FR 30623 (June 26, 2009) Issuer is acquired by persons Nuettera held an ownership interest in CPS, (PTE 2002–19). independent of the Restricted Group; but that interest was represented by units of (iii) A plan’s investment in each class a different class (Class II units) than those I. Transactions of Securities does not exceed 25 percent held by the physician practitioners who A. Effective December 31, 2008, the of all of the Securities of that class owned the remaining interests in CPS and restrictions of sections 406(a) and 407(a) outstanding at the time of the CPS LLC (Class I units). of the Act, and the taxes imposed by acquisition; and When Cook acquired its interest in CPS (iv) Immediately after the acquisition and CPS LLC in 2008, it acquired both Class sections 4975(a) and (b) of the Code, by I and Class II units. The dilution of Nuettera’s reason of section 4975(c)(1)(A) through of the Securities, no more than 25 interest in CPS and CPS LLC was (D) of the Code shall not apply to the percent of the assets of a plan with proportionately greater than the dilution of following transactions involving Issuers respect to which the person has the physicians’ interests because Cook and Securities evidencing interests discretionary authority or renders acquired seventy-five percent (75%) of the therein: investment advice are invested in Class II units for CPS and CPS LLC. In (1) The direct or indirect sale, Securities representing an interest in an contrast, the aggregate ownership of the exchange or transfer of Securities in the Issuer containing assets sold or serviced physicians in CPS and CPS LLC was diluted by roughly fifty-four percent (54%) following initial issuance of Securities between the Sponsor or Underwriter and an 1 Section I.A. provides no relief from sections the Cook investment. The reason the relative 406(a)(1)(E), 406(a)(2) and 407 of the Act for any dilution of the two groups was different was employee benefit plan when the person rendering investment advice to an Excluded a result of the fact that the two groups owned Sponsor, Servicer, Trustee or Insurer of Plan within the meaning of section 3(21)(A)(ii) of different classes of ownership units. an Issuer, the Underwriter of the the Act, and regulation 29 CFR 2510.3–21(c).

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by the same entity.2 For purposes of this approved by a Rating Agency and does or more events of default by the paragraph (iv) only, an entity will not be not result in the Securities receiving a Servicer; and considered to service assets contained lower credit rating from the Rating (b) Subsection II.A.(4) will be deemed in an Issuer if it is merely a Subservicer Agency than the current rating of the satisfied notwithstanding a Servicer of that Issuer; Securities. becoming an Affiliate of the Trustee as (2) The direct or indirect acquisition Notwithstanding the foregoing, the result of a merger or acquisition or disposition of Securities by a plan in section I.C. does not provide an involving the Trustee, such Servicer the secondary market for such exemption from the restrictions of and/or their Affiliates which occurs Securities, provided that the conditions section 406(b) of the Act or from the after the initial issuance of the set forth in paragraphs (i), (iii) and (iv) taxes imposed by reason of section Securities, provided that: of subsection I.B.(1) are met; and 4975(c) of the Code for the receipt of a (i) Such Servicer ceases to be an (3) The continued holding of fee by a Servicer of the Issuer from a Affiliate of the Trustee no later than six Securities acquired by a plan pursuant person other than the Trustee or months after the date such Servicer to subsection I.B.(1) or (2). Sponsor, unless such fee constitutes a became an Affiliate of the Trustee; and C. Effective December 31, 2008, the Qualified Administrative Fee. (ii) Such Servicer did not breach any restrictions of sections 406(a), 406(b) D. Effective December 31, 2008, the of its obligations under the Pooling and and 407(a) of the Act, and the taxes restrictions of sections 406(a) and 407(a) Servicing Agreement, unless such imposed by section 4975(a) and (b) of of the Act, and the taxes imposed by breach was immaterial and timely cured the Code by reason of section 4975(c) of section 4975(a) and (b) of the Code by in accordance with the terms of such the Code, shall not apply to transactions reason of section 4975(c)(1)(A) through agreement, during the period from the in connection with the servicing, (D) of the Code, shall not apply to any closing date of such merger or management and operation of an Issuer, transactions to which those restrictions acquisition transaction through the date including the use of any Eligible Swap or taxes would otherwise apply merely the Servicer ceased to be an Affiliate of transaction; or the defeasance of a because a person is deemed to be a party the Trustee; mortgage obligation held as an asset of in interest or disqualified person (c) [(d) of PTE 2002–19] Effective the Issuer through the substitution of a (including a fiduciary) with respect to a December 31, 2008 through June 30, new mortgage obligation in a plan by virtue of providing services to 2009, Wells Fargo, N.A., the Trustee, commercial mortgage-backed the plan (or by virtue of having a shall not be considered to be an Affiliate Designated Transaction, provided: relationship to such service provider of any member of the Restricted Group (1) Such transactions are carried out described in section 3(14)(F), (G), (H) or solely as the result of the acquisition of in accordance with the terms of a (I) of the Act or section 4975(e)(2)(F), Wachovia Corporation and its affiliates binding Pooling and Servicing (G), (H) or (I) of the Code), solely (Wachovia) by Wells Fargo & Company Agreement; because of the plan’s ownership of and its subsidiaries (WFC), the parent (2) The Pooling and Servicing Securities. holding company of Wells Fargo, N.A. Agreement is provided to, or described (the Acquisition), which occurred after in all material respects in the prospectus II. General Conditions the initial issuance of the Securities, or private placement memorandum A. The relief provided under section provided that: provided to, investing plans before they I. is available only if the following (i) The Trustee, Wells Fargo, N.A., purchase Securities issued by the conditions are met: ceases to be an Affiliate of any member Issuer; 3 and (1) The acquisition of Securities by a of the Restricted Group no later than (3) The defeasance of a mortgage plan is on terms (including the Security June 30, 2009; obligation and the substitution of a new price) that are at least as favorable to the (ii) Any member of the Restricted mortgage obligation in a commercial plan as they would be in an arm’s- Group that is an Affiliate of the Trustee, mortgage-backed Designated length transaction with an unrelated Wells Fargo, N.A., did not breach any of Transaction meet the terms and party; its obligations under the Pooling and conditions for such defeasance and (2) The rights and interests evidenced Servicing Agreement, unless such substitution as are described in the by the Securities are not subordinated to breach was immaterial and timely cured prospectus or private placement the rights and interests evidenced by in accordance with the terms of such memorandum for such Securities, other Securities of the same Issuer, agreement, during the period from which terms and conditions have been unless the Securities are issued in a December 31, 2008 through the date the Designated Transaction; member of the Restricted Group ceased 2 For purposes of this Underwriter Exemption, (3) The Securities acquired by the to be an Affiliate of the Trustee, Wells each plan participating in a commingled fund (such plan have received a rating from a Fargo, N.A.; and as a bank collective trust fund or insurance (iii) In accordance with each Pooling company pooled separate account) shall be Rating Agency at the time of such considered to own the same proportionate acquisition that is in one of the three (or and Servicing Agreement, the Trustee, undivided interest in each asset of the commingled in the case of Designated Transactions, Wells Fargo, N.A., appoints a co-trustee, fund as its proportionate interest in the total assets four) highest generic rating categories; which is not an Affiliate of Wachovia or of the commingled fund as calculated on the most (4) The Trustee is not an Affiliate of any other member of the Restricted recent preceding valuation date of the fund. 3 In the case of a private placement memorandum, any member of the Restricted Group, Group, no later than the earlier of (A) such memorandum must contain substantially the other than an Underwriter. For purposes March 31, 2009 or (B) five business days same information that would be disclosed in a of this requirement: after Wells Fargo, N.A. becomes aware prospectus if the offering of the securities were (a) The Trustee shall not be of a conflict between the Trustee and made in a registered public offering under the Securities Act of 1933. In the Department’s view, considered to be an Affiliate of a any member of the Restricted Group that the private placement memorandum must contain Servicer solely because the Trustee has is an Affiliate of the Trustee. The co- sufficient information to permit plan fiduciaries to succeeded to the rights and trustee will be responsible for resolving make informed investment decisions. For purposes responsibilities of the Servicer pursuant any conflict between the Trustee and of this exemption, references to ‘‘prospectus’’ include any related prospectus supplement thereto, to the terms of a Pooling and Servicing any member of the Restricted Group that pursuant to which Securities are offered to Agreement providing for such has become an Affiliate of the Trustee investors. succession upon the occurrence of one as a result of the Acquisition; provided,

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that if the Trustee has resigned on or therein) to the Issuer represents not additional obligations will either be prior to March 31, 2009 and no event more than the fair market value of such monitored by a credit support provider described in clause (B) has occurred, no obligations (or interests); and the sum of or other insurance provider which is co-trustee shall be required.4 all payments made to and retained by independent of the Sponsor or an (iv) For purposes of this subsection the Servicer represents not more than independent accountant retained by the II.A.(4)(c) [subsection II.A.(4)(d) of PTE Reasonable Compensation for the Sponsor will provide the Sponsor with 2002–19], a conflict arises whenever (A) Servicer’s services under the Pooling a letter (with copies provided to the Wachovia, as a member of the Restricted and Servicing Agreement and Rating Agency, the Underwriter and the Group, fails to perform in accordance reimbursement of the Servicer’s Trustee) stating whether or not the with the timeframes contained in the reasonable expenses in connection characteristics of the additional relevant Pooling and Servicing therewith; obligations conform to the Agreement following a request for (6) The plan investing in such characteristics of such obligations performance from Wells Fargo, N.A., as Securities is an ‘‘accredited investor’’ as described in the prospectus, private Trustee, or (B) Wells Fargo, N.A., as defined in Rule 501(a)(1) of Regulation placement memorandum and/or Pooling Trustee, fails to perform in accordance D of the Securities and Exchange and Servicing Agreement. In preparing with the timeframes contained in the Commission under the Securities Act of such letter, the independent accountant relevant Pooling and Servicing 1933; and will use the same type of procedures as Agreement following a request for (7) In the event that the obligations were applicable to the obligations which performance from Wachovia, a member used to fund an Issuer have not all been were transferred as of the Closing Date; of the Restricted Group. transferred to the Issuer on the Closing (f) The Pre-Funding Period shall be The time as of which a conflict occurs Date, additional obligations of the types described in the prospectus or private is the earlier of: The day immediately specified in subsection III.B.(1) may be placement memorandum provided to following the last day on which transferred to the Issuer during the Pre- investing plans; and compliance is required under the Funding Period in exchange for (g) The Trustee of the Trust (or any relevant Pooling and Servicing amounts credited to the Pre-Funding agent with which the Trustee contracts Agreement; or the day on which a party Account, provided that: to provide Trust services) will be a affirmatively responds that it will not (a) The Pre-Funding Limit is not substantial financial institution or trust comply with a request for performance. exceeded; company experienced in trust activities For purposes of this subsection (b) All such additional obligations and familiar with its duties, II.A.(4)(c) [subsection II.A.(4)(d) of PTE meet the same terms and conditions for responsibilities and liabilities as a 2002–19], the term ‘‘conflict’’ includes determining the eligibility of the fiduciary under the Act. The Trustee, as but is not limited to, the following: (1) original obligations used to create the the legal owner of the obligations in the Wachovia’s failure, as Sponsor, to Issuer (as described in the prospectus or Trust or the holder of a security interest repurchase a loan for breach of private placement memorandum and/or in the obligations held by the Issuer, representation within the time period Pooling and Servicing Agreement for will enforce all the rights created in prescribed in the relevant Pooling and such Securities), which terms and favor of securityholders of the Issuer, Servicing Agreement, following Wells conditions have been approved by a including employee benefit plans Fargo, N.A.’s request, as Trustee, for Rating Agency. subject to the Act; performance; (2) Wachovia, as Sponsor, Notwithstanding the foregoing, the (8) In order to insure that the assets notifies Wells Fargo, N.A., as Trustee, terms and conditions for determining of the Issuer may not be reached by that it will not repurchase a loan for the eligibility of an obligation may be creditors of the Sponsor in the event of breach of representation, following changed if such changes receive prior bankruptcy or other insolvency of the Wells Fargo, N.A.’s request that approval either by a majority vote of the Sponsor: Wachovia repurchase such loan within outstanding securityholders or by a (a) The legal documents establishing the time period prescribed in the Rating Agency; the Issuer will contain: relevant Pooling and Servicing (c) The transfer of such additional (i) Restrictions on the Issuer’s ability Agreement (the notification occurs prior obligations to the Issuer during the Pre- to borrow money or issue debt other to the expiration of the prescribed time Funding Period does not result in the than in connection with the period for the repurchase); and (3) Securities receiving a lower credit rating securitization; Wachovia, as Swap Counterparty, makes from a Rating Agency upon termination (ii) Restrictions on the Issuer merging or requests a payment based on a value of the Pre-Funding Period than the with another entity, reorganizing, of the London Interbank Offered Rate rating that was obtained at the time of liquidating or selling assets (other than (LIBOR) that Wells Fargo, N.A., as the initial issuance of the Securities by in connection with the securitization); Trustee, considers erroneous. the Issuer; (iii) Restrictions limiting the (5) The sum of all payments made to (d) The weighted average annual authorized activities of the Issuer to and retained by the Underwriters in percentage interest rate (the average activities relating to the securitization; connection with the distribution or interest rate) for all of the obligations (iv) If the Issuer is not a Trust, placement of Securities represents not held by the Issuer at the end of the Pre- provisions for the election of at least one more than Reasonable Compensation for Funding Period will not be more than independent director/partner/member underwriting or placing the Securities; 100 basis points lower than the average whose affirmative consent is required the sum of all payments made to and interest rate for the obligations which before a voluntary bankruptcy petition retained by the Sponsor pursuant to the were transferred to the Issuer on the can be filed by the Issuer; and assignment of obligations (or interests Closing Date; (v) If the Issuer is not a Trust, (e) In order to ensure that the requirements that each independent 4 On May 7, 2009, Wells Fargo Bank, N.A. characteristics of the receivables director/partner/member must be an informed the Department that for all 39 of the actually acquired during the Pre- individual that does not have a transactions on the Securitization List at section III.KK [section III.LL of PTE 2002–19], the Funding Period are substantially similar significant interest in, or other replacement trustees were in place as of March 31, to those which were acquired as of the relationships with, the Sponsor or any 2009. Closing Date, the characteristics of the of its Affiliates; and

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(b) The Pooling and Servicing any later than the end of the second with the Securities Act of 1933, any Agreement and/or other agreements month that begins after the date on such transferees will be required to establishing the contractual which such failure occurs. make a written representation regarding relationships between the parties to the (d) In the case of a Non-Ratings compliance with the condition set forth securitization transaction will contain Dependent Swap, shall provide that, if in subsection II.A.(6). the credit rating of the counterparty is covenants prohibiting all parties thereto III. Definitions from filing an involuntary bankruptcy withdrawn or reduced below the lowest petition against the Issuer or initiating level specified in section III.GG., the For purposes of this exemption: any other form of insolvency proceeding Servicer (as agent for the Trustee) shall A. ‘‘Security’’ means: until after the Securities have been paid; within a specified period after such (1) A pass-through certificate or trust and rating withdrawal or reduction: certificate that represents a beneficial (c) Prior to the issuance by the Issuer (i) Obtain a replacement swap ownership interest in the assets of an of any Securities, a legal opinion is agreement with an Eligible Swap Issuer which is a Trust and which received which states that either: Counterparty, the terms of which are entitles the holder to payments of (i) A ‘‘true sale’’ of the assets being substantially the same as the current principal, interest and/or other transferred to the Issuer by the Sponsor swap agreement (at which time the payments made with respect to the has occurred and that such transfer is earlier swap agreement shall terminate); assets of such Trust; or not being made pursuant to a financing or (2) A security which is denominated of the assets by the Sponsor; or (ii) Cause the swap counterparty to as a debt instrument that is issued by, (ii) In the event of insolvency or post collateral with the Trustee in an and is an obligation of, an Issuer; with receivership of the Sponsor, the assets amount equal to all payments owed by respect to which the Underwriter is transferred to the Issuer will not be part the counterparty if the swap transaction either (i) the sole underwriter or the of the estate of the Sponsor; were terminated; or manager or co-manager of the (9) If a particular class of Securities (iii) Terminate the swap agreement in underwriting syndicate, or (ii) a selling held by any plan involves a Ratings accordance with its terms; and or placement agent. Dependent or Non-Ratings Dependent (e) Shall not require the Issuer to B. ‘‘Issuer’’ means an investment pool, Swap entered into by the Issuer, then make any termination payments to the the corpus or assets of which are held each particular swap transaction counterparty (other than a currently in trust (including a grantor or owner relating to such Securities: scheduled payment under the swap Trust) or whose assets are held by a (a) Shall be an Eligible Swap; agreement) except from Excess Spread partnership, special purpose (b) Shall be with an Eligible Swap or other amounts that would otherwise corporation or limited liability company Counterparty; be payable to the Servicer or the (which Issuer may be a Real Estate (c) In the case of a Ratings Dependent Sponsor; Mortgage Investment Conduit (REMIC) Swap, shall provide that if the credit (10) Any class of Securities, to which or a Financial Asset Securitization rating of the counterparty is withdrawn one or more swap agreements entered Investment Trust (FASIT) within the or reduced by any Rating Agency below into by the Issuer applies, may be meaning of section 860D(a) or section a level specified by the Rating Agency, acquired or held in reliance upon this 860L, respectively, of the Code); and the the Servicer (as agent for the Trustee) Underwriter Exemption only by corpus or assets of which consist solely shall, within the period specified under Qualified Plan Investors; and of: the Pooling and Servicing Agreement: (11) Prior to the issuance of any debt (1) (a) Secured consumer receivables (i) Obtain a replacement swap securities, a legal opinion is received that bear interest or are purchased at a agreement with an Eligible Swap which states that the debt holders have discount (including, but not limited to, Counterparty which is acceptable to the a perfected security interest in the home equity loans and obligations Rating Agency and the terms of which Issuer’s assets. secured by shares issued by a are substantially the same as the current B. Neither any Underwriter, Sponsor, cooperative housing association); and/or swap agreement (at which time the Trustee, Servicer, Insurer or any (b) Secured credit instruments that earlier swap agreement shall terminate); Obligor, unless it or any of its Affiliates bear interest or are purchased at a or has discretionary authority or renders discount in transactions by or between (ii) Cause the swap counterparty to investment advice with respect to the business entities (including, but not establish any collateralization or other plan assets used by a plan to acquire limited to, Qualified Equipment Notes arrangement satisfactory to the Rating Securities, shall be denied the relief Secured by Leases); and/or (c) Obligations that bear interest or are Agency such that the then current rating provided under section I., if the purchased at a discount and which are by the Rating Agency of the particular provision of subsection II.A.(6) is not secured by single-family residential, class of Securities will not be satisfied with respect to acquisition or multi-family residential and/or withdrawn or reduced. holding by a plan of such Securities, In the event that the Servicer fails to provided that (1) such condition is commercial real property (including meet its obligations under this disclosed in the prospectus or private obligations secured by leasehold subsection II.A.(9)(c), plan placement memorandum; and (2) in the interests on residential or commercial securityholders will be notified in the case of a private placement of real property); and/or (d) Obligations that bear interest or immediately following Trustee’s Securities, the Trustee obtains a are purchased at a discount and which periodic report which is provided to representation from each initial are secured by motor vehicles or securityholders, and sixty days after the purchaser which is a plan that it is in equipment, or Qualified Motor Vehicle receipt of such report, the exemptive compliance with such condition, and Leases; and/or relief provided under section I.C. will obtains a covenant from each initial (e) Guaranteed governmental prospectively cease to be applicable to purchaser to the effect that, so long as mortgage pool certificates, as defined in any class of Securities held by a plan such initial purchaser (or any transferee 29 CFR 2510.3–101(i)(2) 5; and/or which involves such Ratings Dependent of such initial purchaser’s Securities) is Swap; provided that in no event will required to obtain from its transferee a 5 In ERISA Advisory Opinion 99–05A (Feb. 22, such plan securityholders be notified representation regarding compliance 1999), the Department expressed its view that

