Vol. 76 Tuesday, No. 80 April 26, 2011

Pages 23169–23448

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 80

Tuesday, April 26, 2011

Agency for International Development See National Oceanic and Atmospheric Administration NOTICES FY 2011 Emergency Food Assistance Annual Program Commodity Futures Trading Commission Statement, 23272 PROPOSED RULES Meetings: Swaps and Security-Based Swaps Under the Dodd–Frank Advisory Committee on Voluntary Foreign Aid, 23272 Wall Street Reform and Consumer Protection Act: Joint Public Roundtable on Issues Related to the Agriculture Department Schedule for Implementing Final Rules, 23221–23222 See Animal and Plant Health Inspection Service See Forest Service Defense Department See Navy Department Animal and Plant Health Inspection Service PROPOSED RULES NOTICES Federal Acquisition Regulations: Agency Information Collection Activities; Proposals, Organizational Conflicts of Interest, 23236–23254 Submissions, and Approvals: Trichinae Certification Program, 23272–23273 Education Department NOTICES Bureau of Ocean Energy Management, Regulation and Agency Information Collection Activities; Proposals, Enforcement Submissions, and Approvals, 23314–23315 Meetings: NOTICES National Advisory Committee on Institutional Quality, Meetings: 23317–23319 Outer Continental Shelf Scientific Committee; Plenary National Advisory Committee on Institutional Quality Session, 23331 and Integrity, 23316–23317

Children and Families Administration Energy Department NOTICES See Federal Energy Regulatory Commission Agency Information Collection Activities; Proposals, Submissions, and Approvals: Environmental Protection Agency State Plan for the Temporary Assistance of Needy RULES Families, 23324 Approvals and Promulgations of Air Quality Implementation Plans: Civil Rights Commission Illinois, 23196–23198 NOTICES Meetings: Federal Aviation Administration Alaska Advisory Committee, 23277 RULES Airworthiness Directives: Coast Guard DG Flugzeugbau GmbH Glaser–Dirks Model DG–808C RULES Gliders, 23169–23171 Drawbridge Operation Regulations: PROPOSED RULES Isle of Wight (Sinepuxent) Bay, Ocean City, MD, 23185– Airworthiness Directives: 23187 Airbus Model A330–200, A330–300, A340–300, A340– New Jersey Intracoastal Waterway, Beach Thorofare, NJ, 500, and A340–600 Series Airplanes, 23218–23221 23187–23188 NOTICES Sacramento River, Sacramento, CA, 23188 Meetings: Hydroplane Races within Captain of Port Puget Sound Area U.S. Registration of Aircraft in Name of Owner Trustees, of Responsibility 23185 23353–23354 Safety Zones: Pensacola Bay; Pensacola, FL, 23189–23191 Federal Contract Compliance Programs Office Traffic Separation Schemes: PROPOSED RULES Approaches to Portland, ME; Boston, MA; Narragansett Affirmative Action and Nondiscrimination Obligations of Bay, RI and Buzzards Bay, MA; Chesapeake Bay, VA, Contractors and Subcontractors Regarding Protected and Cape Fear River, NC, 23193–23196 Veterans, 23358–23425 Strait of Juan de Fuca and its Approaches; Puget Sound and its Approaches; and Haro Strait, Boundary Pass, Federal Energy Regulatory Commission and Strait of Georgia, 23191–23193 RULES PROPOSED RULES Electric Reliability Organization Interpretations of Safety Zones: Interconnection Reliability Operations, etc., 23171– Newport River; Morehead City, NC, 23227–23229 23177 PROPOSED RULES Commerce Department Electric Reliability Organization Interpretation of See International Trade Administration Transmission Operations Reliability, 23222–23225

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NOTICES Indian Community Development Block Grant, 23328– Combined Filings, 23319–23321 23329 Preliminary Permit Applications Accepted for Filing and Public Housing Authority Executive Compensation, Soliciting Comments, Motions to Intervene, etc.: 23330 New Sweden Irrigation District, ID, 23321–23322 Funding Availabilities: Storage Development Partners, LLC, 23322 Fiscal Year 2011 Indian Community Development Block Grant Program, 23330–23331 Federal Reserve System NOTICES Indian Affairs Bureau Changes in Bank Control: NOTICES Acquisitions of Shares of Bank or Bank Holding Agency Information Collection Activities; Proposals, Company, 23322–23323 Submissions, and Approvals: Native American Business Development Institute Federal Transit Administration Funding Solicitations and Reporting, 23331–23333 NOTICES Agency Information Collection Activities; Proposals, Interior Department Submissions, and Approvals, 23354–23355 See Bureau of Ocean Energy Management, Regulation and Enforcement Fish and Wildlife Service See Fish and Wildlife Service PROPOSED RULES See Indian Affairs Bureau Endangered and Threatened Wildlife and Plants: See Land Management Bureau 90-Day Finding on Petition to List Arapahoe Snowfly as See National Park Service Endangered or Threatened, 23256–23265 90-Day Finding on Petition to List Smooth-Billed Ani as International Trade Administration Threatened or Endangered, 23265–23271 PROPOSED RULES Revised List of Migratory Birds, 23428–23448 Antidumping and Countervailing Duty Investigations: Acceptance of Bonds During Provisional Measures Food and Drug Administration Period, 23225–23227 NOTICES NOTICES Meetings: Amended Antidumping Duty Orders in Accordance with Endocrinologic and Metabolic Drugs Advisory Final Court Decision: Committee, 23324–23325 Certain Frozen Warmwater Shrimp from Brazil, India, the Forest Service Peoples Republic of China, Thailand, and the Socialist Republic of Vietnam, 23277–23279 NOTICES Amended Final Results of the First Antidumping Duty Environmental Impact Statements; Availability, etc.: Administrative Review: Mt. Bachelor Ski Area Improvements Project, Deschutes Certain Steel Nails from the People’s Republic of China, National Forest, OR, 23273–23275 23279–23281 Meetings: Antidumping Duty Investigations; Initiations: Allegheny Resource Advisory Committee, 23275–23276 Bottom Mount Combination Refrigerator–Freezers from Huron Manistee Resource Advisory Committee, 23276– Republic of Korea and Mexico, 23281–23286 23277 Binational Panel Reviews, Completion, North American Lake Tahoe Basin Federal Advisory Committee, 23276 Free Trade Agreement, Article 1904, 23286 Trinity County Resource Advisory Committee, 23276 Countervailing Duty Administrative Reviews; Final Results: General Services Administration New Pneumatic Off-the-Road Tires from People’s PROPOSED RULES Republic of China, 23286–23288 Federal Acquisition Regulations: Final Results of Antidumping Duty Administrative Review Organizational Conflicts of Interest, 23236–23254 and Partial Rescission: Certain Lined Paper Products from the People’s Republic Health and Human Services Department of China, 23288–23294 See Children and Families Administration Initiation of Antidumping Duty Investigation: See Food and Drug Administration Certain Steel Wheels from the People’s Republic of See National Institutes of Health China, 23294–23298 NOTICES Initiation of Countervailing Duty Investigation: Meetings: Bottom Mount Combination Refrigerator–Freezers from Scientific Advisory Committee on Alternative the Republic of Korea, 23298–23302 Toxicological Methods, 23323–23324 Certain Steel Wheels from the Peoples Republic of China, 23302–23305 Homeland Security Department See Coast Guard Justice Department See Transportation Security Administration NOTICES Agency Information Collection Activities; Proposals, Housing and Urban Development Department Submissions, and Approvals: NOTICES Annual Certification Report and Equitable Sharing Agency Information Collection Activities; Proposals, Agreement, 23338 Submissions, and Approvals: Consolidated Plan and Annual Performance Report, Labor Department 23329–23330 See Federal Contract Compliance Programs Office

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Land Management Bureau Sequoia and Kings Canyon National Parks, Tulare and RULES Fresno Counties, CA, Wilderness Stewardship Plan, Segregation of Lands—Renewable Energy, 23198–23205 23335–23337 PROPOSED RULES Tamiami Trail Modifications; Next Steps Project, 23337– Segregation of Lands—Renewable Energy, 23230–23236 23338 NOTICES Filings of Plats of Survey: Navy Department Idaho, 23333 NOTICES Public Land Orders: Intents to Grant Partially Exclusive Patent Licenses: No. 7761; Extension of Public Land Order No. 6849; Sean Linehan, 23314 Nevada, 23335 No. 7763; Partial Revocation of Public Land Order No. Nuclear Regulatory Commission 3708; Alaska, 23334–23335 PROPOSED RULES Proposed Withdrawal Extension and Opportunity for Alternative to Minimum Days Off Requirements, 23208– Public Meeting; Wyoming, 23333–23334 23218 NOTICES Marine Mammal Commission License Amendments: NOTICES Decommission Plan Approval, University of Arizona Committee of Scientific Advisors on Marine Mammals; Research Reactor, 23339–23340 Nominations, 23339 Meetings: Advisory Committee on Reactor Safeguards, 23340–23341 National Aeronautics and Space Administration Meetings; Sunshine Act, 23341–23342 PROPOSED RULES Federal Acquisition Regulations: Securities and Exchange Commission Organizational Conflicts of Interest, 23236–23254 PROPOSED RULES NOTICES Swaps and Security-Based Swaps Under the Dodd–Frank Meetings: Wall Street Reform and Consumer Protection Act: Aerospace Safety Advisory Panel; Correction, 23339 Joint Public Roundtable on Issues Related to the Schedule for Implementing Final Rules, 23221–23222 National Highway Traffic Safety Administration NOTICES PROPOSED RULES Applications: Federal Motor Vehicle Safety Standards: Russell Investment Management Company, et al., 23342– Lamps, Reflective Devices, and Associated Equipment, 23349 23254–23256 Self-Regulatory Organizations; Proposed Rule Changes: NASDAQ Stock Market LLC, 23349–23352 National Institutes of Health State Department NOTICES RULES Meetings: Exchange Visitor Program—Summer Work Travel, 23177– National Institute of Biomedical Imaging and 23185 Bioengineering, 23326 NOTICES National Institute of Diabetes and Digestive and Kidney Meetings: Diseases, 23325–23326 U.S. Advisory Commission on Public Diplomacy, 23352– 23353 National Oceanic and Atmospheric Administration RULES Transportation Department Fisheries of Caribbean, Gulf of Mexico, and South Atlantic: See Federal Aviation Administration Snapper–Grouper Fishery; Reopening of Commercial See Federal Transit Administration Sector for Vermilion Snapper, 23205–23206 See National Highway Traffic Safety Administration Fisheries of Northeastern United States: See Transportation Security Administration Summer Flounder Fishery; Quota Transfer, 23206–23207 NOTICES Transportation Security Administration Applications: NOTICES Endangered Species; File No. 15672, 23305 Agency Information Collection Activities; Proposals, Requests For Applications: Submissions, and Approvals: Stellwagen Bank National Marine Sanctuary Advisory Highway Corporate Security Review, 23327–23328 Coucil; Availability of Seats, 23305–23306 Transportation Worker Identification Credential Program, Takes of Marine Mammals Incidental to Specified 23326–23327 Activities: Russian River Estuary Management, 23306–23314 Separate Parts In This Issue National Park Service NOTICES Part II Boundary Revisions: Labor Department, Federal Contract Compliance Programs Chesapeake and Ohio Canal National Historical Park, Office, 23358–23425 23335 Environmental Impact Statements; Availability, etc.: Part III Lassen Volcanic National Park, Plumas County, CA, Interior Department, Fish and Wildlife Service, 23428– Warner Valley Comprehensive Site Plan, 23337 23448

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To subscribe to the Federal Register Table of Contents Reader Aids LISTSERV electronic mailing list, go to http:// Consult the Reader Aids section at the end of this page for listserv.access.gpo.gov and select Online mailing list phone numbers, online resources, finding aids, reminders, archives, FEDREGTOC-L, Join or leave the list (or change and notice of recently enacted public laws. 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 17 (2 documents) ...... 23256, Proposed Rules: 23265 21...... 23428 26...... 23208 14 CFR 39...... 23169 Proposed Rules: 39...... 22318 17 CFR Proposed Rules: Ch. I ...... 23221 Ch. II ...... 23221 18 CFR 40...... 23171 Proposed Rules: 40...... 23222 19 CFR Proposed Rules: 351...... 23225 22 CFR 62...... 23177 33 CFR 100...... 23185 117 (3 documents) ...... 23815, 23187, 23188 165...... 23189 167 (2 documents) ...... 23191, 23193 Proposed Rules: 165...... 23227 40 CFR 52...... 23196 41 CFR Proposed Rules: 60-250...... 23358 60-300...... 23358 43 CFR 2090...... 23198 2800...... 23198 Proposed Rules: 2090...... 23230 2800...... 23230 48 CFR Proposed Rules: 2...... 23236 3...... 23236 4...... 23236 7...... 23236 9...... 23236 11...... 23236 12...... 23236 13...... 23236 14...... 23236 15...... 23236 16...... 23236 18...... 23236 37...... 23236 42...... 23236 52...... 23236 53...... 23236 49 CFR Proposed Rules: 571 (2 documents) ...... 23254, 23255 50 CFR 622...... 23205 648...... 23206 Proposed Rules: 10...... 23428

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Rules and Regulations Federal Register Vol. 76, No. 80

Tuesday, April 26, 2011

This section of the FEDERAL REGISTER We must receive comments on this 2011–0053–E, dated March 24, 2011 contains regulatory documents having general AD by June 10, 2011. (referred to after this as ‘‘the MCAI’’), to applicability and legal effect, most of which ADDRESSES: You may send comments by correct an unsafe condition for the are keyed to and codified in the Code of any of the following methods: specified products. The MCAI states: Federal Regulations, which is published under • 50 titles pursuant to 44 U.S.C. 1510. Federal eRulemaking Portal: Go to It has been reported by DG–808 C owners http://www.regulations.gov. Follow the that the bolt at the landing gear control The Code of Federal Regulations is sold by instructions for submitting comments. • bellcrank was found mounted in the wrong the Superintendent of Documents. Prices of Fax: (202) 493–2251. direction. Further investigations have shown new books are listed in the first FEDERAL • Mail: U.S. Department of that in such situation, the bolt could interfere REGISTER issue of each week. Transportation, Docket Operations, and damage: M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey —The air brake control pushrod, and —The wing flap control pushrod if the DEPARTMENT OF TRANSPORTATION Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of landing gear is operated with negative flap Federal Aviation Administration settings. Transportation, Docket Operations, M–30, West Building Ground Floor, This condition, if not detected and 14 CFR Part 39 Room W12–140, 1200 New Jersey corrected, may lead to reduce the [Docket No. FAA–2011–0409; Directorate Avenue, SE., Washington, DC 20590, controllability of the powered sailplane. Identifier 2011–CE–011–AD; Amendment between 9 a.m. and 5 p.m., Monday For the reasons described above, this AD 39–16678; AD 2011–09–16] through Friday, except Federal holidays. requires to inspect the landing gear control bellcrank bolt for proper installation and the RIN 2120–AA64 For service information identified in this AD, contact DG-Flugzeugbau accomplishment of the associated corrective Airworthiness Directives; DG GmbH, Otto-Lilienthal-Weg 2, D 76 646 actions, as applicable. Flugzeugbau GmbH Glaser-Dirks Bruchsal, Germany; telephone: +49 7251 EASA issued AD No.: 2011–0053–E Model DG–808C Gliders 3020 140; fax: +49 7251 3020 149; based on their determination that this Internet: http://www.dg-flugzeugbau.de/ AGENCY: Federal Aviation was a production error and a quality index-e.html; e-mail: dg@dg- control problem. You may obtain further Administration (FAA), DOT. flugzeugbau.de. You may review copies information by examining the MCAI in ACTION: Final rule; request for of the referenced service information at the AD docket. comments. the FAA, Small Airplane Directorate, SUMMARY: We are adopting a new 901 Locust, Kansas City, Missouri Relevant Service Information airworthiness directive (AD) for the 64106. For information on the DG Flugzeugbau GmbH has issued products listed above. This AD results availability of this material at the FAA, Technical note No. 800/40, dated from mandatory continuing call (816) 329–4148. February 14, 2011; and Section A–A of airworthiness information (MCAI) Examining the AD Docket issued by the aviation authority of Undercarriage control circuit Diagram You may examine the AD docket on another country to identify and correct 15, dated November 2004, of DG the Internet at http:// an unsafe condition on an aviation Flugzeugbau GmbH Maintenance www.regulations.gov; or in person at the product. The MCAI describes the unsafe Manual for the Motorglider DG–808C, Docket Management Facility between condition as: dated June 2005. The actions described 9 a.m. and 5 p.m., Monday through in this service information are intended It has been reported by DG–808 C owners Friday, except Federal holidays. The AD to correct the unsafe condition that the bolt at the landing gear control docket contains this AD, the regulatory bellcrank was found mounted in the wrong identified in the MCAI. direction. Further investigations have shown evaluation, any comments received, and that in such situation, the bolt could interfere other information. The street address for FAA’s Determination and Requirements and damage: the Docket Office (telephone (800) 647– of the AD 5527) is in the ADDRESSES section. —The air brake control pushrod, and This product has been approved by —The wing flap control pushrod if the Comments will be available in the AD landing gear is operated with negative flap docket shortly after receipt. the aviation authority of another settings. FOR FURTHER INFORMATION CONTACT: Jim country, and is approved for operation This condition, if not detected and Rutherford, Aerospace Engineer, FAA, in the United States. Pursuant to our corrected, may lead to reduce the Small Airplane Directorate, 901 Locust, bilateral agreement with this State of controllability of the powered sailplane. Room 301, Kansas City, Missouri 64106; Design Authority, they have notified us This AD requires actions that are telephone: (816) 329–4165; fax: (816) of the unsafe condition described in the intended to address the unsafe 329–4090. MCAI and service information condition described in the MCAI. SUPPLEMENTARY INFORMATION: referenced above. We are issuing this DATES: This AD becomes effective May AD because we evaluated all 2, 2011. Discussion information provided by the State of On May 2, 2011, the Director of the The European Aviation Safety Agency Design Authority and determined the Federal Register approved the (EASA), which is the Technical Agent unsafe condition exists and is likely to incorporation by reference of certain for the Member States of the European exist or develop on other products of the publications listed in this AD. Community, has issued EASA AD No.: same type design.

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Differences Between This AD and the personal information you provide. We on a substantial number of small entities MCAI or Service Information will also post a report summarizing each under the criteria of the Regulatory We have reviewed the MCAI and substantive verbal contact we receive Flexibility Act. related service information and, in about this AD. We prepared a regulatory evaluation general, agree with their substance. But Costs of Compliance of the estimated costs to comply with this AD and placed it in the AD docket. we might have found it necessary to use We estimate that this AD will affect 5 different words from those in the MCAI products of U.S. registry. We also List of Subjects in 14 CFR Part 39 to ensure the AD is clear for U.S. estimate that it would take about 0.5 Air transportation, Aircraft, Aviation operators and is enforceable. In making work-hour per product to comply with these changes, we do not intend to differ safety, Incorporation by reference, the basic requirements of this AD. The Safety. substantively from the information average labor rate is $85 per work-hour. provided in the MCAI and related Required parts would cost about $0 per Adoption of the Amendment service information. product. We might have also required different Accordingly, under the authority Based on these figures, we estimate delegated to me by the Administrator, actions in this AD from those in the the cost of the AD on U.S. operators to MCAI in order to follow FAA policies. the FAA amends 14 CFR part 39 as be $213, or $43 per product. follows: Any such differences are described in a In addition, we estimate that any separate paragraph of the AD. These necessary follow-on actions would take PART 39—AIRWORTHINESS requirements take precedence over about 0.5 work-hour and require parts DIRECTIVES those copied from the MCAI. costing $250, for a cost of $293 per FAA’s Determination of the Effective product. We have no way of ■ 1. The authority citation for part 39 Date determining the number of products continues to read as follows: that may need these actions. An unsafe condition exists that Authority: 49 U.S.C. 106(g), 40113, 44701. requires the immediate adoption of this Authority for This Rulemaking § 39.13 [Amended] AD. The FAA has found that the risk to Title 49 of the United States Code ■ 2. The FAA amends § 39.13 by adding the flying public justifies waiving notice specifies the FAA’s authority to issue the following new AD: and comment prior to adoption of this rules on aviation safety. Subtitle I, rule because it has been reported that section 106, describes the authority of 2011–09–16 DG Flugzeugbau GmbH: bolts at the landing gear control the FAA Administrator. ‘‘Subtitle VII: Amendment 39–16678; Docket No. bellcrank were mounted in the wrong Aviation Programs,’’ describes in more FAA–2011–0409; Directorate Identifier 2011–CE–011–AD. direction. The incorrectly mounted bolt detail the scope of the Agency’s could interfere and damage the air brake authority. Effective Date control pushrod and the wing flap We are issuing this rulemaking under (a) This airworthiness directive (AD) control pushrod if the landing gear is the authority described in ‘‘Subtitle VII, becomes effective May 2, 2011. operated with negative flap settings. Part A, Subpart III, Section 44701: Affected ADs This condition, if not detected and General requirements.’’ Under that corrected, may lead to reducing the section, Congress charges the FAA with (b) None. controllability of the powered sailplane. promoting safe flight of civil aircraft in Applicability Therefore, we determined that notice air commerce by prescribing regulations (c) This AD applies to DG Flugzeugbau and opportunity for public comment for practices, methods, and procedures GmbH Glaser-Dirks Models DG–808C gliders, before issuing this AD are impracticable the Administrator finds necessary for serial numbers 8–316 B 216 X 1 through and that good cause exists for making safety in air commerce. This regulation 8–417 B 316 X 76, certificated in any this amendment effective in fewer than is within the scope of that authority category. 30 days. because it addresses an unsafe condition Subject that is likely to exist or develop on Comments Invited (d) Air Transport Association of America products identified in this rulemaking (ATA) Code 27: Flight Controls. This AD is a final rule that involves action. requirements affecting flight safety, and Reason Regulatory Findings we did not precede it by notice and (e) The mandatory continuing opportunity for public comment. We We determined that this AD will not airworthiness information (MCAI) states: invite you to send any written relevant have federalism implications under It has been reported by DG–808 C owners data, views, or arguments about this AD. Executive Order 13132. This AD will that the bolt at the landing gear control Send your comments to an address not have a substantial direct effect on bellcrank was found mounted in the wrong listed under the ADDRESSES section. the States, on the relationship between direction. Further investigations have shown Include ‘‘Docket No. FAA–2011–0409; the national government and the States, that in such situation, the bolt could interfere Directorate Identifier 2011–CE–011–AD’’ or on the distribution of power and and damage: at the beginning of your comments. We responsibilities among the various —The air brake control pushrod, and specifically invite comments on the levels of government. —The wing flap control pushrod if the overall regulatory, economic, For the reasons discussed above, I landing gear is operated with negative flap settings. environmental, and energy aspects of certify that this AD: this AD. We will consider all comments (1) Is not a ‘‘significant regulatory This condition, if not detected and received by the closing date and may ’’ corrected, may lead to reduce the action under Executive Order 12866; controllability of the powered sailplane. amend this AD because of those (2) Is not a ‘‘significant rule’’ under For the reasons described above, this AD comments. DOT Regulatory Policies and Procedures requires to inspect the landing gear control We will post all comments we (44 FR 11034, February 26, 1979); and bellcrank bolt for proper installation and the receive, without change, to http:// (3) Will not have a significant accomplishment of the associated corrective www.regulations.gov, including any economic impact, positive or negative, actions, as applicable.

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Actions and Compliance including the time for reviewing instructions, DEPARTMENT OF ENERGY (f) Unless already done, do the following completing and reviewing the collection of actions. information. All responses to this collection Federal Energy Regulatory (1) Before further flight after May 2, 2011 of information are mandatory. Comments Commission (the effective date of this AD), inspect the concerning the accuracy of this burden and landing gear control bellcrank bolt M6x26 suggestions for reducing the burden should 18 CFR Part 40 LN9037 for proper installation following be directed to the FAA at: 800 Independence [Docket No. RM10–8–000; Order No. 750] DG–Flugzeugbau GmbH Technical note Ave., SW., Washington, DC 20591, Attn: No. 800/40, dated February 14, 2011. Information Collection Clearance Officer, (2) If, during the inspection required by Electric Reliability Organization AES–200. paragraph (f)(1) of this AD, the bolt is found Interpretations of Interconnection mounted in the wrong direction, before Related Information Reliability Operations and further flight, do the following actions: (h) Refer to MCAI European Aviation Coordination and Transmission (i) Install the landing gear control bellcrank Operations Reliability Standards bolt M6x26 LN9037 and its washers and nut Safety Agency (EASA) AD No.: 2011–0053– correctly following DG–Flugzeugbau GmbH E, dated March 24, 2011, DG–Flugzeugbau AGENCY: Federal Energy Regulatory Technical note No. 800/40, dated February GmbH Technical note No. 800/40, dated Commission, Energy. 14, 2011; and Section A–A of Undercarriage February 14, 2011; and Section A–A of ACTION: Final rule. control circuit Diagram 15, dated November Undercarriage control circuit Diagram 15, 2004, of DG Flugzeugbau GmbH Maintenance dated November 2004, of DG Flugzeugbau SUMMARY: Pursuant to section 215 of the Manual for the Motorglider DG–808C, dated GmbH Maintenance Manual for the June 2005. Federal Power Act, the Federal Energy Motorglider DG–808C, dated June 2005, for (ii) Inspect the air brake control pushrod Regulatory Commission hereby (part number (P/N) 6St13) and the wing flap related information. approves the North American Electric control pushrod (P/N 8St7) for damage. If any Material Incorporated by Reference Reliability Corporation’s (NERC) pushrod is damaged, before further flight, interpretation of the Commission- (i) You must use DG–Flugzeugbau GmbH replace it with a serviceable part following approved Reliability Standards, IRO– Technical note No. 800/40, dated February DG–Flugzeugbau GmbH Technical note No. 005–1, Reliability Coordination— 800/40, dated February 14, 2011. 14, 2011; and Section A–A of Undercarriage control circuit Diagram 15, dated November Current-Day Operations, Requirement FAA AD Differences 2004, of DG Flugzeugbau GmbH Maintenance R12, and TOP–005–1, Operational Note: This AD differs from the MCAI Manual for the Motorglider DG–808C, dated Reliability Information, Requirement and/or service information as follows: No June 2005, to do the actions required by this R3. Specifically, the interpretation finds differences. AD, unless the AD specifies otherwise. that a transmission owner must report a Special Protection System that is Other FAA AD Provisions (1) The Director of the Federal Register approved the incorporation by reference of operating with only one communication (g) The following provisions also apply to this service information under 5 U.S.C. channel in service to the reliability this AD: 552(a) and 1 CFR part 51. coordinator and neighboring systems (1) Alternative Methods of Compliance (2) For service information identified in upon request, or when the loss of the (AMOCs): The Manager, Standards Office, communication channel will result in FAA, has the authority to approve AMOCs this AD, contact DG-Flugzeugbau GmbH, for this AD, if requested using the procedures Otto-Lilienthal-Weg 2, D 76 646 Bruchsal, the failure of the Special Protection found in 14 CFR 39.19. Send information to Germany; telephone: +49 7251 3020 140; fax: System to operate as designed. Attn: Jim Rutherford, Aerospace Engineer, +49 7251 3020 149; Internet: http://www.dg- DATES: Effective Date: This rule will FAA, Small Airplane Directorate, 901 Locust, flugzeugbau.de/index-e.html; e-mail: dg@dg- become effective May 26, 2011. Room 301, Kansas City, Missouri 64106; flugzeugbau.de. FOR FURTHER INFORMATION CONTACT: telephone: (816) 329–4165; fax: (816) 329– (3) You may review copies of the 4090. Before using any approved AMOC on Danny Johnson (Technical Information), referenced service information at the FAA, any airplane to which the AMOC applies, Office of Electric Reliability, Federal notify your appropriate principal inspector Small Airplane Directorate, 901 Locust, Energy Regulatory Commission, 888 (PI) in the FAA Flight Standards District Kansas City, Missouri 64106. For information First Street, NE., Washington, DC 20426. Office (FSDO), or lacking a PI, your local on the availability of this material at the Telephone: (202) 502–8892. FSDO. FAA, call (816) 329–4148. [email protected]. (2) Airworthy Product: For any requirement (4) You may also review copies of the Richard M. Wartchow (Legal in this AD to obtain corrective actions from service information incorporated by reference Information), Office of the General a manufacturer or other source, use these for this AD at the National Archives and actions if they are FAA-approved. Corrective Counsel, Federal Energy Regulatory Records Administration (NARA). For Commission, 888 First Street, NE., actions are considered FAA-approved if they information on the availability of this are approved by the State of Design Authority Washington, DC 20426. Telephone: material at NARA, call (202) 741–6030, or go (or their delegated agent). You are required (202) 502–8744. to: http://www.archives.gov/federal_register/ to assure the product is airworthy before it _ _ _ SUPPLEMENTARY INFORMATION: is returned to service. code of federal regulations/ _ (3) Reporting Requirements: For any ibr locations.html. 135 FERC ¶ 61,041 reporting requirement in this AD, a federal Issued in Kansas City, Missouri, on April Before Commissioners: Jon Wellinghoff, agency may not conduct or sponsor, and a 19, 2011. Chairman; Marc Spitzer, Philip D. Moeller, person is not required to respond to, nor John R. Norris, and Cheryl A. LaFleur. shall a person be subject to a penalty for Earl Lawrence, failure to comply with a collection of Manager, Small Airplane Directorate, Aircraft information subject to the requirements of Certification Service. Issued April 21, 2011 the Paperwork Reduction Act unless that [FR Doc. 2011–10006 Filed 4–25–11; 8:45 am] 1. Pursuant to section 215 of the collection of information displays a current valid OMB Control Number. The OMB BILLING CODE 4910–13–P Federal Power Act, the Federal Energy Control Number for this information Regulatory Commission hereby collection is 2120–0056. Public reporting for approves the North American Electric this collection of information is estimated to Reliability Corporation’s (NERC) be approximately 5 minutes per response, interpretation of the Commission-