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(f) Fractional undivided interests in (i) Are credited to a Pre-Funding (c) Any member of an underwriting any of the obligations described in Account established to purchase syndicate or selling group of which a clauses (a)–(e) of this subsection B.(1).6 additional obligations with respect to person described in subsections Notwithstanding the foregoing, which the conditions set forth in III.C.(1)(a) or (b) is a manager or co- residential and home equity loan paragraphs (a)–(g) of subsection II.A.(7) manager with respect to the Securities. receivables issued in Designated are met; and/or (2) Effective December 31, 2008 Transactions may be less than fully (ii) Are credited to a Capitalized through June 30, 2009, ‘‘Underwriter’’ secured, provided that: (i) The rights Interest Account; and means: and interests evidenced by the (iii) Are held by the Issuer for a period (a) Wachovia or J.P. Morgan Securities Securities issued in such Designated ending no later than the first Inc.; Transactions (as defined in section distribution date to securityholders (b) Any person directly or indirectly, III.DD.) are not subordinated to the occurring after the end of the Pre- through one or more intermediaries, rights and interests evidenced by Funding Period. controlling, controlled by or under Securities of the same Issuer; (ii) such For purposes of this paragraph (c) of common control with such entities; or Securities acquired by the plan have subsection III.B.(3), the term ‘‘permitted (c) Any member of an underwriting received a rating from a Rating Agency investments’’ means investments which: syndicate or selling group of which such at the time of such acquisition that is in (i) Are either: (x) Direct obligations of, firm or person described in subsections one of the two highest generic rating or obligations fully guaranteed as to III.C.(2)(a) or (b) is a manager or co- categories; and (iii) any obligation timely payment of principal and interest manager with respect to the Securities. included in the corpus or assets of the by, the United States or any agency or D. ‘‘Sponsor’’ means: (1) The entity that organizes an Issuer Issuer must be secured by collateral instrumentality thereof, provided that by depositing obligations therein in whose fair market value on the Closing such obligations are backed by the full exchange for Securities; or Date of the Designated Transaction is at faith and credit of the United States or (2) Effective December 31, 2008 least equal to 80% of the sum of: (I) The (y) have been rated (or the Obligor has through June 30, 2009, for those outstanding principal balance due been rated) in one of the three highest transactions listed on the Securitization under the obligation which is held by generic rating categories by a Rating List at section III.KK. [section III.LL. of the Issuer and (II) the outstanding Agency; (ii) are described in the Pooling principal balance(s) of any other PTE 2002–19], Wachovia. and Servicing Agreement; and (iii) are E. ‘‘Master Servicer’’ means the entity obligation(s) of higher priority (whether permitted by the Rating Agency. that is a party to the Pooling and or not held by the Issuer) which are (4) Rights of the Trustee under the Servicing Agreement relating to assets of secured by the same collateral. Pooling and Servicing Agreement, and the Issuer and is fully responsible for (2) Property which had secured any of rights under any insurance policies, servicing, directly or through the obligations described in subsection third-party guarantees, contracts of Subservicers, the assets of the Issuer. III.B.(1); suretyship, Eligible Yield Supplement F. ‘‘Subservicer’’ means an entity (3) (a) Undistributed cash or Agreements, Eligible Swap Agreements which, under the supervision of and on temporary investments made therewith meeting the conditions of subsection behalf of the Master Servicer, services maturing no later than the next date on II.A.(9) or other credit support loans contained in the Issuer, but is not which distributions are made to arrangements with respect to any a party to the Pooling and Servicing securityholders; and/or obligations described in subsection Agreement. (b) Cash or investments made III.B.(1). G. ‘‘Servicer’’ means any entity which therewith which are credited to an Notwithstanding the foregoing, the services loans contained in the Issuer, account to provide payments to term ‘‘Issuer’’ does not include any including the Master Servicer and any securityholders pursuant to any Eligible investment pool unless: (i) The assets of Subservicer. Swap Agreement meeting the conditions the type described in paragraphs (a)–(f) H. ‘‘Trust’’ means an Issuer which is of subsection II.A.(9) or pursuant to any of subsection III.B.(1) which are a trust (including an owner trust, Eligible Yield Supplement Agreement; contained in the investment pool have grantor trust or a REMIC or FASIT and/or been included in other investment which is organized as a Trust). (c) Cash transferred to the Issuer on pools, (ii) Securities evidencing I. ‘‘Trustee’’ means the Trustee of any the Closing Date and permitted interests in such other investment pools Trust which issues Securities and also investments made therewith which: have been rated in one of the three (or includes an Indenture Trustee. in the case of Designated Transactions, ‘‘Indenture Trustee’’ means the Trustee mortgage pool certificates guaranteed and issued by four) highest generic rating categories by appointed under the indenture pursuant the Federal Agricultural Mortgage Corporation a Rating Agency for at least one year to which the subject Securities are (‘‘Farmer Mac’’) meet the definition of a guaranteed governmental mortgage pool certificate as defined prior to the plan’s acquisition of issued, the rights of holders of the in 29 CFR 2510.3–101(i)(2). Securities pursuant to this Underwriter Securities are set forth and a security 6 It is the Department’s view that the definition Exemption, and (iii) Securities interest in the Trust assets in favor of of Issuer contained in subsection III.B. includes a evidencing interests in such other the holders of the Securities is created. two-tier structure under which Securities issued by investment pools have been purchased the first Issuer, which contains a pool of receivables The Trustee or the Indenture Trustee is described above, are transferred to a second Issuer by investors other than plans for at least also a party to or beneficiary of all the which issues Securities that are sold to plans. one year prior to the plan’s acquisition documents and instruments transferred However, the Department is of the further view that, of Securities pursuant to this to the Issuer, and as such, has both the since the Underwriter Exemption generally Underwriter Exemption. provides relief only for the direct or indirect authority to, and the responsibility for, acquisition or disposition of Securities that are not C.(1) ‘‘Underwriter’’ means: enforcing all the rights created thereby subordinated, no relief would be available if the (a) First Union; in favor of holders of the Securities, Securities held by the second Issuer were (b) Any person directly or indirectly, including those rights arising in the subordinated to the rights and interests evidenced by other Securities issued by the first Issuer, unless through one or more intermediaries, event of default by the Servicer. such Securities were issued in a Designated controlling, controlled by or under J. ‘‘Insurer’’ means the insurer or Transaction. common control with First Union; or guarantor of, or provider of other credit

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support for, an Issuer. Notwithstanding renders investment advice with respect (1) The Issuer owns or holds a the foregoing, a person is not an insurer to any assets of such person. security interest in the lease; solely because it holds Securities Q. ‘‘Sale’’ includes the entrance into (2) The Issuer owns or holds a representing an interest in an Issuer a Forward Delivery Commitment, security interest in the leased motor which are of a class subordinated to provided: vehicle; and Securities representing an interest in the (1) The terms of the Forward Delivery (3) The Issuer’s security interest in the same Issuer. Commitment (including any fee paid to leased motor vehicle is at least as K. ‘‘Obligor’’ means any person, other the investing plan) are no less favorable protective of the Issuer’s rights as the than the Insurer, that is obligated to to the plan than they would be in an Issuer would receive under a motor make payments with respect to any arm’s-length transaction with an vehicle installment loan contract. obligation or receivable included in the unrelated party; W. ‘‘Pooling and Servicing Issuer. Where an Issuer contains (2) The prospectus or private Agreement’’ means the agreement or Qualified Motor Vehicle Leases or placement memorandum is provided to agreements among a Sponsor, a Servicer Qualified Equipment Notes Secured by an investing plan prior to the time the and the Trustee establishing a Trust. Leases, ‘‘Obligor’’ shall also include any plan enters into the Forward Delivery ‘‘Pooling and Servicing Agreement’’ also owner of property subject to any lease Commitment; and includes the indenture entered into by included in the Issuer, or subject to any (3) At the time of the delivery, all the Issuer and the Indenture Trustee. lease securing an obligation included in conditions of this Underwriter X. ‘‘Rating Agency’’ means Standard & the Issuer. Exemption applicable to sales are met. Poor’s Ratings Services, a division of L. ‘‘Excluded Plan’’ means any plan R. ‘‘Forward Delivery Commitment’’ The McGraw-Hill Companies, Inc.; with respect to which any member of means a contract for the purchase or Moody’s Investors Service, Inc.; the Restricted Group is a ‘‘plan sponsor’’ sale of one or more Securities to be FitchRatings, Inc.; DBRS Limited, or within the meaning of section 3(16)(B) delivered at an agreed future settlement DBRS, Inc.; or any successors thereto. of the Act. date. The term includes both mandatory Y. ‘‘Capitalized Interest Account’’ M. ‘‘Restricted Group’’ with respect to contracts (which contemplate obligatory means an Issuer account: (i) which is a class of Securities means: delivery and acceptance of the established to compensate (1) Each Underwriter; Securities) and optional contracts securityholders for shortfalls, if any, (2) Each Insurer; (which give one party the right but not between investment earnings on the Pre- (3) The Sponsor; the obligation to deliver Securities to, or Funding Account and the interest rate (4) The Trustee; demand delivery of Securities from, the payable under the Securities; and (ii) (5) Each Servicer; other party). which meets the requirements of (6) Any Obligor with respect to S. ‘‘Reasonable Compensation’’ has paragraph (c) of subsection III.B.(3). obligations or receivables included in the same meaning as that term is Z. ‘‘Closing Date’’ means the date the the Issuer constituting more than 5 defined in 29 CFR 2550.408c–2. Issuer is formed, the Securities are first percent of the aggregate unamortized T. ‘‘Qualified Administrative Fee’’ issued and the Issuer’s assets (other than principal balance of the assets in the means a fee which meets the following those additional obligations which are Issuer, determined on the date of the criteria: to be funded from the Pre-Funding initial issuance of Securities by the (1) The fee is triggered by an act or Account pursuant to subsection II.A.(7)) Issuer; failure to act by the Obligor other than are transferred to the Issuer. (7) Each counterparty in an Eligible the normal timely payment of amounts AA. ‘‘Pre-Funding Account’’ means Swap Agreement; or owing in respect of the obligations; an Issuer account: (i) Which is (8) Any Affiliate of a person described (2) The Servicer may not charge the established to purchase additional in subsections III.M.(1)–(7). fee absent the act or failure to act obligations, which obligations meet the N. ‘‘Affiliate’’ of another person referred to in subsection III.T.(1); conditions set forth in paragraph (a)–(g) includes: (3) The ability to charge the fee, the of subsection II.A.(7); and (ii) which (1) Any person directly or indirectly, circumstances in which the fee may be meets the requirements of paragraph (c) through one or more intermediaries, charged, and an explanation of how the of subsection III.B.(3). controlling, controlled by, or under fee is calculated are set forth in the BB. ‘‘Pre-Funding Limit’’ means a common control with such other Pooling and Servicing Agreement; and percentage or ratio of the amount person; (4) The amount paid to investors in allocated to the Pre-Funding Account, (2) Any officer, director, partner, the Issuer will not be reduced by the as compared to the total principal employee, relative (as defined in section amount of any such fee waived by the amount of the Securities being offered, 3(15) of the Act), a brother, a sister, or Servicer. which is less than or equal to 25 a spouse of a brother or sister of such U. ‘‘Qualified Equipment Note percent. other person; and Secured By A Lease’’ means an CC. ‘‘Pre-Funding Period’’ means the (3) Any corporation or partnership of equipment note: period commencing on the Closing Date which such other person is an officer, (1) Which is secured by equipment and ending no later than the earliest to director or partner. which is leased; occur of: (i) The date the amount on O. ‘‘Control’’ means the power to (2) Which is secured by the obligation deposit in the Pre-Funding Account is exercise a controlling influence over the of the lessee to pay rent under the less than the minimum dollar amount management or policies of a person equipment lease; and specified in the Pooling and Servicing other than an individual. (3) With respect to which the Issuer’s Agreement; (ii) the date on which an P. A person will be ‘‘independent’’ of security interest in the equipment is at event of default occurs under the another person only if: least as protective of the rights of the Pooling and Servicing Agreement; or (1) Such person is not an Affiliate of Issuer as the Issuer would have if the (iii) the date which is the later of three that other person; and equipment note were secured only by months or ninety days after the Closing (2) The other person, or an Affiliate the equipment and not the lease. Date. thereof, is not a fiduciary who has V. ‘‘Qualified Motor Vehicle Lease’’ DD. ‘‘Designated Transaction’’ means investment management authority or means a lease of a motor vehicle where: a securitization transaction in which the

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assets of the Issuer consist of secured of corpus or assets of the Issuer referred Part V(a) of PTE 84–14, 49 FR 9494, consumer receivables, secured credit to in subsections III.B.(1), (2) and (3); 9506 (March 13, 1984), as amended by instruments or secured obligations that (4) Which is not leveraged (i.e., 70 FR 49305 (August 23, 2005); bear interest or are purchased at a payments are based on the applicable (2) An ‘‘in-house asset manager’’ discount and are: (i) Motor vehicle, notional amount, the day count (INHAM),8 as defined under Part IV(a) home equity and/or manufactured fractions, the fixed or floating rates of PTE 96–23, 61 FR 15975, 15982 housing consumer receivables; and/or designated in subsection III.FF.(2), and (April 10, 1996); or (ii) motor vehicle credit instruments in the difference between the products (3) A plan fiduciary with total assets transactions by or between business thereof, calculated on a one to one ratio under management of at least $100 entities; and/or (iii) single-family and not on a multiplier of such million at the time of the acquisition of residential, multi-family residential, difference); such Securities. home equity, manufactured housing (5) Which has a final termination date II. ‘‘Excess Spread’’ means, as of any and/or commercial mortgage obligations that is either the earlier of the date on day funds are distributed from the that are secured by single-family which the Issuer terminates or the Issuer, the amount by which the interest residential, multi-family residential, related class of securities is fully repaid; allocated to Securities exceeds the commercial real property or leasehold and amount necessary to pay interest to interests therein. For purposes of this (6) Which does not incorporate any securityholders, servicing fees and section III.DD., the collateral securing provision which could cause a expenses. motor vehicle consumer receivables or unilateral alteration in any provision JJ. ‘‘Eligible Yield Supplement motor vehicle credit instruments may described in subsections III.FF.(1) Agreement’’ means any yield include motor vehicles and/or Qualified through (4) without the consent of the supplement agreement, similar yield Motor Vehicle Leases. Trustee. maintenance arrangement or, if EE. ‘‘Ratings Dependent Swap’’ means GG. ‘‘Eligible Swap Counterparty’’ purchased by or on behalf of the Issuer, an interest rate swap, or (if purchased means a bank or other financial an interest rate cap contract to by or on behalf of the Issuer) an interest institution which has a rating, at the supplement the interest rates otherwise rate cap contract, that is part of the date of issuance of the Securities by the payable on obligations described in structure of a class of Securities where Issuer, which is in one of the three subsection III.B.(1). Such an agreement the rating assigned by the Rating Agency highest long-term credit rating or arrangement may involve a notional to any class of Securities held by any categories, or one of the two highest principal contract provided that: plan is dependent on the terms and short-term credit rating categories, (1) It is denominated in U.S. dollars; conditions of the swap and the rating of utilized by at least one of the Rating (2) The Issuer receives on, or the counterparty, and if such Security Agencies rating the Securities; provided immediately prior to the respective rating is not dependent on the existence that, if a swap counterparty is relying on payment date for the Securities covered of the swap and rating of the its short-term rating to establish by such agreement or arrangement, a counterparty, such swap or cap shall be eligibility under the Underwriter fixed rate of interest or a floating rate of referred to as a ‘‘Non-Ratings Dependent Exemption, such swap counterparty interest based on a publicly available Swap’’. With respect to a Non-Ratings must either have a long-term rating in index (e.g., LIBOR or COFI), with the Dependent Swap, each Rating Agency one of the three highest long-term rating Issuer receiving such payments on at rating the Securities must confirm, as of categories or not have a long-term rating least a quarterly basis; the date of issuance of the Securities by from the applicable Rating Agency, and (3) It is not ‘‘leveraged’’ as described the Issuer, that entering into an Eligible provided further that if the class of in subsection III.FF.(4); Swap with such counterparty will not Securities with which the swap is (4) It does not incorporate any affect the rating of the Securities. associated has a final maturity date of provision which would cause a FF. ‘‘Eligible Swap’’ means a Ratings more than one year from the date of unilateral alteration in any provision Dependent or Non-Ratings Dependent issuance of the Securities, and such described in subsections III.JJ.(1)–(3) Swap: swap is a Ratings Dependent Swap, the without the consent of the Trustee; swap counterparty is required by the (1) Which is denominated in U.S. (5) It is entered into by the Issuer with terms of the swap agreement to establish dollars; an Eligible Swap Counterparty; and any collateralization or other (2) Pursuant to which the Issuer pays (6) It has a notional amount that does arrangement satisfactory to the Rating or receives, on or immediately prior to not exceed either: (i) The principal Agencies in the event of a ratings the respective payment or distribution balance of the class of Securities to downgrade of the swap counterparty. which such agreement or arrangement date for the class of Securities to which HH. ‘‘Qualified Plan Investor’’ means the swap relates, a fixed rate of interest, a plan investor or group of plan to an employee benefit plan and an investment fund or a floating rate of interest based on a investors on whose behalf the decision (including either a single customer or pooled publicly available index (e.g., LIBOR or to purchase Securities is made by an separate account) in which the plan has an interest, the U.S. Federal Reserve’s Cost of Funds appropriate independent fiduciary that and which is managed by a QPAM, provided Index (COFI)), with the Issuer receiving certain conditions are met. QPAMs (e.g., banks, is qualified to analyze and understand insurance companies, registered investment such payments on at least a quarterly the terms and conditions of any swap advisers with total client assets under management basis and obligated to make separate transaction used by the Issuer and the in excess of $85 million) are considered to be payments no more frequently than the experienced investment managers for plan investors effect such swap would have upon the that are aware of their fiduciary duties under counterparty, with all simultaneous credit ratings of the Securities. For payments being netted; ERISA. purposes of the Underwriter Exemption, 8 PTE 96–23 permits various transactions (3) Which has a notional amount that such a fiduciary is either: involving employee benefit plans whose assets are does not exceed either: (i) The principal (1) A ‘‘qualified professional asset managed by an INHAM, an entity which is balance of the class of Securities to 7 generally a subsidiary of an employer sponsoring manager’’ (QPAM), as defined under the plan which is a registered investment adviser which the swap relates, or (ii) the with management and control of total assets portion of the principal balance of such 7 PTE 84–14 provides a class exemption for attributable to plans maintained by the employer class represented solely by those types transactions between a party in interest with respect and its affiliates which are in excess of $50 million.

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relates, or (ii) the portion of the corpus or assets of the Issuer referred to KK. [LL. Of PTE 2002–19] Effective principal balance of such class in subsections III.B.(1), (2) and (3). December 31, 2008 through June 30, represented solely by those types of 2009, ‘‘Securitization List’’ means:

Name Issuance type Wachovia role Exemption

First Union Commercial Mortgage Trust FUNB CMBS ...... Master Servicer: First Union National Bank ...... 96–22 Series 1999–C1. Sponsor: First Union National Bank ...... Underwriter: First Union Capital Markets ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C6. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C8. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2004–C10. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2004–C11. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C23. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C25. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2002–C01. Sponsor: Wachovia Bank, N.A...... Underwriter: First Union Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2002–C2. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C3. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C5. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C7. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2004–C15. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Banc of America Commercial Mortgage Trust, CMBS ...... Master Servicer: First Union National Bank ...... 96–22 Series 2001–3. Sponsor: First Union National Bank ...... Underwriter: First Union Securities, Inc ...... First Union Commercial Mortgage Trust, Se- CMBS ...... Master Servicer: First Union National Bank ...... 96–22 ries 2001–C4. Sponsor: First Union National Bank ...... Underwriter: First Union Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C4. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Securities, Inc ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2003–C9. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2005–C16. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2005–C17. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... COBALT CMBS Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C1. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... COBALT CMBS Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C2. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... COBALT CMBS Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C3. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C27. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ......

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Name Issuance type Wachovia role Exemption

Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C29. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C32. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series, 2005–C22. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C33. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C34. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... J.P. Morgan Chase Commercial Mortgage Se- CMBS ...... Servicer: Wachovia Bank, N.A ...... 2002–19 curities Corp., Series 2002–C1. Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Securities, Inc. (but note that PTE 96–22 is not relied on in the disclosure docu- ment). Wachovia Bank Commercial Mortgage Trust, CMBS ...... Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006 WHALE 7. Special Servicer: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2005–C21. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2005–C19. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C26. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2006–C28. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C30. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–C31. Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Master Servicer: Wachovia Bank, N.A ...... 96–22 Series 2007–ESH. Special Servicer: Wachovia Bank, N.A ...... Swap Provider: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... Wachovia Bank Commercial Mortgage Trust, CMBS ...... Servicer: Wachovia Bank, N.A ...... 96–22 Series 2005–WHALE 6. Special Servicer: Wachovia Bank, N.A ...... Sponsor: Wachovia Bank, N.A...... Underwriter: Wachovia Capital Markets, LLC ...... First Union—Lehman Brothers Wells Fargo, CMBS ...... Master Servicer: First Union National Bank ...... 96–22 Series 1998–C2. Sponsor: First Union National Bank ...... Underwriter: First Union Capital Markets ...... Legend: CMBS = Commercial mortgage-backed securitizations.

Effective Date: This amendment was published on August 28, 2009 in the The Alaska Laborers-Construction Industry effective December 31, 2008. Federal Register at 74 FR 44387. Apprenticeship Training Trust (the Plan) Located in Seattle, WA For a more complete statement of the For Further Information Contact: [Prohibited Transaction Exemption 2009–32; facts and representations supporting the Wendy M. McColough of the Exemption Application No. L–11482] Department’s decision to amend PTE Department, telephone (202) 693–8540. 96–22 and PTE 2002–19, refer to the (This is not a toll-free number.) notice of proposed exemption that was

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Exemption During the comment period, the Signed at Washington, DC, this 10th day of November 2009. The restrictions of sections 406(a), Department received one written Ivan Strasfeld, 406(b)(1) and (b)(2) of the Act shall not comment from a Plan participant, who apply to the purchase by the Plan of expressed approval of the proposed Director of Exemption Determinations, exemption, and no requests for a public Employee Benefits Security Administration, certain unimproved real property (the U.S. Department of Labor. Property) from the Alaska Construction hearing. The Department also received [FR Doc. E9–27405 Filed 11–13–09; 8:45 am] & General Laborers 942 Building four telephone inquiries from Association, Inc. (the Building participants concerning the substance of BILLING CODE 4510–29–P Association), an entity owned by Local the proposed transaction and the effect 942, Laborers International Union of the exemption might have on the North America, a party in interest with participants’ benefits. NATIONAL CREDIT UNION respect to the Plan, provided that the Accordingly, the Department has ADMINISTRATION following conditions are satisfied: considered the entire record and has Sunshine Act; Notice of Agency (a) The terms and conditions of the determined to grant the exemption. For Meeting proposed transaction are no less a more complete statement of the facts favorable to the Plan than those which and representations supporting the TIME AND DATE: 10 a.m., Thursday, the Plan would receive in an arm’s Department’s decision to grant this November 19, 2009. length transaction with an unrelated exemption, refer to the notice of PLACE: Board Room, 7th Floor, Room party. proposed exemption published on 7047, 1775 Duke Street, Alexandria, VA (b) The purchase of the Property is a August 28, 2009 at 74 FR 44396. 22314–3428. one-time transaction for cash. For Further Information Contact: Ms. (c) The Plan does not pay any real STATUS: Open. Jan D. Broady of the Department, estate commissions, fees, or other MATTERS TO BE CONSIDERED: telephone (202) 693–8556. (This is not similar expenses to any party as a result 1. NCUA’s 2010/2011 Operating a toll-free number.) of the proposed transaction. Budget. (d) The Plan purchases the Property General Information 2. NCUA’s Overhead Transfer Rate. from the Building Association for the 3. NCUA’s Operating Fee Scale. lesser of (1) $62,791 or (2) the fair The attention of interested persons is 4. Proposed Rule—Parts 704 and 747 market value of the Property as directed to the following: of NCUA’s Rules and Regulations, determined on the date of such (1) The fact that a transaction is the Corporate Credit Unions. 5. Final Rule—Parts 701 and 741 of transaction by a qualified, independent subject of an exemption under section NCUA’s Rules and Regulations, appraiser. 408(a) of the Act and/or section National Credit Union Share Insurance (e) The proposed transaction is 4975(c)(2) of the Code does not relieve Fund Premium and One Percent consummated only after an independent a fiduciary or other party in interest or Deposit. fiduciary (1) determines that proceeding disqualified person from certain other 6. Insurance Fund Report. with the transaction is in the best provisions to which the exemption does interests of the Plan and its participants not apply and the general fiduciary RECESS: 11:15 a.m. and beneficiaries and (2) negotiates the responsibility provisions of section 404 TIME AND DATE: 11:30 a.m., Thursday, relevant terms and conditions of such of the Act, which among other things November 19, 2009. transaction. require a fiduciary to discharge his PLACE: Board Room, 7th Floor, Room (f) The independent fiduciary duties respecting the plan solely in the 7047, 1775 Duke Street, Alexandria, VA calculates, on the date of the transaction interest of the participants and 22314–3428. (using the applicable certificate of beneficiaries of the plan and in a STATUS: Closed. deposit rate in effect), the amount of prudent fashion in accordance with MATTERS TO BE CONSIDERED: interest owed to the Plan based upon its section 404(a)(1)(B) of the Act; nor does 1. Creditor Claim Appeals (2). Closed earnest money deposit for the Property. it affect the requirement of section pursuant to Exemption (6). (g) On the date of the transaction, the 401(a) of the Code that the plan must 2. Consideration of Supervisory Plan’s legal counsel pays all interest operate for the exclusive benefit of the Activities. Closed pursuant to owed the Plan resulting from counsel’s employees of the employer maintaining Exemptions (8), (9)(A)(ii) and 9(B). placement of the Plan’s earnest money the plan and their beneficiaries; 3. Personnel. Closed pursuant to deposit for the Property in a non- Exemptions (2) and (6). interest bearing account. (2) This exemption is supplemental to (h) The independent fiduciary and not in derogation of, any other FOR FURTHER INFORMATION CONTACT: monitors the proposed transaction on provisions of the Act and/or the Code, Mary Rupp, Secretary of the Board, behalf of the Plan to ensure compliance including statutory or administrative Telephone: 703–518–6304. with the agreed upon terms. exemptions and transactional rules. Furthermore, the fact that a transaction Mary Rupp, Written Comments is subject to an administrative or Secretary of the Board. [FR Doc. E9–27591 Filed 11–12–09; 4:15 pm] In the notice of proposed exemption, statutory exemption is not dispositive of the Department invited all interested whether the transaction is in fact a BILLING CODE P persons to submit written comments prohibited transaction; and and requests for a hearing with respect (3) The availability of this exemption to the proposed exemption within (60) is subject to the express condition that NATIONAL SCIENCE FOUNDATION sixty days of the publication of the the material facts and representations Proposal Review Panel for Materials notice of pendency in the Federal contained in the application accurately Research; Notice of Meeting Register on August 28, 2009. All describes all material terms of the comments and requests for a hearing transaction which is the subject of the In accordance with the Federal were due by October 27, 2009. exemption. Advisory Committee Act (Pub. L. 92–

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463 as amended), the National Science Minutes: May be obtained from the contact NUCLEAR REGULATORY Foundation announces the following person listed above. COMMISSION meeting: Purpose of Meeting: To advise NSF on the impact of its policies, programs and activities [NRC–2009–0499; Docket No. 030–22168] Name: Site visit review of the Materials on the CI community. To provide advice to Research Science and Engineering Center Notice of Availability of Environmental the Director/NSF on issues related to long- (MRSEC) at New York University by NSF Assessment and Finding of No range planning, and to form ad hoc Division of Materials Research (DMR) #1203. Significant Impact for License subcommittees to carry out needed studies Dates and Times: Amendment to Byproduct Materials and tasks. Sunday, December 6, 2009 7 p.m.–9 p.m. License No. 06–20971–01, for Monday, December 7, 2009 8 a.m.–4 p.m. Agenda: Report from the Director. Discussion of CI research initiatives, Unrestricted Release of the Eastern Place: New York University, New York, Connecticut State University’s Facility NY. education, diversity, workforce issues in CI Type of Meeting: Part-open. and long-range funding outlook. in Willimantic, CT Contact Person: Dr. William Brittain, Dated: November 10, 2009. AGENCY: Nuclear Regulatory Program Director, Materials Research Science Commission. and Engineering Centers Program, Division of Susanne Bolton, ACTION: Materials Research, Room 1065, National Committee Management Officer. Issuance of Environmental Assessment and Finding of No Science Foundation, 4201 Wilson Boulevard, [FR Doc. E9–27392 Filed 11–13–09; 8:45 am] Arlington, VA 22230, Telephone (703) 292– Significant Impact for License 5039. BILLING CODE 7555–01–P Amendment. Purpose of Meeting: To provide advice and recommendations concerning progress of the FOR FURTHER INFORMATION CONTACT: MRSEC at New York University. NATIONAL SCIENCE FOUNDATION Betsy Ullrich, Senior Health Physicist, Agenda: Commercial and R&D Branch, Division National Science Board; Sunshine Act of Nuclear Materials Safety, Region I, Sunday, December 6, 2009 Meetings; Notice 7 p.m.–9 p.m. Closed—Executive Session. 475 Allendale Road, King of Prussia, Pennsylvania 10406; telephone (610) Monday, December 7, 2009 The National Science Board’s 337–5040; fax number (610) 337–5269; 8 a.m.–2 p.m. Open—Review of New Subcommittee on Facilities of the or by e-mail: [email protected]. Committee on Strategy and Budget, York Univ MRSEC. SUPPLEMENTARY INFORMATION: 2 p.m.–4 p.m. Closed—Executive Session. pursuant to NSF regulations (45 CFR Reason for Closing: The work being part 614), the National Science I. Introduction reviewed may include information of a Foundation Act, as amended (42 U.S.C. The U.S. Nuclear Regulatory proprietary or confidential nature, including 1862n–5), and the Government in the Commission (NRC) is considering the technical information; financial data, such as Sunshine Act (5 U.S.C. 552b), hereby salaries and personal information concerning issuance of a license amendment to individuals associated with the proposals. gives notice in regard to the scheduling Byproduct Materials License No. 06– These matters are exempt under 5 U.S.C. 552 of meetings for the transaction of 20971–01. This license is held by b(c), (4) and (6) of the Government in the National Science Board business and Eastern Connecticut State University Sunshine Act. other matters specified, as follows: (the Licensee), for its campus located in Willimantic, Connecticut. Issuance of Dated: November 10, 2009. DATE AND TIME: Thursday, November 19, the amendment would authorize release Susanne Bolton, 2009 from 3 p.m. to 4 p.m. Committee Management Officer. of two campus facilities, Goddard Hall SUBJECT MATTER: and the Media Center, for unrestricted [FR Doc. E9–27391 Filed 11–13–09; 8:45 am] Chairman’s Remarks, Discussion of NSF Portfolio Review use. The Licensee requested this action BILLING CODE 7555–01–P Materials, December NSB Meeting, and in a letter dated May 18, 2009. The NRC Next Steps. has prepared an Environmental NATIONAL SCIENCE FOUNDATION Assessment (EA) in support of this STATUS: Open. proposed action in accordance with the Advisory Committee for PLACE: This meeting will be held by requirements of Title 10, Code of Cyberinfrastructure; Notice of Meeting teleconference originating at the Federal Regulations (CFR), Part 51 (10 National Science Board Office, National CFR Part 51). Based on the EA, the NRC In accordance with the Federal Science Foundation, 4201Wilson Blvd., has concluded that a Finding of No Advisory Committee Act (Pub. L. 92– Arlington, VA 22230. Room 130 will be Significant Impact (FONSI) is appropriate with respect to the 463, as amended), the National Science held available to the public to listen to proposed action. The amendment will Foundation announces the following this teleconference meeting. meeting: be issued to the Licensee following the Please refer to the National Science publication of this FONSI and EA in the Name: Advisory Committee for Board Web site (http://www.nsf.gov/nsb) Cyberinfrastructure (25150). Federal Register. for information or schedule updates, or Date and Time: II. Environmental Assessment December 2, 2009, 11 a.m.–5 p.m. contact: Elizabeth Strickland, National December 3, 2009, 11 a.m.–1 p.m. Science Foundation, 4201 Wilson Blvd., Identification of Proposed Action Place: National Science Foundation, 4201 Arlington, VA 22230. Telephone: (703) The proposed action would approve Wilson Blvd., Room 1235, Arlington, VA 292–7000. the Licensee’s May 18, 2009, license 22230. amendment request, resulting in release Type of Meeting: Open. Ann Ferrante, of Goddard Hall and the Media Center Contact Person: Kristen Oberright, Office of Technical Writer/Editor. for unrestricted use. License No. 06– the Director, Office of Cyberinfrastructure [FR Doc. E9–27580 Filed 11–12–09; 4:15 pm] (OD/OCI), National Science Foundation, 20971–01 was issued on March 18, 4201 Wilson Blvd., Suite 1145, Arlington, VA BILLING CODE 7555–01–P 1986, pursuant to 10 CFR part 30, and 22230, Telephone: 703–292–8970. has been amended periodically since

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that time. This license authorizes the all rooms in Goddard Hall and the required to show that the all campus Licensee to use unsealed byproduct Media Center where licensed materials facilities, including previously-released material for purposes of conducting were used or stored. The final status areas, comply with the radiological research and development activities on survey report was attached to the criteria in 10 CFR 20.1402. Based on its laboratory bench tops and in hoods, and Licensee’s letter dated July 24, 2009. review, the staff considered the impact the teaching and training of students. The Licensee elected to demonstrate of the residual radioactivity in Goddard Goddard Hall is a multi-story building compliance with the radiological Hall and the Media Center and situated on approximately 8,300 square criteria for unrestricted release as concluded that the proposed action will feet of land. The Media Center is a specified in 10 CFR 20.1402 by using not have a significant effect on the multi-story building situated on the screening approach described in quality of the human environment. approximately 13,000 square feet of NUREG–1757, ‘‘Consolidated NMSS Environmental Impacts of the land. Both buildings contain office Decommissioning Guidance,’’ Volume Alternatives to the Proposed Action space, classroom space, and 2. The Licensee used the radionuclide- laboratories. Goddard Hall and the specific derived concentration guideline Due to the largely administrative Media Center are located in a residential levels (DCGLs), developed there by the nature of the proposed action, its area. The use of licensed materials was NRC, which comply with the dose environmental impacts are small. confined to four rooms in Goddard Hall criterion in 10 CFR 20.1402. These Therefore, the only alternative the staff (a total of approximately 2,600 square DCGLs define the maximum amount of considered is the no-action alternative, feet of space) and five rooms in the residual radioactivity on building under which the staff would leave Media Center (a total of approximately surfaces, equipment, and materials, and things as they are by simply denying the 1,300 square feet of space). in soils, that will satisfy the NRC amendment request. This no-action In February 2008, the Licensee ceased requirements in Subpart E of 10 CFR alternative is not feasible because it licensed activities in Goddard Hall and Part 20 for unrestricted release. The conflicts with 10 CFR 30.36(d), the Media Center, and initiated a survey Licensee’s final status survey results requiring that decommissioning of and decontamination of Goddard Hall were below these DCGLs and are in separate buildings containing byproduct and the Media Center. Based on the compliance with the As Low As material be completed and approved by Licensee’s historical knowledge of the Reasonably Achievable (ALARA) the NRC after licensed activities in those site and the conditions of the Goddard requirement of 10 CFR 20.1402. The separate buildings cease. The NRC’s Hall and the Media Center, the Licensee NRC thus finds that the Licensee’s final analysis of the Licensee’s final status determined that only routine status survey results are acceptable. survey data confirmed that Goddard decontamination activities, in Based on its review, the staff has Hall and the Media Center meet the accordance with their NRC-approved, determined that the affected requirements of 10 CFR 20.1402 for operating radiation safety procedures, environment and any environmental unrestricted release. Additionally, were required. The Licensee was not impacts associated with the proposed denying the amendment request would required to submit a decommissioning action are bounded by the impacts result in no change in current plan to the NRC because worker cleanup evaluated by the ‘‘Generic environmental impacts. The activities and procedures are consistent Environmental Impact Statement in environmental impacts of the proposed with those approved for routine Support of Rulemaking on Radiological action and the no-action alternative are operations. The Licensee conducted Criteria for License Termination of therefore similar, and the no-action surveys of Goddard Hall and the Media NRC–Licensed Nuclear Facilities’’ alternative is accordingly not further Center and provided information to the (NUREG–1496) Volumes 1–3 considered. NRC to demonstrate that it meets the (ML042310492, ML042320379, and criteria in Subpart E of 10 CFR Part 20 ML042330385). The staff finds there Conclusion for unrestricted release. were no significant environmental The NRC staff has concluded that the impacts from the use of radioactive proposed action is consistent with the Need for the Proposed Action material in Goddard Hall and the Media NRC’s unrestricted release criteria The Licensee has ceased conducting Center. The NRC staff reviewed the specified in 10 CFR 20.1402. Because licensed activities in Goddard Hall and docket file records and the final status the proposed action will not the Media Center, and seeks the survey report to identify any non- significantly impact the quality of the unrestricted use of these buildings. radiological hazards that may have human environment, the NRC staff impacted the environment surrounding Environmental Impacts of the Proposed concludes that the proposed action is Goddard Hall and the Media Center. No Action the preferred alternative. such hazards or impacts to the The historical review of licensed environment were identified. The NRC Agencies and Persons Consulted activities conducted in Goddard Hall has identified no other radiological or NRC provided a draft of this and the Media Center shows that such non-radiological activities in the area Environmental Assessment to the State activities involved use of the following that could result in cumulative of Connecticut Department of radionuclides with half-lives greater environmental impacts. Environmental Protection for review on than 120 days: hydrogen-3, carbon-14, The NRC staff finds that the proposed August 3, 2009. On September 10, 2009, several generally-licensed sealed release of Goddard Hall and the Media the State of Connecticut Department of sources, and several exempt sealed Center for unrestricted use is in Environmental Protection responded by sources. Prior to performing the final compliance with 10 CFR 20.1402. electronic mail. The State agreed with status survey, the Licensee conducted Because the Licensee will continue to the conclusions of the EA, and decontamination activities, as perform licensed activities in other otherwise had no comments. necessary, in the areas of Goddard Hall campus facilities, the Licensee must The NRC staff has determined that the and the Media Center affected by these ensure that Goddard Hall and the Media proposed action is of a procedural radionuclides. The Licensee conducted Center do not later become nature, and will not affect listed species a final status survey on June 29, July 7, recontaminated. Before the license can or critical habitat. Therefore, no further 13, and 14, 2009. This survey covered be terminated, the Licensee will be consultation is required under Section 7