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approved Reliability Standards, IRO– 215(d)(5) of the FPA, the Commission 1. Reliability Standard IRO–005–1 005–1, Reliability Coordination— directed NERC to develop modifications Current-Day Operations, and TOP–005– to 56 of the 83 approved Reliability 6. Reliability Standard IRO–005–1 1, Operational Reliability Information. Standards.6 applies to transmission operators, balancing authorities, reliability Specifically, the interpretation finds 4. NERC’s Rules of Procedure provide coordinators and purchasing selling that a transmission owner must report a that a person that is ‘‘directly and entities. The IRO–005–1 Purpose Special Protection System that is materially affected’’ by Bulk-Power statement provides: ‘‘The Reliability operating with only one communication System reliability may request an Coordinator must be continuously channel in service to the reliability interpretation of a Reliability Standard.7 aware of conditions within its coordinator and neighboring systems The ERO’s standards process manager Reliability Coordinator Area and upon request, or when the loss of the will assemble a team with relevant include this information in its reliability communication channel will result in expertise to address the requested assessments. The Reliability the failure of the Special Protection interpretation and also form a ballot Coordinator must monitor Bulk Electric System to operate as designed. In the pool. NERC’s Rules provide that, within System parameters that may have Final Rule, the Commission declines to 45 days, the team will draft an significant impacts upon the Reliability adopt the proposal from the Notice of interpretation of the Reliability Coordinator Area and neighboring Proposed Rulemaking (NOPR) to direct Standard, with subsequent balloting. If Reliability Coordinator Areas.’’ the Electric Reliability Organization approved by ballot, the interpretation is Requirement R12 of IRO–005–1 states in (ERO) to develop modifications to the appended to the Reliability Standard, relevant part: Reliability Standards to require forwarded to the NERC Board of additional reporting and instead Trustees (Board) for adoption and filed Whenever a Special Protection System that approves the interpretation as with the applicable regulatory authority may have an inter-Balancing Authority, or submitted.1 for regulatory approval. inter-Transmission Operator impact (e.g., I. Background could potentially affect transmission flows B. IRO–005–1 and TOP–005–1 resulting in a SOL or IROL violation) is A. FPA Section 215 and Mandatory Reliability Standards armed, the Reliability Coordinator shall be Reliability Standards aware of the impact of the operation of that 5. In this proceeding, the Commission Special Protection System on inter-area 2. Section 215 of the FPA requires a addresses NERC’s interpretation of the flows. The Transmission Operator shall Commission-certified ERO to develop IRO–005–1 and TOP–005–1 Reliability immediately inform the Reliability mandatory and enforceable Reliability Standards, as previously discussed in Coordinator of the status of the Special Standards, which are subject to the NOPR. In Order No. 693, the Protection System including any degradation Commission review and approval. Once Commission approved prior versions of or potential failure to operate as expected. approved, the Reliability Standards may the IRO–005–1 and TOP–005–1, with 2. Reliability Standard TOP–005–1 be enforced by the ERO, subject to modifications.8 The Commission Commission oversight, or by the 7. Reliability Standard TOP–005–1 2 directed NERC to modify TOP–005–1 to Commission independently. specify the operational status of Special applies to transmission operators, 3. Pursuant to section 215 of the FPA, Protection Systems and power system balancing authorities, reliability the Commission established a process to stabilizers as information that coordinators and purchasing selling select and certify an ERO 3 and transmission operators are expected to entities, and has the stated purpose of subsequently certified NERC as the share, unless otherwise agreed.9 ensuring that reliability entities have the ERO.4 On April 4, 2006, as modified on Because these and other intervening operating data needed to monitor August 28, 2006, NERC submitted to the changes are not material to the system conditions within their areas.10 Commission a petition seeking approval substance of the interpretation, the of 107 proposed Reliability Standards. 8. Requirement R3 of TOP–005–1 discussion in this Final Rule is intended On March 16, 2007, the Commission states in relevant part: to apply equally to the subsequent issued a Final Rule, Order No. 693, versions of these standards as Upon request, each Balancing Authority approving 83 of these 107 Reliability and Transmission Operator shall provide to appropriate. Standards and directing other action other Balancing Authorities and related to these Reliability Standards.5 Transmission Operators with immediate In addition, pursuant to section 6 16 U.S.C. 824o(d)(5). Section 215(d)(5) provides, responsibility for operational reliability, the ‘‘The Commission * * * may order the Electric operating data that are necessary to allow Reliability Organization to submit to the these Balancing Authorities and 1 Electric Reliability Organization Interpretations Commission a proposed reliability standard or a of Interconnection Reliability Operations and modification to a reliability standard that addresses Transmission Operators to perform Coordination and Transmission Operations a specific matter if the Commission considers such operational reliability assessments and to Reliability Standards, Notice of Proposed a new or modified reliability standard appropriate coordinate reliable operations. Balancing Rulemaking, 75 FR 80391 (Dec. 22, 2010), 133 FERC to carry out this section.’’ Authorities and Transmission Operators shall ¶ 61,234, at P 27 (2010) (NOPR). 7 NERC’s interpretation process is detailed in its provide the types of data as listed in 2 See 16 U.S.C. 824o(e)(3). Rules of Procedure, Appendix 3A, Standards Attachment 1–TOP–005–0 ‘‘Electric System 3 Rules Concerning Certification of the Electric Process Manual, at 27–29 (effective Sept. 3, 2010). Reliability Data,’’ unless otherwise agreed to Reliability Organization; and Procedures for the 8 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at by the Balancing Authorities and Establishment, Approval and Enforcement of P 945, 1648. Transmission Operators with immediate Electric Reliability Standards, Order No. 672, FERC 9 Id. P 1648 (directing revisions to TOP–005–1, responsibility for operational reliability. Stats. & Regs. ¶ 31,204, order on reh’g, Order No. Attachment 1). The Commission addressed the most 672–A, FERC Stats. & Regs. ¶ 31,212 (2006). recent versions of the IRO–005–1 and TOP–005–1 4 North American Electric Reliability Corp., 116 Reliability Standards in Mandatory Reliability TOP–005–1, Attachment 1 includes FERC ¶ 61,062, order on reh’g & compliance, 117 Standards for Interconnection Reliability Operating ‘‘New or degraded special protection FERC ¶ 61,126 (2006), aff’d sub nom. Alcoa, Inc. Limits, Order No. 748, 76 FR, 16240 (Mar. 23, 2011), systems’’ in the types of data to be v. FERC, 564 F.3d 1342 (DC Cir. 2009). 134 FERC ¶ 61,213 (2011) (revising responsibilities reported. 5 Mandatory Reliability Standards for the Bulk- for interconnection reliability operating limit and Power System, Order No. 693, FERC Stats. & Regs. system operating limit monitoring), Notice of ¶ 31,242, order on reh’g, Order No. 693–A, 120 Proposed Rulemaking, 75 FR 71613 (Nov. 24, 2010), 10 Order No. 693, FERC Stats. & Regs. ¶ 31,242 FERC ¶ 61,053 (2007). FERC Stats. & Regs. ¶ 32,665, at P 65 (2010). at P 1642.

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C. Special Protection Systems system instability or cascading outages, the proposed interpretations to industry 9. Also in Order No. 693, the and protect other facilities in response ballot, using a process similar to the Commission reviewed standards to transmission outages. process it uses for the development of Reliability Standards.16 According to addressing Special Protection System D. NERC’s Interpretation Filing design, operation, and coordination.11 NERC, the interpretations were 12. NERC filed its interpretation on The Commission declined to approve developed and approved by industry November 24, 2009. The interpretation them because they were ‘‘fill in the stakeholders using the NERC Reliability responds to a request from Manitoba blank’’ standards that required regional Standards Development Procedure and reliability organizations to develop Hydro asking NERC to interpret whether approved by the NERC Board. criteria for each region. Subsequently, a Special Protection System that is 16. In response to Manitoba Hydro’s NERC has produced a white paper operating with only one communication interpretation request, NERC provided providing background for its Protection channel in service would be considered the following: ‘‘degraded,’’ and thus subject to the System Reliability Standards TOP–005–1 does not provide, nor does it development effort.12 After this reporting requirements found in these 15 require, a definition for the term ‘‘degraded.’’ standards development effort was standards. NERC’s interpretation finds The IRO–005–1 ([Requirement] R12) initiated, the NERC Regional Reliability that a transmission owner must report a standard implies that degraded is a condition Standards Working Group identified the Special Protection System that is that will result in a failure of an [Special Special Protection System standard as operating with only one communication Protection System] to operate as designed. If one that required regional standard channel in service to the reliability the loss of a communication channel will development.13 The Commission coordinator and neighboring systems result in the failure of an [Special Protection upon request, or when the loss of the System] to operate as designed, then the understands that the regional standard Transmission Operator would be mandated development efforts are currently communication channel will result in the failure of the Special Protection to report that information. On the other hand, ongoing. if the loss of a communication channel will 10. The NERC glossary provides System to operate as designed. not result in the failure of the [Special definitions of terms used in the 1. NERC Interpretation Process Protection System] to operate as designed, Reliability Standards and defines a then such a condition can be, but is not ‘‘Special Protection System’’ as: 13. Manitoba Hydro asked whether a mandated to be, reported. Special Protection System that is An automatic protection scheme designed operating with only one communication 17. In the background section of the to detect abnormal or predetermined system interpretation, NERC affirms that conditions and take corrective actions other channel in service would be considered ‘‘degraded’’ for the purposes of these transmission operators are required to than and/or in addition to the isolation of provide information such as that listed faulted component to maintain system standards. Manitoba Hydro stated: reliability. Such action may include changes in the TOP–005–1, Attachment 1 Unlike other facilities, Special Protection examples upon request, ‘‘whether or not in demand, generation (MW and MVAR), or Systems are required by NERC standards to system configuration to maintain system be designed with redundant communication [a facility] is or is not in some undefined 14 17 stability, acceptable voltage or power flows. channels, so that if one communication ‘degraded’ state.’’ 11. Special Protection Systems channel fails the [Special Protection System] 18. In addition, the background generally are used to address system is able to remain in operation. Requirement section of the NERC interpretation reliability vulnerabilities in lieu of R1.3 of NERC Standard PRC–012–0 requires emphasizes that the information to be installing additional Bulk-Power System a Regional Reliability Organization with provided under IRO–005–1 relates to Transmission Owners that use [Special events that may have a significant facilities. For instance, a Special Protection Systems] to have a documented Protection System may be used to review procedure to ensure that [Special impact on the system, especially where control generator output to limit line Protection Systems] comply with reliability operating limits are or may be exceeded. loading after a contingency, or a Special standards and criteria, including: Specifically, this background section Protection System may rely on pre- ‘‘requirements to demonstrate that the states: determined operational protocols to [Special Protection System] shall be designed IRO–005–1 mandates that each Reliability reconfigure the system in response to so that a single [Special Protection System] Coordinator monitor predefined base identified system conditions to prevent component failure, when the [Special conditions (Requirement R1), collect Protection System] was intended to operate, additional data when operating limits are or does not prevent the interconnected 11 may be exceeded (Requirement R3), and Order No. 693, FERC Stats. & Regs. ¶ 31,242 transmission system from meeting the at P 1520, 1528, et seq. (declining to approve or identify actual or potential threats remand certain Special Protection Systems-related performance requirements in TPL–001–0, (Requirement R5). The basis for that request Reliability Standards, including PRC–012–0, TPL–002–0 and TPL–003–0.’’ Accordingly, is left to each Reliability Coordinator. The Special Protection System Review Procedure; PRC– [Special Protection Systems] are designed to Purpose statement of IRO–005–1 focuses on 013–0, Special Protection System Database; PRC– continue to perform their function with only the Reliability Coordinator’s obligation to be 014–0, Special Protection System Assessment). The one communication channel in service. aware of conditions that may have a Commission used the term fill-in-the-blank standards to refer to proposed standards that 14. Accordingly, Manitoba Hydro ‘‘significant’’ impact upon its area and to required the regional reliability organizations to asserted that a Special Protection communicate that information to others develop at a later date criteria for use by users, System should not be considered (Requirements R7 and R9). Please note: it is owners or operators within each region. ‘‘degraded’’ if it is operating with one from this communication that Transmission 12 NERC System Protection and Control Operators and Balancing Authorities would Subcommittee (SPCS), November 18, 2008 white communication channel out of service. either obtain or would know to ask for paper on Protection System Reliability, Redundancy 15. Consistent with the NERC Rules of [Special Protection System] information from of Protection System Elements available at http:// Procedure, NERC assembled a team to another Transmission Operator.18 www.nerc.com/filez/spctf.html (posted Jan. 14, respond to the request for 2009). interpretations of these two Reliability 13 NERC Regional Reliability Standards Working 16 NERC Standards Process Manual at 27–29. Group, notes on October 29, 2009 meeting, Standard requirements and presented 17 NERC Petition, Exhibit B at 5 (proposing text available at http://www.nerc.com/filez/rrswg.html. of interpretation as Appendix 1 to IRO–005–1 and 14 In the Western Interconnection, a Special 15 The NERC Petition provides a copy of TOP–005–1, and including ‘‘Background Protection System is called a ‘‘Remedial Action Manitoba Hydro’s November 28, 2008 request for Information for Interpretation’’ section). Scheme.’’ interpretation as Exhibit A. 18 Id., Exhibit B at 6.

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19. In addition, the NERC Petition coordinators and transmission operators (TPL) standards, because the Special states: report whether it would be useful to the Protection System may not withstand a The NERC Board of Trustees, in approving operation and coordination of the second component failure. In these interpretations, did so using a standard transmission system to receive conclusion, the Commission expressed of strict construction that does not expand information concerning the loss of a its view that such a Special Protection the reach of the standard or correct a redundant communication channel. System would be operating at some state perceived gap or deficiency in the standard. 23. In the NOPR, the Commission less than the normal secure state and However, the NERC Board of Trustees acknowledged the NERC System should need to be reported to the recommended that any gaps or deficiencies Protection and Control Subcommittee’s appropriate reliability entities in order in a Reliability Standard that are evident (SPCS) November 18, 2008 white paper, through the interpretation process be for these reliability entities to accurately addressed promptly by the standard drafting ‘‘Protection System Reliability, assess operational reliability. team.19 Redundancy of Protection System Elements,’’ which explained that 2. Comments 20. NERC reports that it will examine ‘‘[r]edundancy means that two or more 25. NERC, Manitoba Hydro, any gaps or deficiencies in Reliability functionally equivalent Protection Bonneville Power Administration Standards TOP–005–1 and IRO–005–2 Systems are used to protect each electric (Bonneville), Edison Electric Institute when it develops the next version of system element.’’ 20 The SPCS also (EEI), Entergy Services, Inc. (Entergy) these standards through the Reliability explained that ‘‘[a] fundamental concept and the ISO/RTO Council submitted Standards development process. of redundancy is that Protection comments in response to the NOPR. According to NERC, the interpretations Systems need to be designed such that Electric Reliability Council of Texas, do not modify the language contained in electric system faults will be cleared, Inc. (ERCOT) submitted comments prior the requirements under review. NERC even if a component of the Protection to the NOPR. states that the interpretations do not System fails.’’ 21 In other words, 26. Commenters support the represent new or modified Reliability redundant communication channels are Commission’s proposal to approve Standard requirements and will provide NERC’s interpretation. However, with instruction and guidance of the intent a means to provide for the reliable respect to the Commission’s proposal to and application of the requirements. operation of the Special Protection direct NERC to develop additional NERC requests that the Commission System. Thus, the Commission found reporting requirements,22 NERC and approve the interpretations and make that, should a communication channel others responded to the Commission’s them effective immediately after fail at the time the Special Protection proposal and emphasize that the approval, consistent with the System is required to operate, the information to be reported under the Commission’s procedures. designed redundancy of the Special 21. NERC submitted its Petition for Protection System ensures that the Bulk- NOPR proposal is already available Approval of Interpretations to Power System can meet its reliability pursuant to other requirements. For Reliability Standard TOP–005–1— performance requirements. instance, ISO/RTO Council states that Operational Reliability Information and 24. However, the NOPR expressed the the information is available to a Reliability Standard IRO–005–1— Commission’s concern that, given reliability coordinator under IRO–002– 23 Reliability Coordination—Current Day NERC’s proposed interpretation, a loss 1, Requirement R2. NERC asserts that Operations (Petition) on November 24, of a communication channel, a knowledge of the loss of a 2009, seeking Commission approval of necessary and inherent performance communication channel could be of the interpretations referenced in the title requirement of a Special Protection general interest to a reliability of its pleading. System, may not be considered a coordinator or transmission operator reportable event under the current and reports that its drafting teams are E. Notice of Proposed Rulemaking reporting requirements. The NOPR currently reviewing whether such 1. Proposed Determination highlighted the critical status of Special entities should have the authority to Protection Systems, noting that they are request any and all information deemed 22. In the NOPR, the Commission by their nature used to address system necessary to protect the reliability of the proposed to approve the interpretation reliability vulnerabilities to prevent bulk electric system, including the as just and reasonable and not system instability, cascading outages, status of Special Protection System inconsistent with the language of the and protect other facilities in response communication channels.24 Reliability Standards. However, to to contingencies. Therefore, a failure of 27. Entergy cites IRO–005–2, address a concern that a Special the remaining communication Requirement R1.1 which states that a Protection System that has lost a component of a Special Protection reliability coordinator must monitor the communication channel could System creates a reliability risk to the status of bulk electric system elements, compromise system reliability, the Bulk-Power System. We continued that including critical auxiliaries such as Commission proposed to direct that the where one communication channel has Special Protection Systems. According ERO develop modifications to the failed, the Special Protection System to Entergy, IRO–005–2, Requirement Reliability Standards to address a may not be able to meet the performance potential reliability gap and ensure that criteria of the Reliability Standards and 22 NOPR, 133 FERC ¶ 61,234 at P 23, 27 a component failure, wherein a Special in particular the performance criteria (expressing concern that a Special Protection Protection System may not be able to System that has lost a communication channel specified in the Transmission Planning perform as designed to ensure required could compromise system reliability, but would not Bulk-Power System performance, is be reported to the appropriate reliability entities). 20 NERC SPCS White Paper at 9, available at 23 ISO/RTO Council at 3 (citing similar reported to the appropriate reliability http://www.nerc.com/filez/spctf.html (dated Jan. 14, requirement in new, proposed Reliability Standard, entities. To assist its consideration of 2009). IRO–010–1a, Requirement R3). See also NERC at the issues in this proceeding, the 21 Id.; see also Table 4–3 in the white paper 4–5; NOPR, 133 FERC ¶ 61,234 at P 18 (noting Commission requested comment on its noting possible responses to communication interpretation assertion that reporting under TOP– channel failure including adding a redundant 005–1 is not dependent on whether a Special proposal, and requested that reliability channel or performing testing to ensure that Protection System is in a degraded state); Order No. delayed fault clearing does not violate the planning 748, 134 FERC ¶ 61,213. 19 NERC Petition at 5. standards. 24 NERC at 4.

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R1.1, demonstrates that information on other communication channel in expert opinion and decline to adopt the the loss of Special Protection System service.28 NERC reports that industry NOPR proposal to direct the ERO communication channels is already experts determined that a reliability develop modifications to the Reliability available to reliability coordinators. coordinator or transmission operator Standards. These actions are discussed Entergy likewise cites IRO–005–2, will operate as usual, and not more more fully below. Requirement R1.1, which provides that conservatively, upon learning that a 34. The Commission agrees with the each reliability coordinator shall Special Protection System is operating ERO that, with regard to IRO–005–2 monitor its reliability coordinator area normally, even though a communication Requirement R12, if a redundant Special parameters, including ‘‘Current Status of channel is out of service, and objected Protection System with one Bulk Electric Systems elements to the proposal as imposing a reporting communication channel out of service (transmission or generation including burden without a corresponding can still perform reliably with the critical auxiliaries such as Automatic reliability benefit. remaining channel and its function Voltage Regulators and Special 30. According to ISO/RTO Council, would therefore not be considered Protection Systems) and system the loss of a communication channel degraded under IRO–005–2.32 We also loading.’’ 25 Entergy states, ‘‘In order to does not require specific planning and agree with the ERO and Entergy that if monitor the status of a Special operating actions based on the a reliability coordinator has identified a Protection System, a reliability particular system conditions being Special Protection System that is coordinator must know whether any of experienced.29 necessary for Reliable Operation, the the redundant components of a Special 31. Some commenters predict that reliability coordinator can request Protection System are non- requiring reports on out-of-service detailed data as needed, including the operational.’’ 26 communication channels could result in status of the components of a Special 28. Entergy also identifies IRO–002–1, a flood of reports that are not useful to Protection System.33 The Reliability Requirement R5, which provides that system planning and operation. Coordinator is obligated to receive and each Reliability coordinator shall have Bonneville reports that it has over 600 consider data to support its assessment of the capability to monitor its communication channels dedicated to of the performance of the system in reliability coordinator area and its Special Protection Systems, and order to protect against SOL and IROL surrounding reliability coordinator areas notes that some channels are bound to events—this could include data about ‘‘to ensure that potential or actual experience technical difficulties or be the status of communication facilities.34 System Operating Limits or taken out of service during an outage. We agree with commenters that, while Interconnection Reliability Operating Bonneville concludes that requiring its the specific wording in the Requirement Limit violations are identified.’’ Entergy dispatchers to report to the reliability does not compel the affected entities to concludes that reliability coordinators coordinator every time a report the outage of a single must know whether redundant communication channel fails or is communication channel as degraded if components of a Special Protection removed from service would result in the system remains functional, the System are operational, in order to additional reporting and documentation information can be compelled by the monitor the status of the Special with no corresponding benefit. Reliability Coordinator. Protection System. Entergy also asserts Bonneville also commented that ‘‘loss of 35. In the NOPR, the Commission that a reliability coordinator must communication channels happens expressed concern that the monitor the status of communication frequently.’’ 30 interpretation may create a reliability channels in order to meet its obligations 32. Several commenters object to the gap with regard to the reporting requirements for a Special Protection to ensure that unplanned events do not Commission’s taking action in an System that is able to operate as interfere with its ability to determine interpretation proceeding to propose designed, but still poses a reliability risk system operating limit violations under changes to the Reliability Standard to the Bulk-Power System with loss of IRO–003–2 and IRO–002–1. Entergy requirements and propose alternate a single communication channel with concludes that, to the extent the venues to press any concerns that are redundant design. The ERO asserts that information would be useful to the identified.31 ERCOT, on the other hand, the fact ‘‘that one communication reliability coordinators, ‘‘they already objects to the interpretation claiming channel of a Special Protection System have it.’’ that NERC should have provided clarity may be out of service in no way 29. Commenters disagree with the or guidance as to what constitutes a prevents that Special Protection System premise that the loss of a Special degraded Special Protection System. from performing its designed function.’’ Protection System communication II. Discussion As such, a system operator would not be channel could have an impact on required to make changes to its reliability because the remaining 33. The Commission declines to adopt operational protocols. The ERO channel ensures that the system is able the NOPR proposal and approves nevertheless states that ‘‘* * * the to function.27 According to ISO/RTO NERC’s interpretation of IRO–005–1, knowledge of the loss of a Council and NERC, the loss of a Requirement R12 and TOP–005–1, Requirement R3 as submitted. The communication channel could be of communication channel on a redundant general interest to a reliability Special Protection System does not Commission approves the interpretation require changes to operational as consistent with the language of the Reliability Standards, and finds the 32 See NERC Petition, Exhibit B at 6 (providing protocols, such as by moving towards text to interpretation as appendix to IRO–005–1 and more conservative operations, because interpretation just and reasonable. TOP–005–1). the Special Protection System is Based on the comments of NERC and 33 See NERC Petition, Exhibit B at 5 (‘‘Background expected to operate properly with the the industry that no reliability gap Information for Interpretation’’); Entergy at 7; see exists, the Commission will rely on their also IRO–002–1, Requirement R2 (‘‘Each reliability coordinator shall determine the data requirements 25 Entergy at 7. to support its reliability coordination tasks and 26 Id. 28 E.g., NERC at 3; ISO/RTO Council at 3–4. shall request such data.’’). 27 See NERC at 3; Bonneville at 3; EEI at 5 and 29 ISO/RTO Council at 5. 34 IRO–002–1, Requirement R2; see also NERC Affidavit of W. Miller; Entergy at 5; ISO/RTO 30 Bonneville at 3. Petition, Exhibit B at 5, ‘‘Background Information Council at 3, 4; Manitoba Hydro at 4–5. 31 EEI at 6; NERC at 4. for Interpretation’’ (discussing TOP–005–1).