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of the Endangered Species Act. The Dated at Region I, 475 Allendale Road, requests for reasonable accommodation NRC staff has also determined that the King of Prussia, PA, this 6th day of will be made on a case-by-case basis. November 2009. proposed action is not the type of * * * * * activity that has the potential to cause For the Nuclear Regulatory Commission. This notice is distributed effects on historic properties. Therefore, James Dwyer, electronically to subscribers. If you no no further consultation is required Chief, Commercial and R&D Branch, Division longer wish to receive it, or would like under Section 106 of the National of Nuclear Materials Safety, Region I. to be added to the distribution, please Historic Preservation Act. [FR Doc. E9–27424 Filed 11–13–09; 8:45 am] contact the Office of the Secretary, III. Finding of No Significant Impact BILLING CODE 7590–01–P Washington, DC 20555 (301–415–1969), or send an e-mail to The NRC staff has prepared this EA in [email protected]. support of the proposed action. On the NUCLEAR REGULATORY basis of this EA, the NRC finds that COMMISSION Dated: November 10, 2009. there are no significant environmental Richard J. Laufer, impacts from the proposed action, and Sunshine Federal Register Notice Office of the Secretary. that preparation of an environmental [FR Doc. E9–27528 Filed 11–12–09; 11:15 impact statement is not warranted. DATES: Week of November 16, 2009. am] Accordingly, the NRC has determined PLACE: Commissioners’ Conference BILLING CODE 7590–01–P that a Finding of No Significant Impact Room, 11555 Rockville Pike, Rockville, is appropriate. Maryland. STATUS: Public and closed. IV. Further Information POSTAL REGULATORY COMMISSION ADDITIONAL ITEMS TO BE CONSIDERED: Documents related to this action, including the application for license Week of November 16, 2009 [Docket Nos. MC2010–9 and CP2010–9; amendment and supporting Order No. 336] documentation, are available Tuesday, November 17, 2009 electronically at the NRC’s Electronic 9:25 a.m. Affirmation Session (Public New Postal Product Reading Room at http://www.nrc.gov/ Meeting) (Tentative). AGENCY: Postal Regulatory Commission. reading-rm/adams.html. From this site, a. Detroit Edison Co. (Fermi Nuclear you can access the NRC’s Agencywide Power Plant, Unit 3), LBP–09–16 ACTION: Notice. Document Access and Management (July 31, 2009) (Ruling on Standing SUMMARY: The Commission is noticing a System (ADAMS), which provides text and Contention Admissibility) recently-filed Postal Service request to and image files of NRC’s public (Tentative). add Priority Mail Contract 23 to the documents. The documents related to b. In the Matter of David Geisen, Competitive Product List. The Postal this action are listed below, along with Docket No. IA–05–052; Staff Service has also filed a related contract. their ADAMS accession numbers. Application for Stay of the This notice addresses procedural steps [1]. NUREG–1757, ‘‘Consolidated Effectiveness of LBP–09–24 associated with these filings. NMSS Decommissioning Guidance;’’ Pending Commission Review DATES: [2]. Title 10, Code of Federal (Tentative). 1. Supplemental information Regulations, part 20, subpart E, from the Postal Service is due: This meeting will be Webcast live at November 13, 2009. 2. Comments are ‘‘Radiological Criteria for License the Web address—http://www.nrc.gov. Termination;’’ due: November 17, 2009. * * * * * [3]. Title 10, Code of Federal ADDRESSES: Submit comments Regulations, part 51, ‘‘Environmental The schedule for Commission electronically via the Commission’s Protection Regulations for Domestic meetings is subject to change on short Filing Online system at http:// Licensing and Related Regulatory notice. To verify the status of meetings, www.prc.gov. Commenters who cannot Functions;’’ call (recording)—(301) 415–1292. submit their views electronically should [4]. NUREG–1496, ‘‘Generic Contact person for more information: contact the person identified in ‘‘FOR Environmental Impact Statement in Rochelle Bavol, (301) 415–1651. FURTHER INFORMATION CONTACT’’ Support of Rulemaking on Radiological * * * * * by telephone for advice on alternatives Criteria for License Termination of NRC- The NRC Commission Meeting to electronic filing. Licensed Nuclear Facilities;’’ and Schedule can be found on the Internet FOR FURTHER INFORMATION CONTACT: [5]. Licensee letters dated May 18, at: http://www.nrc.gov/about-nrc/policy- Stephen L. Sharfman, General Counsel, 2009 (ML091470608) and July 24, 2009 making/schedule.html. 202–789–6820 or (ML092090686). * * * * * [email protected]. If you do not have access to ADAMS, The NRC provides reasonable SUPPLEMENTARY INFORMATION: or if there are problems in accessing the accommodation to individuals with documents located in ADAMS, contact disabilities where appropriate. If you I. Introduction the NRC Public Document Room (PDR) need a reasonable accommodation to II. Notice of Filings Reference staff at 1–800–397–4209, 301– participate in these public meetings, or III. Supplemental Information IV. Ordering Paragraphs 415–4737, or by e-mail to [email protected]. need this meeting notice or the These documents may also be viewed transcript or other information from the I. Introduction electronically on the public computers public meetings in another format (e.g. located at the NRC’s PDR, O1 F21, One braille, large print), please notify the Pursuant to 39 U.S.C. 3642 and 39 White Flint North, 11555 Rockville NRC’s Disability Program Coordinator, CFR 3020.30 et seq., the Postal Service Pike, Rockville, MD 20852. The PDR Rohn Brown, at 301–492–2279, TDD: filed a formal request and associated reproduction contractor will copy 301–415–2100, or by e-mail at supporting information to add Priority documents for a fee. [email protected]. Determinations on Mail Contract 23 to the Competitive

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Product List.1 The Postal Service asserts that the contract is consistent with 39 interests of the general public in these that Priority Mail Contract 23 is a U.S.C. 3633(a). See id., Attachment D. proceedings. competitive product ‘‘not of general The Postal Service will provide Priority 3. Clarification of the Request is due applicability’’ within the meaning of 39 Mail packaging for items mailed by the no later than November 13, 2009. U.S.C. 3632(b)(3). The Postal Service shipper. 4. Comments by interested persons in states that prices and classification The Postal Service filed much of the these proceedings are due no later than underlying this contract are supported supporting materials, including the November 17, 2009. by Governors’ Decision No. 09–06 in specific Priority Mail Contract 23, under 5. The Secretary shall arrange for Docket No. MC2009–25. Id. at 1. The seal. In its Request, the Postal Service publication of this order in the Federal Request has been assigned Docket No. maintains that the contract and related Register. MC2010–9. financial information, including the By the Commission. The Postal Service customer’s name and the accompanying Judith M. Grady, contemporaneously filed a contract analyses that provide prices, terms, Acting Secretary. related to the proposed new product conditions, cost data, and financial pursuant to 39 U.S.C. 3632(b)(3) and 39 projections should remain under seal. [FR Doc. E9–27377 Filed 11–13–09; 8:45 am] CFR 3015.5. The contract has been Id. at 2. It also requests that the BILLING CODE 7710–FW–S assigned Docket No. CP2010–9. Commission order that the duration of Request. In support of its Request, the such treatment of all customer Postal Service filed the following identifying information be extended PRESIDIO TRUST materials: (1) A redacted version of the indefinitely, instead of ending after 10 Governors’ Decision, originally filed in years. Id., Attachment F, at 1 and 7. Notice of Public Meeting Docket No. MC2010–25, authorizing certain Priority Mail contracts;2 (2) a II. Notice of Filings AGENCY: The Presidio Trust. redacted version of the contract;3 (3) a The Commission establishes Docket ACTION: Notice of public meeting. requested change in the Competitive Nos. MC2010–9 and CP2010–9 for Product List;4 (4) a Statement of consideration of the Request pertaining SUMMARY: In accordance with § 103(c)(6) Supporting Justification as required by to the proposed Priority Mail Contract of the Presidio Trust Act, 16 U.S.C. 39 CFR 3020.32;5 (5) a certification of 23 product and the related contract, 460bb appendix, and in accordance compliance with 39 U.S.C. 3633(a);6 and respectively. In keeping with practice, with the Presidio Trust’s bylaws, notice (6) an application for non-public these dockets are addressed on a is hereby given that a public meeting of treatment of the materials filed under consolidated basis for purposes of this the Presidio Trust Board of Directors seal.7 order; however, future filings should be will be held commencing 6:30 p.m. on In the Statement of Supporting made in the specific docket in which Tuesday, December 8, 2009, at the Justification, Mary Prince Anderson, issues being addressed pertain. Officers’ Club, 50 Moraga Avenue, Manager, Sales and Communications, Interested persons may submit Presidio of San Francisco, California. Expedited Shipping, asserts that the comments on whether the Postal The Presidio Trust was created by service to be provided under the Service’s filings in the captioned Congress in 1996 to manage contract will cover its attributable costs, dockets are consistent with the policies approximately eighty percent of the make a positive contribution to of 39 U.S.C. 3632, 3633, or 3642 and 39 former U.S. Army base known as the institutional costs, and increase CFR part 3015 and 39 CFR 3020, subpart Presidio, in San Francisco, California. contribution toward the requisite 5.5 B. Comments are due no later than The purposes of this meeting are to percent of the Postal Service’s total November 17, 2009. The public portions approve minutes of previous Board institutional costs. Id., Attachment D. of these filings can be accessed via the meetings, to approve a capital project, to Thus, Ms. Anderson contends there will Commission’s Web site (http:// provide a Finance and Audit Committee be no issue of subsidization of www.prc.gov). report, to provide a Main Post update, competitive products by market The Commission appoints Paul L. to provide an update of the Visitor dominant products as a result of this Harrington to serve as Public Center planning process, to receive an contract. Id. Representative in these dockets. update from the Doyle Drive Project Related contract. A redacted version Team on the status of the project, to of the specific Priority Mail Contract 23 III. Supplemental Information provide an Executive Director’s report, is included with the Request. The The Request does not indicate and to receive public comment on other contract will become effective on the whether the instant contract is intended matters in accordance with the Trust’s day that the Commission provides all to replace an existing contract. The Public Outreach Policy. necessary regulatory approvals. It is Postal Service should clarify the Individuals requiring special terminable upon 30 days’ notice by Request, identifying, if appropriate, the accommodation at this meeting, such as either party, but could continue for up contract being terminated. Clarification needing a sign language interpreter, to 1 year. The Postal Service represents is due no later than November 13, 2009. should contact Mollie Matull at 415– 561–5300 prior to December 1, 2009. 1 Request of the United States Postal Service to IV. Ordering Paragraphs Time: The meeting will begin at 6:30 Add Priority Mail Contract 23 to Competitive p.m. on Tuesday, December 8, 2009. Product List and Notice of Filing (Under Seal) of It is ordered: Contract and Supporting Data, November 5, 2009 1. The Commission establishes Docket ADDRESSES: The meeting will be held at (Request). Nos. MC2010–9 and CP2010–9 for the Officers’ Club, 50 Moraga Avenue, 2 Attachment A to the Request, reflecting consideration of the matter raised in Presidio of San Francisco. Governors’ Decision No. 09–06, April 27, 2009. each docket. FOR FURTHER INFORMATION CONTACT: 3 Attachment B to the Request. 4 Attachment C to the Request. 2. Pursuant to 39 U.S.C. 505, Paul L. Karen Cook, General Counsel, the 5 Attachment D to the Request. Harrington is appointed to serve as Presidio Trust, 34 Graham Street, P.O. 6 Attachment E to the Request. officer of the Commission (Public Box 29052, San Francisco, California 7 Attachment F to the Request. Representative) to represent the 94129–0052, Telephone: 415.561.5300.

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Dated: November 6, 2009. U.S.C. 552b(c), (3), (5), (7), 9(B) and (10) The adjustments affect limits on liability Karen A. Cook, and 17 CFR 200.402(a)(3), (5), (7), 9(ii) for damages for passenger death or General Counsel. and (10), permit consideration of the injury, delay in passenger’s arrival, and [FR Doc. E9–27390 Filed 11–13–09; 8:45 am] scheduled matters at the Closed the loss, delay or damage to baggage or BILLING CODE 4310–4R–P Meeting. cargo, increasing those limits by Commissioner Paredes, as duty approximately 13 percent and will be officer, voted to consider the items effective in December 2009. The U.S. SECURITIES AND EXCHANGE listed for the Closed Meeting in a closed and foreign air carriers affected by these COMMISSION session. changes to the Convention include those The subject matter of the Closed providing international carriage Sunshine Act Meeting Meeting scheduled for Thursday, between countries that, like the United November 19, 2009 will be: States, are parties to the Convention, FEDERAL REGISTER CITATION OF PREVIOUS Institution and settlement of injunctive and all who provide round trip foreign ANNOUNCEMENT: [74 FR 57718, actions; air transportation that originates and November 9, 2009]. Institution and settlement of terminates in the United States. STATUS: Closed meeting. administrative proceedings; and The liability limits are those set out in PLACE: 100 F Street, NE.,Washington, Other matters relating to enforcement Articles 21 and 22 of the Montreal DC. proceedings. Convention. Under Article 24 of the DATE AND TIME OF PREVIOUSLY ANNOUNCED At times, changes in Commission Convention, ICAO is to review those MEETING: November 12, 2009 at 2 p.m. priorities require alterations in the limits every five years in light of inflation that has occurred during that CHANGE IN THE MEETING: Additional Item. scheduling of meeting items. period. In a note of June 30, 2009, the The following matter will also be For further information and to Secretary General of ICAO advised considered during the 2 p.m. closed ascertain what, if any, matters have been parties to the Convention of revisions meeting scheduled for Thursday, added, deleted or postponed, please required pursuant to this review. These November 12, 2009, at 2 p.m.: contact: revisions are as follows, stated in Consideration of Amicus participation. The Office of the Secretary at (202) Special Drawing Rights (SDRs): 2: for Commissioner Paredes, as duty 551–5400. destruction, loss, damage or delay of officer, voted to consider the item listed Dated: November 12, 2009. cargo 19 per kilogram (currently 17); for for the closed meeting in closed session, Elizabeth M. Murphy, destruction, loss, damage, or delay of and determined that no earlier notice Secretary. baggage, per passenger, 1,131 (currently thereof was possible. [FR Doc. E9–27537 Filed 11–12–09; 4:15 pm] At times, changes in Commission 1,000); for delay in carriage of BILLING CODE 8011–01–P priorities require alterations in the passengers, 4,694 (currently 4,150); scheduling of meeting items. For further ‘‘strict liability’’ for death or bodily information and to ascertain what, if injury to passengers, 113,100 (currently DEPARTMENT OF TRANSPORTATION any, matters have been added, deleted 100,000). The revised amounts reflect inflation between 2003 and 2008 in the or postponed, please contact the Office Office of the Secretary of the Secretary at (202) 551–5400. countries whose currencies comprise the SDR. Inflation Adjustments to Liability Dated: November 10, 2009. Pursuant to the terms of Article 24, Limits Governed by the Montreal Elizabeth M. Murphy, the increased limits will take effect six Convention Effective December 30, Secretary. months following the notice referred to 2009 [FR Doc. E9–27443 Filed 11–12–09; 11:15 above, or December 30, 2009. Carriers am] AGENCY: Office of the Secretary, should, therefore, revise their contracts BILLING CODE 8011–01–P Department of Transportation. of carriage, tariffs, required notices, and ACTION: Notice. practices to conform to the Convention’s requirements. Failure to implement in a SECURITIES AND EXCHANGE SUMMARY: The Department is publishing timely manner the revised liability COMMISSION guidance to U.S. and certain foreign air limits and required notices would, in carriers on inflation adjustments to the view of the Aviation Enforcement Sunshine Act Meeting liability limits of air carriers and foreign Office, constitute an unfair or deceptive Notice is hereby given, pursuant to air carriers under the Montreal business practice and unfair method of the provisions of the Government in the Convention. competition in violation of 49 U.S.C. Sunshine Act, Public Law 94–409, that FOR FURTHER INFORMATION CONTACT: 41712. This disclosure guidance, it the Securities and Exchange Nicholas Lowry, Attorney, Office of should be noted, also extends to ticket Commission will hold a Closed Meeting Aviation Enforcement and Proceedings agents and indirect air carriers. on Thursday, November 19, 2009 at 2 (C–70), 1200 New Jersey Ave., SE., Questions regarding this notice may be p.m. Washington, DC 20590, (202) 366–9349. addressed to the Office of Aviation Enforcement and Proceedings (C–70), Commissioners, Counsel to the SUPPLEMENTARY INFORMATION: This U.S. Department of Transportation, 1200 Commissioners, the Secretary to the notice provides guidance to U.S. and Commission, and recording secretaries New Jersey Ave., SE., Washington, DC certain foreign air carriers on inflation 20590. will attend the Closed Meeting. Certain adjustments to liability limits of air staff members who have an interest in carriers and foreign air carriers under 2 the matters also may be present. the Montreal Convention (Convention).1 The SDR, an international reserve asset, is a The General Counsel of the defined basket of major currencies periodically reviewed by the International Monetary Fund to Commission, or his designee, has 1 Convention for the Unification of Certain Rules reflect the relative importance of the constituent certified that, in his opinion, one or for International Carriage by Air, done at Montreal currencies. As of October 28, 2009, the U.S. dollar more of the exemptions set forth in 5 on May 28, 1999. value of the SDR was $1.58.

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Dated: November 9, 2009. Form No.: None. regulatory and other administrative An electronic version of this document is Type of Review: Extension of a matters. available at http://www.regulations.gov. currently approved recordkeeping Anne Suissa, Samuel Podberesky, requirement. Director, Office of Airline Information. Assistant General Counsel for Aviation Respondents: Certificated air carriers Enforcement and Proceedings. and charter operators. [FR Doc. E9–27408 Filed 11–13–09; 8:45 am] [FR Doc. E9–27386 Filed 11–13–09; 8:45 am] Number of Respondents: 90 BILLING CODE 4910–HY–P BILLING CODE 4910–9X–P certificated air carriers; 300 charter operators. DEPARTMENT OF TRANSPORTATION Estimated Time per Response: 3 hours DEPARTMENT OF TRANSPORTATION per certificated air carrier; 1 hour per Research & Innovative Technology charter operator. Administration Research & Innovative Technology Total Annual Burden: 570 hours. Administration Needs and Uses: Part 249 requires the [Docket ID Number RITA 2008–0002] retention of records such as: general and [Docket ID Number RITA 2008–0002] Agency Information Collection; subsidiary ledgers, journals and journal Activity Under OMB Review; Agency Information Collection; vouchers, voucher distribution registers, Passenger Origin-Destination Survey Activity Under OMB Review; Part 249 accounts receivable and payable Report Preservation of Records journals and legers, subsidy records documenting underlying financial and AGENCY: Research & Innovative AGENCY: Research & Innovative statistical reports to DOT, funds reports, Technology Administration (RITA), Technology Administration (RITA), consumer records, sales reports, Bureau of Transportation Statistics Bureau of Transportation Statistics auditors’ and flight coupons, air (BTS), DOT. (BTS), DOT. waybills, etc. Depending on the nature ACTION: Notice. ACTION: Notice. of the document, the carrier may be SUMMARY: In compliance with the SUMMARY: In compliance with the required to retain the document for a Paperwork Reduction Act of 1995, Paperwork Reduction Act of 1995, period of 30 days to 3 years. Public Public Law 104–13, the Bureau of Public Law 104–13, the Bureau of charter operators and overseas military Transportation Statistics invites the Transportation Statistics invites the personnel charter operators must retain general public, industry and other general public, industry and other documents which evidence or reflect governmental parties to comment on the governmental parties to comment on the deposits made by each charter continuing need for and usefulness of continuing need for and usefulness of participant and commissions received BTS collecting a sample of airline BTS requiring certificated air carriers to by, paid to, or deducted by travel agents, passenger itineraries with the dollar preserve accounting records, consumer and all statements, invoices, bills and value of the passenger ticket. complaint letters, reservation reports receipts from suppliers or furnishers of Certificated air carriers that operated and records, system reports of aircraft goods and services in connection with scheduled passenger service with at movements, etc. Also, Public charter the tour or charter. These records are least one aircraft having a seating operators and overseas military retained for 6 months after completion capacity of over 60 seats report these personnel charter operators are required of the charter program. data. Comments are requested to retain certain contracts, invoices, Not only is it imperative that carriers concerning whether: (a) The collection receipts, bank records and reservation and charter operators retain source is still needed by the Department of records. documentation, but it is critical that we ensure that DOT has access to these Transportation; (b) BTS accurately DATES: Written comments should be records. Given DOT’s established estimates the reporting burden; (c) there submitted by January 15, 2010. information needs for such reports, the are other ways to enhance the quality, FOR FURTHER INFORMATION CONTACT: underlying support documentation must utility and clarity of the information Bernie Stankus, Office of Airline be retained for a reasonable period of collected; and (d) there are ways to Information, RTS–42, Room E34–409, time. Absent the retention requirements, minimize reporting burden, including RITA, BTS, 1200 New Jersey Avenue, the support for such reports may or may the use of automated collection SE., Washington, DC 20590–0001, not exist for audit/validation purposes techniques or other forms of information Telephone Number (202) 366–4387, Fax and the relevance and usefulness of the technology. Number (202) 366–3383 or EMAIL carrier submissions would be impaired, DATES: Written comments should be [email protected]. since the data could not be verified to submitted by January 15, 2010. Comments: Comments should identify the source on a test basis. FOR FURTHER INFORMATION CONTACT: the associated OMB approval # 2138– The Confidential Information Bernie Stankus, Office of Airline 0006 and Docket—RITA 2008–0002. Protection and Statistical Efficiency Act Information, RTS–42, Room E34–409, Persons wishing the Department to of 2002 (44 U.S.C. 3501 note), requires RITA, BTS, 1200 New Jersey Avenue, acknowledge receipt of their comments a statistical agency to clearly identify SE., Washington, DC 20590–0001, must submit with those comments a information it collects for non-statistical Telephone Number (202) 366–4387, Fax self-addressed stamped postcard on purposes. BTS hereby notifies the Number (202) 366–3383 or e-mail which the following statement is made: respondents and the public that BTS [email protected]. Comments on OMB # 2138–0006, uses the information it collects under Comments: Comments should identify Docket—RITA 2008–0002. The postcard this OMB approval for non-statistical the associated OMB approval # 2139– will be date/time stamped and returned. purposes including, but not limited to, 0001 and Docket ID Number RITA SUPPLEMENTARY INFORMATION: publication of both Respondent’s 2008–0002. Persons wishing the OMB Approval No.: 2138–0006. identity and its data, submission of the Department to acknowledge receipt of Title: Preservation of Air Carrier information to agencies outside BTS for their comments must submit with those Records—14 CFR Part 249. review, analysis and possible use in comments a self-addressed stamped