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coordinator or transmission operator.’’ otherwise affect the collection of for any action that may have a Finally, the ERO and ISO/RTO Council information already in place. significant adverse effect on the human indicate that this information is 40. With respect to TOP–005–1, the environment.40 The Commission has available to reliability coordinators interpretation clarifies that NERC categorically excluded certain actions pursuant to requirements in other affirms that transmission operators are from this requirement as not having a reliability standards, and is therefore required to provide information upon significant effect on the human not necessary as a reporting requirement request, without regard to whether the environment. Included in the exclusion in TOP–005–1. equipment is operating in a degraded are rules that are clarifying, corrective, 36. We are persuaded that a state, as posited in the request for an or procedural or that do not requirement to report the outage of a interpretation.39 Consequently, the substantially change the effect of the single communication channel where interpretation does not change the regulations being amended.41 The redundant channels exist is unnecessary information that a transmission owner actions proposed herein fall within this because both the ERO and ISO/RTO must report, because the requesting categorical exclusion in the point to existing requirements in other entity is free to request the same types Commission’s regulations. Reliability Standards that would make of information as before, and the same V. Regulatory Flexibility Act this information available to the logs, data, or measurements would be reliability coordinator upon its maintained. 46. The Regulatory Flexibility Act of request.35 Such requirements provide 41. With respect to IRO–005–1, the 1980 (RFA) 42 generally requires a the reliability coordinator authority to interpretation states that a transmission description and analysis of final rules compel such information as it may operator is mandated to report the loss that will have significant economic deem necessary to ensure reliable of a communication channel, if the loss impact on a substantial number of small operation of the Bulk-Power System will result in the failure of a Special entities. The RFA mandates including information on the outage of Protection System to operate as consideration of regulatory alternatives communication channels. Our review of designed. Thus, the interpretation and that accomplish the stated objectives of the record in this proceeding satisfies the comments received in this a proposed rule and that minimize any the concerns we expressed in the NOPR rulemaking clarify that the reporting significant economic impact on a and therefore we do not find it requirements focus on whether a substantial number of small entities. necessary to establish the NOPR Special Protection System can continue The Small Business Administration’s reporting requirement proposal. to perform its reliability function. (SBA) Office of Size Standards develops 37. In light of the Commission’s 42. Thus, the interpretations of the the numerical definition of a small 43 decision not to implement the NOPR current Reliability Standards at issue in business. The SBA has established a proposal concerning the reporting of the this rulemaking will not modify the size standard for electric utilities, loss of a redundant communication reporting burden. However, we will stating that a firm is small if, including channel, we need not address submit this Final Rule to OMB for its affiliates, it is primarily engaged in commenters’ objections to our proposal. informational purposes. the transmission, generation and/or Ultimately, the decision whether the 43. Interested persons may obtain distribution of electric energy for sale redundancy of a particular system is information on the reporting and its total electric output for the needed to perform as designed is a requirements by contacting the preceding twelve months did not exceed 44 judgment call that must be made by the following: Federal Energy Regulatory four million megawatt hours. appropriate reliability entities (i.e., the Commission, 888 First Street, NE., 47. Initially, as noted above, this Final transmission operator and the reliability Washington, DC 20426 [Attention: Ellen Rule addresses an interpretation of the coordinator). Brown, Office of the Executive Director, IRO–005–1 and TOP–005–1 Reliability Standards, which were already III. Information Collection Statement e-mail: [email protected], Phone: approved in Order No. 693, and, 38. The Office of Management and (202) 502–8663, fax: (202) 273–0873]. 44. For submitting comments therefore, does not create an additional Budget (OMB) regulations require that regulatory impact on small entities. OMB approve certain reporting and concerning the collection(s) of information and the associated burden Therefore, the Commission certifies that recordkeeping (collections of this Final Rule will not have a information) imposed by an agency.36 estimate(s), please send your comments to the contact listed above and to the significant impact on a substantial The information contained here is also number of small entities. subject to review under section 3507(d) Office of Information and Regulatory of the Paperwork Reduction Act of Affairs, Office of Information and VI. Document Availability Regulatory Affairs, Washington, DC 1995.37 48. In addition to publishing the full 20503 [Attention: Desk Officer for the 39. As stated above, the IRO–005–1 text of this document in the Federal Federal Energy Regulatory Commission, and TOP–005–1 Reliability Standards Register, the Commission provides all phone (202) 395–4638, fax: (202) 395– that are the subject of the approved interested persons an opportunity to 7285, e-mail: interpretation was approved in Order view and/or print the contents of this [email protected]. Please No. 693, and the related information document via the Internet through the reference OMB Control Number 1902– collection requirements were reviewed Commission’s Home Page (http:// 0244 and the docket number of this and approved, accordingly.38 The www.ferc.gov) and in the Commission’s rulemaking in your submission.]. approved interpretations of IRO–005–1 Public Reference Room during normal and TOP–005–1 do not modify or IV. Environmental Analysis 40 45. The Commission is required to Regulations Implementing the National 35 IRO–005–1, Requirement R2; see also the Environmental Policy Act, Order No. 486, 52 FR interpretation, Background Information for prepare an Environmental Assessment 47897 (Dec. 17, 1987), FERC Stats. & Regs. Interpretation, discussing TOP–005–1. or an Environmental Impact Statement Regulations Preambles 1986–1990 ¶ 30,783 (1987). 36 5 CFR 1320.11. 41 18 CFR 380.4(a)(2)(ii). 37 44 U.S.C. 3507(d). 39 NERC Petition, Exhibit B at 5 (proposing text 42 5 U.S.C. 601–612. 38 Order No. 693, FERC Stats. & Regs. ¶ 31,242 of interpretation as Appendix 1 to IRO–005–1 and 43 13 CFR 121.101. at P 945, 1648. TOP–005–1). 44 13 CFR 121.201, Sector 22, Utilities & n. 1.

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business hours (8:30 a.m. to 5 p.m. objectives of the Mutual Educational program arises from its participants’ Eastern time) at 888 First Street, NE., and Cultural Exchange Act of 1961 ability to enjoy true cultural exchange Room 2A, Washington, DC 20426. (Fulbright-Hays Act). These changes experiences by being able to underwrite 49. From the Commission’s Home will enhance the integrity and the cost of their travel through Page on the Internet, this information is programmatic effectiveness of Summer temporary employment in the United available on eLibrary. The full text of Work Travel exchanges. States. this document is available on eLibrary The Department has examined the Though popular, the program is not in PDF and Microsoft Word format for potential risks and harms related to the without problems. Inadequacies in U.S. viewing, printing, and/or downloading. Summer Work Travel program and sponsors’ vetting and monitoring To access this document in eLibrary, believe that the current regulations do procedures contribute to potentially type the docket number excluding the not sufficiently protect national security dangerous or unwelcomed situations for last three digits of this document in the interests; the Department’s reputation; these participants. This past summer, docket number field. and the health, safety, and welfare of the Department received a significantly 50. User assistance is available for Summer Work Travel program increased number of complaints from eLibrary and the Commission’s Web site participants. Accordingly, and for foreign governments, program during normal business hours from reasons discussed more fully below, this participants, their families, concerned FERC Online Support at (202) 502–6652 rule modifies the Summer Work Travel American citizens, the media, law (toll free at 1–866–208–3676) or e-mail regulations by establishing different enforcement agencies, other federal and at [email protected], or the employment placement requirements local agencies, and the Congress Public Reference Room at (202) 502– based on the aliens’ countries of regarding fraudulent job offers, 8371, TTY (202) 502–8659. E-mail the citizenship and by requiring sponsors to inappropriate jobs, job cancellations on Public Reference Room at fully vet the job placements of all arrival, insufficient number of work [email protected]. program participants. It also clarifies hours, and housing and transportation that only vetted U.S. host employers problems. Moreover, the Department of VII. Effective Date and Congressional and vetted third party overseas agents or Homeland Security has reported an Notification partners (i.e., foreign entities) with increase in incidents involving criminal 51. These regulations are effective whom sponsors have contractual conduct (e.g., money laundering, May 26, 2011. The Commission has agreements may assist sponsors in the identity theft, prostitution) in several determined, with the concurrence of the administration of the core functions of non-immigrant visa categories. To Administrator of the Office of their exchange programs. Sponsor minimize the riskJ–1 visa holders may Information and Regulatory Affairs of monitoring, reporting, and information become victims of these types of crimes OMB, that this rule is not a ‘‘major rule’’ dissemination requirements are also (or actively involved in such conduct) as defined in section 351 of the Small strengthened. the Department must immediately modify existing regulations. When the Business Regulatory Enforcement DATES: The interim final rule will health, safety, and welfare of Exchange Fairness Act of 1996. become effective July 15, 2011. The Visitor Program participants are at risk, Department will accept comments on List of Subjects in 18 CFR Part 40 the Exchange Visitor Program’s the interim final rule from the public up Electric power, Electric utilities, usefulness as a public diplomacy tool is June 27, 2011. Reporting and recordkeeping jeopardized. requirements. ADDRESSES: You may submit comments Of particular concern is the criminal by any of the following methods: nature of some of the complaints By the Commission. • Online: Persons with access to the associated with aliens travelling to the Kimberly D. Bose, Internet may view this notice and United States under some non- Secretary. provide comments by going to the immigrant visa categories. The [FR Doc. 2011–10011 Filed 4–25–11; 8:45 am] regulations.gov Web site at: http:// Department has been advised by sister BILLING CODE 6717–01–P www.regulations.gov/index.cfm. • law enforcement agencies of numerous Mail (paper, disk, or CD–ROM documented reports of aliens either submissions): U.S. Department of State, knowingly engaging in or becoming DEPARTMENT OF STATE Office of Designation, SA–5, Floor 5, hapless victims of and accessories to 2200 C Street, NW., Washington, DC criminal activities, including money 22 CFR Part 62 20522–0505. laundering, money mule schemes, and • E-mail: [email protected]. You RIN 1400–AC79 Medicare fraud. Further, the young age must include the RIN (1400–AC79) in and limited sophistication of some [Public Notice 7427] the subject line of your message. Exchange Visitor Program participants FOR FURTHER INFORMATION CONTACT: underlie a potential vulnerability for Exchange Visitor Program—Summer Stanley S. Colvin, Deputy Assistant Work Travel trafficking initiatives and criminal Secretary for Private Sector Exchange, schemes targeted at them. AGENCY: Department of State. U.S. Department of State, SA–5, Floor 5, By preventing the deleterious effect 2200 C Street, NW., Washington, DC ACTION: Interim final rule with request that such unchecked risk can have on for comment. 20522–0505; fax (202) 632–2701. program participants, the interim final SUPPLEMENTARY INFORMATION: Summer rule can have an immediate effect on the SUMMARY: The Department is amending Work Travel exchange programs have participants’ cumulative positive current regulations governing the been a cornerstone of U.S. public opinions of the United States, thereby Summer Work Travel category of the diplomacy efforts for nearly 50 years, meeting the fundamental objective of Exchange Visitor Program. The providing an estimated two million the Exchange Visitor Program. amendments clarify existing policies foreign college and university students To address the problems noted above, and implement new procedures to the opportunity to work and travel in the Department has taken a number of ensure that the Summer Work Travel the United States during their summer steps to improve the integrity of the program continues to foster the vacations. The popularity of this program. First, in early 2010, the

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Department assembled a working group of problems that may arise in the countries that participate in the Visa of interested parties, which included Summer Work Travel program. Waiver Program can enter the country representatives from the Department’s Based on information from the without pre-placed jobs (though if they Office of the Inspector General, the sources identified above and our own do obtain pre-placed jobs, sponsors Bureaus of Consular Affairs and trend analysis, the Department has must vet such job offers as they would Diplomatic Security, and the Office to concluded that the risk to the those of participants from all other Monitor and Combat Trafficking in participants’ health, safety, and welfare countries). Second, sponsors are Persons. In October, we invited all and to U.S. public diplomacy and required to fully vet the third parties Summer Work Travel program sponsors foreign affairs initiatives warrants (i.e., U.S. host employers and foreign to meet with the Department to discuss immediate changes to the Summer Work entities) whom they engage to assist in the need for new regulations to Travel regulatory model. Accordingly, performing the core functions inherent strengthen the program. In November, the Department is establishing a new with the program administration of the we sought and reviewed comments from Summer Work Travel framework that Exchange Visitor Program (i.e., these sponsors on a number of recognizes potential underlying risks screening, selection, orientation, anticipated regulatory changes and the associated historically with participant’s placement, monitoring, and the possible need for a pilot program to countries of origin as well as promotion of mutual understanding). strengthen requirements for aliens from implementing changes to general Third, sponsors are required to fully vet certain countries who face greater risks program administration that will all job offers, regardless of whether they, when participating in the program. The strengthen the program. the participants, or foreign entities Department also reviewed sponsor To this end the Department has arrange the placements and regardless of white papers and engaged the federal adopted a pilot program for aliens from whether the offers are arranged prior to law enforcement community and our Belarus, Bulgaria, Moldova, Romania, their departure to or following their sister agencies in wide-ranging Russia, and the Ukraine (the ‘‘Pilot arrival in the United States. Finally, discussions regarding a workable Program Countries’’), countries that, sponsors will be required to contact approach to addressing the identified according to law enforcement agencies active program participants on a problems. are known sources of the types of monthly basis to monitor both their criminal activity that the Department welfare and their whereabouts. A Also discussed with the sponsor wishes to avoid. The second step to summary of these and other Summer community and sister agencies was the safeguarding and strengthening the Work Travel program modifications growing trend among sponsors of Summer Work Travel program is follows: exchange visitor programs to outsource adoption of the pilot program concept(s) the core programmatic functions as the model for these amended Pre-Placement inherent in the administration of their Summer Work Travel Program Under the current regulations, no programs (i.e., screening, selection, regulations. Finally, the Department more than half of a sponsor’s program orientation, placement, monitoring, and will closely monitor this exchange participants may enter the United States the promotion of mutual activity and intends to perform on-site without pre-arranged job placements. understanding). To become designated reviews this year of the largest Summer Because consular officials evaluate sponsors, entities are required to Work Travel program sponsors eligibility on a case-by-case basis, it was demonstrate their experience in (accounting for at least 75% of all aliens impossible for them to know whether international exchange and their ability participating in this category of sponsors were complying with this to provide the core programmatic exchange) to assess category-wide requirement. The interim final rule now functions. When they outsource these regulatory compliance and to consult links the pre-placement requirement functions, the Department has no with sponsors about implementation of directly to the underlying risk factor assurance that the third parties who this interim final rule. Taken together, (i.e., country of origin). Thus, the perform these tasks are qualified to take initial discussions with the sponsor interim final rule allows such officers to on the required roles of the sponsors. community, sponsor comments in discern directly from applicants’ When taken to the extreme, this results response to this interim final rule, the paperwork whether they are required to in the entities whose resources and Department’s assessment of the impact be pre-placed. experience the Department evaluated of the Pilot Program during the 2011 The new Summer Work Travel prior to designating them as program summer, and feed-back from these on- regulatory model reflects different risk sponsors becoming mere purveyors of J- site reviews, will inform the assessments for aliens, depending on visas, leaving the actual program Department’s overall assessment of the their countries of origin. The administration to third parties over success of the new Summer Work Department recognized that a country’s which the Department and sponsors Travel program framework and the need participation in the Visa Waiver have diminished degrees of control. for any changes to this interim final Program could provide a means of Thus, one objective of this interim final rule. identifying program participants who rule is to redirect program The Department adopts four major would experience lower levels of risk administration back to sponsors by changes (and several minor changes) to while visiting the United States. requiring them, among other things, to the Summer Work Travel regulations in Governments of participating Visa more closely scrutinize the reputations order to strengthen sponsors’ oversight Waiver Program countries must meet of the third parties with whom they do of both their program participants and specific security and other business (i.e., U.S. host employers and the third parties who are allowed to requirements, such as timely reporting foreign entities) and independently vet assist them in the administration of the of incidents and enhanced law and confirm all program participants’ core functions of their programs. We enforcement and security-related data jobs. This clarification of the sponsors’ believe that these changes will sharing with the United States. In responsibilities will facilitate the minimize the risk that program addition, countries are designated for Department’s monitoring of sponsor participants will be subjected to abuse inclusion in the Visa Waiver Program program activities and assist it in the or less than satisfactory program only if the Secretary of the Department future assessment of underlying causes experiences. First, only aliens from of Homeland Security, in consultation

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with the Secretary of State, establishes are ongoing and viable business entities. references from three current business that the designation will not Sponsors must obtain and verify host associates; and they must provide compromise security and law employers’ Employer Identification summaries of any previous experience enforcement interests of the United Numbers and verify that host employers with the Exchange Visitor Program. States, and that the country satisfies meet state-specific workers’ Further, all owners and officers of such high U.S. border control and document compensation requirements. Sponsors foreign entities must be vetted by security standards (see http:// and foreign entities acting on their criminal background checks and travel.state.gov/visa/temp/without/ behalf are also prohibited from paying provide sponsors with copies of the without_1990.html#countries for a or otherwise providing any incentives to reports in both the original language and current list of these countries.) host employers to induce them to translated into English. Accordingly, this interim final rule provide placements for their Under the interim final rule, sponsors recognizes that there is less risk for participants. Further, the interim final must vet all jobs (e.g., verify the terms aliens from Visa Waiver Program rule requires sponsors to vet all foreign and conditions of such employment and countries being brought to the United entities (i.e., overseas agents or partners) fully vet the identified U.S. host States under false pretenses or stranded that assist them in fulfilling the core employers) for all participants before here without jobs or resources if programmatic functions that may be they can (in the case of participants allowed to enter the United States conducted outside the United States from the non-Visa Waiver Program without pre-arranged job placements. If, (i.e., screening, selection, and countries) enter the United States or (in however, they do secure job placements orientation) and maintain current the case of participants from Visa prior to departure for the United States, listings of such parties in a new Waiver Program countries who do not sponsors must vet (i.e., confirm the ‘‘Foreign Entity Report.’’ The have jobs upon entry) start work. terms, conditions, and viability of) those information in this Report is provided to Participants may obtain self-placed placements prior to their departure. Consular Officials as a means to verify jobs, whereby they (through a foreign Aliens from countries other than the that the foreign entity is a bona fide entity or other source) identify their Visa Waiver Program countries will be partner/agent of a US sponsor. The own job placements. Alternatively, they able to enter the United States only after contents of this report have been may elect for direct-placed jobs, in they or their sponsors have secured firm submitted for OMB approval as a which cases, sponsors have contracted job offers, and their sponsors have collection and will be required upon with host employers and arranged the similarly vetted them. approval. Until such approval is employment of Summer Work Travel Although Public Law 105–277 received, we encourage sponsors to participants for specified periods, specifically authorized Summer Work submit this information voluntarily. number of hours, and at specified Travel program to operate ‘‘without wages. For such direct-placed jobs, the regard to pre-placement requirements,’’ To assist in the recruiting, screening, Department recognizes that sponsors the Department has long required selection, and orientation of Summer and participants enter into quasi or sponsors to find job placements for at Work Travel participants, sponsors can actual contracts regarding the terms of least 50 percent (50%) of program engage only those vetted foreign entities the placements. In such cases, the participants before they departed their with whom they have executed written sponsors have assumed an affirmative home countries. The interim final rule agreements that explain their obligation to arrange suitable eliminates this arbitrary percentage and relationships and identify their employment for the participants under specifically and appropriately links the respective obligations and who are the terms specified in the agreements. increased risk to the heightened included in the Foreign Entity Report. We seek specific comment on this point. regulatory requirements. Of the These agreements must include To ensure that Summer Work Travel approximately 120,000 Summer Work annually updated price lists for the participants do not work in unsafe or Travel program participants entering the Summer Work Travel programs such unseemly jobs, the Department has United States in 2010, however, 13 third parties market on behalf of the expanded the enumerated list of percent (13%) were from 29 of the 36 sponsors and provisions confirming that excluded positions program participants Visa Waiver Program countries. If such they will not: (1) Outsource any of the may not fill. Also, to ensure that country-of-origin entry trends continue, core programmatic functions covered by sponsors maintain sufficient control to implementation of the new approach the agreement (i.e., screening, selection, effectively administer their exchange will result in approximately 87% of all and orientation) to any other third party, programs, the interim final rule clarifies Summer Work Travel participants including staffing or employment that sponsors may enlist the assistance entering the United States with pre- agencies; or (2) pay or otherwise provide of only host employers in fulfilling the arranged and vetted jobs. Accordingly, any incentives to host employers to core programmatic functions that are requiring participants from non-Visa induce them to provide placements for generally conducted within the United Waiver Program countries (including the participants of the sponsors whose States (i.e., orientation and monitoring). participants from the Pilot Program interests they represent. Sponsors must Thus, sponsors may not engage third Countries) to be pre-placed with a obtain proof that potential foreign parties other than host employers—and vetted job offer will help to ensure that entities are bona fide business entities host employers may not engage any most Summer Work Travel participants that are appropriately licensed and/or third parties to assist in fulfilling these will not be stranded in the United States registered to conduct business in the functions. The Department specifically without jobs and resources or be venue(s) where they operate. They must requests comment on this matter. engaged in inappropriate or problematic obtain notarized statements from Program Administration placements. recognized financial entities in such venues that demonstrate the business All participants must contact their Job and Employee Vetting solvency of potential foreign entities. sponsors upon arrival in the United The interim final rule also requires Such foreign entities must disclose to States to inform their sponsors of their sponsors to vet U.S. host employers by the sponsors any previous bankruptcy current U.S. addresses. Participants utilizing publicly available information proceedings and any pending legal without pre-arranged employment may to confirm that potential host employers actions; they must obtain written contact their sponsors for job search

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assistance and must contact their Department’s Summer Work Travel Sponsors must document such monthly sponsors upon obtaining job offers. Only Participant Letter; (2) a copy of the contacts, which can be in-person, by once the sponsors vet the job placement Department’s Summer Work Travel telephone, or via e-mail. Such routine can the participant start to work. Brochure; (3) the telephone number for contact between sponsors and This interim final rule further clarifies the Department’s 24/7 toll-free help participants is required to ensure that that applicants must be bona fide line; and (4) the telephone numbers for participants are safe, the conditions of students enrolled and participating full the sponsors’ 24/7 immediate contact employment are being met, and time at accredited post-secondary line. Sponsors are also required to participants are informing their academic institutions located outside inform participants of their obligations sponsors of their current U.S. addresses. the United States at the time of to report their U.S. addresses to their The interim final rule also adds a new application. Participants must have sponsors upon their arrival in the section on host employer obligations. completed at least one semester (or the United States as well as any changes in First, host employers are expected to quarter or trimester equivalent) in order their employment or residence provide program participants with the to qualify to participate. Final year throughout the duration of their approximate number of hours of paid students who apply for the Summer programs. As a point of clarification of employment per week that they agreed Work Travel program while still in existing regulations, sponsors are to when the sponsors vetted the jobs. school may participate in the Summer obligated to end the exchange programs Second, they are required to pay Work Travel program during the of participants who do not report their participants for any overtime work, in school’s major academic break that arrival within ten days following the accordance with state-specific and follows their graduation. This rule also program start date or who do not report federal employment laws. Further, to limits all students’ program changes in their U.S. addresses or sites assist sponsors in maintaining current participation to the shorter of four of activity within ten days of such and accurate SEVIS records, host months or the length of the long break moves. Sponsors would generally learn employers must promptly notify between academic years at the schools that an unreported move had occurred sponsors when participants start their they attend. Whether this break occurs when they attempt to make monthly jobs. Host employers must also notify during the winter or summer months in contact and cannot reach the sponsors in case of any changes in the United States or lasts two, three, or participants for ten days. In addition, employment conditions, any issues four months is determined in one of two sponsors continue to be required to related to the welfare of the participants, ways. In most countries, consular inform pre-placed participants of the or if the participants are not meeting officials have established country-wide name and address of their employer, their obligations to the host employers. program start and end dates that and to disclose any contractual Sponsors must ensure that participants correspond with typical academic obligations (e.g., the hourly wage, how are placed only with host employers calendars. In other countries, the period many hours per week they will work, that materially comply with all of program duration may be tied to whether the host employer has arranged applicable federal, state, and local specific school calendars. housing) related to their acceptance of occupational health and safety laws; The new regulations retain the long- such paid employment. and adhere to Exchange Visitor Program standing requirement that sponsors The interim final rule retains the regulations and sponsor program rules, interview potential participants and requirement that sponsors provide as set forth at § 62.9. ensure that selected applicants have participants from Visa Waiver Countries Current regulations allow sponsors sufficient English language skills to who do not have pre-arranged and either to submit to the Department semi- travel in the United States and function vetted jobs prior to departing from their annual placement reports or list the successfully in their work home countries with information that names and addresses of participants’ environments. To make this explains how to seek employment and pre-arranged host employers on Forms determination, sponsors may either secure lodging in the United States. DS–2019. The interim final rule requires obtain English language test scores from Sponsors must also continue to provide all sponsors to submit semi-annual recognized language skills tests rosters of bona fide job opportunities to placement reports according to a administered by academic institutions such participants and undertake Department-provided format upon OMB or English language schools, or evaluate reasonable efforts to help them secure approval of the collection. For all applicants’ language skills during placements after their arrival. Sponsors participants for whom pre-placement is documented sponsor interviews. A new are required to ensure that non-pre- obtained (i.e., all participants from non- regulatory requirement has been added placed participants have sufficient Visa Waiver Program countries and to document such interviews. The new financial resources to support participants from Visa Waiver Program regulations afford additional flexibility themselves while they are searching for countries who are pre-placed), sponsors for meeting this requirement by employment. The interim final rule also may not issue Forms DS–2019 unless allowing sponsors the option of video- retains the requirement that sponsors they include the vetted host employers’ conferencing applicant interviews, make reasonable efforts to secure job names (i.e., business names), the work rather than conducting them only in placements for these participants if they addresses (i.e., sites of activity), and the person and ensures that the conduct of have not obtained employment within job title of the participants. an interview has been documented. one week after arriving in the United The Department had intended to Although foreign entities may assist States. publish the interim final rule in time to sponsors in this recruiting function, be effective when the bulk of program sponsors are responsible for the final Monitoring participants entered the country for the selection of their program participants. The interim final rule expands the summer 2011 season. Discussions with The interim final rule also requires current obligations of sponsors to the industry, however, determined that sponsors to provide the following monitor their program participants. In sponsors would not be able to make orientation materials to all participants addition to providing the currently major changes to their business (in addition to the currently required required emergency assistance, sponsors operations (i.e., vet foreign entities, information) prior to departing for the must now make personal contact with renegotiate contracts with them, and United States: (1) A copy of the each participant on a monthly basis. increase their capacity for securing jobs

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prior to the aliens’ arrival in the United programs. When problems occur, the Small Business Regulatory Enforcement States) in time to apply these aspects of U.S. Government is often held Fairness Act of 1996 the regulations to program participants accountable by foreign governments for This interim final rule is not a major entering the United States from the treatment of their nationals, rule as defined by 5 U.S.C. 804 for the countries other than the Pilot Program regardless of who is responsible for the purposes of Congressional review of Countries. However, there are key problems. The purpose of this interim agency rulemaking under the Small monitoring and reporting components of final rule is to protect the health, safety Business Regulatory Enforcement the new regulations that can be and welfare of aliens entering the Fairness Act of 1996 (5 U.S.C. 801–808). implemented immediately. These United States (often on programs funded This interim final rule will not result in monitoring provisions will apply to all by the U.S. Government) for a finite an annual effect on the economy of $100 Summer Work Travel participants who period of time and with a view that they million or more; a major increase in are in the United States on July 15, will return to their countries of costs or prices; or significant adverse 2011, the date that sponsors nationality or last legal permanent effects on competition, employment, recommended as the effective date of residence upon completion of their investment, productivity, innovation, or the interim final rule. There are no programs. The Department of State on the ability of United States-based administrative barriers that should represents that failure to protect the companies to compete with foreign- delay the implementation of these health, safety and welfare of these based companies in domestic and important safety-and security-related program participants will have direct export markets. monitoring provisions. By maintaining and substantial adverse effects on the Unfunded Mandates Reform Act of 1995 monthly contacts with their foreign affairs of the United States. participants, sponsors will take a more Although the Department is of the This interim final rule will not result in the expenditure by State, local and active role in tracking their geographical opinion that this interim final rule is tribal governments, in the aggregate, or whereabouts and offering participants exempt from the rulemaking provisions by the private sector, of $100 million in on-going support and assistance with of the APA, the Department is any program-related problems during any year and it will not significantly or publishing this rule as an interim final the upcoming summer season. As uniquely affect small governments. rule, with a 60-day provision for public sponsors often issue Forms DS–2019 as Therefore, no actions were deemed comment and without prejudice to its far as four months in advance of a necessary under the provisions of the determination that the Exchange Visitor program start date, the interim final rule Unfunded Mandates Reform Act of Program is a foreign affairs function. affords sufficient lead time to allow 1995. Moreover, and as discussed above, the sponsors issuing Forms DS–2019 after Department has been engaged in a Executive Order 13175—Consultation the effective date of this interim final lengthy dialogue with the sponsors of and Coordination With Indian Tribal rule (i.e., for participants entering the Summer Work Travel exchanges, Governments United States during the 2011–2012 keeping them fully apprised of its vision ‘‘winter season’’ and thereafter) to follow The Department has determined that the job placement, job vetting, and third for reshaping the Summer Work Travel this rulemaking will not have tribal party vetting requirements as well. program. The sponsor community, implications, will not impose Taken together, these regulatory therefore, has had the opportunity to substantial direct compliance costs on modifications, enhancements, and participate in and influence agency Indian tribal governments, and will not changes are intended to create a new decision making at an early stage. pre-empt tribal law. Accordingly, the Summer Work Travel paradigm by In addition, under Section 553(b) of requirements of Section 5 of Executive addressing emerging problems and the Administrative Procedure Act (APA) Order 13175 do not apply to this concerns. By developing better ways to (5 U.S.C. 551 et seq.) a general notice of rulemaking. ensure the health, safety, and welfare of proposed rulemaking is required unless Regulatory Flexibility Act/Executive its program participants, this interim an agency, for good cause, finds that Order 13272: Small Business final rule enhances the integrity of the notice and public comment thereon are Since this interim final rule is exempt Summer Work Travel program and impracticable, unnecessary, or contrary from 5 U.S.C 553, and no other law continues to build global goodwill to the public interest. As discussed in requires the Department of State to give through this important public the preamble to this rule, the notice of such rulemaking, it is not diplomacy initiative. Department has concluded that the subject to the Regulatory Flexibility Act Regulatory Analysis national security, program (5 U.S.C. 601, et seq.) and Executive administration and participant health, Order 13272, § 3(b). However, to better Administrative Procedure Act safety and welfare considerations would inform the public as to the costs and The Department of State is of the make public comment impracticable burdens of the Rule upon designated opinion that the Exchange Visitor and contrary to the public interest. program sponsors, the Department notes Program is a foreign affairs function of Further, the Department has determined that this Rule will affect the operations the U.S. Government and that rules that it would be impracticable and of 53 corporate, academic, and tax- implementing this function are exempt contrary to the public interest to delay exempt entities designated by the from § 553 (Rulemaking) and § 554 putting the provisions in these interim Department to conduct Summer Work (Adjudications) of the Administrative final regulations in place until a full Travel program activities. The Procedure Act (APA). Pursuant to U.S. public notice and comment process was Department calculates that these new Government policy and longstanding completed. For the foregoing reasons, requirements may require up to three practice, the Department of State has the Department determines that good additional hours of work per placement supervised either directly or through cause exists to implement this rule as an and therefore with 120,000 placements, private sector program sponsors or interim rule under the Administrative that 360,000 additional hours of work grantee organizations, those foreign Procedure Act, 5 U.S.C. 553(b) and will be required by program sponsors. nationals who come to the United States accordingly, adopts this rule on this At an estimated cost of $20 per hour, the as participants in exchange visitor basis. Department projects that these

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enhanced selection, screening, vetting, Regulatory Planning and Review, as and Cultural Exchange Act, as amended. placement, monitoring and evaluation amended by Executive Order 13563. The Department seeks comment from requirements represent an aggregate cost The Department has reviewed the Summer Work Travel Program sponsors of $7.2 million to the collective Summer interim final rule to ensure its and other persons directly involved in Work Travel sponsor community. Of the consistency with the regulatory the administration of the Summer Work 53 entities sponsoring SWT placements, philosophy and principles set forth in Travel Program. 34 have annual revenues of less than the Executive Orders. (5) Change to information collected by 7 million dollars. These 34 entities the Department of State: The existing account for approximately 15,000 of the Executive Order 12988 Placement Report data collection is a 120,000 annual SWT exchange The Department of State has reviewed current collection required by all participants. Thus an estimated 12% this interim final rule in light of § 3(a) Summer Work Travel sponsors and ($864,000) of the additional costs will and 3(b)(2) of Executive Order 12988 to doesn’t impose any further record fall upon small entities. These costs will eliminate ambiguity, minimize keeping burden. Further, the range from an additional estimated $120 litigation, establish clear legal Department anticipates that the for one small entity having two standards, and reduce burden. electronic spreadsheet template that participants up to an estimated will be provided to sponsors for Executive Orders 12372 and 13132 additional $540,000 for a small entity reporting purposes will reduce conducting an exchange program with This regulation will not have sponsors’ recordkeeping burden and 900 participants. The Department has substantial direct effect on the states, on will eliminate their need to submit been advised by both large and small the relationship between the national semi-annual placement reports in a entity sponsors that the additional $60 government and the states, or on the paper report format. A planned Foreign cost of these security and programmatic distribution of power and Entity Report is expected to place a safeguards will be passed along either to responsibilities among the various minimal additional administrative the foreign national applicant or foreign levels of government. Therefore, in burden on the 53 currently designated entity that assists the U.S. entity in accordance with § 6 of Executive Order Summer Work Travel program sponsors. arranging these exchange activities. The 13132, it is determined that this interim The Department believes that the Department has no reason to believe final rule does not have sufficient requested information is currently that this additional $60 program cost to federalism implications to require collected by sponsors in their routine participants will result in a reduction in consultations or warrant the preparation administration of their programs. The the number of program participants and of a federalism summary impact additional regulatory requirements for notes that this cost increase would statement. Executive Order 12372, documenting interviews and monthly represent a 3% increase in the average regarding intergovernmental contact with participants are already a cost of a participant’s program. consultation on federal programs and standard business practice for some The Department has also examined activities, does not apply to this sponsors. The Department outlines the the additional costs associated with regulation. increased cost and burden hours employer reporting and job vetting Paperwork Reduction Act associated with this collection requirements and concludes that these requirement and discussed it fully in requirements are no different than the The information collection the Regulatory Flexibility Act/Executive existing business practices of designated requirements contained in this interim Order 13272: Small Business section sponsors currently placing final rule are pursuant to the Paperwork above and also below. approximately 90% of these student Reduction Act, 44 U.S.C. Chapter 35 (6) You may submit comments by any participants with U.S. employers and and OMB Control Number 1405–0147, of the following methods: that, accordingly, there is not additional Form DS–7000. As part of this • Persons with access to the Internet burden upon employers. The rulemaking, the Department is seeking may also view this notice and provide Department estimates that the vetting comment regarding the additional comments by going to the and reporting requirements require no administrative burden associated with regulations.gov Web site at: http:// more than 1 man hour per participant the collection of information for a new www.regulations.gov/index.cfm. and thus for the 10% of placements Foreign Entity Report, the • E-mail: [email protected]. where job vetting and reporting documentation of interviews and • Mail (paper, disk, or CD–ROM requirements are not the current monthly contact with participants, and submissions): U.S. Department of State, practice and there will be an additional the modification of existing semi-annual ECA/EC/D, SA–5, Floor 5, 2200 C Street, burden of 12,000 man hours spread reporting requirements for the Summer NW., Washington, DC 20522–0505, across an indeterminate number of large Work Travel Program. Attn: Federal Register Notice Response. and small entities, government and (1) Type of Information Collection: You must include the DS form number, academic employers who will Revision of a Currently Approved information collection title, and OMB collectively bear an additional financial Collection. control number in any correspondence. burden of some $240,000.00 (12,000 (2) Title of the Form/Collection: (7) The Department seeks public hours × $20 per hour). The Department Recording, Reporting, and Data comment on: thus certifies that it does not believe Collection Requirements Under 22 CFR • Whether the collection of that these regulatory changes will have Part 62. information is necessary for the proper a significant impact upon small (3) Agency form number: DS–7000. performance of the functions of the businesses. (4) Affected public: This is an agency, including whether the expansion and continuation of an information will have practical utility; Executive Order 13563 and Executive existing information collection utilized • The accuracy of the agency’s Order 12866 by the Bureau of Educational and estimate of the burden of the collection The Department of State does not Cultural Affairs in its administration of information, including the validity of consider this interim final rule to be a and program oversight of the Exchange the methodology and assumptions used; ‘‘significant regulatory action’’ under Visitor Program (J-Visa) under the • The quality, utility, and clarity of Executive Order 12866, § 3(f), provisions of the Mutual Educational the information to be collected; and

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• How to minimize the burden of the Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. (e) Participant orientation. In addition collection of information on those who 200; E.O. 12048 of March 27, 1978; 3 CFR, to satisfying the requirements set forth are to respond, including through the 1978 Comp. p. 168; the Illegal Immigration at § 62.10(b) and (c), sponsors must Reform and Immigrant Responsibility Act provide program participants, prior to use of appropriate automated, (IIRIRA) of 1996, Pub. L. 104–208, Div. C, 110 electronic, mechanical, or other Stat. 3009–546, as amended; Uniting and participants’ departures from their home technological collection techniques or Strengthening America by Providing countries, the following information other forms of information technology, Appropriate Tools Required to Intercept and and/or documentation: e.g., permitting electronic submission of Obstruct Terrorism Act of 2001 (USA (1) A copy of the Department of responses. PATRIOT ACT), Pub. L. 107–56, section 416, State’s Summer Work Travel Participant (8) An estimate of the total number of 115 Stat. 354; and the Enhanced Border Letter; respondents and the amount of time Security and Visa Entry Reform Act of 2002, (2) A copy of the Department of estimated for an average respondent to Pub. L. 107–173, 116 Stat. 543. State’s Summer Work Travel Program respond: The total number of ■ 2. § 62.32 is revised to read as follows: Brochure; respondents is estimated to be those 53 (3) The Department of State’s toll-free organizations designated by the § 62.32 Summer work travel. help line telephone number; Department to conduct the Summer (a) Introduction. These regulations (4) The sponsor’s 24/7 immediate Work Travel Program activities. govern program participation in contact telephone number; (9) An estimate of the total annual Summer Work Travel programs (5) Information advising participants public burden (in hours) associated with conducted by Department of State- of their obligation to notify their the collection: The Department designated sponsors pursuant to the sponsors when they arrive in the United calculates that these new requirements authority granted the Department of States and to provide information, may require up to three additional hours State under Public Law 105–277. within 10 days, of any change in jobs or of work per placement for those (b) Purpose. The purpose of this residences; and program sponsors that are not currently program is to provide bona fide foreign (6) Information concerning any documenting participant interviews or students who are enrolled full-time and contractual obligations related to actively maintaining monthly contact pursuing studies at accredited post- participants’ acceptance of paid with their program participants. The secondary academic institutions located employment in the United States, if Foreign Entity Report is estimated at outside the United States with the employment has been pre-arranged. one burden hour, documenting opportunity to work and travel in the (f) Participant placement. Sponsors participant interviews as 30 minutes, United States for the shorter of four and foreign entities (i.e., overseas agents and the documentation of monthly months or the length of the long break or partners acting on their behalf) may contacts at 20 minutes per month. between academic years at the schools not pay or otherwise provide any Under the current collection, the semi- they attend (i.e., the summer break). incentive to host employers to accept annual placement report already is (c) Duration of participation. Summer program participants for job placements. estimated at 4 burden hours under the work travel participants are authorized Sponsors must confirm the placements current paper format. This burden is to participate in the Exchange Visitor of all Summer Work Travel participants expected to be reduced based on the Program for up to four months during before the participants may start work, new electronic template that will be their official summer breaks. Extensions at a minimum, by verifying the terms provided to all Summer Work Travel of program participation are not and conditions of such employment and sponsors. The Department estimates that permitted. vetting their identified host employers for 60,000 of the 120,000 annual (d) Participant screening and as set forth at § 62.32(l). Summer Work Travel placements, no selection. In addition to satisfying the (1) Sponsors of participants who are additional burden will be imposed to requirements set forth at § 62.10(a), nationals of non-Visa Waiver Program the given current business practices of sponsors are solely responsible for countries must: some sponsors. Thus, for the remaining adequately screening and making the (i) Ensure that all such participants 60,000 participant placements an final selection of their program enter the United States with job additional 180,000 hours of work will participants and at a minimum must: placements secured in advance by the (1) Conduct and document interviews be imposed on those sponsors not sponsors (direct-placement) or by the with potential participants either in- currently maintaining monthly contact participants (self-placement); person or by video-conference; (ii) Fully vet and confirm such with their participants or properly (2) Ensure that selected applicants documenting participant interviews. placements in advance of placement by, have English language skills sufficient at a minimum, verifying the terms and List of Subjects in 22 CFR Part 62 to successfully function on a day-to-day conditions of such employment and Cultural exchange programs, basis in their work environments. fully vetting their identified host Reporting and recordkeeping Sponsors must verify each participant’s employers as set forth at § 62.32(l); and requirements. English language proficiency either (iii) Enter the participants’ host through a recognized language test Accordingly, 22 CFR Part 62 is employers, sites of activities, and job administered by an academic institution amended as follows: titles in SEVIS prior to issuing their or English language school or through Forms DS–2019. PART 62—EXCHANGE VISITOR the required documented interview; and (2) Sponsors of participants who are PROGRAM (3) Confirm that at the time of nationals of Visa Waiver Program application, applicants (including final countries must: ■ 1. The authority citation for Part 62 year students) are enrolled full-time and (i) Ensure that participants who enter continues to read as follows: pursuing studies at accredited post- the United States without job Authority: 8 U.S.C. 1101(a)(15)(J), 1182, secondary academic institutions located placements secured in advance are 1184, 1258; 22 U.S.C. 1431–1442, 2451 et outside of the United States and have nationals of Visa Waiver Program seq.; Foreign Affairs Reform and successfully completed at least one countries; Restructuring Act of 1998, Pub. L. 105–277, semester, or equivalent, of post- (ii) Ensure that such participants Div. G, 112 Stat. 2681 et seq.; Reorganization secondary academic study. receive pre-departure information that

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explains how to seek employment and section, U.S. entities operating outside translation) for all owners and officers secure lodging in the United States; the United States (or its possessions or of the organization; and (iii) Maintain and provide such territories) are considered foreign (6) A copy of the sponsor-approved participants with a roster of bona fide entities. These agreements must outline advertising materials the overseas agent job listings equal to or greater than the the obligations and full relationship or partner intends to use to market the number of participants who entered the between the sponsors and such third sponsor’s program (including original United States without pre-arranged and parties on all matters involving the and English translation). confirmed job placements; administration of the sponsors’ (l) Vetting host employers. (iv) Ensure that such participants exchange visitor programs; (1) Sponsors must adequately vet all have sufficient financial resources to (2) Written and executed agreements potential host employers of Summer support themselves during their search between sponsors and foreign entities Work Travel program participants to for employment; acting on their behalf must delineate the confirm that the job offers are viable and (v) Undertake reasonable efforts to respective responsibilities of the at a minimum sponsors must: assist any such participant who has not sponsors and third parties and include: (i) Make direct contact in person or by found suitable employment within two (i) Annually updated price lists for telephone with host employers to verify weeks of commencing his or her job Summer Work Travel programs the business owners’/managers’ names, search; and marketed by the foreign entities; telephone numbers, email addresses, (vi) Instruct participants of their (ii) Representations that such foreign street addresses, and professional obligation to notify their sponsors when entities will not engage in, permit the activities; they obtain job offers. use of, or otherwise cooperate or (ii) Utilize publicly available (g) Participant compensation. contract with other third parties information (i.e., Web sites of Sponsors must inform program (including staffing or employment Secretaries of States, advertisements, participants of Federal Minimum Wage agencies or subcontractors) for the brochures, Web sites, and/or feedback requirements and ensure that at a purpose of recruiting or outsourcing any from prior participants) to confirm that minimum participants are compensated core programmatic functions covered by all job offers have been made by viable at the prevailing local wage, which must the agreement (i.e., screening, selection, business entities; meet the higher of either the applicable and orientation); and (iii) Obtain and verify the host state or the Federal minimum wage (iii) Confirmation that the foreign employers’ Employer Identification requirement, including payment for entities agree not to pay or provide Numbers used for tax purposes; and overtime in accordance with state- (iv) Verify the Worker’s Compensation incentives to host employers in the specific employment laws. Insurance Policy or equivalent in each United States to accept program (h) Monitoring. Sponsors must: state where a participant will be placed participants for job placements. (1) Maintain, at a minimum, a or, if applicable, evidence of that state’s (3) Sponsors may utilize only host monthly schedule of personal contact exemption from requirement of such employers to assist in fulfilling the with program participants. Such contact coverage. may be in-person, by telephone, or via sponsors’ core programmatic functions (m) Host employer obligations. electronic mail and must be properly that are generally conducted within the Sponsors must ensure that employers of documented. Sponsors must ensure that United States (i.e., orientation and Summer Work Travel program issues affecting the participants’ health, monitoring). Sponsors may not engage participants: safety, and welfare identified through third parties other than host employers; (1) Provide participants the number of such contacts are promptly and and host employers may not engage or hours of paid employment per week as appropriately addressed; and subcontract any third parties to assist in identified on the job offer and agreed to (2) Ensure appropriate assistance is fulfilling these functions. when the sponsors vetted the jobs; provided to participants on an as- (k) Screening and vetting of foreign (2) Pay those participants eligible for needed basis and that sponsors are entities. Sponsors must undertake overtime worked in accordance with available to participants (and host appropriate due diligence in the review applicable state or federal law; employers) to assist as facilitators, of potential overseas agents or partners (3) Notify sponsors promptly when counselors, and information resources. who assist in fulfilling the sponsors’ participants arrive at the work sites to (i) Internal controls. Sponsors must core programmatic functions that may begin their programs; when there are utilize organization-specific standard be conducted outside the United States any changes or deviations in the job operating procedures for training and (i.e., screening, selection, and placements during the participants’ supervising all organization employees. orientation) and must, at a minimum, programs; when participants are not In addition, sponsors must establish review the following documentation for meeting the requirements of their job internal controls to ensure that host each potential overseas agent or partner: placements; or when participants leave employers and/or foreign entities (1) Proof of business licensing and/or their position ahead of their planned comply with the terms of agreements registration to enable it to conduct departure; and with such third parties involved in the business in the venue(s) where it (4) Contact sponsors immediately in administration of the sponsors’ operates; the event of any emergency involving exchange visitor programs, i.e., affect (2) Disclosure of any previous participants or any situation that the core programmatic functions. bankruptcy and of any pending legal impacts the welfare of participants. (j) Sponsors’ use of third parties. actions; (n) Reporting requirements. Sponsors (1) If sponsors utilize foreign entities to (3) Written references from three must electronically submit the following assist in fulfilling the sponsors’ core current business associates or partner reports utilizing Department-provided programmatic functions that may be organizations; templates: conducted outside the United States (4) Summary of previous experience (1) A Placement Report, on January 31 (i.e., screening, selection, and conducting J–1 Exchange Visitor and July 31 of each year, identifying all orientation), they must obtain written Program activities; Summer Work Travel exchange visitor and executed agreements with such (5) Criminal background check reports participants who began an exchange third parties. For the purpose of this (including original and English program during the preceding six-month

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period. The report must include the DEPARTMENT OF HOMELAND When this special local regulation is exchange visitors’ names, SEVIS SECURITY enforced, non-participant vessels are Identification Numbers (or other prohibited from entering the designated Department-mandated participant Coast Guard race areas unless authorized by the identification numbers), countries of designated on-scene Patrol Commander. citizenship or legal permanent 33 CFR Part 100 Spectator craft may remain in residence, names of employers, the designated spectator areas but must length of time it took non-pre-placed [Docket No. USCG–2009–0996] follow the directions of the designated participants to secure job placements, on-scene Patrol Commander. The event and other information the Department Hydroplane Races Within the Captain sponsor may also function as the of the Port Puget Sound Area of may deem essential. For participants designated on-scene Patrol Commander. Responsibility who change jobs or have multiple jobs Spectator craft entering, exiting or moving within the spectator area must during their programs, the report must AGENCY: Coast Guard, DHS. include all such placements; and operate at speeds which will create a ACTION: Notice of enforcement of minimum wake. (2) Sponsors are required to maintain regulation. Emergency Signaling: A succession of current listings of all foreign agents or sharp, short signals by whistle or horn SUMMARY: The Coast Guard will enforce partners on the Foreign Entity Report by from vessels patrolling the areas under the Special Local Regulation, promptly informing the Department of the discretion of the designated on- Hydroplane Races within the Captain of any additions, deletions, or changes to scene Patrol Commander shall serve as the Port Puget Sound Area of overseas partner information by a signal to stop. Vessels signaled shall Responsibility for the Tastin’ n’ Racin’ submitting new versions of the report stop and shall comply with the orders hydroplane event in Lake Sammamish, that reflect all current information. The of the patrol vessel. Failure to do so may WA from 9 a.m. through 6 p.m. on June report must include the names, result in expulsion from the area, 11, 2011 and from 9 a.m. through 6 p.m. addresses, and contact information (i.e., citation for failure to comply, or both. on June 12, 2011. This action is telephone numbers and email This notice is issued under authority necessary to restrict vessel movement in addresses) of all foreign entities that of 33 CFR 100.1308 and 5 U.S.C. 552(a). the vicinity of the race courses thereby In addition to this notice in the Federal assist the sponsors in fulfilling the ensuring the safety of participants and Register, the Coast Guard will provide provision of core program services, and spectators during these events. During the maritime community with advance other information the Department may the enforcement period non-participant notification of this enforcement period deem essential. Sponsors may utilize vessels are prohibited from entering the via the Local Notice to Mariners. If the only vetted foreign entities identified in designated race areas. Spectator craft Captain of the Port determines that the the report to assist in fulfilling the entering, exiting or moving within the regulated area need not be enforced for sponsors’ core programmatic functions spectator area must operate at speeds the full duration stated in this notice, he outside the United States. which will create a minimum wake. may use a Broadcast Notice to Mariners (o) Program exclusions. U.S. sponsors DATES: The regulations in 33 CFR to grant general permission to enter the must not place participants: 100.1308 will be enforced from 9 a.m. regulated area. (1) In any position in the adult through 6 p.m. on June 11, 2011 and Dated: April 11, 2011. entertainment industry; from 9 a.m. through 6 p.m. on June 12, 2011. S.J. Ferguson, (2) In sales positions that require Captain, U.S. Coast Guard, Captain of the FOR FURTHER INFORMATION CONTACT: If participants to purchase inventory that Port, Puget Sound. you have questions on this notice, call they must sell in order to support [FR Doc. 2011–9985 Filed 4–25–11; 8:45 am] themselves; or e-mail Ensign Anthony P. LaBoy, Sector Puget Sound Waterways BILLING CODE 9110–04–P (3) In domestic help positions in Management Division, Coast Guard; private homes (e.g., child care, elder telephone 206–217–6323, e-mail DEPARTMENT OF HOMELAND care, gardener, chauffeur); [email protected]. SECURITY (4) As pedicab or rolling chair drivers SUPPLEMENTARY INFORMATION: The Coast or operators; Guard is providing notice of Coast Guard (5) As operators of vehicles or vessels enforcement of the Special Local that carry passengers for hire and/or for Regulation for Hydroplane Races within 33 CFR Part 117 which commercial drivers licenses are the Captain of the Port Puget Sound [Docket No. USCG–2010–0612] required; Area of Responsibility 33 CFR 100.1308. RIN 1625–AA09 (6) In any position related to clinical The Lake Sammamish area, 33 CFR care that involves patient contact; or 100.1308(a)(3) will be enforced on June 11, 2011, from 9 a.m. to 6 p.m. and on Drawbridge Operation Regulation; Isle (7) In any position that could bring June 12, 2011 from 9 a.m. to 6 p.m. of Wight (Sinepuxent) Bay, Ocean City, notoriety or disrepute to the Exchange These regulations can be found in the MD Visitor Program. March 29, 2011 issue of the Federal AGENCY: Coast Guard, DHS. Register (76 FR 17341). Dated: April 21, 2011. ACTION: Final rule. Under the provisions of 33 CFR Stanley S. Colvin, 100.1308, the regulated area shall be SUMMARY: The Coast Guard is changing Deputy Assistant Secretary for Private Sector closed for the duration of the event to the regulation governing the operation Exchange, Bureau of Educational and all vessel traffic not participating in the of the US 50 Bridge over Isle of Wight Cultural Affairs, Department of State. event and authorized by the event (Sinepuxent) Bay, mile 0.5, at Ocean [FR Doc. 2011–10079 Filed 4–25–11; 8:45 am] sponsor or Coast Guard Patrol City, MD. This rule will require any BILLING CODE 4710–05–P Commander. mariner requesting an opening in the

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evening hours during the off-season, to Bridge over Isle of Wight (Sinepuxent) transiting the bridge. Mariners can plan do so before the tender office has Bay, mile 0.5, at Ocean City, with a their trips in accordance with the vacated for the night. The change will vertical clearance of 13 feet above mean scheduled bridge openings to minimize ensure draw tender availability for high tide in the closed position, shall delays. openings. The Coast Guard is also open on signal; except from October 1 Small Entities changing the waterway location from through April 30 from 6 p.m. to 6 a.m., Isle of Wight Bay to Isle of Wight the draw shall open if at least three Under the Regulatory Flexibility Act (Sinepuxent) Bay. This change is hours notice is given and from May 25 (5 U.S.C. 601–612), we have considered necessary because the waterway is through September 15, from 9:25 a.m. to whether this rule would have a known locally as both Isle of Wight Bay 9:55 p.m., the draw shall open at 25 significant economic impact on a and Sinepuxent Bay. This change will minutes after and 55 minutes after the substantial number of small entities. ensure there is no confusion as to the hour for a maximum of five minutes to The term ‘‘small entities’’ comprises referenced waterway. let accumulated vessels pass, except small businesses, not-for-profit DATES: This rule is effective May 26, that, on Saturdays from 1 p.m. to 5 p.m., organizations that are independently 2011. the draw shall open on the hour for all owned and operated and are not waiting vessels and shall remain in the dominant in their fields, and ADDRESSES: Comments and related open position until all waiting vessels governmental jurisdictions with materials received from the public, as pass. populations of less than 50,000. well as documents mentioned in this According to the draw tender logs for The Coast Guard certifies under preamble as being available in the the past three years, furnished by 5 U.S.C. 605(b) that this rule will not docket, are part of docket USCG–2010– MdTA, there have been few to no have a significant economic impact on 0612 and are available online by going requests for bridge openings from a substantial number of small entities. to http://www.regulations.gov, inserting October 1 to April 30, between the This rule will affect the following ‘‘ ’’ USCG–2010–0612 in the Keyword hours of 6 p.m. and 6 a.m. By providing entities, some of which might be small ‘‘ ’’ box, and then clicking Search. This notice to the bridge tender before 6 p.m., entities: The owners or operators of material is also available for inspection mariners can plan their transits and vessels needing to transit through the or copying at the Docket Management minimize delay in accordance with the bridge from 6 p.m. to 6 a.m. from Facility (M–30), U.S. Department of proposed rule. The majority of the October 1 to April 30. This action will Transportation, West Building Ground waterway traffic at this bridge site is not have a significant economic impact Floor, Room W12–140, 1200 New Jersey seasonal recreational boaters. October 1 on a substantial number of small entities Avenue, SE., Washington, DC 20590, through April 30 is considered out-of- because the rule adds minimal between 9 a.m. and 5 p.m., Monday season and has minimal waterway restrictions to the movement of through Friday, except Federal holidays. traffic. navigation, by requiring mariners from FOR FURTHER INFORMATION CONTACT: If The current regulation, set out in 33 October 1 to April 30, from 6 p.m. to you have questions on this rule, call or CFR 117.559, locates this waterway as 6 a.m., to give notice to the bridge e-mail Ms. Lindsey Middleton, Fifth Isle of Wight Bay, mile 0.5, at Ocean tender before 6 p.m. District Bridge Administration Division, City, MD. Local mariners refer to this Assistance for Small Entities Coast Guard; telephone 757–398–6629, waterway location as both the Isle of e-mail [email protected]. If Wight Bay and the Sinepuxent Bay. To Under section 213(a) of the Small you have questions on viewing the clarify any confusion mariners may Business Regulatory Enforcement docket, call Renee V. Wright, Program have, this waterway location will be Fairness Act of 1996 (Pub. L. 104–121), Manager, Docket Operations, telephone cited as Isle of Wight (Sinepuxent) Bay, in the NPRM we offered to assist small 202–366–9826. mile 0.5, at Ocean City, MD in the entities in understanding the rule so SUPPLEMENTARY INFORMATION: Federal Register. that they could better evaluate its effects on them and participate in the Regulatory Information Discussion of Comments and Changes rulemaking process. On December 9, 2010, we published No comments were received on the Collection of Information a notice of proposed rulemaking proposed rule and no changes were (NPRM) entitled Drawbridge Operation made to the proposed rule. This rule calls for no new collection Regulation: Isle of Wight (Sinepuxent) of information under the Paperwork Bay, Ocean City, MD in the Federal Regulatory Analyses Reduction Act of 1995 (44 U.S.C. 3501– Register (75 FR 236). We received no We developed this rule after 3520). comments on the proposed rule. No considering numerous statutes and Federalism public meeting was requested, and none executive orders related to rulemaking. was held. Below we summarize our analyses A rule has implications for federalism based on 13 of these statutes or under Executive Order 13132, Basis and Purpose executive orders. Federalism, if it has a substantial direct The Maryland Department of effect on State or local governments and Regulatory Planning and Review Transportation (MdTA) has requested a would either preempt State law or change to the operating procedure for This rule is not a significant impose a substantial direct cost of the double-leaf bascule US 50 Bridge. regulatory action under section 3(f) of compliance on them. We have analyzed This change would require that the Executive Order 12866, Regulatory this rule under that Order and have draw shall open on signal; except that, Planning and Review, and does not determined that it does not have from 6 p.m. to 6 a.m., from October 1 require an assessment of potential costs implications for federalism. to April 30 of every year, the draw shall and benefits under section 6(a)(3) of that Unfunded Mandates Reform Act open on signal if notice is given to the Order. The Office of Management and bridge tender before 6 p.m. Budget has not reviewed it under that The Unfunded Mandates Reform Act The current regulation, set out in 33 Order. The changes are expected to have of 1995 (2 U.S.C. 1531–1538) requires CFR 117.559, requires that the US 50 minimal impact on maritime traffic Federal agencies to assess the effects of