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postcard on which the following identity and its data, submission of the modification of special permits (e.g. to statement is made: Comments on OMB information to agencies outside BTS for provide for additional hazardous # 2139–0001, Docket—RITA 2008–0002. review, analysis and possible use in materials, packaging design changes, The postcard will be date/time stamped regulatory and other administrative additional mode of transportation, etc.) and returned. matters. are described in footnotes to the application number. Application SUPPLEMENTARY INFORMATION: Anne Suissa, OMB Approval No. 2139–0001. numbers with the suffix ‘‘M’’ denote a Title: Passenger Origin-Destination Director, Office of Airline Information. modification request. These Survey Report. [FR Doc. E9–27420 Filed 11–13–09; 8:45 am] applications have been separated from Form No.: None. BILLING CODE 4910–HY–P the new application for special permits Type of Review: Extension of a to facilitate processing. currently approved collection. DATES: Respondents: Large certificated air DEPARTMENT OF TRANSPORTATION Comments must be received on carriers that provide scheduled or before December 1, 2009. Pipeline and Hazardous Materials passenger service. Address Comments to: Record Center, Number of Respondents: 35 Safety Administration Pipeline and Hazardous Materials Safety Administration, U.S. Department of certificated air carriers. Office of Hazardous Materials Safety; Transportation, Washington, DC 20590. Number of Responses: 140. Notice of Applications for Modification Estimated Time per Response: 240 of Special Permit Comments should refer to the hours. application number and be submitted in Total Annual Burden: 33,600 hours. AGENCY: Pipeline and Hazardous triplicate. If confirmation of receipt of Needs and Uses: Survey data are used Materials Safety Administration comments is desired, include a self- in monitoring the airline industry, (PHMSA), DOT. addressed stamped postcard showing negotiating international agreements, ACTION: List of applications for the special permit number. reviewing requests for the grant of anti- modification of special permits. For Further Information: Copies of the trust immunity for air carrier alliance applications are available for inspection agreements, selecting new international SUMMARY: In accordance with the in the Records Center, East Building, routes, selecting U.S. carriers to operate procedures governing the application PHH–30, 1200 New Jersey Avenue, limited entry foreign routes, and for, and the processing of, special Southeast, Washington DC or at http:// modeling the spread of contagious permits from the Department of regulations.gov. diseases. Transportation’s Hazardous Material The Confidential Information Regulations (49 CFR part 107, subpart This notice of receipt of applications Protection and Statistical Efficiency Act B), notice is hereby given that the Office for modification of special permit is of 2002 (44 U.S.C. 3501 note), requires of Hazardous Materials Safety has published in accordance with Part 107 a statistical agency to clearly identify received the applications described of the Federal hazardous materials information it collects for non-statistical herein. This notice is abbreviated to transportation law (49 U.S.C. 5117(b); purposes. BTS hereby notifies the expedite docketing and public notice. 49 CFR 1.53(b)). respondents and the public that BTS Because the sections affected, modes of Issued in Washington, DC, on November 6, uses the information it collects under transportation, and the nature of 2009. this OMB approval for non-statistical application have been shown in earlier Delmer F. Billings, purposes including, but not limited to, Federal Register publications, they are Director, Office of Hazardous Materials, publication of both Respondent’s not repeated here. Requests for Special Permits and Approvals.

Application No. Docket No. Applicant Regulation(s) affected Nature of special permit thereof

Modification Special Permits

11967–M ...... Savage Services Cor- 49 CFR 174.67 (i), (j) .... To modify the special permit to authorize addi- poration Pottstown, tional Class 2,3 4, 5, 8, and 9 hazardous ma- PA. terials. 12398–M ...... Praxair, Inc. Danbury, 49 CFR 173.34(d); To modify the special permit to authorize the re- CT. 178.35(e). moval of the words ‘‘for ammonia’’ in para- graph 2.a. for clarification. l4891–M ...... The Boeing Company 49 CFR 173.62, To reissue the special permit originally issued on Huntington Beach, CA. 173.220 and 173.185. an emergency basis to the one-time, one-way transportation in commerce of certain explo- sives that are forbidden for transportation by cargo only aircraft and to modify the special permit to allow the vehicle to be transported with a full tank of gas.

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[FR Doc. E9–27352 Filed 11–13–09; 8:45 am] Transportation’s Hazardous Material triplicate. If confirmation of receipt of BILLING CODE 4909–60–M Regulations (49 CFR part 107, subpart comments is desired, include a self- B), notice is hereby given that the Office addressed stamped postcard showing of Hazardous Materials Safety has the special permit number. DEPARTMENT OF TRANSPORTATION received the application described herein. Each mode of transportation for FOR FURTHER INFORMATION CONTACT: Pipeline and Hazardous Materials which a particular special permit is Copies of the applications are available Safety Administration requested is indicated by a number in for inspection in the Records Center, the ‘‘Nature of Application’’ portion of East Building, PHH–30, 1200 New Office of Hazardous Materials Safety; the table below as follows: 1—Motor Jersey Avenue Southeast, Washington Notice of Application for Special vehicle, 2—Rail freight, 3—Cargo vessel, DC or at http://regulations.gov. Permits 4—Cargo aircraft only, 5—Passenger- This notice of receipt of applications AGENCY: Pipeline and Hazardous carrying aircraft. for special permit is published in Materials Safety Administration DATES: Comments must be received on accordance with part 107 of the Federal (PHMSA), DOT. or before December 16, 2009. hazardous materials transportation law ACTION: List of applications for special Address Comments to: Record Center, (49 U.S.C. 5 117(b); 49 CFR 1.53(b)). permits. Pipeline and Hazardous Materials, Safety Administration, U.S. Department Issued in Washington, DC, on November 6, SUMMARY: In accordance with the of Transportation, Washington, DC 2009. procedures governing the application 20590. Delmer F. Billings, for, and the processing of, special Comments should refer to the Director, Office of Hazardous Materials permits from the Department of application number and be submitted in Special Permits and Approvals.

Application No. Docket No. Applicant Regulation(s) affected Nature of special permits thereof

New Special Permits

14932–N ...... TUV Rheinland Taiwan 49 CFR 173.302a To authorize the manufacture, marking, sale, and use Ltd., Kaohsiung. 173.304a and 180.209. of non-DOT specification fully wrapped carbon-fiber reinforced aluminum lined cylinders for the trans- portation in commerce of certain compressed gases. (modes 1, 2, 3, 4, 5). 14933–N ...... Tobin Scientific a division 49 CFR 173.196 ...... To authorize the transportation in commerce of cer- of Tobin & Sons Moving tain Division 6.2 infectious substances packaged in and Storage, Inc., Pea- portable Dewar flask cryogenic shipping con- body, MA. tainers, insulated liquid nitrogen refrigerated port- able tanks, and automatic fill plug-in liquid nitrogen freezers by highway. (mode 1). 14934–N ...... Saint Louis University, St. 49 CFR 173.196 ...... To authorize the transportation in commerce of cer- Louis, MO. tain infectious substances in alterantive packaging (freezers) by highway. (mode 1). 14935–N ...... E.I. DuPont de Nemours & 49 CFR 173.29 and To authorize the one-way transportation in commerce Company, Inc., Wil- 173.242. of certain portable tanks and intermediate bulk mington, DE. containers containing the residue of a Class 3 haz- ardous material for cleaning so they can be re- paired. (mode 1). 14937–N ...... Sears National Calibration 49 CFR 180.213 ...... To authorize the transportation in commerce of cer- Laboratory, Garland, TX. tain cylinders that have requalifier markings on a label embedded in epoxy instead of stamping. (mode 1). 14938–N ...... EP Container, Cerritos, 49 CFR 173.12(b)(2) ...... To authorize the manufacture, marking, sale, and use CA. of a UN standard 4G fiberboard box for use as the outer packaging for lab pack applications in ac- cordance with § 173.12(b). (modes 1, 3). 14939–N ...... EP Container, Cerritos, 49 CFR 173.12(b)(2) ...... To authorize the manufacture, marking, sale, and use CA. of a UN standard 11 G fiberboard TBC for use as the outer packaging for lab pack applications in ac- cordance with § 173.12(b). (modes 1, 3). 14940–N ...... Crown Aerosol Packaging, 49 CFR 173.306 ...... To authorize the manufacture, marking, sale and use Philadelphia, PA. of non-DOT specification cans similar to a DOT 2P or 2Q inner metal receptacle except for wall thick- ness for the transportation in commerce of certain compressed gases. (mode 1). 14941–N ...... Columbia Analytical Serv- 49 CFR 173.4a ...... To authorize the transportation in commerce of small ices, Kelso, WA. quantities of Class 3 and Class 8 hazardous mate- rials as excepted quantities under 49 CFR 173.4a except that the packagings were tested without the inner packagings being filled to 98% capacity. (modes 1, 4).

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Application No. Docket No. Applicant Regulation(s) affected Nature of special permits thereof

14944–N ...... Dean Foods Corporation, 49 CFR 178.33b ...... To authorize the transportation of Specification 2S Broomfield, CO. inner nonrefillable plastic receptacles containing an aerosol food product that was testing using a modi- fied test protocol. (modes 1, 4, 5).

[FR Doc. E9–27351 Filed 11–13–09; 8:45 am] at [email protected], or Charles should not be preempted. On March 3, BILLING CODE M Fromm, Assistant Chief Counsel, Office 2009, the FMCSA published a notice of of Chief Counsel, Enforcement and delay in making the preemption Litigation Division (MC–CCE), (202) decision to allow additional time for DEPARTMENT OF TRANSPORTATION 366–3551, FMCSA, 1200 New Jersey fact-finding and legal analysis of the Avenue, SE., Washington, DC 20590, or issues raised in the preemption Federal Motor Carrier Safety at [email protected]. applications. 74 FR 9328. Administration SUPPLEMENTARY INFORMATION: ATA’s preemption application [Docket No. FMCSA–2008–0204 (PD–33 (F))] I. Application for a Preemption submits that the City of Boston made two impermissible hazardous material City of Boston Requirements for Determination routing designations regarding the Highway Routing of Certain Hazardous American Trucking Associations, Inc. transportation of non-radioactive Materials (ATA) and the Massachusetts hazardous material (NRHM).2 The first Department of Highways (Mass AGENCY: Federal Motor Carrier Safety is a change in the designated hazardous Administration (FMCSA), United States Highway) applied for an administrative material route that resulted from Department of Transportation (DOT). determination concerning whether construction of the Central Artery Federal hazardous material ACTION: Tunnel (CA/T), also known as ‘‘the Big Notice of administrative transportation law, 49 U.S.C. 5101 et determination of preemption. Dig,’’ in downtown Boston. The second seq., and FMCSA regulations at 49 CFR is a change in Boston’s administration Applicants: American Trucking part 397 preempt certain hazardous and use of its hazardous material Associations, Inc. and Massachusetts material routing requirements that have permitting program. Department of Highways. been established or modified by the City With respect to the City’s hazardous Local Laws Affected: Massachusetts of Boston (the City or Boston). The material route change, ATA alleges that Ordinances of 1979, Chapter 39, FMCSA published notice of ATA’s Boston did not properly comply with Document 78; the City of Boston application in the Federal Register on Federal requirements, discussed herein, Regulations Controlling the August 8, 2008. 73 FR 46349. The for the establishment or modification of Transportation of Hazardous Materials, FMCSA published notice of Mass a hazardous material route when the and the Traffic Rules and Regulations of Highways’ application in the Federal the City of Boston. Register on September 2, 2008. 73 FR City began enforcing a new hazardous Applicable Federal Requirements: 51335. Both applications were material route on July 3, 2006. Due to Federal hazardous material consolidated into one docket because of various road changes stemming from the transportation law, 49 U.S.C. 5101 et their overlapping issues. Comments and Big Dig construction project, the City seq., and FMCSA regulations at 49 CFR rebuttal comments were received on the altered its hazardous material route by part 397. consolidated docket on or before amending a section of the City of Boston SUMMARY: Federal hazardous material December 1, 2008.1 FMCSA received 17 Traffic Rules and Regulations. This transportation law preempts the comments and one rebuttal comment route change relates to transportation of following highway routing designations generally or specifically in support of certain hazardous materials for vehicles of the City of Boston Regulations the position that the City of Boston having a point of origin or destination Controlling the Transportation of should have complied with the current within the City of Boston.3 The practical Hazardous Materials: Federal regulations regarding hazardous effect of the route change is to move 1. The Traffic Rules and Regulations material highway routing designations hazardous material vehicle traffic from of the City of Boston, Article VII, section but failed to do so. One comment and Commercial Street to Cross Street in 8B, Hazardous Materials Route; and one rebuttal comment were received, downtown Boston. According to 2. The de facto ban on hazardous both from the City of Boston, arguing comments from the City of Boston materials transportation through the that the City of Boston’s hazardous (Boston Comments), this shift in route is City of Boston due to the change in material routing designations were in one roadway over and was done to administration of the City’s hazardous compliance with applicable statutes and materials permitting system. 2 NRHM is defined at 49 CFR 397.65 as ‘‘[a] non- DATES: Effective Date: This preemption 1 Comments and/or rebuttal comments were radioactive hazardous material transported by received from the following: American Trucking motor vehicle in types and quantities which require decision is effective on May 17, 2010. Associations, Associated Industries of placarding, pursuant to Table 1 or 2 of 49 CFR Petitions for Reconsideration of this Massachusetts, Brewer Petroleum Service, Inc., C. 172.504.’’ preemption decision must be submitted White and Son Inc., City of Boston, Dangerous 3 Presumably, this same route would also be used to the FMCSA Administrator no later Goods Advisory Council, Dennis K. Burke, Inc., DJ for any hazardous materials vehicles authorized by Cronin, Institute of Makers of Explosives, J&S permit to travel through the City of Boston, in than December 7, 2009. Transport Co., Inc., J.P. Noonan Transportation, addition to those vehicles with a point of origin or FOR FURTHER INFORMATION CONTACT: Inc., Lighter Association, Inc., Massachusetts Motor destination within the City. As discussed below, James Simmons, Chief, Hazardous Transportation Association, Massachusetts Oilheat however, the City has not issued any permits for Council, National Tank Truck Carriers, Inc., P.J. through transportation of hazardous material since Materials Division (MC–ECH), (202) Murphy Transportation, Inc., Salvoni the route change took effect, so it is unclear which 493–0496, FMCSA, 1200 New Jersey Transportation and Triumvirate Environmental routes would be approved for through Avenue, SE., Washington, DC 20590, or Incorporated. transportation.

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utilize an improved and more direct hazardous material regulations more designation, limitation, or requirement route on Cross Street.4 strictly in light of security concerns complies with 49 U.S.C. 5112(b). ATA alleges that because the new following the September 11, 2001 Section 5112(b) requires the Secretary route was not part of the City’s terrorist attacks. Part of this increased of Transportation (‘‘Secretary’’), in previously designated hazardous enforcement included changes to the consultation with the States, to material route, the change in route renewal and issuance of permits for prescribe by regulation standards for the designation requires the City to comply motor carriers seeking permission to States and Indian tribes to follow when with current Federal standards transport hazardous material through designating specific highway routes for regarding the designation of hazardous the City. Mass Highway states that it has transportation of hazardous materials. material routes, pursuant to the terms of conferred with City of Boston officials The Secretary has delegated to FMCSA 49 CFR part 397, subpart C. and verified that no new through- authority and responsibility for highway Mass Highway’s preemption permits have been issued in the past routing of hazardous material. 49 CFR application notes that the City of Boston several years.5 1.73(d)(2). has made a change in its hazardous The standards required by 49 U.S.C. material route from Commercial Street II. Federal Preemption 5112(b) for establishing highway routing to Cross Street, but Mass Highway has Title 49 U.S.C. 5125 contains several requirements for non-radioactive not taken a position as to whether this preemption provisions. Subsection (a) hazardous material are set forth in 49 route modification requires Boston to provides that a requirement of a State, CFR part 397, subpart C, and apply to comply with the standards set forth in political subdivision of a State, or any designations established or 49 CFR part 397. Rather, Mass Indian tribe is preempted if—(1) modified on or after November 14, 1994. Highway’s application seeks guidance complying with a requirement of the 49 CFR 397.69(a). A State, political from FMCSA as to the effect that this State, political subdivision, or tribe and subdivision or Indian tribe must follow route change, as well as other issues, a requirement of this chapter, a FMCSA standards when establishing or have on City and State obligations under regulation prescribed under this modifying highway routing Federal statutory and regulatory chapter, or a hazardous materials requirements for hazardous material. requirements relating to hazardous transportation security regulation or The preemption provisions in 49 material routing designations. directive issued by the Secretary of U.S.C. 5125 carry out Congress’s As a second basis for challenging the Homeland Security is not possible; or intention that a single body of uniform City’s route designation, ATA alleges (2) the requirement of the State, political Federal regulations promote safety in that Boston improperly created a new de subdivision, or tribe, as applied or the transportation of hazardous facto hazardous material routing enforced, is an obstacle to materials. In section 2 of the Hazardous designation by the change in accomplishing and carrying out this Materials Transportation Uniform Safety administration and enforcement of the chapter, a regulation prescribed under Act of 1990 (HMTUSA) (Pub. L. 101– City’s permit system for ‘‘through’’ this chapter, or a hazardous materials 615, November 16, 1990, 104 Stat. transportation by motor carriers transportation security regulation or 3244), Congress underscored the need transporting NRHM, i.e., vehicles that directive issued by the Secretary of for uniform regulations relating to do not have a point of origin or Homeland Security. These two transportation of hazardous materials: destination within the City. ATA paragraphs set forth the ‘‘Dual (3) Many States and localities have enacted submits that the permit system is being Compliance’’ and ‘‘Obstacle’’ criteria, laws and regulations which vary from administered in a manner that which are based on U.S. Supreme Court Federal laws and regulations pertaining to effectively bans the through decisions on preemption.6 As discussed the transportation of hazardous materials, transportation of hazardous material. more fully below, any hazardous thereby creating the potential for ATA argues that Boston previously unreasonable hazards in other jurisdictions material highway routing designation issued permits to motor carriers that and confounding shippers and carriers which that was established prior to, and not wished to transport hazardous material attempt to comply with multiple and modified after, November 14, 1994, is through the City. In 2006, the City conflicting registration, permitting, routing, ‘‘grandfathered’’ under prior Federal revised the manner in which through notification and other regulatory hazardous material transportation law. requirements; permits would be evaluated and issued. As such, pre-1994 routing designations (4) because of the potential risks to life, Although the original permit system are examined under the Dual property, and the environment posed by still exists, ATA submits that Compliance/Obstacle test for unintentional releases of hazardous authorization for permits to allow preemption determinations. materials, consistency in laws and hazardous material transportation regulations governing the transportation of through the City is no longer being The statutory preemption section hazardous materials is necessary and granted. The Mass Highway application most relevant to this proceeding is desirable; for a preemption determination, as well section 5125(c)(1), which allows a State (5) in order to achieve greater uniformity as comments from the City of Boston, or Indian tribe to establish, maintain, or and to promote the public health, welfare, and safety at all levels, Federal Standards for state that the City began to enforce its enforce a highway routing designation over which hazardous material may or regulating the transportation of hazardous materials in intrastate, interstate and foreign 4 may not be transported by motor The record is unclear whether the change from commerce are necessary and desirable. Commercial Street to Cross Street is the only change vehicles, or a limitation or requirement to the City’s designated hazardous material route. related to highway routing, only if the The Committee on Commerce, ATA and several commenters reference other Science, and Transportation, U.S. changes to the allowable use of various streets, for example, Massachusetts Avenue, that may also have 5 In addition, the record does not indicate that Senate, when reporting in 1990 on the been affected by the City’s route change. any through-permits issued prior to 2006 are still bill to amend the Hazardous Materials Additionally, the description of the shift in route in effect, as it appears that they were either revoked Transportation Act (HMTA) [Pub. L. 93– as ‘‘one roadway over’’ does not fully describe the or not renewed. 633 section 112(a), 88 Stat. 2161 (1975)], relationship between Commercial and Cross Street, 6 Hines v. Davidowitz, 312 U.S. 52 (1941); Florida which run along opposite ends of the City’s central Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 stated, ‘‘[t]he original intent of HMTA downtown corridor, ranging from 5 to 10 blocks (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 was to authorize [DOT] with the apart. (1978). regulatory and enforcement authority to