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their discretionary regulatory actions. In Technical Standards open if notice has been given to the particular, the Act addresses actions The National Technology Transfer bridge tender before 6 p.m. that may result in the expenditure by a and Advancement Act (NTTAA) (15 (b) From May 25 through September State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use 15, from 9:25 a.m. to 9:55 p.m., the draw aggregate, or by the private sector of voluntary consensus standards in their shall open at 25 minutes after and 55 $100,000,000 (adjusted for inflation) or regulatory activities unless the agency minutes after the hour for a maximum more in any one year. Though this rule provides Congress, through the Office of of five minutes to let accumulated will not result in such an expenditure, Management and Budget, with an vessels pass, except that on Saturdays, we do discuss the effects of this rule explanation of why using these from 1 p.m. to 5 p.m., the draw shall elsewhere in this preamble. standards would be inconsistent with open on the hour for all waiting vessels and shall remain in the open position Taking of Private Property applicable law or otherwise impractical. Voluntary consensus standards are until all waiting vessels pass. This rule will not cause a taking of technical standards (e.g., specifications Dated: April 13, 2011. private property or otherwise have of materials, performance, design, or William D. Lee, taking implications under Executive operation; test methods; sampling Rear Admiral, United States Coast Guard, Order 12630, Governmental Actions and procedures; and related management Commander, Fifth Coast Guard District. Interference with Constitutionally systems practices) that are developed or [FR Doc. 2011–9987 Filed 4–25–11; 8:45 am] adopted by voluntary consensus Protected Property Rights. BILLING CODE 9110–04–P standards bodies. Civil Justice Reform This rule does not use technical This rule meets applicable standards standards. Therefore, we did not DEPARTMENT OF HOMELAND in sections 3(a) and 3(b)(2) of Executive consider the use of voluntary consensus SECURITY Order 12988, Civil Justice Reform, to standards. minimize litigation, eliminate Environment Coast Guard ambiguity, and reduce burden. We have analyzed this rule under 33 CFR Part 117 Protection of Children Department of Homeland Security Management Directive 023–01 and [Docket No. USCG–2011–0276] We have analyzed this rule under Commandant Instruction M16475.lD, Executive Order 13045, Protection of which guides the Coast Guard in Drawbridge Operation Regulation; New Children from Environmental Health complying with the National Jersey Intracoastal Waterway (NJICW), Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 Beach Thorofare, NJ an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and would not create an environmental risk have concluded that this action is one AGENCY: Coast Guard, DHS. to health or risk to safety that might of a category of actions which do not ACTION: Notice of temporary deviation disproportionately affect children. individually or cumulatively have a from regulations. significant effect on the human Indian Tribal Governments environment. This rule is categorically SUMMARY: The Commander, Fifth Coast This rule does not have tribal excluded, under figure 2–1, paragraph Guard District, has issued a temporary implications under Executive Order (32)(e), of the Instruction. deviation from the regulations 13175, Consultation and Coordination Under figure 2–1, paragraph (32)(e), of governing the operation of the Route 30/ with Indian Tribal Governments, the Instruction, an environmental Absecon Boulevard Bridge across Beach because it does not have a substantial analysis checklist and a categorical Thorofare, at NJICW mile 67.2, at direct effect on one or more Indian exclusion determination are not Atlantic City, NJ. This deviation is tribes, on the relationship between the required for this rule. necessary to facilitate extensive rehabilitation and maintenance in order Federal Government and Indian tribes, List of Subjects in 33 CFR Part 117 to maintain the bridge’s operational or on the distribution of power and Bridges. responsibilities between the Federal integrity. Under this deviation, the Government and Indian tribes. For the reasons discussed in the bascule lift span of the drawbridge will preamble, the Coast Guard amends remain in the closed-to-navigation Energy Effects 33 CFR part 117 as follows: position for the extent of the effective period. We have analyzed this rule under PART 117—DRAWBRIDGE Executive Order 13211, Actions OPERATION REGULATIONS DATES: This deviation is effective from Concerning Regulations That 7 a.m. on September 16, 2011 through Significantly Affect Energy Supply, ■ 1. The authority citation for part 117 11:59 p.m. on January 13, 2012. Distribution, or Use. We have continues to read as follows: ADDRESSES: Documents mentioned in determined that it is not a ‘‘significant Authority: 33 U.S.C. 499; 33 CFR 1.05–1; this preamble as being available in the energy action’’ under that order because Department of Homeland Security Delegation docket are part of docket USCG–2011– it is not a ‘‘significant regulatory action’’ No. 0170.1. 0276 and are available online by going under Executive Order 12866 and is not ■ 2. Section 117.559 is revised to read to http://www.regulations.gov, inserting likely to have a significant adverse effect as follows: USCG–2011–0276 in the ‘‘Keyword’’ box on the supply, distribution, or use of and then clicking ‘‘Search’’. They are energy. The Administrator of the Office § 117.559 Isle of Wight (Sinepuxent) Bay. also available for inspection or copying of Information and Regulatory Affairs The draw of the US 50 Bridge, mile at the Docket Management Facility has not designated it as a significant 0.5, at Ocean City, shall open on signal, (M–30), U.S. Department of energy action. Therefore, it does not except: Transportation, West Building Ground require a Statement of Energy Effects (a) From October 1 through April 30, Floor, Room W12–140, 1200 New Jersey under Executive Order 13211. from 6 p.m. to 6 a.m., the draw shall Avenue, SE., Washington, DC 20590,

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between 9 a.m. and 5 p.m., Monday without a bridge opening may continue e-mail David H. Sulouff, Chief, Bridge through Friday, except Federal holidays. to do so at anytime. The Atlantic Ocean Section, Eleventh Coast Guard District; FOR FURTHER INFORMATION CONTACT: If is an alternate route for vessels with telephone 510–437–3516, e-mail you have questions on this rule, call or mast heights greater than 20 feet. Due to [email protected]. If you have e-mail Waverly W. Gregory, Jr., Bridge the nature and extent of the scheduled questions on viewing the docket, call Administrator, Fifth Coast Guard maintenance, the drawbridge will be Renee V. Wright, Program Manager, District; telephone 757–398–6222, unable to open in the event of an Docket Operations, telephone 202–366– e-mail [email protected]. If emergency. 9826. you have questions on viewing the In accordance with 33 CFR 117.35(e), docket, call Renee V. Wright, Program the drawbridge must return to its regular SUPPLEMENTARY INFORMATION: The Manager, Docket Operations, telephone operating schedule immediately at the California Department of Transportation 202–366–9826. end of the designated time period. This has requested a temporary change to the SUPPLEMENTARY INFORMATION: The New deviation from the operating regulation operation of the Tower Drawbridge, Jersey Department of Transportation is authorized under 33 CFR 117.35. mile 59.0, Sacramento River, at (NJDOT) owns and operates the bascule- Dated: April 12, 2011. Sacramento, CA. The Tower Drawbridge lift span of the Route 30/Absecon Waverly W. Gregory, Jr., navigation span provides a vertical Boulevard Bridge across Beach Chief, Bridge Administration Branch, Fifth clearance of 30 feet above Mean High Thorofare along the NJICW, at Atlantic Coast Guard District. Water in the closed-to-navigation City, NJ. The bridge has a vertical [FR Doc. 2011–9988 Filed 4–25–11; 8:45 am] position. The draw opens on signal from clearance, in the closed position, to BILLING CODE 9110–04–P May 1 through October 31 from 6 a.m. vessels of 20 feet, above mean high to 10 p.m. and from November 1 water. The current operating regulations through April 30 from 9 a.m. to 5 p.m. are outlined at 33 CFR 117.733(e), DEPARTMENT OF HOMELAND At all other times the draw shall open which require that the bridge shall open SECURITY on signal if at least four hours notice is on signal but only if at least four hours given, as required by 33 CFR 117.189(a). of notice is given; except that from Coast Guard Navigation on the waterway is April 1 through October 31, from 7 a.m. commercial and recreational. to 11 p.m., the draw need only open on 33 CFR Part 117 The drawspan will be secured in the the hour. [Docket No. USCG–2011–0262] The contractor, IEW Construction closed-to-navigation position from 10 a.m. to 11 a.m. on May 21, 2011 to Group, on behalf of NJDOT, has Drawbridge Operation Regulation; requested a temporary deviation to the Sacramento River, Sacramento, CA allow the community to participate in existing regulations for the Route 30/ the Roger’s Jewelry Bicycle Ride. This Absecon Boulevard Bridge in order to AGENCY: Coast Guard, DHS. temporary deviation has been facilitate necessary repairs. The work ACTION: Notice of temporary deviation coordinated with waterway users. There primarily consists of replacing span from regulations. are no scheduled river boat cruises or locks, substructure and superstructure anticipated levee maintenance during SUMMARY: The Commander, Eleventh structural repairs, seismic retrofit of this deviation period. No objections to Coast Guard District, has issued a piers, cleaning and painting bearings, the proposed temporary deviation were temporary deviation from the regulation upgrading the mechanical and electrical raised. governing the operation of the Tower systems and renovating the operator and Drawbridge across the Sacramento Vessels that can transit the bridge, gate house. Under this deviation, the River, mile 59.0, at Sacramento, CA. The while in the closed-to-navigation bascule lift span of the drawbridge will deviation is necessary to allow the position, may continue to do so at any be maintained in the closed-to- community to participate in the Roger’s time. In the event of an emergency the navigation position from 7 a.m. on Jewelry Bicycle Ride. This deviation drawspan can be opened with 15 September 16, 2011, through 11:59 p.m. allows the bridge to remain in the minutes advance notice. on January 13, 2012. closed-to-navigation position during the Bridge opening data, supplied by In accordance with 33 CFR 117.35(e), event. NJDOT and reviewed by the Coast the drawbridge must return to its regular Guard, revealed vessel openings of the DATES: This deviation is effective from operating schedule immediately at the draw span between the months of 10 a.m. to 11 a.m. on May 21, 2011. end of the designated time period. This September and December in 2010 and in ADDRESSES: Documents mentioned in deviation from the operating regulations January 2011. Specifically, in 2010 from this preamble as being available in the is authorized under 33 CFR 117.35. docket are part of docket USCG–2011– September through December, the Dated: April 7, 2011. bridge opened, respectively, 59, 37, 19, 0262 and are available online by going and 4 times for vessels; and, in January to http://www.regulations.gov, inserting D.H. Sulouff, 2011, the bridge opened only 3 times for USCG–2011–0262 in the ‘‘Keyword’’ box District Bridge Chief, Eleventh Coast Guard vessels. and then clicking ‘‘Search’’. They are District. The Coast Guard will inform the users also available for inspection or copying [FR Doc. 2011–9989 Filed 4–25–11; 8:45 am] of the waterway through our Local and at the Docket Management Facility (M– BILLING CODE 9110–04–P Broadcast Notices to Mariners of the 30), U.S. Department of Transportation, closure period so that vessels can West Building Ground Floor, Room arrange their transits to minimize any W12–140, 1200 New Jersey Avenue, SE., impact caused by the temporary Washington, DC 20590, between 9 a.m. deviation. and 5 p.m., Monday through Friday, Under this deviation, the navigable except Federal holidays. channel will not be obstructed so FOR FURTHER INFORMATION CONTACT: If vessels that can pass under the bridge you have questions on this rule, call or

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DEPARTMENT OF HOMELAND call Renee V. Wright, Program Manager, the U.S. Navy Blue Angels. The COTP SECURITY Docket Operations, telephone 202–366– Mobile is establishing a temporary 9826. safety zone for a portion of Pensacola Coast Guard SUPPLEMENTARY INFORMATION: Bay, Pensacola, FL, to protect persons and vessels during the air performances. 33 CFR Part 165 Regulatory Information The COTP anticipates minimal impact [Docket No. USCG–2011–0212] The Coast Guard is issuing this on vessel traffic due to this regulation. temporary final rule without prior However, this safety zone is deemed RIN 1625–AA00 notice and opportunity to comment necessary for the protection of life and pursuant to authority under section 4(a) property within the COTP Mobile zone. Safety Zone; Pensacola Bay; of the Administrative Procedure Act Pensacola, FL (APA) (5 U.S.C. 553(b)). This provision Discussion of Rule AGENCY: Coast Guard, DHS. authorizes an agency to issue a rule The Coast Guard is establishing a temporary safety zone for a portion of ACTION: Temporary final rule. without prior notice and opportunity to comment when the agency for good Pensacola Bay including all waters SUMMARY: The Coast Guard is cause finds that those procedures are represented by positions 30°20′40.73″ N establishing a temporary safety zone for ‘‘impracticable, unnecessary, or contrary 087°17′19.73″ W, 30°20′11.12′ N a portion of Pensacola Bay including all to the public interest.’’ Under 5 U.S.C. 087°17′20.31″ W, 30°20′41.51″ N waters represented by positions 553(b)(B), the Coast Guard finds that 087°15′01.15″ W, and 30°20′11.76″ N 30°20′40.73″ N 087°17′19.73″ W, good cause exists for not publishing a 087°15′01.18″ W creating a box, referred 30°20′11.12″ N 087°17′20.31″ W, notice of proposed rulemaking (NPRM) to as the ‘‘Show Box’’. This temporary 30°20′41.51″ N 087°15′01.15″ W, and with respect to this rule because there rule will protect the safety of life and 30°20′11.76″ N 087°15′01.18″ W creating is insufficient time to publish a NPRM. property in this area. Entry into, a box, referred to as the ‘‘Show Box’’. The Coast Guard received an transiting or anchoring in this zone is This action is necessary for the application for a Marine Event Permit prohibited to all vessels, mariners, and protection of persons and vessels on on March 23, 2011, from Naval Air persons unless specifically authorized navigable waters during the Blue Station Pensacola, in Pensacola, FL of by the COTP Mobile or a designated Angels’ air show. Entry into, transiting their intentions to hold an aerobatic representative. or anchoring in this zone is prohibited display over Pensacola Bay, Pensacola, The COTP may be contacted by to all vessels, mariners, and persons FL. Publishing a NPRM is impracticable telephone at 251–441–5976. The COTP unless specifically authorized by the because it would delay the required Mobile or a designated representative Captain of the Port (COTP) Mobile or a safety zone’s effective date and will inform the public through designated representative. immediate action is needed to protect broadcast notice to mariners of changes DATES: This rule is effective and persons and vessels from safety hazards in the effective period and enforcement enforceable with actual notice from May associated with the aerobatic display. times for the safety zone. This rule is 3, 2011, through May 4, 2011. Exact The safety zone will be enforced for effective from May 3, 2011, through enforcement times will be published in short durations during a two-day period. May 4, 2011. Under 5 U.S.C. 553(d)(3), the Coast the Local Notice to Mariners and Regulatory Analyses broadcasted via a Safety Broadcast Guard finds that good cause exists for making this rule effective less than We developed this rule after Notice to Mariners. 30 days after publication in the Federal considering numerous statutes and ADDRESSES: Documents indicated in this Register. The Coast Guard received an executive orders related to rulemaking. preamble as being available in the application for a Marine Event Permit Below we summarize our analyses docket are part of docket USCG–2011– on March 23, 2011, from Naval Air based on 13 of these statutes or 0212 and are available online by going Station Pensacola, in Pensacola, FL of executive orders. to http://www.regulations.gov, inserting their intentions to hold an aerobatic Executive Order 12866 and Executive USCG–2011–0212 in the ‘‘Keyword’’ display over Pensacola Bay, Pensacola, Order 13563 box, and then clicking ‘‘Search.’’ They FL. Additionally, this rule is temporary are also available for inspection or and will only be enforced for short This rule is not a significant copying at the Docket Management durations during a two-day period while regulatory action under section 3(f) of Facility (M–30), U.S. Department of the aerobatic displays are taking place. Executive Order 12866, Regulatory Transportation, West Building Ground Providing a 30 day notice period would Planning and Review, as supplemented Floor, Room W12–140, 1200 New Jersey delay the effective date and is by Executive Order 13563, and does not Avenue, SE., Washington, DC 20590, impracticable because immediate action require an assessment of potential costs between 9 a.m. and 5 p.m., Monday is needed to protect persons and vessels and benefits under section 6(a)(3) of that through Friday, except Federal holidays from safety hazards associated with the Order. The Office of Management and and U.S. Coast Guard Sector Mobile aerobatic displays. Budget has not reviewed it under that (spw), Building 102, Brookley Complex Order. South Broad Street Mobile, AL 36615, Background and Purpose The safety zone listed in this rule will between 8:00 a.m. and 3:30 p.m., Naval Air Station Pensacola’s Blue restrict vessel traffic from entering, Monday through Friday, except Federal Angel Air Show will take place over a transiting or anchoring in a small holidays. portion of Pensacola Bay, Pensacola, FL portion of Pensacola Bay only during FOR FURTHER INFORMATION CONTACT: If and poses significant safety hazards to certain times over a two-day period. The you have questions on this temporary both vessels and mariners operating in effect of this regulation will not be rule, call or e-mail LT Lisa G. Hartley, or near the air show area referred to as significant for several reasons: (1) This Coast Guard Sector Mobile, Waterways the ‘‘Show Box’’. Due to FAA directive rule will only affect vessel traffic for a Division; telephone 251–441–6512 or 8900.1, this waterway must be closed to short duration; (2) vessels may request e-mail [email protected]. If you transiting watercraft to sterilize the permission from the COTP to transit have questions on viewing the docket, ‘‘Show box’’ during the performances by through the safety zone; and (3) the

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impacts on routine navigation are Collection of Information responsibilities between the Federal expected to be minimal. Notifications to Government and Indian tribes. This rule calls for no new collection the marine community will be made of information under the Paperwork Energy Effects through local notice to mariners and Reduction Act of 1995 (44 U.S.C. 3501– broadcast notice to mariners. These 3520). We have analyzed this rule under notifications will allow the public to Executive Order 13211, Actions plan operations around the affected Federalism Concerning Regulations That area. A rule has implications for federalism Significantly Affect Energy Supply, Distribution, or Use. We have Small Entities under Executive Order 13132, Federalism, if it has a substantial direct determined that it is not a ‘‘significant Under the Regulatory Flexibility Act effect on State or local governments and energy action’’ under that order because (5 U.S.C. 601–612), we have considered would either preempt State law or it is not a ‘‘significant regulatory action’’ whether this rule would have a impose a substantial direct cost of under Executive Order 12866 and is not significant economic impact on a compliance on them. We have analyzed likely to have a significant adverse effect substantial number of small entities. this rule under that Order and have on the supply, distribution, or use of The term ‘‘small entities’’ comprises determined that it does not have energy. The Administrator of the Office small businesses, not-for-profit implications for federalism. of Information and Regulatory Affairs organizations that are independently has not designated it as a significant owned and operated and are not Unfunded Mandates Reform Act energy action. Therefore, it does not dominant in their fields, and The Unfunded Mandates Reform Act require a Statement of Energy Effects governmental jurisdictions with of 1995 (2 U.S.C. 1531–1538) requires under Executive Order 13211. populations of less than 50,000. Federal agencies to assess the effects of Technical Standards The Coast Guard certifies under their discretionary regulatory actions. In 5 U.S.C. 605(b) that this rule will not particular, the Act addresses actions The National Technology Transfer have a significant economic impact on that may result in the expenditure by a and Advancement Act (NTTAA) (15 a substantial number of small entities. State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use This rule will affect the following aggregate, or by the private sector of voluntary consensus standards in their entities, some of which may be small $100,000,000 (adjusted for inflation) or regulatory activities unless the agency entities: The owners or operators of more in any one year. Though this rule provides Congress, through the Office of vessels intending to transit or anchor in will not result in such expenditure, we Management and Budget, with an affected portions of Pensacola Bay do discuss the effects of this rule explanation of why using these during the Naval Air Station Pensacola’s elsewhere in this preamble. standards would be inconsistent with Blue Angels Air Show. This safety zone applicable law or otherwise impractical. will not have a significant economic Taking of Private Property Voluntary consensus standards are impact on a substantial number of small This rule will not cause a taking of technical standards (e.g., specifications entities for the following reasons: the private property or otherwise have of materials, performance, design, or zone is limited in size, is of short taking implications under Executive operation; test methods; sampling duration and vessel traffic may request Order 12630, Governmental Actions and procedures; and related management permission from the COTP Mobile or a Interference with Constitutionally systems practices) that are developed or designated representative to enter or Protected Property Rights. adopted by voluntary consensus transit through the zone. standards bodies. Civil Justice Reform This rule does not use technical Assistance for Small Entities This rule meets applicable standards standards. Therefore, we did not Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive consider the use of voluntary consensus Business Regulatory Enforcement Order 12988, Civil Justice Reform, to standards. Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate Environment in the NPRM we offered to assist small ambiguity, and reduce burden. entities in understanding the rule so We have analyzed this rule under that they could better evaluate its effects Protection of Children Department of Homeland Security on them and participate in the We have analyzed this rule under Management Directive 023–01 and rulemaking process. Small businesses Executive Order 13045, Protection of Commandant Instruction M16475.lD, may send comments on the actions of Children from Environmental Health which guide the Coast Guard in Federal employees who enforce, or Risks and Safety Risks. This rule is not complying with the National otherwise determine compliance with, an economically significant rule and Environmental Policy Act of 1969 Federal regulations to the Small does not create an environmental risk to (NEPA) (42 U.S.C. 4321–4370f), and Business and Agriculture Regulatory health or risk to safety that may have concluded this action is one of a Enforcement Ombudsman and the disproportionately affect children. category of actions which do not Regional Small Business Regulatory individually or cumulatively have a Indian Tribal Governments Fairness Boards. The Ombudsman significant effect on the human evaluates these actions annually and This rule does not have tribal environment. This rule is categorically rates each agency’s responsiveness to implications under Executive Order excluded, under figure 2–1, paragraph small business. If you wish to comment 13175, Consultation and Coordination (34)(g), of the Instruction. This rule on actions by employees of the Coast with Indian Tribal Governments, involves safety for the public and Guard, call 1–888–REG–FAIR (1–888– because it does not have a substantial environment and is not expected to 734–3247). The Coast Guard will not direct effect on one or more Indian result in any significant adverse retaliate against small entities that tribes, on the relationship between the environmental impact as described in question or complain about this rule or Federal Government and Indian tribes, NEPA. An environmental analysis any policy or action of the Coast Guard. or on the distribution of power and checklist and a categorical exclusion

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determination will be made available as Dated: April 5, 2011. SUPPLEMENTARY INFORMATION: directed under the ADDRESSES section. D.J. Rose, I. Abbreviations List of Subjects 33 CFR Part 165 Captain, U.S. Coast Guard, Captain of the II. Regulatory History Port Mobile. III. Basis and Purpose Harbors, Marine safety, Navigation [FR Doc. 2011–9990 Filed 4–25–11; 8:45 am] IV. Discussion of Comments and Changes (water), Reporting and recordkeeping BILLING CODE 9110–04–P V. Regulatory Analyses requirements, Security measures, A. Executive Order 12866 and Executive Waterways. Order 13563 DEPARTMENT OF HOMELAND B. Small Entities For the reasons discussed in the SECURITY C. Assistance for Small Entities preamble, the Coast Guard amends D. Collection of Information 33 CFR part 165 as follows: Coast Guard E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property PART 165–-REGULATED NAVIGATION 33 CFR Part 167 AREAS AND LIMITED ACCESS AREAS H. Civil Justice Reform [Docket No. USCG–2002–12702] I. Protection of Children J. Indian Tribal Governments ■ 1. The authority citation for part 165 RIN 1625–AA48 K. Energy Effects continues to read as follows: L. Technical Standards Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Traffic Separation Schemes: In the M. Environment Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Strait of Juan de Fuca and Its 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. Approaches; in Puget Sound and its I. Abbreviations 107–295, 116 Stat. 2064; Department of Approaches; and in Haro Strait, Homeland Security Delegation No. 0170.1. Boundary Pass, and the Strait of 2004 Act Coast Guard and Maritime Georgia Transportation Act of 2004 ■ 2. Add § 165.T08–0212 to read as ATBA Area to be Avoided follows: AGENCY: Coast Guard, DHS. CFR Code of Federal Regulations ACTION: Final rule. CTVS Cooperative Vessel Traffic Service § 165.T08–0212 Safety Zone; Pensacola DHS Department of Homeland Security Bay; Pensacola, FL. SUMMARY: The Coast Guard is finalizing FR Federal Register without change its November 19, 2010, IMO International Maritime Organization (a) Location. The following area is a NPRM Notice of Proposed Rulemaking safety zone: a portion of Pensacola Bay interim rule codifying traffic separation schemes in the Strait of Juan de Fuca NOAA National Oceanic and Atmospheric including all waters represented by Administration positions 30°20′40.73″ N 087°17′19.73″ and its Approaches; in Puget Sound and PARS Port Access Route Study W, 30°20′11.12″ N 087°17′20.31″ W, its Approaches; and in Haro Strait, PWSA Ports and Waterways Safety Act 30°20′41.51″ N 087°15′01.15″ W, and Boundary Pass, and the Strait of SNPRM Supplemental Notice of Proposed 30°20′11.76″ N 087°15′01.18″ W creating Georgia. The Coast Guard established Rulemaking a box, referred to as the ‘‘Show Box’’. these traffic separation schemes under TSS Traffic Separation Scheme authority of the Ports and Waterways U.S.C. United States Code (b) Enforcement dates. This rule will Safety Act. VTS vessel traffic service be enforced from May 3, 2011, through May 4, 2011. DATES: This final rule is effective May II. Regulatory History 26, 2011. (c) Regulations. (1) In accordance with On August 27, 2002, the Coast Guard ADDRESSES: Comments and material the general regulations in § 165 of this published a notice of proposed received from the public, as well as part, entry into this zone is prohibited rulemaking (NPRM) entitled ‘‘Traffic documents mentioned in this preamble unless authorized by the Captain of the Separation Schemes: In the Strait of as being available in the docket, are part Port Mobile or a designated Juan de Fuca and its Approaches; in of docket USCG–2002–12702 and are representative. Puget Sound and its Approaches; and in available for inspection or copying at (2) Persons or vessels desiring to enter Haro Strait, Boundary Pass, and the the Docket Management Facility (M–30), Strait of Georgia’’ in the Federal Register into or passage through the zone must U.S. Department of Transportation, request permission from the Captain of (67 FR 54981). We received nine letters West Building Ground Floor, Room commenting on the NPRM. The the Port Mobile or a designated W12–140, 1200 New Jersey Avenue, SE., representative. commenters did not request a public Washington, DC 20590–0001, between meeting, and none was held. They may be contacted on VHF–FM 9 a.m. and 5 p.m., Monday through On November 19, 2010, the Coast channels 16 or by telephone at 251– Friday, except Federal holidays. You Guard published an interim rule (75 FR 441–5976. may also find this docket on the Internet 70818) that codified existing Traffic (3) If permission is granted, all by going to http://www.regulations.gov, Separation Schemes (TSSs) in the Strait persons and vessels shall comply with inserting USCG–2002–12702 in the of Juan de Fuca and its Approaches; in the instructions of the Captain of the ‘‘Keyword’’ box, and then clicking Puget Sound and its Approaches; and in Port or designated representative. ‘‘Search.’’ Haro Strait, Boundary Pass, and the Designated representatives include FOR FURTHER INFORMATION CONTACT: If Strait of Georgia. The Coast Guard did commissioned, warrant, and petty you have questions about this rule, not publish a Supplemental Notice of officers of the U.S. Coast Guard. contact Mr. George Detweiler, U.S. Coast Proposed Rulemaking (SNPRM) for this (d) Informational broadcasts: The Guard Office of Navigation Systems, rule, citing the Administrative Captain of the Port or a designated telephone 202–372–1566, or e-mail Procedure Act ‘‘good cause’’ exception at representative will inform the public [email protected]. If you 5 U.S.C. 553(b)(B) in the interim rule. through broadcast notices to mariners of have questions about viewing the The interim rule sought comments on the enforcement period for the safety docket, call Renee V. Wright, Program the enumerated Traffic Separation zone as well as any changes in the Manager, Docket Operations, telephone Schemes. The comment period closed planned schedule. 202–366–9826. January 3, 2011, and we received no

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public comments on the interim rule. separation schemes provide better this rule or any policy or action of the No public meeting was requested and routing order and predictability, Coast Guard. none was held. The interim rule became increase maritime safety, and reduce the D. Collection of Information effective on January 18, 2011. There are potential for collisions, groundings, and no changes from the interim rule to this hazardous cargo spills. This rule calls for no new collection final rule. By finalizing the interim rule, we of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– III. Basis and Purpose complete the process of recording the latitudes and longitudes of the TSSs’ 3520). With this rule the Coast Guard coordinates in the CFR tables and make E. Federalism finalizes the codification of the traffic it easier for the public to reference our A rule has implications for federalism separation schemes (TSSs) identified regulations when recommending under Executive Order 13132, above. The Coast Guard created each of modifications or other operational Federalism, if it has a substantial direct these TSSs after conducting a Port considerations. This rule finalizes effect on State or local governments and Access Route Study (PARS) in incorporation of the TSSs in the CFRs would either preempt State law or accordance with the Ports and and does not impact mariner actions or impose a substantial direct cost of Waterways Safety Act (PAWSA) 33 expectations. U.S.C. 1221–1232. Each TSS that is part compliance on them. of this rulemaking is shown on nautical B. Small Entities We have analyzed this rule under that charts, is described in the United States Order and have determined that it has Under the Regulatory Flexibility Act implications of federalism. Conflict Coast Pilot, was implemented by the (5 U.S.C. 601–612), we have considered International Maritime Organization, preemption principles apply to PWSA whether this final rule has a significant Title I, and the TSSs in this rule are and is described in ‘‘Ships Routeing,’’ economic impact on a substantial Tenth Edition, 2010. Each TSS has also issued under the authority of PWSA number of small entities. The term Title I. These TSSs are specifically been codified in the CFR since January ‘‘small entities’’ comprises small 18, 2011, when the interim rule became intended to have preemptive impact businesses, not-for-profit organizations over State law covering the same subject effective. For a full discussion of the that are independently owned and basis and purpose of this rulemaking see matter in the same geographic area. operated and are not dominant in their Title I of PWSA (33 U.S.C. 1221 et the interim rule (75 FR 70818, 70819). fields, and governmental jurisdictions seq.) authorizes the Secretary to issue IV. Discussion of Comments and with populations of less than 50,000. regulations to designate TSSs to provide Changes As this rule serves to finalize in the safe access routes for the movement of CFR TSSs that have already been We received no public comments in vessel traffic proceeding to or from ports implemented, we estimate that there response to our interim rule. or places subject to the jurisdiction of will be no increased costs due to this Accordingly, the Coast Guard has made the United States. In enacting the PWSA rule. no changes in this final rule. A full in 1972, Congress found that advance Therefore, the Coast Guard certifies, discussion of the provisions of this rule planning and consultation with the under 5 U.S.C. 605(b), that this final may be found in the ‘‘Discussion of affected States and other stakeholders rule does not have a significant Interim Rule’’ section of the interim rule. was necessary in the development and economic impact on a substantial (75 FR 70818, at 70820). implementation of a TSS. Throughout number of small entities. the history of the development of the V. Regulatory Analyses If you think that your business, TSSs that are the subject of this rule, we We developed this final rule after organization, or governmental consulted with the affected State and considering numerous statutes and jurisdiction qualifies as a small entity Federal pilots’ associations, vessel executive orders related to rulemaking. and that this rule will have a significant operators, users, United States and Below we summarize our analyses economic impact on it, please submit a Canadian Vessel Traffic Services, based on 13 of these statutes or comment to the Docket Management Canadian Coast Guard and Transport executive orders. Facility at the address under ADDRESSES. Canada representatives, environmental In your comment, explain why you advocacy groups, Native American A. Executive Order 12866 and Executive think it qualifies and how and to what tribal groups, and all affected Order 13563 degree this rule would economically stakeholders. This rule is not a significant affect it. Presently, there are no Washington regulatory action under section 3(f) of State laws or regulations concerning the C. Assistance for Small Entities Executive Order 12866, Regulatory same subjects as those contained in this Planning and Review, as supplemented Under section 213(a) of the Small rule. We understand that the State does by Executive Order 13563, and does not Business Regulatory Enforcement not contemplate issuing any such require an assessment of potential costs Fairness Act of 1996 (Pub. L. 104–121), regulations. It should be noted that, by and benefits under section 6(a)(3) of that we offer to assist small entities in virtue of the PWSA authority, the TSSs Order. The Office of Management and understanding the rule so that they can in this rule preempt any State rule on Budget has not reviewed it under that better evaluate its effects on them and the same subject. Order. participate in the rulemaking. If you Foreign vessel owners and operators As previously discussed, the TSSs believe that this rule affects your small usually become aware of TSSs when the finalized by this final rule were codified business, organization, or governmental TSSs are added to the United States by the interim rule, implemented by jurisdiction and you have questions Coast Pilot and the nautical charts that IMO, and are reflected on current concerning its provisions or options for are required by 33 CFR 164.33 to be on nautical charts and in nautical compliance, please consult Mr. George each ship operating in U.S. waters. publications. We anticipate no Detweiler, Office of Navigation Systems, Foreign vessel owners and operators increased costs for vessels traveling telephone 202–372–1566. The Coast also become aware of TSSs through within the aforementioned areas. These Guard will not retaliate against small their national IMO delegation and IMO internationally recognized traffic entities that question or complain about publications.

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The individual States of the United summary impact statement. This rule systems practices) that are developed or States are not represented at the IMO as will not have implications of the kind adopted by voluntary consensus that is the role of the Federal envisioned under the Order because it standards bodies. Government. The U.S. Coast Guard is will not impose substantial direct This rule does not use technical the principal agency responsible for compliance costs on tribal governments, standards, nor is the Coast Guard aware advancing the interests of the United preempt tribal law, or substantially of the existence of any standards that States at the IMO. In this role, we solicit affect lands or rights held exclusively address these TSSs. Therefore, we did comments from the stakeholders by, or on behalf of, those governments. not consider the use of voluntary through public meetings and develop a Whether or not the Executive Order consensus standards. unified U.S. position prior to attending applies in this case, it is the policy of M. Environment sessions of the IMO Subcommittee on the Department of Homeland Security Safety of Navigation and the Maritime and the U.S. Coast Guard to engage in We have analyzed this rule under Safety Committee where TSSs are meaningful consultation and Department of Homeland Security discussed. collaboration with tribal officials in Management Directive 023–01 and policy decisions that have tribal Commandant Instruction M16475.lD, F. Unfunded Mandates Reform Act implications under the Presidential which guide the Coast Guard in The Unfunded Mandates Reform Act Memorandum of November 5, 2009, complying with the National of 1995 (2 U.S.C. 1531–1538) requires (74 FR 57881, November 9, 2009), and Environmental Policy Act of 1969 Federal agencies to assess the effects of to seek out and consult with Native (NEPA) (42 U.S.C. 4321–4370f), and their discretionary regulatory actions. In Americans on all of its rulemakings that have concluded that this action is one particular, the Act addresses actions may affect them. We regularly consulted of a category of actions which do not that may result in the expenditure by a and collaborated with the Tribes individually or cumulatively have a State, local, or tribal government, in the throughout the PARS and this significant effect on the human aggregate, or by the private sector of rulemaking. For a complete discussion environment. This rule is categorically $100,000,000 (adjusted for inflation) or of these consultations see the interim excluded under section 2.B.2, figure more in any one year. Though this rule rule (75 FR 70818, 70825). 2–1, paragraph (34)(i) of the Instruction. will not result in such an expenditure, In the IR, the Coast Guard invited This rule involves navigational aids, we do discuss the effects of this rule comments on how the codification of which include TSSs. An environmental elsewhere in this preamble. the existing TSSs might impact tribal analysis checklist and a categorical governments, even if that impact may G. Taking of Private Property exclusion determination are available in not constitute a ‘‘tribal implication’’ the docket where indicated under This rule will not cause a taking of under the Order. We received no ADDRESSES. private property or otherwise have comments to our request. List of Subjects in 33 CFR Part 167 taking implications under Executive K. Energy Effects Order 12630, Governmental Actions and Harbors, Marine safety, Navigation Interference with Constitutionally We have analyzed this rule under (water), Waterways. Protected Property Rights. Executive Order 13211, Actions Concerning Regulations That Accordingly, the interim rule H. Civil Justice Reform Significantly Affect Energy Supply, amending 33 CFR part 167, subpart B, which was published at 75 FR 70818 on This rule meets applicable standards Distribution, or Use. We have November 19, 2010, is adopted as a final in sections 3(a) and 3(b)(2) of Executive determined that it is not a ‘‘significant rule. Order 12988, Civil Justice Reform, to energy action’’ under that order because minimize litigation, eliminate it is not a ‘‘significant regulatory action’’ Dated: April 11, 2011. ambiguity, and reduce burden. under Executive Order 12866 and is not Dana A. Goward, likely to have a significant adverse effect U.S. Coast Guard, Director of Marine I. Protection of Children on the supply, distribution, or use of Transportation Systems Management. We have analyzed this rule under energy. The Administrator of the Office [FR Doc. 2011–9895 Filed 4–25–11; 8:45 am] Executive Order 13045, Protection of of Information and Regulatory Affairs BILLING CODE 9110–04–P Children from Environmental Health has not designated it as a significant Risks and Safety Risks. This rule is not energy action. Therefore, it does not an economically significant rule and require a Statement of Energy Effects DEPARTMENT OF HOMELAND does not create an environmental risk to under Executive Order 13211. SECURITY health or risk to safety that may L. Technical Standards disproportionately affect children. Coast Guard The National Technology Transfer J. Indian Tribal Governments and Advancement Act (15 U.S.C. 272 33 CFR Part 167 We have reviewed this rule under note) directs agencies to use voluntary Executive Order 13175, Consultation consensus standards in their regulatory [Docket No. USCG–2010–0718] and Coordination with Indian Tribal activities unless the agency provides Governments. Rulemakings that are Congress, through the Office of RIN 1625–AB55 determined to have ‘‘tribal implications’’ Management and Budget, with an under that Order (i.e., those that have a explanation of why using these Traffic Separation Schemes: In the substantial direct effect on one or more standards would be inconsistent with Approaches to Portland, ME; Boston, Indian tribes, on the relationship applicable law or otherwise impractical. MA; Narragansett Bay, RI and between the Federal Government and Voluntary consensus standards are Buzzards Bay, MA; Chesapeake Bay, Indian tribes, or on the distribution of technical standards (e.g., specifications VA, and Cape Fear River, NC power and responsibilities between the of materials, performance, design, or AGENCY: Coast Guard, DHS. Federal Government and Indian tribes) operation; test methods; sampling ACTION: Final rule. require the preparation of a tribal procedures; and related management

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SUMMARY: The Coast Guard is finalizing CFR Code of Federal Regulations V. Regulatory Analyses DHS Department of Homeland Security without change its December 13, 2010, We developed this final rule after FR Federal Register interim rule codifying traffic separation considering numerous statutes and IMO International Maritime Organization schemes in the approaches to Portland, executive orders related to rulemaking. NOAA National Oceanic and Atmospheric ME; in the approaches to Boston, MA; We summarize our analyses based on 13 in the approaches to Narragansett Bay, Administration PARS Port Access Route Study of these statutes or executive orders in RI and Buzzards Bay, MA; and in the the paragraphs that follow. approaches to the Cape Fear River, NC, PAWSA Ports and Waterways Safety Act and updating the then-current TSS Traffic Separation Scheme A. Executive Order 12866 and Executive regulations for the traffic separation U.S.C. United States Code Order 13563 scheme in the approaches to II. Regulatory History This rule is not a ‘‘significant Chesapeake Bay, VA. The Coast Guard regulatory action’’ under section 3(f) of established these traffic separation On December 13, 2010, the Coast Executive Order 12866, Regulatory schemes under authority of the Ports Guard published an interim rule (75 FR Planning and Review, as supplemented and Waterways Safety Act. 77529) that codified existing Traffic by Executive Order 13563, and does not DATES: This final rule is effective May Separation Schemes (TSSs) in the require an assessment of potential costs 26, 2011. Approaches to Portland, ME; Boston, and benefits under section 6(a)(3) of that ADDRESSES: Comments and material MA; Narragansett Bay, RI and Buzzards Order. The Office of Management and received from the public, as well as Bay, MA; Chesapeake Bay, VA; and Budget has not reviewed it under that documents mentioned in this preamble Cape Fear River, NC. The Coast Guard Order. as being available in the docket, are part did not publish a Notice of Proposed As previously discussed, the TSSs of docket USCG–2010–0718 and are Rulemaking (NPRM) for this rule under finalized by this final rule were codified available for inspection or copying at the Administrative Procedure Act ‘‘good by the interim rule, implemented by the Docket Management Facility (M–30), cause’’ exception at 5 U.S.C. 553(b)(B). IMO, and are reflected on current U.S. Department of Transportation, The interim rule sought comments on nautical charts and in nautical West Building Ground Floor, Room the enumerated TSSs. The comment publications. We anticipate no W12–140, 1200 New Jersey Avenue, SE., period closed December 28, 2010, and increased costs for vessels traveling Washington, DC 20590, between 9 a.m. we received no public comments on the within the aforementioned areas. These and 5 p.m., Monday through Friday, interim rule. No public meeting was internationally recognized traffic except Federal holidays. You may also requested and none was held. separation schemes provide better find this docket on the Internet by going The interim rule became effective on routing order and predictability, to http://www.regulations.gov, inserting January 12, 2011. There are no changes increase maritime safety, and reduce the USCG–2010–0718 in the ‘‘Keyword’’ from the interim rule to this final rule. potential for collisions, groundings, and box, and then clicking ‘‘Search’’. hazardous cargo spills. FOR FURTHER INFORMATION CONTACT: If III. Background By finalizing the interim rule we you have questions on this rule, contact complete the process of recording the With this rule, the Coast Guard Mr. George Detweiler, U.S. Coast Guard latitudes and longitudes of the TSSs’ finalizes without change the Office of Navigation Systems, telephone coordinates in the CFR tables and make codification of the traffic separation 202–372–1566, or e-mail it easier for the public to reference our schemes (TSSs) identified above. The [email protected]. If you regulations when recommending Coast Guard created each of these TSSs have questions on viewing the docket, modifications or other operational after conducting a Port Access Route call Renee V. Wright, Program Manager, considerations. This rule finalizes Study (PARS) in accordance with the Docket Operations, telephone 202–366– incorporation of the TSSs in the CFR Ports and Waterways Safety Act 9826. and does not impact mariner actions or (PAWSA) 33 U.S.C. 1221–1232. Each SUPPLEMENTARY INFORMATION: expectations. TSS that is part of this rulemaking is I. Abbreviations shown on nautical charts, is described B. Small Entities II. Regulatory History in the United States Coast Pilot, was Under the Regulatory Flexibility Act III. Background implemented by the International IV. Discussion of Comments and Changes (5 U.S.C. 601–612), we have considered V. Regulatory Analyses Maritime Organization, and is described whether this final rule has a significant A. Executive Order 12866 and Executive in ‘‘Ships Routeing,’’ Tenth Edition, economic impact on a substantial Order 13563 2010. Each TSS has also been codified number of small entities. The term B. Small Entities in the CFR since January 12, 2011, when ‘‘small entities’’ comprises small C. Assistance for Small Entities the interim rule became effective. For a businesses, not-for-profit organizations D. Collection of Information full discussion of the basis and purpose that are independently owned and E. Federalism of this rulemaking see the interim rule operated and are not dominant in their F. Unfunded Mandates Reform Act (75 FR 77529, 77530). G. Taking of Private Property fields, and governmental jurisdictions H. Civil Justice Reform IV. Discussion of Comments and with populations of less than 50,000. I. Protection of Children Changes As this rule serves to finalize in the J. Indian Tribal Governments CFR TSSs that have already been K. Energy Effects We received no public comments in implemented, we estimate that there L. Technical Standards response to our interim rule. will be no increased costs due to this M. Environment Accordingly, the Coast Guard has made rule. I. Abbreviations no changes in this final rule. A full Therefore, the Coast Guard certifies, discussion of the provisions of this rule under 5 U.S.C. 605(b), that this final 2004 Act Coast Guard and Maritime may be found in the ‘‘Discussion of rule does not have a significant Transportation Act of 2004 Interim Rule’’ section of the interim rule. economic impact on a substantial ATBA Area to be Avoided (75 FR 77529, at 77531). number of small entities.

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If you think that your business, TSSs that are the subject of this rule, we minimize litigation, eliminate organization, or governmental have sought input from the public and ambiguity, and reduce burden. jurisdiction qualifies as a small entity consulted with the affected State and and that this rule will have a significant Federal pilots’ associations, vessel I. Protection of Children economic impact on it, please submit a operators, users, environmental We have analyzed this rule under comment to the Docket Management advocacy groups, and all affected Executive Order 13045, Protection of Facility at the address under ADDRESSES. stakeholders. Children from Environmental Health In your comment, explain why you Presently, there are no state laws or Risks and Safety Risks. This rule is not think it qualifies and how and to what regulations in the States affected by this an economically significant rule and degree this rule would economically rule concerning the same subjects as does not create an environmental risk to affect it. those contained in this rule. We health or risk to safety that may understand that the affected States do C. Assistance for Small Entities disproportionately affect children. not contemplate issuing any such Under section 213(a) of the Small regulations. It should be noted that, by J. Indian Tribal Governments Business Regulatory Enforcement virtue of the PWSA authority, the TSSs Fairness Act of 1996 (Pub. L. 104–121), in this rule preempt any State rule on We have reviewed this rule under we offer to assist small entities in the same subject. Executive Order 13175, Consultation understanding this rule so that they can Foreign vessel owners and operators and Coordination with Indian Tribal better evaluate its effects on them and usually become aware of TSSs when the Governments. Rulemakings that are participate in the rulemaking. If you TSSs are added to the United States determined to have ‘‘tribal implications’’ believe this rule affects your small Coast Pilot and the nautical charts that under that Order (i.e., those that have a business, organization, or governmental are required by 33 CFR 164.33 to be on substantial direct effect on one or more jurisdiction and you have questions each ship operating in U.S. waters. Indian tribes, on the relationship concerning its provisions or options for Foreign vessel owners and operators between the Federal Government and compliance, please consult Mr. George also become aware of TSSs through Indian tribes, or on the distribution of Detweiler, Office of Navigation Systems, their national IMO delegation and IMO power and responsibilities between the telephone 202–372–1566. The U.S. publications. Federal Government and Indian tribes) Coast Guard will not retaliate against The individual States of the United require the preparation of a tribal small entities that question or complain States are not represented at the IMO as summary impact statement. This rule about this rule or any policy or action that is the role of the Federal will not have implications of the kind of the U.S. Coast Guard. Government. The U.S. Coast Guard is envisioned under the Order because it the principal agency responsible for will not impose substantial direct D. Collection of Information advancing the interests of the United compliance costs on tribal governments, This rule calls for no new collection States at the IMO. In this role, we solicit preempt tribal law, or substantially of information under the Paperwork comments from the stakeholders affect lands or rights held exclusively Reduction Act of 1995 (44 U.S.C. 3501– through public meetings and develop a by, or on behalf of, those governments. 3520). unified U.S. position prior to attending Whether or not the Executive Order E. Federalism sessions of the IMO Subcommittee on applies in this case, it is the policy of Safety of Navigation and the Maritime the Department of Homeland Security A rule has implications for federalism Safety Committee where TSSs are and the U.S. Coast Guard to engage in under Executive Order 13132, discussed. meaningful consultation and Federalism, if it has a substantial direct collaboration with tribal officials in effect on State or local governments and F. Unfunded Mandates Reform Act policy decisions that have tribal would either preempt State law or The Unfunded Mandates Reform Act implications under the Presidential impose a substantial direct cost of of 1995 (2 U.S.C. 1531–1538) requires Memorandum of November 5, 2009, compliance on them. Federal agencies to assess the effects of We have analyzed this rule under that (74 FR 57881, November 9, 2009), and their discretionary regulatory actions. In to seek out and consult with Native Order and have determined that it has particular, the Act addresses actions federalism implications. Conflict Americans on all of its rulemakings that that may result in the expenditure by a may affect them. preemption principles apply to PWSA State, local, or tribal government, in the Title I, and the TSSs in this rule are aggregate, or by the private sector of K. Energy Effects issued under the authority of PWSA $100,000,000 (adjusted for inflation) or Title I. These TSSs are specifically more in any one year. Though this rule We have analyzed this rule under intended to have preemptive impact will not result in such an expenditure, Executive Order 13211, Actions over State law covering the same subject we do discuss the effects of this rule Concerning Regulations That matter in the same geographic area. elsewhere in this preamble. Significantly Affect Energy Supply, Title I of PWSA (33 U.S.C. 1221 et Distribution, or Use. We have seq.) authorizes the Secretary to issue G. Taking of Private Property determined that it is not a ‘‘significant regulations to designate TSSs to provide This rule will not cause a taking of energy action’’ under that order because safe access routes for the movement of private property or otherwise have it is not a ‘‘significant regulatory action’’ vessel traffic proceeding to or from ports taking implications under Executive under Executive Order 12866 and is not or places subject to the jurisdiction of Order 12630, Governmental Actions and likely to have a significant adverse effect the United States. In enacting the PWSA Interference with Constitutionally on the supply, distribution, or use of in 1972, Congress found that advance Protected Property Rights. energy. The Administrator of the Office planning and consultation with the of Information and Regulatory Affairs affected States and other stakeholders H. Civil Justice Reform has not designated it as a significant was necessary in the development and This rule meets applicable standards energy action. Therefore, it does not implementation of a TSS. Throughout in sections 3(a) and 3(b)(2) of Executive require a Statement of Energy Effects the history of the development of the Order 12988, Civil Justice Reform, to under Executive Order 13211.