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protect the public against the risks and Agencies, on Preemption. 74 FR In 2006, the City issued the following imposed by all forms of hazardous 24693 (May 22, 2009).8 notification regarding the new route: materials transportation, and varying as IV. Discussion well as conflicting regulations.’’ S. Rep. Notice of Hazardous Materials Route Change No. 101–449 (1990), reprinted in 1990 a. Background of Boston’s Hazardous The Traffic Rules and Regulations of the U.S.C.C.A.N. 4595, 4596. A Federal Material Route and Permit System City of Boston are hereby amended by Court of Appeals has indicated inserting into Article VII, The City of Boston enacted ‘‘Section 8B, Hazardous Materials Route: uniformity was the ‘‘linchpin’’ in the Regulations Controlling the design of the HMTA, including the 1990 No person shall operate a vehicle and no Transportation of Hazardous Materials person shall allow, permit, or suffer a vehicle amendments expanding the original leased by him or registered in his name to be 7 (‘‘Boston Regulations’’) in December preemption provisions. 1980, pursuant to Massachusetts operated, transporting any hazardous III. Preemption Determinations Ordinances of 1979, Chapter 39, materials other than on the route listed below Document 78 (‘‘Ordinance’’). The through Boston proper; Title 49 U.S.C. 5125(d) provides for Ordinance and Boston Regulations Northbound: issuance of administrative preemption Route 93 (North) to Frontage Road, straight contained provisions relating to various determinations regarding hazardous on Atlantic Avenue, straight on Cross Street, aspects of hazardous material material by the Secretary. The Secretary right on North Washington Street; transportation, including time of day has delegated to FMCSA authority to Southbound: restrictions, prohibitions of certain make determinations of preemption North Washington Street left on John F. transportation, designation of routes Fitzgerald Expressway Surface Road, right concerning highway routing of within the City for hazardous material onto Purchase Street, straight on John F. hazardous material. 49 CFR 1.73(d)(2). vehicles and establishment of a permit Fitzgerald Expressway Surface Road, straight Any directly affected person may apply system for motor carriers wishing to on Albany Street to Route 93 (South).’’ for a determination as to whether a operate their vehicles outside the *Please Be Advised That Enforcement of requirement of a State, political the New Route Will Begin on Monday, parameters of the Ordinance and Boston subdivision or Indian tribe is July 3, 2006 Regulations. preempted. 49 CFR 397.205(a). With respect to designation of routes, The FMCSA’s preemption Since the establishment of the new the Boston Regulations require that determinations are governed by hazardous material route, motor hazardous material be transported on procedures in 49 CFR part 397, subpart vehicles transporting regulated designated ‘‘Major Thoroughfares.’’ E and 49 U.S.C. 5125. After the hazardous materials must use the newly Boston Regulations § 7.1.4. As explained preemption determination is issued, designated streets. by the City, in 2006, following aggrieved persons have 20 days to file In addition to the hazardous material substantial completion of the CA/T a petition for reconsideration. 49 CFR routing designation, the Boston project, certain portions of the Major 397.211(c) and 397.223. Any party to Regulations and Ordinance also Thoroughfare System were no longer the proceeding may seek judicial review established a permit system which available for use by hazardous cargo in the U.S. Court of Appeals for the requires, among other things, that vehicles because part of the surface District of Columbia Circuit or in the carriers who wish to operate their roadway was reconstructed in a tunnel Court of Appeals for the circuit in vehicles inconsistently with the in which hazardous cargo was which the person resides or has its requirements of the Ordinance and/or prohibited. In addition, upgrades were principal place of business. 49 U.S.C. Boston Regulations, obtain a permit for made to new surface roads, including 5127(a). authorities beyond those restrictions. A portions of Cross Street in downtown In making preemption determinations permit would be issued only where (1) Boston. Boston Comments at 17. In light under 49 U.S.C. 5125(d), FMCSA is a compelling need is shown, and (2) of these and other roadway changes, the guided by the principles and policies set where transportation of the hazardous City altered the hazardous material forth in Executive Order 13132, titled materials is in the public interest. route as designated on its Major ‘‘Federalism.’’ 64 FR 43255 (Aug. 4, Ordinance § 2(A)(8); Boston Regulations Thoroughfare System by amending 1999). Section 4(a) of Executive Order § 8.1.3. The permit would be granted for Article VII, Section 8B of the City of 13132 directs agencies to construe a a period of one year and would be Boston Traffic Rules and Regulations. Federal statute to preempt State law automatically renewed upon request ATA contends that Boston did not only when the statute contains an unless revoked for cause after a hearing. properly comply with federal express preemption provision, there is Id. In order for hazardous material requirements for the establishment or other clear evidence that Congress vehicles to use City streets for modification of a hazardous material intended preemption of State law, or the transportation of regulated hazardous route when it began enforcing this new exercise of State authority conflicts with material where there is no point of hazardous material route on July 3, the exercise of Federal authority under origin or destination within the City, the 2006. The practical effect of the route the Federal statute. Section 5125 motor carrier must obtain a permit for change is to move hazardous material includes express preemption provisions, ‘‘through’’ transportation via downtown vehicle traffic from Commercial Street which FMCSA has implemented Boston. to Cross Street. According to the City, through its regulations. FMCSA is also this shift in route is one roadway over ATA contends that prior to 2006, mindful of recent Administration policy and was done to utilize an improved motor carriers were regularly issued on Federal preemption contained in the and more direct route on Cross Street. through-permits, allowing them to President’s May 20, 2009, Memorandum transport hazardous material through for the Heads of Executive Departments 8 ‘‘The purpose of this memorandum is to state downtown Boston. In April 2006, the the general policy of my Administration that City issued a form letter to all permit 7 Colorado Pub. Util. Comm’n v. Harmon, 951 preemption of State law by executive departments holders and applicants stating that it F.2d 1571, 1575 (10th Cir. 1991). In 1994, Congress and agencies should be undertaken only with full was undertaking a review of all permits revised, codified and enacted the HMTA ‘‘without consideration of the legitimate prerogatives of the substantive change,’’ at 49 U.S.C. chapter 51. [Pub. States and with a sufficient legal basis for issued pursuant to the Ordinance and L. 103–272, 108 Stat. 745]. preemption.’’ 74 FR at 24693. Boston Regulations ‘‘to determine if the

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criteria for issuing the permit continue travel through numerous other disputes between political subdivisions to be met.’’ 9 The letter went on to state: communities surrounding Boston. within their jurisdictions. 49 CFR 397.71(b)(8). In light of various changed circumstances, b. Summary of Federal Statutory and — Compliance by the State or Indian both locally and nationally, that have arisen Regulatory Requirements tribe with the public information over the years after the Regulations were Any State or political subdivision of enacted, the Fire Commissioner and the reporting requirements in 49 CFR a State, such as the City of Boston, must Commission have determined that each 397.73. 49 CFR 397.71(b)(8). comply with Federal statutes and permit and permit application now needs to — Consideration of specific factors, regulations when establishing, be reviewed with those changed including population density, type of maintaining, enforcing or modifying a circumstances and criteria in mind. highway, types and quantities of NRHM hazardous material highway routing normally transported, emergency The City cites changes and events such designation. 49 U.S.C. 5125(c); 49 U.S.C. response capabilities, results of as the terrorist attacks of September 11, 5112(b). FMCSA promulgated consultation with affected persons, 2001, changed traffic patterns and regulations pursuant to 49 U.S.C. exposure and other risk factors, terrain, roadways occasioned by the Big Dig 5112(b) that States must follow when continuity of routes, alternative routes, project, land use changes and establishing or modifying a hazardous effects on commerce, delays in population density shifts within the material routing designation. 49 CFR transportation, climatic conditions, and City, and an overall increase in 397.69. In summary, the standards congestion and accident history. 49 CFR hazardous material transportation by require: 397.71(b)(9). motor vehicle as reasons for the — A finding by the State that the The standards summarized above, set reexamination of the issued permits. highway routing designation ‘‘enhances forth at 49 CFR 397.71, apply to all Each permit holder and applicant was public safety in the areas subject to its hazardous material highway routing notified of a hearing date to present jurisdiction and in other areas which are designations established or modified on evidence of the criteria for issuance directly affected by such highway or after November 14, 1994. 49 CFR and/or maintenance of the permit, i.e., routing designation.’’ 49 CFR 397.69(a). Except in the case of certain that there was a compelling need and 397.71(b)(1). dispute resolutions or waivers, any — Notice to the public of the that transportation of the hazardous hazardous material routing designation proposed routing designation, a 30-day material was in the public interest. made in violation of the applicable period for the public to submit According to the ATA and Mass Federal standards is preempted. 49 CFR comments, and consideration of Highway preemption applications, and 397.69(b). whether to hold a public hearing (with undisputed by the City of Boston, Any routing designation that was advance notice to the public). 49 CFR following this 2006 reexamination of established prior to, and not modified 397.71(b)(2). after, November 14, 1994, is permit holders, no permits for — Notice to and consultation with ‘‘through’’ transportation have been ‘‘grandfathered’’ under the prior Federal ‘‘officials of affected political hazardous material transportation law. issued/renewed in the past several subdivisions, States and Indian tribes, years. 49 CFR 397.69(c); 49 U.S.C. and any other affected parties,’’ and 5125(c)(2)(B).12 Those earlier routing As a result of their inability to obtain completion of the routing designation designations that fall within the through transportation permits, process within 18 months of the notice ‘‘grandfathered’’ period, are subject to hazardous material motor carriers are to the public or notice to other affected preemption in accordance with the directed to travel on alternate routes jurisdictions. 49 CFR 397.71(b)(3), (6). standards set forth in 49 U.S.C. 5125(a) — Assurance of ‘‘through highway that bypass the restricted areas of and 49 CFR 397.203(a)(1) and (a)(2). 10 routing * * * between adjacent areas’’ downtown Boston. According to ATA, This earlier preemption standard is so as not to impede or unnecessarily the bypass route significantly increases often referred to as the Dual delay the transportation of non- the mileage of motor carriers with Compliance/Obstacle Test. Under that radioactive hazardous material. 49 CFR regular commercial activities involving standard, a routing designation is 397.71(b)(4). origin and destination points preempted if: (1) Compliance with both — A risk analysis be conducted, with immediately north and south of the the hazardous material routing 11 a finding that the routing designation City. In addition, the diversion of designation and any requirement under enhances public safety. 49 CFR hazardous material motor vehicles the HMTA or of a regulation issued around the City causes those vehicles to 397.71(b)(4). — No unreasonable burden on therein is not possible, or (2) the commerce. 49 CFR 397.71(b)(5). highway routing designation as applied 9 Letter from Kevin P. MacCurtain, Acting Fire and enforced creates an obstacle to the Commissioner, to various permit holders, April 7, — Agreement with the proposed 2006, attached to ATA’s preemption application as routing by all affected States or Indian accomplishment and execution of the Exhibit E. tribes within 60 days of notice, or HMTA or the regulations thereunder. 10 See Exhibit J to Boston’s Comments, Exemplar alternatively, approval by the FMCSA of Massachusetts Highway Department Hazmat Administrator pursuant to dispute 12 Title 49 U.S.C. 5125(c)(2)(B) states that ‘‘[t]his ‘‘Trucker Notice’’ Sign and Exhibit K to Boston’s subsection and section 5112 of this title do not Comments, Photograph of Massachusetts Highway resolution procedures under 49 CFR require a State or Indian tribe to comply with Department Posted Hazmat ‘‘Trucker Notice’’ Sign. 397.75. 49 CFR 397.71(b)(5). section 5112(b)(1)(I) if the highway routing Both signs state, ‘‘I–93 BOSTON TUNNELS — Reasonable access for vehicles to designation, limitation or requirement was HAZARDOUS/DANGEROUS CARGOES reach terminals, pickup and delivery established before November 16, 1990.’’ Although PROHIBITED USE I–95 NORTH [SOUTH].’’ the statutory and regulatory ‘‘grandfather’’ clause 11 Specifically, in one example provided by ATA, points, loading and unloading locations, dates vary by approximately four years—November motor carriers transporting petroleum products and facilities for food, fuel, repairs, rest 16, 1990 versus November 14, 1994—the date from a fuel farm in Everett, MA to points south of and safe havens. 49 CFR 397.71(b)(7). differential is of no consequence in the instant the City, such as Milton, MA, are required to travel — Responsibility by the States for preemption proceeding. The original Boston routing an additional 84 miles roundtrip, a 382% mileage designations were established in 1980, while the increase. According to ATA, this effectively has ensuring that all of their political purported modifications occurred in 2006, well reduced motor carrier productivity by 33%, in light subdivisions comply with the federal beyond the timeframe of the two ‘‘grandfather’’ of hours of service restrictions. regulations and for resolving any clauses.

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c. Application of Federal Regulatory a point of origin nor destination within 49 CFR 397.69. As such, Boston was Requirements to Boston’s Hazardous the City of Boston. required to comply with current Federal Material Route and Permit System In its comments submitted in regulatory standards before designating response to the preemption the new hazardous material route. A The central issue of the consolidated applications, Boston argues that its preemption analysis under the earlier preemption application is whether the regulations have been in existence for Dual Compliance/Obstacle Test is not City of Boston was required to comply 29 years and have remained unchanged warranted given that the designated with current Federal standards during that time. The City contends that route was modified after November 14, regarding the establishment or the changes to the hazardous material 1994. The routing designation therefore modification of hazardous material route were adjusted to accommodate must be evaluated against the highway routing designations, as changes to physical road locations requirements of 49 CFR 397.71. contained in 49 CFR part 397, subpart caused by the Big Dig, but that such ATA further submits that the change C. In order to make that determination, changes did not amount to a significant in administration of the City’s permit it is necessary to decide which or material modification of the route. system, which it argues has effectively preemption standard is applicable to the Boston submits that it was taking banned through transportation of hazardous material routing designations advantage of an improved surface hazardous material within the City of established or modified by the City—the roadway to increase public safety in Boston, also amounts to a de facto new standard contained in 49 CFR 397.69(a) connection with the transportation of routing designation that would subject or the earlier standard of the Dual hazardous material. The City further the City to compliance with 49 CFR Compliance/Obstacle Test. In this case, contends that the route change was 397.69 and 397.71. Boston disputes that analysis turns on the meaning of a accomplished by ‘‘administratively ATA’s contention that its actions with ‘‘modification’’ of a routing designation, updating’’ the City’s Major respect to its permitting program as that term is used in 49 CFR Thoroughfare System and that the route constitute a newly designated routing 397.69(a).13 change involved only an ‘‘insignificant restriction. The City states that its 2006 shift’’ one roadway over within the review of current permit holders and It is undisputed that Boston’s original same central corridor through new applicants was simply an exercise hazardous material routing designation downtown Boston. As such, Boston of enforcement of the 1980 Boston was established in 1980 pursuant to the argues that this shift in roadway does Regulations. It submits that during the Ordinance and Boston Regulations. As not constitute a modification of a course of that review and subsequently, such, the preemption standard for the designated hazardous material route for the analysis of whether or not to issue original route(s) would ordinarily fall purposes of triggering 49 CFR 397.69. a through-permit to an applicant is within the ‘‘grandfather’’ clauses of both The FMCSA is not persuaded by based on the same criteria established in 49 U.S.C. 5125(c)(2) and 49 CFR Boston’s arguments and finds that the the 1980 Boston Regulations, namely, 397.69(c). The pertinent question, change in roadways, evidenced by the whether the applicant has demonstrated however, is whether that original City’s own ‘‘Notice of Hazardous a compelling need and that routing designation was modified Materials Route Change,’’ does transportation of the hazardous material subsequent to November 14, 1994, such constitute a modification of the is in the public interest. Boston argues that the modified route would be subject designated route. In order to make this that it is entitled to administrative to the current Federal standards for change in the route, the City was discretion and to reach its own hazardous material routing required to amend its Traffic Rules and conclusions, which may change over designations. ATA contends that two Regulations so that it could update the time, as to what constitutes ‘‘compelling events occurred that amount to designation of the Major Thoroughfare need’’ and ‘‘in the public interest.’’ modifications of Boston’s routing System to include the new road(s). While it concedes that in years past the designations, and therefore the City was Referring to the amendment as an City may have been ‘‘more permissive in required to comply with all of the ‘‘administrative update’’ does not granting permits,’’ Boston argues its standards set forth in 49 CFR 397.71, change the fact that the City was legally recent adoption of a more restrictive infra. Those two events are (1) the required to revise its regulations for the approach to permitting does not mean a change in designated streets of the route change to take effect. And change in the Boston Regulation has hazardous material route as a result of although the original route and the new occurred. Boston Comments at 22–25. roadway construction in conjunction route may be located in close proximity Once again, we do not find Boston’s with the CA/T project, and (2) the to one another, the FMCSA declines to arguments persuasive. The City may not change in the administration and find that a route change of only a block circumvent its own regulations or enforcement of the City’s permit system or two is not a modification of the route. Federal regulation by claiming to utilize such that through-permits are no longer Such a finding would immediately raise a 29-year-old permitting system, yet issued, thereby creating a new de facto the question of how far a route could be failing to actually issue any permits. routing restriction which effectively changed before it is considered Although the City is correct that the bans all hazardous material modified. The simpler and preferred permitting provision of the Boston transportation if the vehicle has neither approach, which allows for no Regulation did not change, that is not confusion, is that a change from one the relevant analysis in this instance. 13 Title 49 CFR 397.69(a) states: roadway to another constitutes a The real question is whether the City’s Any State or Indian tribe that establishes or modification of the route. If a hazardous highway routing designation has modifies a highway routing designation over which materials motor carrier were to use the changed, and the answer to that NRHM may or may not be transported on or after November 14, 1994, and maintains or enforces such previous designated route on question is yes. The definition of a designation, shall comply with the highway routing Commercial Street, that vehicle would ‘‘routing designation’’ includes ‘‘[a]ny standards set forth in § 397.71. For purposes of this presumably be subject to enforcement regulation, limitation, restriction, *** subpart, any highway routing designation affecting for a violation of the City’s hazardous [or] routing ban * * * applicable to the the highway transportation of NRHM, made by a political subdivision of a State is considered as one material routing designation. Given that highway transportation of NRHM over a made by that State, and all requirements of this fact, it can hardly be said that the route specific highway route or portion of a subpart apply. (Emphasis added.) was not modified within the meaning of route.’’ 49 CFR 397.65 (emphasis

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added). The City used to allow Federal preemption standards apply. analysis of these factors 12 years earlier transportation of hazardous material Given the findings above that such a would likely not accurately reflect the vehicles through the downtown corridor modification has occurred, the prior IR– current conditions and considerations. even where the motor carrier did not 3 and federal court case have no Our finding today that the change in have a point of origin or destination applicability to the present roadway is a modification of the within the City. This transportation was determination. designated hazardous material route, as authorized through issuance of permits As noted by ATA in its preemption well as our finding that a de facto new to qualified hazardous material motor application, as well as by the majority routing designation was created by carriers. Beginning at a very identifiable of commenters, including the Boston’s effective ban on through- point in time in 2006, Boston made the Massachusetts Motor Transportation permits, further the public policy and decision to revoke through-permits Association, Associated Industries of legislative intent behind the Federal previously issued and not to issue any Massachusetts, Brewer Petroleum hazardous materials transportation law, new through-permits going forward. Service, Inc., Dangerous Goods which seeks to provide a uniform basis This change in the administration of the Advisory Council, Lighter Association, of regulations to promote the safe City’s permitting system has created a Inc., Triumvirate Environmental Inc., transportation of hazardous materials. new limitation/restriction/ban on Salvoni Transportation, Massachusetts When Boston’s original routing through transportation of hazardous Oilheat Council, J&S Transport Co., Inc., designations were established in 1980, material vehicles and a de facto National Tank Truck Carriers, Inc. and the current Federal regulations were not modification of the City’s routing Dennis K. Burke, Inc., Boston did not in existence. The grandfathering designation. Boston’s current undertake the necessary steps to comply provisions in the Federal statute and administration of the permitting system with the standards set forth in 49 CFR rule excuse Boston’s compliance with essentially removes the provision of the 397.71 before making modifications to the Federal standards as to its 1980 Ordinance and Boston Regulation that the City’s hazardous material routing routing designations. However, almost allows a hazardous materials motor designations. While Boston argues on fifteen years have passed since the carrier to demonstrate a compelling the one hand that it did not have to current regulations were enacted, and need for issuance of a through-permit. comply with these current Federal the City has had ample notice of what This de facto modification to the City’s regulatory requirements, the City argues would be required should it wish to routing designation has a significant in the alternative that it did undertake modify its hazardous material highway impact on transportation of hazardous certain steps and applied an analysis routing designations. The City could materials through Boston. It also serves similar to the requirements in section have applied for a waiver of preemption to shift the risk associated with that 397.71. Mass Highway and the City pursuant to 49 U.S.C. 5125(e) and 49 transportation to neighboring submit that a study conducted for CFR 397.213, but it decided not to do jurisdictions by forcing hazardous purposes of analyzing alternative so. The City of Boston chose to make the material motor carriers to use alternative hazardous material routes in modifications discussed herein, and it routes bypassing the City of Boston. conjunction with construction during must comply with the current Federal Because this modification to Boston’s the CA/T project, ‘‘largely complied regulations. routing designation occurred post- with the federal regulatory requirements V. Ruling November 14, 1994, the City is required later outlined in § 397.71.’’ 15 Mass to comply with Federal regulatory Highway Application at 4; Boston FMCSA finds that 49 U.S.C. standards found in 49 CFR 397.71. Comments at 14. Although that study 5125(c)(1) preempts certain highway Both the City of Boston in its may have considered some of the same routing requirements of the City of comments and Mass Highway in its factors found in 397.71(b)(9), such as Boston because Boston failed to comply preemption application raise the issue population density, type of highway, with FMCSA’s standards for of a prior DOT Inconsistency Ruling emergency response capability, etc., it establishing or modifying a hazardous (‘‘IR–3’’), as well as a prior U.S. District failed to address other factors required material highway routing designation Court case 14 that addressed certain under the current standards. For issued pursuant to 49 U.S.C. 5112(b) aspects of the Ordinance and 1980 example, Boston did not engage in any and 49 CFR part 397, subpart C. The Boston Regulations. In view of the fact of the other requirements of part 397.71, specific routing requirements that the federal court case dealt with a most notably the requirements of preempted are: request for a preliminary injunction 397.71(b)(3), involving consultation 1. The Traffic Rules and Regulations which does not undertake an analysis of with other affected parties, and of the City of Boston, Article VII, section the merits of the arguments, and the fact 397.71(b)(5), requiring agreement to the 8B, Hazardous Materials Route; and that the ruling on IR–3 was found to be routing designation by other affected 2. The de facto ban on hazardous ‘‘indeterminate,’’ neither of these prior States or approval by the FMCSA material transportation through the City rulings is of precedential value to Administrator, in lieu of such of Boston due to the change in FMCSA’s current preemption agreement. Moreover, the study was administration of the City’s hazardous determination. Moreover, the challenges completed in 1994 while the new material permitting system. This preemption decision will raised in IR–3 and the federal court case routing designation was not proposed become effective on May 17, 2010 to related to various provisions of the until 2006. The factors to be considered allow time for the City of Boston to original 1980 Boston Regulations and in 397.71(b)(9) are fluid conditions, comply with the current Federal Ordinance. The issue before FMCSA in such as population density, type of statutory and regulatory requirements. the current preemption applications is highway, exposure to risk factors, whether there has been a modification alternative routes, congestion and VI. Petitions for Reconsideration and of Boston’s hazardous material highway accident history, to name a few. An Judicial Review routing designations such that current In accordance with 49 CFR 15 The study was entitled ‘‘June 1994 CA/T 14 American Trucking Assoc., Inc., et al. v. Project Concept Report No. 2AB26, Transportation 397.223(a), any person aggrieved by this Boston, 1981 U.S. Dist. LEXIS 18423 (D. Mass. of Hazardous Cargo,’’ and can be found as Exhibit decision may file a petition for 1981). H to Mass Highway’s preemption application. reconsideration within 20 days of

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service of this decision. The decision DEPARTMENT OF TRANSPORTATION equipment and can be armed with the will become the final decision of Smart Key or programmed to be FMCSA 20 days after service if no National Highway Traffic Safety passively armed. The perimeter alarm petition for reconsideration is filed Administration system can be programmed to arm within that time. If a petition for automatically 30 seconds after all doors, reconsideration of this decision is filed Petition for Exemption from the luggage compartment and hood within 20 days, the action by FMCSA on Federal Motor Vehicle Motor Theft apertures are closed and the Smart Key the petition for reconsideration will be Prevention Standard; Jaguar Land is removed from the vehicle. The siren the final decision. 49 CFR 397.223(d). Rover will sound and exterior lights will flash Persons adversely affected or AGENCY: National Highway Traffic if the hood, luggage compartment, or aggrieved by this determination may Safety Administration, Department of doors are open during unauthorization. seek judicial review, in accordance with Transportation (DOT). Jaguar stated that there are three methods to its system operation, one 49 U.S.C. 5127(a), in the United States ACTION: Grant of petition for exemption. Court of Appeals for the District of method of operation consist of the driver approaching the vehicle and Columbia Circuit or in the Court of SUMMARY: This document grants in full pulling on the driver’s door handle, Appeals for the circuit in which the the petition of Jaguar Land Rover North when the door handle is pulled, the person resides or has its principal place America’s, (Jaguar) petition for an Keyless Vehicle Module via the Low of business. The filing of a petition for exemption of the XJ vehicle line in frequency Door Handle Antenna sends a reconsideration is not a prerequisite to accordance with 49 CFR Part 543, signal to the Key Fob by using a seeking judicial review of this decision Exemption from the Theft Prevention resonant frequency of 125 KHz. The Key under 49 U.S.C. 5127. Standard. This petition is granted because the agency has determined that fob will decrypt the data received along Issued on: November 10, 2009. the anti-theft device to be placed on the with its unique identifier and send an Rose A. McMurray, line as standard equipment is likely to answer back to the Keyless Vehicle Acting Deputy Administrator. be as effective in reducing and deterring Module via the Remote Frequency [FR Doc. E9–27483 Filed 11–13–09; 8:45 am] motor vehicle theft as compliance with Receiver. On pressing the ignition start BILLING CODE 4910–EX–P the parts-marking requirements of the button, a search is commenced in order Theft Prevention Standard (49 CFR part to find and authenticate the Smart Key 541). within the vehicle interior. If successful, DEPARTMENT OF TRANSPORTATION DATES: The exemption granted by this this information is passed via a coded notice is effective beginning with model data transfer to the Body Control Federal Motor Carrier Safety year (MY) 2010. Module (BCM) via the Remote Function Administration Actuator. The BCM in turn, will pass FOR FURTHER INFORMATION CONTACT: Ms. the valid key status to the instrument Sunshine Act Meetings; Unified Carrier Carlita Ballard, Office of International cluster, via a coded data transfer. The Registration Plan Board of Directors Policy, Fuel Economy and Consumer BCM sends the key valid message to the Programs, NHTSA, W43–439, 1200 New Power Train Control Module which AGENCY: Federal Motor Carrier Safety Jersey Avenue, SE., Washington, DC initiates a coded data transfer, then the Administration (FMCSA), DOT. 20590. Ms. Ballard’s phone number is engine is authorized to crank, fuel and (202) 366–0846. Her fax number is (202) TIME AND DATE: December 10, 2009, 12 start. The second method is by using the 493–2990. noon to 3 p.m., Eastern Daylight Time. Smart Key unlock button, upon pressing SUPPLEMENTARY INFORMATION: In a the button, the doors will unlock, once PLACE: This meeting will take place petition dated May 11, 2009, Jaguar the driver presses the ignition start telephonically. Any interested person requested an exemption from the parts- button, the operation is the same as may call Mr. Avelino Gutierrez at (505) marking requirements of the theft method one. The third method is if the 827–4565 to receive the toll free number prevention standard (49 CFR Part 541) Smart Key has a discharged battery or is and pass code needed to participate in for the XJ vehicle line beginning with damaged, there is an emergency key these meetings by telephone. MY 2010. The petition has been filed blade that can be removed from the STATUS: Open to the public. pursuant to 49 CFR part 543, Exemption Smart Key and used to unlock the doors. from Vehicle Theft Prevention Standard, On pressing the ignition start button, a MATTERS TO BE CONSIDERED: The Unified based on the installation of an anti-theft search is commenced in order to find Carrier Registration Plan Board of device as standard equipment for the and authenticate the Smart Key within Directors (the Board) will continue its entire vehicle line. the vehicle interior, if successful, the work in developing and implementing Under § 543.5(a), a manufacturer may Smart Key needs to be docked. Once the the Unified Carrier Registration Plan petition NHTSA to grant an exemption Smart Key is placed in the correct and Agreement and to that end, may for one vehicle line per model year. In position, and the ignition start button is consider matters properly before the its petition, Jaguar provided a detailed pressed again, the BCM and Smart key Board. description and diagram of the identity, enter a coded data exchange via the FOR FURTHER INFORMATION CONTACT: Mr. design, and location of the components Immobilizer Antenna Unit, the BCM in Avelino Gutierrez, Chair, Unified of the anti-theft device for the XJ vehicle turn, passes the valid key status to the Carrier Registration Board of Directors at line. Jaguar stated that the XJ vehicles instrument cluster, via a coded data (505) 827–4565. will be equipped with a passive, transfer. The BCM sends the key valid transponder based, electronic engine message to the Power Train Control Issued on: November 10, 2009. immobilizer device as standard Module which initiates a coded data Larry W. Minor, equipment beginning with the 2010 transfer, if successful the engine is Associate Administrator for Policy and model year. Additionally, Jaguar states authorized to crank, fuel and start. Program Development. that its vehicle security system also In addressing the specific content [FR Doc. E9–27565 Filed 11–12–09; 4:15 pm] includes an audible and visual requirements of 543.6, Jaguar provided BILLING CODE 4910–EX–P perimeter alarm system as standard information on the reliability and

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durability of its proposed device. To Standard (49 CFR part 541). This Therefore, NHTSA suggests that if the ensure reliability and durability of the conclusion is based on the information manufacturer contemplates making any device, Jaguar conducted tests based on Jaguar provided about its device. changes, the effects of which might be its own specified standards. Jaguar The agency concludes that the device characterized as de minimis, it should provided a detailed list of the tests will provide the five types of consult the agency before preparing and conducted (i.e., temperature and performance listed in § 543.6(a)(3): submitting a petition to modify. promoting activation; attract attention to humidity cycling, high and low Authority: 49 U.S.C. 33106; delegation of temperature cycling, mechanical shock, the efforts of an unauthorized person to authority at 49 CFR 1.50. random vibration, thermal stress/shock enter or move a vehicle by means other tests, material resistance tests, dry heat, than a key; preventing defeat or Issued on: November 6, 2009. dust and fluid ingress tests). Jaguar circumvention of the device by Stephen R. Kratzke, stated that it believes that its device is unauthorized persons; preventing Associate Administrator for Rulemaking. reliable and durable because it complied operation of the vehicle by [FR Doc. E9–27361 Filed 11–13–09; 8:45 am] with specified requirements for each unauthorized entrants; and ensuring the BILLING CODE 4910–59–P test. Additionally, Jaguar stated that the reliability and durability of the device. key recognition sequence includes in For the foregoing reasons, the agency excess of a billion code combinations. hereby grants in full Jaguar’s petition for DEPARTMENT OF TRANSPORTATION The code combinations include exemption for the Jaguar XJ vehicle line encrypted data that are secure against from the parts-marking requirements of National Highway Traffic Safety copying, also the coded data transfer 49 CFR part 541. The agency notes that Administration between modules use a unique secure 49 CFR part 541, appendix A–1, Petition for Exemption From the identifier, random number and secure identifies those lines that are exempted Vehicle Theft Prevention Standard; Fuji public algorithm which includes an from the Theft Prevention Standard for Heavy Industries U.S.A., Inc. excess of a billion code combinations. a given model year. 49 CFR 543.7(f) Jaguar stated that the current contains publication requirements AGENCY: National Highway Traffic generation Jaguar XJ line produced since incident to the disposition of all part Safety Administration (NHTSA), 2004 MY has an engine immobilizer 543 petitions. Advanced listing, Department of Transportation (DOT). including the release of future product system as standard equipment, but since ACTION: Grant of petition for exemption. the current generation of Jaguar XJ has nameplates, the beginning model year only been available with an engine for which the petition is granted and a SUMMARY: This document grants in full immobilizer, there is no comparative general description of the anti-theft the Fuji Heavy Industries U.S.A., Inc.’s Jaguar data available for the XJ without device is necessary in order to notify (FUSA) petition for exemption of the an immobilizer. Also, Jaguar stated that law enforcement agencies of new Subaru Legacy vehicle line in based on MY 2006 theft information vehicle lines exempted from the parts accordance with 49 CFR part 543, published by NHTSA, the Jaguar XJ line marking requirements of the Theft Exemption From the Theft Prevention has had theft rates well below the Prevention Standard. Standard. This petition is granted median of 2.08 thefts per thousands, If Jaguar decides not to use the because the agency has determined that specifically, for the XJ8/XJ8L vehicle exemption for this line, it should the antitheft device to be placed on the line,0.8711, the Vanden Plas/Super V8, formally notify the agency. If such a line as standard equipment is likely to 0.000, and the XJR, 0.0000. Jaguar decision is made, the line must be fully be as effective in reducing and deterring believes this low theft rate demonstrates marked according to the requirements motor vehicle theft as compliance with the effectiveness of the immobilizer under 49 CFR 541.5 and 541.6 (marking the parts-marking requirements of the system. of major component parts and Theft Prevention Standard (49 CFR part Based on the evidence submitted by replacement parts). 541). Jaguar, the agency believes that the anti- NHTSA notes that if Jaguar wishes in DATES: The exemption granted by this theft device for the XJ vehicle line is the future to modify the device on notice is effective beginning with model likely to be as effective in reducing and which this exemption is based, the year (MY) 2011. deterring motor vehicle theft as company may have to submit a petition compliance with the parts-marking to modify the exemption. Part 543.7(d) FOR FURTHER INFORMATION CONTACT: Ms. requirements of the Theft Prevention states that a Part 543 exemption applies Carlita Ballard, Office of International Standard (49 CFR part 541). only to vehicles that belong to a line Policy, Fuel Economy and Consumer Pursuant to 49 U.S.C. 33106 and 49 exempted under this part and equipped Standards, NHTSA, W43–439, 1200 CFR 543.7 (b), the agency grants a with the anti-theft device on which the New Jersey Avenue, SE., Washington, petition for exemption from the parts- line’s exemption is based. Further, part DC 20590. Ms. Ballard’s phone number marking requirements of Part 541, either 543.9(c)(2) provides for the submission is (202) 366–0846. Her fax number is in whole or in part, if it determines that, of petitions ‘‘to modify an exemption to (202) 493–2990. based upon substantial evidence, the permit the use of an anti-theft device SUPPLEMENTARY INFORMATION: In a standard equipment anti-theft device is similar to but differing from the one petition dated September 22, 2009, likely to be as effective in reducing and specified in that exemption.’’ FUSA requested an exemption from the deterring motor vehicle theft as The agency wishes to minimize the parts-marking requirements of the theft compliance with the parts-marking administrative burden that part prevention standard (49 CFR part 541) requirements of part 541. The agency 543.9(c)(2) could place on exempted for the Subaru Legacy vehicle line, finds that Jaguar has provided adequate vehicle manufacturers and itself. The beginning with the 2011 model year. reasons for its belief that the anti-theft agency did not intend in drafting Part The petition has been filed pursuant to device for the Jaguar XJ vehicle line is 543 to require the submission of a 49 CFR part 543, Exemption From likely to be as effective in reducing and modification petition for every change Vehicle Theft Prevention Standard, deterring motor vehicle theft as to the components or design of an anti- based on the installation of an antitheft compliance with the parts-marking theft device. The significance of many device as standard equipment for an requirements of the Theft Prevention such changes could be de minimis. entire vehicle line.