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L. Technical Standards ENVIRONMENTAL PROTECTION the comment includes information AGENCY claimed to be Confidential Business The National Technology Transfer Information (CBI) or other information and Advancement Act (15 U.S.C. 272 40 CFR Part 52 whose disclosure is restricted by statute. note) directs agencies to use voluntary Do not submit information that you [EPA–R05–OAR–2010–0946; FRL–9294–7] consensus standards in their regulatory consider to be CBI or otherwise activities unless the agency provides Approval and Promulgation of Air protected through http:// Congress, through the Office of Quality Implementation Plans; IL www.regulations.gov or e-mail. The Management and Budget, with an http://www.regulations.gov Web site is explanation of why using these AGENCY: Environmental Protection an ‘‘anonymous access’’ system, which standards would be inconsistent with Agency (EPA). means EPA will not know your identity applicable law or otherwise impractical. ACTION: Direct final rule. or contact information unless you Voluntary consensus standards are provide it in the body of your comment. technical standards (e.g., specifications SUMMARY: EPA is approving a revision to If you send an e-mail comment directly of materials, performance, design, or the Illinois State Implementation Plan to EPA without going through http:// operation; test methods; sampling (SIP) for ozone. The State is revising its www.regulations.gov your e-mail definition of volatile organic compound procedures; and related management address will be automatically captured (VOC) to add two chemical compounds systems practices) that are developed or and included as part of the comment to the list of compounds that are exempt that is placed in the public docket and adopted by voluntary consensus from being considered a VOC. This standards bodies. made available on the Internet. If you revision is based on EPA’s 2009 submit an electronic comment, EPA This rule does not use technical determination that these two recommends that you include your standards, nor is the Coast Guard aware compounds do not significantly name and other contact information in of the existence of any standards that contribute to ozone formation. the body of your comment and with any address these TSSs. Therefore, we did DATES: This direct final rule will be disk or CD–ROM you submit. If EPA not consider the use of voluntary effective June 27, 2011, unless EPA cannot read your comment due to consensus standards. receives adverse comments by May 26, technical difficulties and cannot contact 2011. If adverse comments are received, you for clarification, EPA may not be M. Environment EPA will publish a timely withdrawal of able to consider your comment. We have analyzed this rule under the direct final rule in the Federal Electronic files should avoid the use of Department of Homeland Security Register informing the public that the special characters, any form of Management Directive 023–01 and rule will not take effect. encryption, and be free of any defects or Commandant Instruction M16475.lD, ADDRESSES: Submit your comments, viruses. which guide the Coast Guard in identified by Docket ID No. EPA–R05– Docket: All documents in the docket complying with the National OAR–2010–0946, by one of the are listed in the http:// Environmental Policy Act of 1969 following methods: www.regulations.gov index. Although (NEPA) (42 U.S.C. 4321–4370f), and 1. http://www.regulations.gov: Follow listed in the index, some information is have concluded that this action is one the on-line instructions for submitting not publicly available, e.g., CBI or other of a category of actions that do not comments. information whose disclosure is individually or cumulatively have a 2. E-mail: [email protected]. restricted by statute. Certain other 3. Fax: (312) 408–2279. material, such as copyrighted material, significant effect on the human 4. Mail: Douglas Aburano, Chief, will be publicly available only in hard environment. This rule is categorically Control Strategies Section, Air Programs copy. Publicly available docket excluded under section 2.B.2, figure Branch (AR–18J), U.S. Environmental materials are available either 2–1, paragraph (34)(i) of the Instruction. Protection Agency, 77 West Jackson electronically in http:// This rule involves navigational aids, Boulevard, Chicago, Illinois 60604. www.regulations.gov or in hard copy at which include TSSs. An environmental 5. Hand Delivery: Douglas Aburano, the Environmental Protection Agency, analysis checklist and a categorical Chief, Control Strategies Section, Air Region 5, Air and Radiation Division, 77 exclusion determination are available in Programs Branch (AR–18J), U.S. West Jackson Boulevard, Chicago, the docket where indicated under Environmental Protection Agency, 77 Illinois 60604. This facility is open from ADDRESSES. West Jackson Boulevard, Chicago, 8:30 a.m. to 4:30 p.m., Monday through List of Subjects in 33 CFR Part 167 Illinois 60604. Such deliveries are only Friday, excluding Federal holidays. We accepted during the Regional Office recommend that you telephone Charles Harbors, Marine safety, Navigation normal hours of operation, and special Hatten, Environmental Engineer, (312) (water), Waterways. arrangements should be made for 886–6031 before visiting the Region 5 deliveries of boxed information. The office. Accordingly, the interim rule Regional Office official hours of amending 33 CFR part 167, subpart B, business are Monday through Friday, FOR FURTHER INFORMATION CONTACT: which was published at 75 FR 77529 on 8:30 a.m. to 4:30 p.m., excluding Charles Hatten, Environmental December 13, 2010, is adopted as a final Federal holidays. Engineer, Control Strategies Section, Air rule. Instructions: Direct your comments to Programs Branch (AR–18J), Docket ID No. EPA–R05–OAR–2010– Environmental Protection Agency, Dated: April 4, 2011. Region 5, 77 West Jackson Boulevard, Dana A. Goward, 0946. EPA’s policy is that all comments received will be included in the public Chicago, Illinois 60604, (312) 886–6031, U.S. Coast Guard, Director of Marine docket without change and may be [email protected]. Transportation Systems Management. made available online at http:// SUPPLEMENTARY INFORMATION: [FR Doc. 2011–9892 Filed 4–25–11; 8:45 am] www.regulations.gov, including any Throughout this document whenever BILLING CODE 9110–04–P personal information provided, unless ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean

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EPA. This supplementary information tropospheric ozone formation (74 FR role is to approve state choices, section is arranged as follows: 3437, Jan. 21, 2009). Therefore, on provided that they meet the criteria of I. What is the background for this action? January 21, 2009, EPA amended 40 CFR the Clean Air Act. Accordingly, this A. When did the State submit the SIP 51.100(s)(1) to exclude propylene action merely approves state law as revision to EPA? carbonate and dimethyl carbonate from meeting Federal requirements and does B. Did Illinois hold public hearings on this the definition of VOC for purposes of not impose additional requirements SIP revision? preparing SIPs to attain the national beyond those imposed by state law. For II. What is EPA approving? ambient air quality standard for ozone that reason, this action: III. What is EPA’s analysis of the SIP under Title I of the Clean Air Act • Is not a ‘‘significant regulatory revision? (74 FR 3437). EPA’s action became action’’ subject to review by the Office IV. What action is EPA taking today? effective on February 20, 2009. Illinois of Management and Budget under V. Statutory and Executive Order Reviews EPA’s SIP revision is consistent with Executive Order 12866 (58 FR 51735, I. What is the background for this EPA’s action amending EPA’s definition October 4, 1993); action? of VOC at 40 CFR 51.100(s). • Does not impose an information collection burden under the provisions IV. What action is EPA taking today? A. When did the State submit the SIP of the Paperwork Reduction Act revision to EPA? EPA is approving a revision to the (44 U.S.C. 3501 et seq.); The Illinois Environmental Protection Illinois SIP for ozone which is • Is certified as not having a Agency (Illinois EPA) submitted a consistent with EPA’s 2009 action significant economic impact on a revision of the Illinois SIP provision at revising the definition of VOC. The substantial number of small entities 35 Illinois Administrative Code (IAC) Illinois SIP revision adds propylene under the Regulatory Flexibility Act 211.7150(a) to EPA for approval on carbonate and dimethyl carbonate (5 U.S.C. 601 et seq.); October 25, 2010. The SIP revision at 35 compounds to the list of compounds • Does not contain any unfunded IAC 211.7150(a) updates the definition considered exempt from being a VOC mandate or significantly or uniquely of ‘‘volatile organic material (VOM) or compound at 35 IAC 211.7150(a). affect small governments, as described volatile organic compound (VOC).’’ We are publishing this action without in the Unfunded Mandates Reform Act prior proposal because we view this as of 1995 (Pub. L. 104–4); B. Did Illinois hold public hearings on a noncontroversial amendment and • Does not have Federalism this SIP revision? anticipate no adverse comments. implications as specified in Executive The Illinois Pollution Control Board However, in the proposed rules section Order 13132 (64 FR 43255, August 10, held a public hearing on the proposed of this Federal Register publication, we 1999); SIP revision on November 19, 2009. The are publishing a separate document that • Is not an economically significant Board received public comments only will serve as the proposal to approve the regulatory action based on health or from Illinois EPA; these comments were state plan if relevant adverse written safety risks subject to Executive Order in support of the proposed revision. comments are filed. This rule will be 13045 (62 FR 19885, April 23, 1997); effective June 27, 2011 without further • Is not a significant regulatory action II. What is EPA approving? notice unless we receive relevant subject to Executive Order 13211 (66 FR EPA is approving an Illinois SIP adverse written comments by May 26, 28355, May 22, 2001); revision that adds to the list of 2011. If we receive such comments, we • Is not subject to requirements of compounds that are exempt from being will withdraw this action before the Section 12(d) of the National considered a VOM or VOC. On October effective date by publishing a Technology Transfer and Advancement 25, 2010, Illinois EPA submitted its subsequent document that will Act of 1995 (15 U.S.C. 272 note) because revision to Title 35 of IAC 211.7150(a), withdraw the final action. All public application of those requirements would the state’s VOC exemption list, with the comments received will then be be inconsistent with the Clean Air Act; addition of two chemical compounds— addressed in a subsequent final rule and propylene carbonate and dimethyl based on the proposed action. The EPA • Does not provide EPA with the carbonate, requesting that this revised will not institute a second comment discretionary authority to address, as rule be incorporated into the Illinois SIP period. Any parties interested in appropriate, disproportionate human in place of the current 35 IAC commenting on this action should do so health or environmental effects, using 211.7150(a). Compounds listed under 35 at this time. Please note that if EPA practicable and legally permissible IAC 211.7150(a) are excluded from the receives adverse comment on an methods, under Executive Order 12898 definition of a VOM or VOC. Illinois amendment, paragraph, or section of (59 FR 7629, February 16, 1994). EPA took this action based on EPA’s this rule and if that provision may be In addition, this rule does not have determination that these compounds severed from the remainder of the rule, Tribal implications as specified by have negligible photochemical EPA may adopt as final those provisions Executive Order 13175 (65 FR 67249, reactivity. (See 74 FR 3437, January 20, of the rule that are not the subject of an November 9, 2000), because the SIP is 2009.) adverse comment. If we do not receive not approved to apply in Indian country any comments, this action will be located in the state, and EPA notes that III. What is EPA’s analysis of the SIP effective June 27, 2011. it will not impose substantial direct revision? costs on Tribal governments or preempt In 2009, EPA evaluated petitions V. Statutory and Executive Order Tribal law. submitted by manufacturers asking EPA Reviews The Congressional Review Act, 5 to exempt propylene carbonate and Under the Clean Air Act, the U.S.C. 801 et seq., as added by the Small dimethyl carbonate from the definition Administrator is required to approve a Business Regulatory Enforcement of VOC and determined that the level of SIP submission that complies with the Fairness Act of 1996, generally provides reactivity of these two chemical provisions of the Clean Air Act and that before a rule may take effect, the compounds is negligible. EPA applicable Federal regulations. 42 agency promulgating the rule must concluded that these two compounds U.S.C. 7410(k); 40 CFR 52.02(a). Thus, submit a rule report, which includes a make a negligible contribution to in reviewing SIP submissions, EPA’s copy of the rule, to each House of the

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Congress and to the Comptroller General compounds propylene carbonate and publishing in today’s Federal Register a of the United States. EPA will submit a dimethyl were added to the list of proposed rule that would make this report containing this action and other negligibly reactive compounds excluded segregation authority permanent. At the required information to the U.S. Senate, from the definition of VOC in 35 IAC completion of the notice and comment the U.S. House of Representatives, and 211.7150(a). rulemaking process for the proposed the Comptroller General of the United (i) Incorporation by reference. Illinois rule, or at the end of 2 years, whichever States prior to publication of the rule in Administrative Code Title 35: occurs first, this Interim Rule will the Federal Register. A major rule Environmental Protection, Part 211: expire. cannot take effect until 60 days after it Definitions and General Provisions, DATES: Effective date: The Interim Rule is published in the Federal Register. Section 211.7150: Volatile Organic is effective April 26, 2011 through April This action is not a ‘‘major rule’’ as Matter (VOM) or Volatile Organic 26, 2013. defined by 5 U.S.C. 804(2). Compound (VOC), Subsection Comment deadline: You should Under section 307(b)(1) of the Clean 211.7150(a). Effective January 11, 2010. submit your comments on the Interim Air Act, petitions for judicial review of [FR Doc. 2011–10027 Filed 4–25–11; 8:45 am] Rule on or before June 27, 2011. The this action must be filed in the United BILLING CODE 6560–50–P BLM need not consider, or include in States Court of Appeals for the the administrative record for the Interim appropriate circuit by June 27, 2011. Rule, comments that the BLM receives Filing a petition for reconsideration by DEPARTMENT OF THE INTERIOR after the close of the comment period or the Administrator of this final rule does comments delivered to an address other not affect the finality of this action for Bureau of Land Management than those listed below (see ADDRESSES). the purposes of judicial review nor does ADDRESSES: Mail: Director (630), Bureau it extend the time within which a 43 CFR Parts 2090 and 2800 of Land Management, U.S. Department petition for judicial review may be filed, of the Interior, 1849 C St., NW., and shall not postpone the effectiveness [WO 300–1430–PQ] Washington, DC 20240, Attention: of such rule or action. Parties with RIN 1004–AE19 1004–AE19. Personal or messenger objections to this direct final rule are delivery: U.S. Department of the encouraged to file a comment in Segregation of Lands—Renewable Interior, Bureau of Land Management, response to the parallel notice of Energy 20 M Street, SE., Room 2134LM, proposed rulemaking for this action AGENCY: Bureau of Land Management, Attention: Regulatory Affairs, published in the proposed rules section Interior. Washington, DC 20003. Federal of today’s Federal Register, rather than eRulemaking Portal: http:// file an immediate petition for judicial ACTION: Notice of interim temporary www.regulations.gov. Follow the review of this direct final rule, so that final rule and opportunity to comment. instructions at this Web site. EPA can withdraw this direct final rule SUMMARY: The Bureau of Land and address the comment in the FOR FURTHER INFORMATION CONTACT: Ray Management (BLM) is issuing this Brady at (202) 912–7312 or the Division proposed rulemaking. This action may interim temporary final rule (Interim not be challenged later in proceedings to of Lands, Realty, and Cadastral Survey Rule) to amend the BLM’s regulations at (202) 912–7350 for information enforce its requirements. (See section found in 43 CFR parts 2090 and 2800 by 307(b)(2).) relating to the BLM’s renewable energy adding provisions allowing the BLM to program or the substance of the Interim List of Subjects in 40 CFR Part 52 temporarily segregate from the operation Rule, or Ian Senio at (202) 912–7440 for of the public land laws, by publication Environmental protection, Air information relating to the rulemaking of a Federal Register notice, public pollution control, Incorporation by process generally. Persons who use a lands included in a pending or future reference, Ozone, Volatile organic telecommunications device for the deaf wind or solar energy generation right-of- compound. (TDD) may call the Federal Information way (ROW) application, or public lands Relay Service (FIRS) at 1–800–877– Dated: April 4, 2011. identified by the BLM for a potential 8339, 24 hours a day, seven days a week Susan Hedman, future wind or solar energy generation to contact the above individuals. Regional Administrator, Region 5. ROW authorization under the BLM’s SUPPLEMENTARY INFORMATION: 40 CFR part 52 is amended as follows: ROW regulations, in order to promote the orderly administration of the public I. Public Comment Procedures PART 52—[AMENDED] lands. If segregated under this rule, such II. Background III. Section-by-Section Analysis lands will not be subject to ■ IV. Procedural Matters 1. The authority citation for part 52 appropriation under the public land continues to read as follows: laws, including location under the I. Public Comment Procedures Authority: 42 U.S.C. 7401 et seq. Mining Law of 1872 (Mining Law), but While this Interim Rule is effective not the Mineral Leasing Act of 1920 Subpart O—Illinois immediately upon publication in the (Mineral Leasing Act) or the Materials Federal Register, the BLM still seeks the ■ 2. Section 52.720 is amended by Act of 1947 (Materials Act), subject to public’s input and will consider any adding paragraph (c)(187) to read as valid existing rights, for a period of up comments on the Interim Rule received follows: to 2 years. This Interim Rule is effective within 60 days after the date of immediately upon publication in the publication (see DATES).1 If the BLM § 52.720 Identification of plan. Federal Register for a period not to * * * * * exceed 2 years after publication, but 1 As noted above, the BLM has also published, (c) * * * public comments received within 60 concurrently with this Interim Rule, a proposed (187) On October 25, 2010, Illinois days of the publication of this rule will rule that would make permanent the segregation authority included here. There will be a separate submitted revised regulations that are be considered by the BLM. Any opportunity for public comment on the proposed consistent with 40 CFR 51.100(s)(1), as necessary changes will be made to the rule as outlined in the Federal Register notice for amended by 74 FR 3437. The Interim Rule. The BLM is also that rule.

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determines that substantive comments II. Background of these and other initiatives, the received during the comment period Congress has directed the Department interest in renewable energy warrant it, the BLM may issue a further of the Interior (Department) to facilitate development on public lands has interim temporary final rule to address the development of renewable energy increased significantly. those comments and make any resources. Promoting renewable energy In addition to these specific directives, the BLM is charged generally necessary changes. Any further interim is one of this Administration’s and this with managing the public lands for temporary final rule would still be Department’s highest priorities. In multiple uses under the Federal Land subject to the 2-year effective period as Section 211 of the Energy Policy Act of Policy and Management Act of 1976 of the date of publication for this 2005 (119 Stat. 660, Aug. 8, 2005) (FLPMA), 43 U.S.C. 1701, et seq., Interim Rule. (EPAct), Congress declared that before including for mining and energy If you wish to comment, you may 2015 the Secretary of the Interior should development. In some instances, submit your comments by one of several seek to have approved non-hydropower different uses may present conflicts. For methods: renewable energy projects (solar, wind, example, a mining claim located within You may mail comments to Director and geothermal) on public lands with a a proposed ROW for a utility-scale solar (630) Bureau of Land Management, U.S. generation capacity of at least 10,000 Department of the Interior, Mail Stop energy generation facility could impede megawatts (MW) of electricity. Even the BLM’s ability to process the ROW 2143LM, 1849 C St., NW., Washington, before the EPAct was enacted by DC 20240, Attention: 1004–AE19. application because the Federal Congress, President Bush issued government’s use of the surface cannot You may deliver comments to U.S. Executive Order 13212, ‘‘Actions to Department of the Interior, Bureau of endanger or materially interfere with a Expedite Energy-Related Projects’’ (May properly located mining claim. In order Land Management, 20 M Street, SE., 18, 2001), which requires Federal Room 2134LM, Attention: Regulatory to help avoid such conflicts while agencies to expedite the production, carrying out the Congressional and Affairs, Washington, DC 20003; or transmission, or conservation of energy. You may access and comment on the Executive mandates and direction to After passage of the EPAct, the prioritize the development of renewable Interim Rule at the Federal eRulemaking Secretary of the Interior issued several Portal by following the instructions at energy, the BLM is issuing the Interim orders emphasizing the importance of Rule. The Interim Rule will help that site (see ADDRESSES). renewable energy development on promote the orderly administration of Written comments on the Interim public lands. On January 16, 2009, the public lands by giving the BLM a Rule should be specific, should be Secretary Kempthorne issued Secretarial tool to minimize potential resource confined to issues pertinent to the Order 3283, ‘‘Enhancing Renewable conflicts between ROWs for proposed Interim Rule, and should explain the Energy Development on the Public solar and wind energy generation reason for any recommended change. Lands,’’ which states that its purpose is facilities and other uses of the public Where possible, comments should to ‘‘facilitate[ ] the Department’s efforts lands. Under existing regulations, lands reference the specific section or to achieve the goal Congress established within a solar or wind energy generation paragraph of the Interim Rule that the in Section 211 of the * * * [EPAct] to ROW application or within an area comment is addressing. approve non-hydropower renewable identified by the BLM for such ROWs, The BLM need not consider or energy projects on the public lands with unlike lands proposed for exchange or include in the Administrative Record a generation capacity of at least 10,000 sale, remain open to appropriation for the Interim Rule comments that we megawatts of electricity by 2015.’’ The under the public land laws, including receive after the close of the comment order also declared that ‘‘the location and entry under the Mining period (see DATES) or comments development of renewable energy Law, while BLM is considering the delivered to an address other than those resources on the public lands will ROW. listed above (see ADDRESSES). increase domestic energy production, Over the past 5 years, the BLM has Comments, including names and street provide alternatives to traditional processed 24 solar and wind energy addresses of respondents, will be energy resources, and enhance the development ROW applications. New available for public review at the U.S. energy security of the United States.’’ mining claims were located on the Department of the Interior, Bureau of Approximately 1 year later, Secretary public lands described in two of these Land Management, 20 M Street, SE., Salazar issued Secretarial Order proposed ROWs during the BLM’s Room 2134LM, Division of Regulatory 3285A1, ‘‘Renewable Energy consideration of the applications. Many Affairs, Washington, DC 20003 during Development by the Department of the of the mining claims in the two regular hours (7:45 a.m. to 4:15 p.m.) Interior’’ (Feb. 22, 2010), which proposed ROWs were not located until Monday through Friday, except reemphasized the development of after the existence of the wind or solar holidays. They will also be available at renewable energy as a priority for the ROW application or the identification of the Federal eRulemaking Portal http:// Department. The order states: an area by the BLM for such ROWs www.regulations.gov. Follow the ‘‘Encouraging the production, became publicly known. In addition, instructions at this Web site. development, and delivery of renewable over the past 2 years, 437 new mining Before including your address, energy is one of the Department’s claims were located within wind energy telephone number, e-mail address, or highest priorities. Agencies and bureaus ROW application areas in Arizona, other personal identifying information within the Department will work California, Idaho, Nevada, Oregon, Utah, in your comment, be advised that your collaboratively with each other, and and Wyoming and 216 new mining entire comment—including your with other Federal agencies, claims were located within solar energy personal identifying information—may departments, states, local communities, ROW application areas. In the BLM’s be made publicly available at any time. and private landowners to encourage experience, some of these claims are While you can ask in your comment to the timely and responsible development likely to be valid, but others are likely withhold your personal identifying of renewable energy and associated to be speculative and not located for information from public review, we transmission while protecting and true mining purposes. As such, the cannot guarantee that we will be able to enhancing the Nation’s water, wildlife, latter are likely filed for no other do so. and other natural resources.’’ As a result purpose than to provide a means for the

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mining claimant to compel some kind of BLM to prevent new resource conflicts administration of the public land payment from the ROW applicant to from arising as a result of new mining laws,’’ 4 because they allow the BLM to relinquish the mining claim. The claims that may be located within land protect an applicant for an interest in potential for such a situation exists covered by any currently pending or such lands from ‘‘the assertion by others because, while it is relatively easy and future wind or solar energy generation of rights to the lands while the applicant inexpensive to file a mining claim, it facility ROW applications or in any is prevented from taking any steps to can be difficult, time-consuming, and areas identified by the BLM for such protect’’ its interests because it has to costly to prove that the mining claim ROWs pursuant to its ROW regulations. wait for the BLM to act on its was not properly filed or does not Temporary segregation is generally application.5 It is for this purpose that contain a valid discovery. Regardless of sufficient because once a ROW has been existing regulations at 43 CFR subpart the merits of a particular claim, the authorized, subsequently located 2091 provide the BLM with the location of a mining claim in an area mining claims would be subject to the discretion to segregate lands that are covered by a ROW application (or previously authorized use, and any proposed for various types of land identified for such an application) future mining claimant would have disposals, such as land sales, land creates uncertainty that interferes with notice of such use. exchanges, and transfers of public land the orderly administration of the public The Interim Rule supplements the to local governments and other entities lands. This uncertainty makes it authority contained in 43 CFR subpart under the Recreation and Public difficult for the BLM, energy project 2091 to allow the BLM to segregate from Purposes Act of 1926. These regulatory developers, and institutions that finance appropriation under the public land provisions allowing segregations were such development to proceed with such laws, including location under the put in place over the years to prevent projects because a subsequently located Mining Law, but not the Mineral resource conflicts, including conflicts mining claim potentially precludes final Leasing Act or the Materials Act, public arising from the location of new mining issuance of the ROW and increases lands included in a pending or future claims, which could create project costs, jeopardizing the planned wind or solar energy generation ROW encumbrances on the title of the public energy development. application or public lands identified by lands identified for transfer out of For example, the location of a new the BLM for a wind or solar energy Federal ownership under the applicable mining claim during the pendency of generation ROW authorization under 43 authorities. the BLM’s review process for a ROW CFR subpart 2804, subject to valid Such a situation occurred in Nevada, application could preclude the existing rights.3 This Interim Rule does and the proposed land purchaser chose applicant from providing a concrete not affect valid existing rights in mining to pay the mining claimant to relinquish proposal for their use and occupancy of claims located before any segregation his claims in order to enable the sale to the public lands. This is because under made pursuant to this Interim Rule. The go forward. In fact, in the land sales the Mining Law, a ROW cannot Interim Rule also does not affect ROW context, the segregative period was materially interfere with a previously applications for uses other than wind or increased from 270 days to a maximum located mining claim. Since all properly solar energy generation facilities. term of 4 years, as it was found that the located claims are treated as valid until Segregations under the Interim Rule original segregative period was proven otherwise, the filing of any would be accomplished by publishing a insufficient and that conflicting mining mining claim can substantially delay the notice in the Federal Register and claims were being located before sales processing of a ROW application. As a would be effective upon the date of could be completed. The Interim Rule result, a ROW applicant could either publication. The BLM considered a rule will provide the BLM the same wait for the BLM to determine the that would allow for segregation flexibility it currently has for land validity of a claim, or the applicant through notation to the public land disposals by allowing the BLM to could choose to modify or relocate its records, but it rejected this approach temporarily segregate lands that are proposed surface use to avoid conflicts because it would not provide the public included in pending or future with the newly located mining claim, with the same level of notice that a applications for solar and wind facility leading to additional expense, which Federal Register notice would ROWs or on lands identified by the could jeopardize the renewable energy accomplish. The Interim Rule provides BLM for such ROWs. This will allow for project.2 The BLM’s processing time for for segregation periods of up to 2 years. the orderly administration of the public the ROW application could be The Interim Rule does not authorize the lands by eliminating the potential for significantly increased if any changes BLM to continue the segregation after a conflicts with mining claims located necessitated by the newly located final decision on a ROW has been made. after the BLM publishes a Federal mining claim require the BLM to Finally, not all wind or solar ROW Register notice of such ROW undertake any additional analyses, such applications would lead to a applications or areas. as those required by the National segregation, as the BLM may reject some As noted above, the development of Environmental Policy Act 42 U.S.C. applications and others may not require renewable energy is a high priority for 4321 et seq. (NEPA). Under these segregation because conflicts with the Department of the Interior and the circumstances, the BLM’s ability to mining claims are not anticipated. BLM. The location of mining claims, administer the public lands in an Segregation rules, like the Interim however, under certain circumstances, orderly manner is impeded. Rule, have been held to be ‘‘reasonably may impede the BLM’s ability to This Interim Rule is needed to related’’ to the BLM’s broad authority to administer the public lands in an provide the BLM with the necessary issue rules related to ‘‘the orderly orderly manner and carry out its authority to ensure the orderly Congressional and Executive mandate to administration of the public lands and 3 The existing regulations define segregation as facilitate renewable energy development to prevent conflicts between competing ‘‘the removal for a limited period, subject to valid uses of those lands. By allowing for existing rights, of a specified area of the public lands from the operation of some or all of the public 4 See Bryon v. United States, 259 F. 371, 376 (9th temporary segregation, it will enable the land laws, including the mineral laws, pursuant to Cir. 1919); Hopkins v. United States, 414 F.2d 464, the exercise by the Secretary of regulatory authority 472 (9th Cir. 1969). 2 This uncertainty may also discourage banks for the orderly administration of the public lands.’’ 5 See, e.g., Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, from financing such projects. 43 CFR 2091.0–5(b) 1958).

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on those lands because the BLM purposes as described in this Interim IV. Procedural Matters currently lacks the ability to maintain Rule. The Interim Rule will expire after Executive Order 12866, Regulatory the status quo on such lands while it is 2 years or upon the completion of the Planning and Review processing a ROW application for a notice and comment rulemaking process wind or solar energy generation facility. for the proposed rule, whichever occurs This Interim Rule is not a significant 6 This Interim Rule will help the BLM first. regulatory action and is not subject to maintain the status quo and prevent review by the Office of Management and While the comment process on the Budget under Executive Order 12866. potential resource use conflicts by proposed rule involves the same allowing the BLM to temporarily The Interim Rule provides the BLM regulatory provisions as outlined below, segregate lands being considered for a with regulatory authority to segregate the BLM recognizes the importance of wind or solar energy generation facility. public lands included within a pending also receiving public input on this Based on these considerations, the BLM or future wind or solar energy Interim Rule. Therefore, the BLM is also has determined that it has ‘‘good cause’’ generation ROW application, or public soliciting, as noted above, public under the Administrative Procedure Act lands identified by the BLM for a (APA) to forgo the APA’s normal notice comments as a part of this temporary potential future wind or solar energy and comment requirements and make interim final rulemaking process. After generation ROW authorization, from the provisions outlined below effective the comment period on the Interim appropriation under the public land immediately for a temporary period, Rule, the BLM will review the laws, including location under the while it conducts a full notice and comments received and may issue a Mining Law, but not the Mineral comment rulemaking process on a further temporary final rule with any Leasing Act or the Materials Act, if the proposed rule, published concurrently necessary changes, prior to the BLM determines that segregation is in today’s Federal Register, that would expiration of the 2-year effective period necessary for the orderly administration make the segregation authority for this Interim Rule. of the public lands. To assess the potential economic impacts, the BLM permanent. The proposed rule would III. Section-by-Section Analysis also allow segregations made under it to must first make some assumptions be extended under certain This Interim Rule revises 43 CFR concerning when and how often this circumstances. 2091.3–1 and 2804.25 by adding segregation authority may be exercised. The purpose of any segregation would Under the APA, agencies can language that allows the BLM to be to allow for the orderly dispense with the standard notice and segregate, if the BLM determines it to be administration of the public lands to comment procedures and make a rule necessary for the orderly administration facilitate the development of renewable effective immediately when such of the public lands, by publication of a energy resources by avoiding conflicts procedures are ‘‘impracticable, Federal Register notice. This authority between renewable energy development unnecessary, or contrary to the public will be limited to public lands included and the location of mining claims. interest.’’ 5 U.S.C. 553(b)(B), 553(d)(3). in a pending or future wind or solar Wind—Wind energy ROW site testing Publishing this Interim Rule for public energy ROW application, or public and development applications are comment prior to its implementation is lands identified by the BLM for a wind widely scattered in many western states. contrary to the public interest because it or solar energy generation ROW Most of the public lands with pending could negate the rule’s very purpose by authorization under the BLM’s ROW wind energy ROW applications are resulting in a potential increase in the regulations. If segregated under this currently managed for multiple resource location of mining claims in areas rule, such lands, during the limited use, including being open to mineral covered by pending ROW applications segregation period, will not be subject to entry under the mining laws. Over the or in areas included in future ROW appropriation under the public land past 2 fiscal years, 437 new mining applications prior to those applications laws, including location under the claims were located within wind energy being acted on by the BLM. The location Mining Law, but not the Mineral ROW application areas in Arizona, of such mining claims could impede the Leasing Act or the Materials Act, subject California, Idaho, Nevada, Oregon, Utah, Department’s ability to process those to valid existing rights. and Wyoming. Based on the BLM’s ROW applications and potentially The new language also specifies that recent experience processing wind prevent the Department from meeting the segregative effect terminates and the energy ROW applications, it is the renewable energy goals established anticipated that approximately 25 by Congress and the Secretary of the lands will automatically reopen to percent of the lands with current wind Interior. For these reasons and those appropriation under the public land energy ROW applications will reach the stated above, the BLM finds that it has laws, including the mining laws: (1) processing stage where a Notice of ‘‘good cause’’ to publish this rule as an Upon the BLM’s issuance of a decision Intent (NOI) is issued. Without trying to interim temporary final rule that is regarding whether to issue a ROW identify specific locations of new effective immediately. Recognizing, authorization for the solar or wind mining claims located within those however, that the ‘‘good cause’’ energy generation proposal; (2) Upon application areas, we assume a quarter exception is to be used sparingly by publication of a Federal Register notice agencies and limited to circumstances of termination of the segregation; or (3) Without further administrative action at 6 ‘‘Significant regulatory action’’ means any in which the delay attributed to the regulatory action that is likely to result in a rule that notice-and-comment process would do the end of the segregation period may: (1) Have an annual effect on the economy of genuine harm, the BLM is making this provided for in the Federal Register $100 million or more or adversely effect in a Interim Rule effective only on a notice initiating the segregation, material way the economy * * *; (2) Create a whichever occurs first. The segregation serious inconsistency or otherwise interfere with an temporary basis—for a period not to action taken or planned by another agency; (3) exceed 2 years. As noted above, the would be effective for a period of up to Materially alter the budgetary impact of BLM published today, in the same issue 2 years. This Interim Rule is only entitlements, grants, user fees, or loan programs of the Federal Register, a proposed rule effective for a period of 2 years from the * * *; or (4) Raise novel legal and policy issues date of its publication in the Federal arising out of legal mandates, the President’s allowing for the temporary segregation priorities, or * * * this Executive Order.’’ Exec. of the public lands for the same Register. Order No. 12866, 58 FR 51738 (Oct. 4, 1993).