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Under § 543.5(a), a manufacturer may demonstrable effect in lowering its theft the information FUSA provided about petition NHTSA to grant exemptions for rates. FUSA also noted that recent state- its device. one vehicle line per model year. In its by-state theft results from the National The agency concludes that the device petition, FUSA provided a detailed Insurance Crime Bureau reported that in will provide the five types of description and diagram of the identity, only 5 of the 50 states listed in its performance listed in § 543.6(a)(3): design, and location of the components results, did any Subaru vehicle appear promoting activation; attracting of the antitheft device for the Legacy in the top 10 list of stolen cars. Review attention to the efforts of unauthorized vehicle line. FUSA stated that all of the theft rates published by the persons to enter or operate a vehicle by Subaru Legacy vehicles will be agency through MY/CY also revealed means other than a key; preventing equipped with a passive, transponder- that, while there is some variation, the defeat or circumvention of the device by based electronic immobilizer device as theft rates for Subaru vehicles have on unauthorized persons; preventing standard equipment. FUSA stated that average, remained below the median operation of the vehicle by the antitheft system and the theft rate of 3.5826. unauthorized entrants; and ensuring the immobilization features are designed FUSA also provided a comparative reliability and durability of the device. and constructed within the vehicle’s table showing how its device is similar For the foregoing reasons, the agency Controller Area Network electrical to other manufacturer’s devices that hereby grants in full FUSA’s petition for architecture. Major components of the have already been granted an exemption exemption for the vehicle line from the antitheft device will include an by NHTSA. In its comparison, FUSA parts-marking requirements of 49 CFR electronic key, a passive immobilizer makes note of Federal Notices published part 541. The agency notes that 49 CFR system, a key ring antenna and an by NHTSA in which manufacturers part 541, appendix A–1, identifies those engine control unit. System have stated that they have seen lines that are exempted from the Theft immobilization is automatically reductions in theft due to the Prevention Standard for a given model activated when the key is removed from immobilization systems being used. year. 49 CFR 543.7(f) contains the vehicle’s ignition switch, or after 30 Specifically, FUSA notes claims by Ford publication requirements incident to the seconds if the ignition is simply moved Motor Company that its 1997 Mustangs disposition of all part 543 petitions. to the off position and the key is not with immobilizers saw a 70% reduction Advanced listing, including the release removed. The device will also have a in theft compared to its 1995 Mustangs of future product nameplates, the visible and audible alarm, and panic without immobilizers. FUSA also noted beginning model year for which the mode feature. The alarm system will its reliance on theft rates published by petition is granted and a general monitor door status and key the agency which showed that theft description of the antitheft device is identification. Unauthorized opening of rates were lower for Jeep Grand necessary in order to notify law a door will activate the alarm system Cherokee immobilizer-equipped enforcement agencies of new vehicle causing sounding of the horn and vehicles (model year 1995 through lines exempted from the parts-marking flashing of the hazard lamps. FUSA’s 1998) compared to older parts-marked requirements of the Theft Prevention submission is considered a complete Jeep Grand Cherokee vehicles (model Standard. petition as required by 49 CFR 543.7 in year 1990 and 1991). FUSA stated that If FUSA decides not to use the that it meets the general requirements it believes that these comparisons show exemption for this line, it must formally contained in 543.5 and the specific that its device is no less effective than notify the agency, and, thereafter, the content requirements of 543.6. those installed on lines for which the line must be fully marked as required by In addressing the specific content agency has already granted full 49 CFR 541.5 and 541.6 (marking of requirements of 543.6, FUSA provided exemption from the parts-marking major component parts and replacement information on the reliability and requirements. The agency agrees that parts). durability of its proposed device. To the device is substantially similar to NHTSA notes that if FUSA wishes in ensure reliability and durability of the devices in other vehicles lines for which the future to modify the device on device, FUSA conducted tests based on the agency has already granted which this exemption is based, the its own specified standards and exemptions. company may have to submit a petition provided a list of information of the Based on the evidence submitted by to modify the exemption. Part 543.7(d) tests it conducted. FUSA believes that FUSA, the agency believes that the states that a part 543 exemption applies its device is reliable and durable antitheft device for the Legacy vehicle only to vehicles that belong to a line because the device complied with its line is likely to be as effective in exempted under this part and equipped own specific requirements for each test. reducing and deterring motor vehicle with the anti-theft device on which the Additionally, FUSA stated that the theft as compliance with the parts- line’s exemption is based. Further, immobilization features are designed marking requirements of the Theft § 543.9(c)(2) provides for the submission and constructed within the vehicle’s Prevention Standard (49 CFR part 541). of petitions ‘‘to modify an exemption to overall Controller Area Network Pursuant to 49 U.S.C. 33106 and 49 permit the use of an antitheft device Electrical Architecture. Therefore, the CFR 543.7(b), the agency grants a similar to but differing from the one antitheft system cannot be separated petition for an exemption from the specified in that exemption.’’ and controlled independently of this parts-marking requirements of part 541 The agency wishes to minimize the network. either in whole or in part, if it administrative burden that part FUSA stated that it believes that determines that, based upon substantial 543.9(c)(2) could place on exempted historically, NHTSA has seen a evidence, the standard equipment vehicle manufacturers and itself. The decreasing theft rate trend when antitheft device is likely to be as agency did not intend part 543 to electronic immobilization has been effective in reducing and deterring require the submission of a modification added to alarm systems. FUSA stated motor vehicle theft as compliance with petition for every change to the that it presently has immobilizer the parts-marking requirements of part components or design of an antitheft systems on all of its product lines 541. The agency finds that FUSA has device. The significance of many such (Forester, Tribeca, Impreza, Legacy, and provided adequate reasons for its belief changes could be de minimis. Therefore, Outback models) and it believes the data that the antitheft device will reduce and NHTSA suggests that if the shows immobilization has had a deter theft. This conclusion is based on manufacturer contemplates making any

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changes the effects of which might be other tax-related information to pass OMB Number: 1545–1359. characterized as de minimis, it should through to its shareholders. Schedule Type of Review: Extension. consult the agency before preparing and K–1 is used to report to shareholders Title: Information Reporting by submitting a petition to modify. their share of the corporation’s income, Passport and Permanent Residence Applicants INTL–978–86 (NPRM). Authority: 49 U.S.C. 33106; delegation of deductions, credits, etc. IRS uses the authority at 49 CFR 1.50. information to determine the correct tax Description: The regulation requires for the S corporation and its applicants for passports and permanent Issued on: November 6, 2009. shareholders. residence status to report certain tax Stephen R. Kratzke, Respondents: Businesses or other for- information on the applications. The Associate Administrator for Rulemaking. profits. regulations are intended to give the [FR Doc. E9–27360 Filed 11–13–09; 8:45 am] Estimated Total Burden Hours: Service notice of non-filers and of BILLING CODE 4910–59–P 420,945,980 hours. persons with foreign source income not OMB Number: 1545–0192. subject to normal withholding, and to Type of Review: Revision. notify such persons of their duty to file DEPARTMENT OF THE TREASURY Title: Tax on Accumulation U.S. tax returns. Distribution of Trusts. Respondents: Individuals or Submission for OMB Review; Form: 4970. households. Comment Request Description: Form 4970 is used by a Estimated Total Burden Hours: 750,000 hours. November 10, 2009. beneficiary of a domestic or foreign trust to compute the tax adjustment OMB Number: 1545–1432. The Department of Treasury will Type of Review: Extension. submit the following public information attributable to an accumulation distribution. The form is used to verify Title: Voluntary Customer Surveys to collection requirement(s) to OMB for Implement E.O. 12862 Coordinated by review and clearance under the whether the correct tax has been paid on the accumulation distribution. the Corporate Planning and Performance Paperwork Reduction Act of 1995, Division on Behalf of All IRS Operations Public Law 104–13 on or after the date Respondents: Individuals or households. Functions. of publication of this notice. Copies of Description: This is a generic the submission(s) may be obtained by Estimated Total Burden Hours: 42,900 hours. clearance for an undefined number of calling the Treasury Bureau Clearance customer satisfaction and opinion Officer listed. Comments regarding this OMB Number: 1545–0935. surveys and focus group interviews to information collection should be Type of Review: Revision. be conducted over the next three years. addressed to the OMB reviewer listed Title: U.S. Income Tax Return of a Surveys and focus groups conducted and to the Treasury Department Foreign Sales Corporations; Schedule P, under the generic clearance are used by Clearance Officer, Department of the Transfer Price or Commission. the Internal Revenue Service to Form: 1120–FSC, Schedule P (Form Treasury, Room 11000, and 1750 determine levels of customer 1120–FSC). Pennsylvania Avenue, NW., satisfaction as well as determining Description: Form 1120–FSC is filed Washington, DC 20220. issues that contribute to customer by foreign corporations that have Dates: Written comments should be burden. This information will be used to elected to be FSCs or small FSCs. The received on or before December 16, 2009 make quality improvements to products FSC uses Form 1120–FSC to report to be assured of consideration. and services. income and expenses and to figure its Internal Revenue Service (IRS) Respondents: Businesses or other for- tax liability. IRS uses Form 1120–FSC profits. OMB Number: 1545–1593. and Schedule P (Form 1120–FSC) to Estimated Total Burden Hours: Type of Review: Extension. determine whether the FSC has 150,000 hours. correctly reported its income and Title: U.S. Income Tax Return for OMB Number: 1545–1964. Qualified Funeral Trusts. expenses and figured its tax liability Type of Review: Revision. Form: 1041–QFT. correctly. Title: Intake/Interview & Quality Description: IRC section 685 allows Respondents: Businesses or other for- Review Sheet. the trustee of a qualified funeral trust to profits. Form: 13614–C, 13614–C (SP). elect to report and pay the tax for the Estimated Total Burden Hours: Description: The SPEC function trust. Data is used to determine that the 1,088,250 hours. developed the Form 13614–C, Intake/ trustee filed the proper return and paid OMB Number: 1545–0956. Interview & Quality Review Sheet that the correct tax. Type of Review: Revision. contains a standardized list of required Respondents: Businesses or other for- Title: Annual Return of One- intake and quality review questions to profits. Participant (Owners and Their Spouses) guide volunteers in asking taxpayers Estimated Total Burden Hours: Retirement Plan. basic questions about themselves and 270,150 hours. Form: 5500–EZ. conducting a quality review of the OMB Number: 1545–0130. Description: Form 5500–EZ is an completed return. The intake/interview Type of Review: Revision. annual return filed by a one-participant and quality review sheet is an effective Title: U.S. Income Tax Return for an or one-participant and spouse pension tool for ensuring critical taxpayer S Corporation. plan. The IRS uses this data to information is obtained and applied Form: 1120S, Schedule D (Form determine if the plan appears to be during the interview and completion of 1120S), Schedule K–1 (Form 1120S), operating properly as required under the the tax return process. and Schedule M–3 (Form 1120S). law or whether the plan should be Respondents: Individuals or Description: Form 1120S, Schedule D audited. Households. (Form 1120S), Schedule K–1 (Form Respondents: Businesses or other for- Estimated Total Burden Hours: 1120S), and Schedule M–3 (Form profits. 562,583 hours. 1120S) are used by an S corporation to Estimated Total Burden Hours: Clearance Officer: R. Joseph Durbala, figure its tax liability, and income and 7,005,000 hours. (202) 622–3634, Internal Revenue

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Service, Room 6516, 1111 Constitution ADDRESSES: Direct all written comments Estimated Number of Respondents: Avenue, NW., Washington, DC 20224. to Department of the Treasury, Bruce 130. OMB Reviewer: Shagufta Ahmed, Turner, 1500 Pennsylvania Avenue, Estimated Total Annual Burden (202) 395–7873, Office of Management NW., Washington, DC 20220. Hours: 5,985 hours. and Budget, Room 10235, New FOR FURTHER INFORMATION CONTACT: Executive Office Building, Washington, Requests for additional information or Request for Comments: Comments DC 20503. copies of the form(s) and instructions submitted in response to this notice will be summarized and/or included in the Celina Elphage, should be directed as above. request for OMB approval. All Treasury PRA Clearance Officer. SUPPLEMENTARY INFORMATION: Title: TARP—Making Home comments will become a matter of [FR Doc. E9–27446 Filed 11–13–09; 8:45 am] Affordable Participants. public record. Comments are invited on: BILLING CODE 4830–01–P OMB Number: 1505–0216. (a) Whether the collection of Abstract: Authorized under the information is necessary for the proper Emergency Economic Stabilization Act DEPARTMENT OF THE TREASURY performance of the functions of the (EESA) of 2008 (Pub. L. 110–343), the agency, including whether the Departmental Offices; Proposed Department of the Treasury has information shall have practical utility; Collection; Comment Request implemented several aspects of the (b) the accuracy of the agency’s estimate Troubled Asset Relief Program. Among of the burden of the collection of ACTION: Notice and request for these components is a voluntary information; (c) ways to enhance the comments. foreclosure prevention program— quality, utility, and clarity of the Making Home Affordable (MHA) information to be collected; (d) ways to SUMMARY: The Department of the program, under which the Department minimize the burden of the collection of Treasury, as part of its continuing effort will use TARP capital to lower the to reduce paperwork and respondent mortgage payments of qualifying information on respondents, including burden, invites the general public and borrowers. The Treasury will do this through the use of automated collection other Federal agencies to take this through agreements with mortgage techniques or other forms of information opportunity to comment on proposed servicers to modify loans on their technology; and (e) estimates of capital and/or continuing information systems. All servicers are eligible to or start-up costs and costs of operation, collections, as required by the participate in the program. The maintenance, and purchase of services Paperwork Reduction Act of 1995, information will be used to set the to provide information. Public Law 104–13 (44 U.S.C. servicers up on the data system, ensure Dated: November 9, 2009. 3506(c)(2)(A)). Currently, the Office of that the servicers can be paid for the Daniel Abramowitz, Financial Stability within the loan modifications that they undertake, Department of the Treasury is soliciting check for compliance, and report out on Office of Financial Stability PRA Program comments concerning the service the effectiveness of the program. Officer. application for the Making Home Current Actions: Continuation of [FR Doc. E9–27484 Filed 11–13–09; 8:45 am] Affordable Participants. application. BILLING CODE 4810–25–P DATES: Written comments should be Type of Review: Extension. received on or before January 15, 2010 Affected Public: Financial to be assured of consideration. Institutions.

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Reader Aids Federal Register Vol. 74, No. 219 Monday, November 16, 2009

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 2 CFR 431...... 57738 Executive orders and proclamations 741–6000 382...... 58189 12 CFR The United States Government Manual 741–6000410 vc 3 CFR 229...... 58537 Other Services Proclamations: 13 CFR Electronic and on-line services (voice) 741–6020 8444...... 57225 126...... 56699 Privacy Act Compilation 741–6064 8445...... 57227 Public Laws Update Service (numbers, dates, etc.) 741–6043 8446...... 57229 14 CFR TTY for the deaf-and-hard-of-hearing 741–6086 8447...... 57231 23...... 57060 8448...... 57233 25...... 56702, 56706 ELECTRONIC RESEARCH 8449...... 57235 39 ...... 56710, 56713, 56717, 8450...... 57237 57402, 57405, 57408, 57411, World Wide Web 8451...... 58529 57559, 57561, 57564, 57567, Full text of the daily Federal Register, CFR and other publications 8452...... 58531 57571, 57574, 57577, 57578, is located at: http://www.gpoaccess.gov/nara/index.html Executive Orders: 58191, 58195, 58539 Federal Register information and research tools, including Public 13183 (amended by 71...... 57246 Inspection List, indexes, and links to GPO Access are located at: 13517) ...... 57239 97...... 58200, 58202 http://www.archives.gov/federallregister 13462 (amended by Proposed Rules: E-mail 13516) ...... 57241 1...... 58918 13494 (amended by 23...... 58918 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13517) ...... 57239 39 ...... 56748, 57264, 57266, an open e-mail service that provides subscribers with a digital 13516...... 56521, 57241 57268, 57271, 57273, 57277, form of the Federal Register Table of Contents. The digital form 13517...... 57239 58919 of the Federal Register Table of Contents includes HTML and 13518...... 58533 71 ...... 57616, 57617, 57618, PDF links to the full text of each document. Administrative Orders: 57620, 57621, 58569, 58570, To join or leave, go to http://listserv.access.gpo.gov and select Memorandums: 58571, 58573 Online mailing list archives, FEDREGTOC-L, Join or leave the list Memo. of Nov. 5, 15 CFR (or change settings); then follow the instructions. 2009 ...... 57881 Notices: 744...... 57061 PENS (Public Law Electronic Notification Service) is an e-mail 774...... 57581 service that notifies subscribers of recently enacted laws. Notice of Nov. 6, 2009 ...... 58187 Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Notice of November 922...... 58923 and select Join or leave the list (or change settings); then follow 12, 2009 ...... 58841 16 CFR the instructions. 5 CFR Proposed Rules: FEDREGTOC-L and PENS are mailing lists only. We cannot 305...... 57950 respond to specific inquiries. Proposed Rules: 731...... 56747 Reference questions. Send questions and comments about the 17 CFR 1604...... 57125 Federal Register system to: [email protected] 4...... 57585 1651...... 57125 The Federal Register staff cannot interpret specific documents or 211...... 57062 1653...... 57125 248...... 58204 regulations. 1690...... 57125 18 CFR Reminders. Effective January 1, 2009, the Reminders, including 7 CFR Rules Going Into Effect and Comments Due Next Week, no longer 375...... 57246 appear in the Reader Aids section of the Federal Register. This 11...... 57401 information can be found online at http://www.regulations.gov. 301...... 57243 19 CFR 319...... 56523 Proposed Rules: CFR Checklist. Effective January 1, 2009, the CFR Checklist no 354...... 57057 longer appears in the Federal Register. This information can be 113...... 57125 966...... 57057 191...... 57125 found online at http://bookstore.gpo.gov/. 983...... 56526, 565231 984...... 56693 20 CFR FEDERAL REGISTER PAGES AND DATE, NOVEMBER 987...... 56697 1910...... 57883 1710...... 56542 56521–56692...... 2 Proposed Rules: Proposed Rules: 56693–57056...... 3 404 ...... 57970, 57971, 57972 920...... 58216 57057–57238...... 4 1710...... 56569 21 CFR 57239–57400...... 5 73...... 57248, 58843 57401–57558...... 6 9 CFR 528...... 58205 57559–57882...... 9 78...... 57245 Proposed Rules: 57883–58188...... 10 4...... 57973 58189–58532...... 12 10 CFR 58533–58842...... 13 Proposed Rules: 26 CFR 58843–59032...... 16 430...... 56928, 58915 1...... 57251, 57252

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602...... 57252 165...... 57427, 58223 71...... 57126 73 ...... 57281, 57282, 57283, Proposed Rules: 300...... 58575 58936 1...... 58574 34 CFR 721...... 57430 53...... 58574 Ch. 2 ...... 58436 1515...... 58576 48 CFR 28 CFR 38 CFR 42 CFR 3009...... 58851 2...... 58540 3...... 57072, 58232 34...... 56547 3052...... 58851 200...... 57608 52...... 57918 Proposed Rules: 29 CFR 409...... 58078 3...... 58584 4022...... 58544 39 CFR 424...... 58078 52...... 58584 Proposed Rules: 20...... 57890 484...... 58078 1202...... 56750, 57427 111...... 57899 Proposed Rules: 49 CFR 1206...... 56750, 57427 3001...... 57252 410...... 57127 234...... 58560 1910...... 57278, 57976 3004...... 57252 413...... 57127 564...... 58213 1915...... 57278 3020...... 56544 414...... 57127 571...... 58213, 58562 1926...... 57278 Proposed Rules: 44 CFR Proposed Rules: 3050...... 57280 234...... 58589 31 CFR 65...... 57921 571...... 57623 285...... 56719 40 CFR 67 ...... 57923, 57928, 57944 633...... 57986 501...... 57593 51...... 56721 206...... 58849 Proposed Rules: 52 ...... 56721, 57048, 57051, Proposed Rules: 103...... 58926 57074, 57612, 57904, 57907, 67...... 57979 50 CFR 58553 17...... 56978 32 CFR 81...... 58687 45 CFR 20...... 57615 239...... 58846 112...... 58783 82...... 58189 229...... 58859 311...... 58205 141...... 57908 300...... 57105 806b...... 57414 180 ...... 57076, 57078, 57081 46 CFR 622...... 57261, 58902 Proposed Rules: 261...... 57418 Proposed Rules: 648...... 56562, 58567 806b...... 57427 300...... 57085, 58554 540...... 56756 660...... 57117, 57425 721...... 57424 679 ...... 56728, 56734, 57262, 33 CFR 47 CFR Proposed Rules: 57949 117 ...... 57884, 58209, 58210 51...... 57126 2...... 57092 Proposed Rules: 165 ...... 57070, 57415, 57886, 52 ...... 56754, 57049, 57055, 25...... 57092 17 ...... 56757, 56770, 57804, 57888, 58211, 58545 57126, 57622, 57978 73 ...... 56726, 56727, 57103, 57987 334...... 58846, 58848 60...... 58574 57104, 57260, 58851 223...... 57436 Proposed Rules: 61...... 58574 Proposed Rules: 224...... 57436 117 ...... 57975, 58931, 58933 63...... 58574 36...... 57982 635...... 57128 161...... 58223 70...... 57126 54...... 57982 648...... 57134, 58234

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Register but may be ordered S. 509/P.L. 111–98 enacted public laws. To in ‘‘slip law’’ (individual To authorize a major medical subscribe, go to http:// LIST OF PUBLIC LAWS pamphlet) form from the facility project at the listserv.gsa.gov/archives/ Superintendent of Documents, Department of Veterans Affairs publaws-l.html This is a continuing list of U.S. Government Printing Medical Center, Walla Walla, public bills from the current Office, Washington, DC 20402 Washington, and for other session of Congress which (phone, 202–512–1808). The purposes. (Nov. 11, 2009; 123 Note: This service is strictly have become Federal laws. It text will also be made Stat. 3010) for E-mail notification of new may be used in conjunction available on the Internet from Last List November 10, 2009 laws. The text of laws is not with ‘‘P L U S’’ (Public Laws GPO Access at http:// available through this service. Update Service) on 202–741– www.gpoaccess.gov/plaws/ PENS cannot respond to 6043. This list is also index.html. Some laws may Public Laws Electronic specific inquiries sent to this available online at http:// not yet be available. Notification Service address. www.archives.gov/federal- (PENS) register/laws.html. S. 475/P.L. 111–97 Military Spouses Residency The text of laws is not Relief Act (Nov. 11, 2009; 123 PENS is a free electronic mail published in the Federal Stat. 3007) notification service of newly

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