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of those new mining claims, or 109 new estimate two entities might be affected estimate since a single claimant mining claims, would be located within by this rule change.7 typically locates and holds multiple wind application areas that would be Should the BLM require the mining claims. Of the 216 new mining segregated under this rule. preparation of mineral examination claims located within solar energy ROW The actual number of claimants reports to determine claim validity, the application areas in the past 2 years, affected will likely be less than this entity filing the Plan or Notice would be there was an average of about eight estimate since a single claimant responsible for the cost of making that mining claims per claimant. Assuming typically files and holds multiple validity determination. Understanding that there was nothing unique about the mining claims. Of the 437 new mining that every mineral examination report is number and distribution of claims per claims filed within the wind energy unique and the costs will vary claimant for the past 2 years, we ROW application areas in fiscal year accordingly, we assume an average cost estimate seven entities would be (FY) 2009 and 2010, there was an of $100,000 to conduct the examination potentially precluded from locating new average of about eight mining claims per and prepare the report. Based on the mining claims on lands segregated claimant. Assuming that there was number of Plans and Notices filed within the identified solar energy ROW nothing unique about the number of within the wind energy right-of-way application areas under the rule change. claims and distribution of claims per application areas in FY 2009 and 2010, For these entities the economic impacts claimant for FY 2009 and 2010, we we estimate the total cost of this of the segregation are the delay in when estimate that 14 entities will be provision could be about $200,000 over they can locate their mining claim and potentially precluded from filing new the 2-year period. a potential delay in the development of mining claims on lands that would be Solar—As noted above, the primary such claim because such development segregated within the identified wind purpose of any segregation under this would be subject to any approved ROW energy ROW application areas under Interim Rule would be to allow for the issued during the segregative period. this rule. For these entities the orderly administration of the public However, a meaningful estimate of the economic impacts of the segregation are lands to facilitate the development of value of such delays is hard to quantify the delay in when they could locate valuable renewable resources and to given the available data because it their mining claims and a potential avoid conflicts between renewable depends on the validity and commercial delay in the development of such claims energy generation and mining claim viability of any individual claim, and because such development would be location. The main resource conflict of the fact that the location of a mining subject to any approved ROW issued concern involves mining claims that are claim is an early step in a long process during the segregative period. However, located after the first public that may eventually result in revenue a meaningful estimate of the value of announcement that the BLM is generating activity for the claimant. such delays is hard to quantify given the evaluating a ROW application, and prior The other situation where entities available data because it depends on the to when the BLM issues a final decision might be affected by the segregation validity and commercial viability of any on the ROW application. provisions is where a new Plan of individual claim, and the fact that the Most of the public lands with pending Operations or Notice is filed with the location of a mining claim is an early solar energy ROW applications are BLM during the 2-year segregation step in a long process that may currently managed for multiple resource period. In such a situation, the BLM has eventually result in revenue generating use, including mineral entry under the the discretion under the Surface activity for the claimant. mining laws. Where the BLM segregates Management Regulations (43 CFR The other situation where entities lands from mineral entry, claimants subpart 3809) to require a mineral might be affected by the segregation would not be allowed to locate any new examination to determine if the mining provision is if a new Plan of Operations mining claims during the 2-year claims were valid before the lands were or Notice is filed with the BLM during segregation period. Over the past 2 segregated before it approves the Plan of the 2-year segregation period. In such a years, 216 new mining claims were Operations or accepts the filed Notice. situation, the BLM has the discretion located within solar energy ROW If required, the operator is responsible under the Surface Management application areas. Based on the BLM’s to pay the cost of the examination and Regulations (43 CFR subpart 3809) to recent experience processing solar report. require the preparation of a mineral energy ROW applications, it is examination report to determine if the anticipated that approximately 25 Within the past 2-year period, two mining claims were valid before the percent of the lands with current solar Plans of Operations and two Notices lands were segregated before it energy ROW applications will reach the were filed with the BLM within solar processes the Plan of Operations or processing stage where a NOI is issued. ROW application areas. Assuming (1) a accepts the filed Notice. If required, the Without trying to identify which ROWs quarter of those filings would be on operator is responsible to pay the cost will be granted or the specific locations lands segregated under this rule, (2) the of the examination and report. of new mining claims within those number of Plan and Notice filings Within the past 2-year period, five application areas, we assume a quarter received in the past 2 years is reflective Plans of Operations and two Notices of those new mining claims, or 54 new of what might occur within a 2-year were filed with the BLM within wind mining claims, would be located within segregation period, and (3) the BLM ROW application areas. Assuming (1) a solar ROW application areas that would would require mineral examination quarter of those filings would be on be segregated under this rule. reports to determine claim validity on lands segregated under this rule, (2) the The actual number of claimants all Plans and Notices filed within the number of Plan and Notice filings affected will likely be less than this segregation period, we estimate one received in the past 2 years is somewhat entity might be affected by this rule 8 reflective of what might occur within a 7 With respect to any particular Plan of Operation change. 2-year segregation period, and (3) the or Notice that might be filed in areas segregated BLM would require mineral under the Interim Rule, the BLM will separately 8 With respect to any particular Plan of Operation determine, on a case-by-case basis and consistent or Notice that might be filed in areas segregated examination reports to determine claim with the requirements of 43 CFR 3809.100(a), under the Interim Rule, the BLM will separately validity on all Plans and Notices filed whether to require a validity determination for such determine, on a case-by-case basis and consistent within the segregation period, we Plan and Notice. with the requirements of 43 CFR 3809.100(a),

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Should the BLM require a mineral Clarity of the Regulation environmental impact statement is examination to determine claim Executive Order 12866 requires each required. validity, the entity filing the Plan or agency to write regulations that are Regulatory Flexibility Act Notice would be responsible for the cost simple and easy to understand. The of making that validity determination. BLM invites your comments on how to The Congress enacted the Regulatory Understanding that every mineral make this Interim Rule easier to Flexibility Act (RFA) of 1980, as examination report is unique and the understand, including answers to amended, 5 U.S.C. 601–612, to ensure costs will vary accordingly, we assume questions such as the following: that Government regulations do not an average cost of $100,000 to conduct 1. Are the requirements in the Interim unnecessarily or disproportionately the examination and prepare the report. Rule clearly stated? burden small entities. The RFA requires Based on the number of Plans and 2. Does the Interim Rule contain a regulatory flexibility analysis if a rule Notices filed within the solar energy technical language or jargon that would have a significant economic ROW application areas in the past 2 interferes with its clarity? impact, either detrimental or beneficial, years, we estimate the total cost of this 3. Does the format of the Interim Rule on a substantial number of small provision could be about $100,000 over (grouping and order of sections, use of entities. The RFA requires agencies to the 2-year period. headings, paragraphing, etc.) aid or analyze the economic impact of It is not possible to estimate the reduce its clarity? regulations to determine the extent to number of future rights-of-way for wind 4. Would the regulations be easier to which there is anticipated to be a or solar energy developments that could understand if they were divided into significant economic impact on a be filed on areas identified as having more (but shorter) sections? substantial number of small entities. We 5. Is the description of the Interim potential for either of these sources of anticipate that the Interim Rule could Rule in the SUPPLEMENTARY INFORMATION energy. This is because there are many potentially affect a few entities that section of this preamble helpful in variables that could have an impact on might otherwise have located new such filings. Such variables include: understanding the Interim Rule. How could this description be more helpful mining claims on public lands covered The quantity and sustainability of wind by a wind or solar energy facility ROW at any one site, the intensity and in making the Interim Rule easier to understand? application currently pending or filed in quantity of available sunlight, the the future. We further anticipate that capability of obtaining financing for Please send any comments you have on the clarity of the regulations to the most of these entities will be small either wind or solar energy projects, the entities as defined by the Small proximity of transmission facilities that address specified in the ADDRESSES section. Business Administration; however, we could be used to carry the power do not expect the potential impact to be generated from a specific wind or solar National Environmental Policy Act significant. Please see the Economic and energy ROW project, and the The BLM has determined that this Threshold Analysis at the address in the topography of the property involved. Interim Rule is administrative in nature ADDRESSES section of this rule for The number of mining claims would and involves only procedural changes additional information. Therefore, the also be based on speculation as to the addressing segregation requirements. BLM has determined under the RFA mineral potential of an area, access to This Interim Rule will result in no new markets, potential for profitability, and that this Interim Rule would not have a surface disturbing activities and a host of other geologic factors, such as significant economic impact on a therefore will have no effect on type of mineral, depth of the mineral substantial number of small entities. A ecological or cultural resources. beneath the surface, quantity and copy of the analysis that supports this Potential effects from associated wind determination is available at the office quality of the mineral, and other such and/or solar ROWs will be analyzed as considerations. listed under the ADDRESSES section of part of the site-specific NEPA analysis this preamble. Based on this analysis, the BLM for those activities. In promulgating this concludes that this Interim Rule will not rule, the government is conducting Small Business Regulatory Enforcement have an annual effect of $100 million or routine and continuing government Fairness Act more on the economy. It will not business of an administrative nature adversely affect in a material way the having limited context and intensity. For the same reasons as discussed economy, productivity, competition, Therefore, it is categorically excluded under the Executive Order 12866, jobs, the environment, public health or from environmental review under Regulatory Planning and Review section safety, or State, local, or tribal section 102(2)(C) of NEPA, pursuant to of this preamble, this Interim Rule is not governments or communities. This 43 CFR 46.205. The Interim Rule does a ‘‘major rule’’ as defined at 5 U.S.C. Interim Rule does not create a serious not meet any of the extraordinary 804(2). That is, it would not have an inconsistency or otherwise interfere circumstances criteria for categorical annual effect on the economy of $100 with an action taken or planned by exclusions listed at 43 CFR 46.215. million or more; it would not result in another agency. This Interim Rule does Pursuant to Council on Environmental major cost or price increases for not alter the budgetary effects of Quality regulation (40 CFR 1508.4) and consumers, industries, government entitlements, grants, user fees or loan the environmental policies and agencies, or regions; and it would not programs or the rights or obligations of procedures of the Department, the term have significant adverse effects on their recipients; nor does it raise novel ‘‘categorical exclusion’’ means a category competition, employment, investment, legal or policy issues. The full economic of actions which do not individually or productivity, innovation, or the ability analysis is available at the office listed cumulatively have a significant effect on of U.S.-based enterprises to compete under the ADDRESSES section of this the human environment and which with foreign-based enterprises. A copy preamble. have been found to have no such effect of the analysis that supports this on procedures adopted by a Federal determination is available at the office whether to require a validity determination for such agency and for which, therefore, neither listed under the ADDRESSES section of Plan and Notice. an environmental assessment nor an this preamble.

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Unfunded Mandates Reform Act Federalism implications to warrant recognized interests in land or other preparation of a Federalism Assessment. natural resources; properly This Interim Rule does not impose an accommodates local participation in the Executive Order 12988, Civil Justice unfunded mandate on State, local, or Federal decision-making process; and Reform tribal governments, in the aggregate, or provides that the programs, projects, the private sector of $100 million or Under Executive Order 12988, the and activities are consistent with more per year; nor does this Interim BLM has determined that this Interim protecting public health and safety. Rule have a significant or unique effect Rule will not unduly burden the judicial on State, local, or tribal governments. system and that it meets the Paperwork Reduction Act The rule imposes no requirements on requirements of sections 3(a) and 3(b)(2) The Interim Rule does not contain any of these entities. This Interim Rule of the Order. information collection requirements that will not have effects approaching $100 the Office of Management and Budget Executive Order 13175, Consultation million per year on the government or must approve under the Paperwork and Coordination With Indian Tribal the private sector. Therefore, the BLM Reduction Act of 1995. does not need to prepare a statement Governments containing the information required by In accordance with Executive Order Author the Unfunded Mandates Reform Act (2 13175, the BLM has found that this The principal author of this rule is Jeff U.S.C. 1531 et seq.). Interim Rule does not include policies Holdren, Realty Specialist, Division of that have tribal implications. This rule Lands and Realty, assisted by the Executive Order 12630, Governmental applies exclusively to lands Division of Regulatory Affairs, Actions and Interference With administered by the BLM. It is not Washington Office, Bureau of Land Constitutionally Protected Property applicable to and has no bearing on Management, Department of the Rights (Takings) trust or Indian lands or resources, or on Interior. This Interim Rule is not a government lands for which title is held in fee status List of Subjects action that interferes with by Indian tribes, or on U.S. Government- constitutionally protected property owned lands managed by the Bureau of 43 CFR Part 2090 rights. This Interim Rule sets out a Indian Affairs. Airports; Alaska; Coal; Grazing lands; process, by publication of a notice in the Information Quality Act Indian lands; Public lands; Public Federal Register, that could be used to lands—classification; Public lands— segregate public lands included within In developing this Interim Rule, the mineral resources; Public lands— a pending or future solar or wind energy BLM did not conduct or use a study, withdrawal; Seashores. experiment, or survey requiring peer generation ROW application, or public 43 CFR Part 2800 lands identified by the BLM for a review under the Information Quality potential future wind or solar energy Act (Section 515 of Pub. L. 106–554). Communications; Electric power; generation ROW authorization. This Executive Order 13211, Actions Highways and roads; Penalties; segregation would remove public lands Concerning Regulations That Pipelines; Public lands—rights-of-way; from the operation of the public land Significantly Affect Energy Supply, Reporting and recordkeeping laws, including the location of new Distribution, or Use requirements. For the reasons stated in the preamble mining claims under the General In accordance with Executive Order and under the authorities stated below, Mining Law, but not the Mineral 13211, the BLM has determined that the BLM amends 43 CFR parts 2090 and Leasing Act or the Materials Act, for a this Interim Rule is not likely to have a 2800 as follows: period of up to 2 years in order to significant adverse effect on energy promote the orderly administration of supply, distribution, or use, including a Subchapter B—Land Resource the public lands. Because any shortfall in supply, price increase, or Management (2000) segregation under this Interim Rule increased use of foreign supplies. The PART 2090—SPECIAL LAWS AND would be subject to valid existing rights, BLM’s authority to segregate lands RULES it does not interfere with under this rulemaking would be of a constitutionally protected property temporary nature for the purpose of rights. Therefore, the Department has ■ 1. The authority citation for part 2090 encouraging the orderly administration continues to read as follows: determined that this Interim Rule does of public lands, including the not have significant takings implications generation of electricity from wind and Authority: 43 U.S.C. 1740. and does not require further discussion solar resources on the public lands. Any of takings implications under this Subpart 2091—Segregation and increase in energy production as a result Opening of Lands Executive Order. of this rule from wind or solar sources Executive Order 13132, Federalism is not easily quantified, but the Interim ■ 2. Amend § 2091.3–1 by adding a new Rule is expected to relieve obstacles and paragraph (e) to read as follows: This Interim Rule will not have a hindrances to energy development on substantial direct effect on the States, or public lands. § 2091.3–1 Segregation. the relationship between the national * * * * * government and the States, or on the Executive Order 13352—Facilitation of (e)(1) The Bureau of Land distribution of power and Cooperative Conservation Management may segregate, if it finds it responsibilities among the levels of In accordance with Executive Order to be necessary for the orderly government. It does not apply to States 13352, the BLM has determined that administration of the public lands, or local governments or State or local this Interim Rule does not impede the lands included in a right-of-way government entities. Therefore, in facilitation of cooperative conservation. application for the generation of accordance with Executive Order 13132, The rule takes appropriate account of electrical energy under 43 CFR subpart the BLM has determined that this and respects the interests of persons 2804 from wind or solar sources. In Interim Rule does not have sufficient with ownership or other legally addition, the Bureau of Land

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Management may also segregate lands BLM may also segregate public lands DEPARTMENT OF COMMERCE that it identifies for potential rights-of- that it identifies for potential rights-of- way for electricity generation from wind way for electricity generation from wind National Oceanic and Atmospheric or solar sources. Upon segregation, such or solar sources under the BLM’s right- Administration lands will not be subject to of-way regulations. Upon segregation, appropriation under the public lands such lands will not be subject to 50 CFR Part 622 laws, including location under the appropriation under the public land [Docket No. 040205043–4043–01] General Mining Law, but not the laws, including location under the RIN 0648–XA360 Mineral Leasing Act of 1920 (30 U.S.C. General Mining Law, but not from the 181 et seq.) or the Materials Act of 1947 Mineral Leasing Act of 1920 (30 U.S.C. Fisheries of the Caribbean, Gulf of (30 U.S.C. 601 et seq.). The Bureau of 181 et seq.) or the Materials Act of 1947 Mexico, and South Atlantic; Snapper- Land Management will effect such (30 U.S.C. 601 et seq.). The BLM will Grouper Fishery of the South Atlantic; segregation by publishing a Federal effect such segregation by publishing a Reopening of the Commercial Sector Register notice that includes a for Vermilion Snapper in the South description of the lands covered by the Federal Register notice that includes a Atlantic segregation. The Bureau of Land description of the lands covered by the Management may impose a segregation segregation. The Bureau of Land AGENCY: National Marine Fisheries in this way on both pending and new Management may impose a segregation Service (NMFS), National Oceanic and right-of-way applications. in this way on both pending and new Atmospheric Administration (NOAA), (2) The effective date of segregation is right-of-way applications. Commerce. the date of publication of the notice in (2) The segregative effect of the ACTION: Temporary rule; reopening. the Federal Register, and the date of Federal Register notice terminates on termination of the segregation is the the date that is the earliest of the SUMMARY: NMFS reopens the date that is the earliest of the following: following: commercial sector for South Atlantic (i) Upon issuance of a decision by the vermilion snapper in the exclusive authorized officer granting, granting (i) Upon issuance of a decision by the economic zone (EEZ). NMFS previously with modifications, or denying the authorized officer granting, granting determined the quota for the application for a right-of-way; with modifications, or denying the commercial sector would be reached by (ii) Automatically at the end of the application for a right-of-way; March 10, 2011, and closed the segregation period provided for in the (ii) Automatically at the end of the commercial sector for vermilion snapper Federal Register notice initiating the segregation period provided for in the in the South Atlantic. The latest segregation, without further action by Federal Register notice initiating the estimates for landings indicate the quota the authorized officer; or segregation, without further action by was not reached by that date. (iii) Upon publication of a Federal the authorized officer; or Consequently, NMFS will reopen the Register notice of termination of the commercial sector for 7 days. The segregation. (iii) Upon publication of a Federal purpose of this action is to allow the (3) The segregation period may not Register notice of termination of the commercial sector to maximize harvest exceed 2 years from the date of segregation. benefits and at the same time protect the publication of the Federal Register (3) The segregation period may not vermilion snapper resource. notice initiating the segregation. exceed 2 years from the date of DATES: The reopening is effective 12:01 (4) The effective period of this publication of the Federal Register a.m., local time, May 1, 2011, until subsection of this part will not exceed notice initiating the segregation. 12:01 a.m., local time, on May 8, 2011. two years from the date of its The commercial sector will then be publication in the Federal Register. (4) The effective period of this subsection of this part will not exceed closed until the end of the current fishing period, 12:01 a.m., local time, PART 2800—RIGHTS-OF-WAY UNDER two years from the date of its July 1, 2011. THE FEDERAL LAND POLICY AND publication in the Federal Register. MANAGEMENT ACT FOR FURTHER INFORMATION CONTACT: Dated: April 6, 2011. Catherine Bruger, telephone 727–824– ■ 3. The authority citation for part 2800 Wilma A. Lewis, 5305, fax 727–824–5308, e-mail continues to read as follows: Assistant Secretary of the Interior, Land and [email protected]. Authority: 43 U.S.C. 1733, 1740, 1763, and Minerals Management. SUPPLEMENTARY INFORMATION: The 1764. [FR Doc. 2011–10019 Filed 4–25–11; 8:45 am] snapper-grouper fishery of the South BILLING CODE 4310–84–P Atlantic is managed under the Fishery Subpart 2804—Applying for FLPMA Management Plan for the Snapper- Grants Grouper Fishery of the South Atlantic ■ 4. Amend § 2804.25 by adding a new Region (FMP). The FMP was prepared paragraph (e) to read as follows: by the South Atlantic Fishery Management Council (Council) and is § 2804.25 How will BLM process my implemented under the authority of the application? Magnuson-Stevens Fishery * * * * * Conservation and Management Act (e)(1) The BLM may segregate, if it (Magnuson-Stevens Act) by regulations finds it to be necessary for the orderly at 50 CFR part 622. administration of the public lands, The commercial quota for vermilion lands included within a right-of-way snapper in the South Atlantic is 315,523 application under 43 CFR subpart 2804 lb (143,119 kg) for the current fishing for the generation of electricity from period, January 1 through June 30, 2011, wind or solar sources. In addition, the as specified in 50 CFR 622.42(e)(4)(i).

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Under 50 CFR 622.43(a)(5), NMFS is Classification adjusts the quotas and announces the required to close the commercial sector This action responds to the best revised commercial quota for each state for a species or species group when the available information recently obtained involved. quota for that species or species group from the commercial sector. The DATES: Effective April 21, 2011, through is reached, or is projected to be reached, Assistant Administrator for Fisheries, December 31, 2011. by filing a notification to that effect with NOAA, (AA), finds good cause to waive FOR FURTHER INFORMATION CONTACT: the Office of the Federal Register. NMFS the requirement to provide prior notice Carly Knoell, Fishery Management projected the commercial sector for and opportunity for public comment Specialist, 978–281–9224. vermilion snapper in the South Atlantic pursuant to the authority set forth at 5 would reach the quota on, or before, U.S.C. 553(b)(B). Allowing prior notice SUPPLEMENTARY INFORMATION: March 10, 2011, and closed the and opportunity for public comment on Regulations governing the summer commercial sector on that date (76 FR the reopening is unnecessary because flounder fishery are found at 50 CFR 12883, March 9, 2011). However, based the rule establishing the January 1 part 648. The regulations require annual on current statistics, NMFS has through June 30 quota has already been specification of a commercial quota that determined that only 83 percent of the subject to notice and comment, and all is apportioned among the coastal states available commercial quota was landed that remains is to notify the public that from North Carolina through Maine. The by that date. Based on daily landings additional harvest is available under the process to set the annual commercial rates and the pounds remaining on the established quota and, therefore, the quota and the percent allocated to each quota (approximately 53,120 lb (24,095 commercial sector will reopen for a state are described in § 648.100. kg)), NMFS has determined the limited time period. The final rule implementing commercial sector can reopen for 7 For the aforementioned reasons, the Amendment 5 to the Summer Flounder, days. Accordingly, NMFS is reopening AA also finds good cause to waive the Scup, and Black Sea Bass Fishery the commercial sector for vermilion 30-day delay in the effectiveness of this Management Plan, which was published snapper in the South Atlantic from action under 5 U.S.C. 553(d)(3). on December 17, 1993 (58 FR 65936), 12:01 a.m., local time, on May 1, 2011, This action is taken under 50 CFR provided a mechanism for summer until 12:01 a.m., local time, on May 8, 622.43(c) and is exempt from review flounder quota to be transferred from 2011. The commercial sector will then under Executive Order 12866. one state to another. Two or more states, be closed until 12:01 a.m., local time, Authority: 16 U.S.C. 1801 et seq. under mutual agreement and with the July 1, 2011. May 1, 2011, was chosen concurrence of the Administrator, Dated: April 21, 2011. as the reopening day for the commercial Northeast Region, NMFS (Regional sector based on feedback from the James P. Burgess, Administrator), can transfer or combine fishing industry and expected weather Acting Director, Office of Sustainable summer flounder commercial quota conditions, which indicated that this Fisheries, National Marine Fisheries Service. under § 648.100(d). The Regional was the best time to reopen. [FR Doc. 2011–10035 Filed 4–21–11; 4:15 pm] Administrator is required to consider The operator of a vessel with a valid BILLING CODE 3510–22–P the criteria set forth in § 648.100(d)(3) in commercial vessel permit for South the evaluation of requests for quota transfers or combinations. Atlantic snapper-grouper may not fish DEPARTMENT OF COMMERCE for or retain vermilion snapper in the North Carolina has agreed to transfer South Atlantic prior to 12:01 a.m., local National Oceanic and Atmospheric 471,727 lb (213,972 kg) of its 2011 time, May 1, 2011, and must have Administration commercial quota to Virginia. This landed and bartered, traded, or sold transfer was prompted by 52 summer such vermilion snapper prior to 12:01 50 CFR Part 648 flounder landings of North Carolina a.m., local time, May 8, 2011. vessels that were granted safe harbor in [Docket No. 101029427–0609–02] During the closure, the bag limit and Virginia due to hazardous shoaling in possession limits specified in 50 CFR RIN 0648–XA371 Oregon Inlet, North Carolina, severe 622.39(d)(1)(v) and (d)(2), respectively, winter storm conditions, and/or apply to all harvest or possession of Fisheries of the Northeastern United mechanical problems between March States; Summer Flounder Fishery; vermilion snapper in or from the South 17, 2011, and April 1, 2011. This Quota Transfer Atlantic EEZ, and the sale or purchase amount also includes a correction to a landing on March 16, 2011, that was of vermilion snapper taken from the AGENCY: National Marine Fisheries included in the quota transfer effective EEZ is prohibited. The prohibition on Service (NMFS), National Oceanic and April 4, 2011 (76 FR 19277). This sale or purchase does not apply to sale Atmospheric Administration (NOAA), correction accounts for 2,805 lb (1,272 or purchase of vermilion snapper that Commerce. kg) of the total transfer amount. The were harvested, landed ashore, and sold ACTION: Temporary rule; quota transfer. prior to 12:01 a.m., local time, May 8, Regional Administrator has determined that the criteria set forth in 2011, and were held in cold storage by SUMMARY: NMFS announces that the a dealer or processor. For a person on State of North Carolina is transferring a § 648.100(d)(3) have been met. The board a vessel for which a Federal portion of its 2011 commercial summer revised summer flounder quotas for commercial or charter vessel/headboat flounder quota to the Commonwealth of calendar year 2011 are: North Carolina, permit for the South Atlantic snapper- Virginia. Vessels from North Carolina 3,691,601 lb (1,674,482 kg); and grouper fishery has been issued, the sale were authorized by Virginia to land Virginia, 4,780,967 lb (2,168,610 kg). and purchase provisions of the summer flounder under safe harbor Classification commercial closure for vermilion provisions, thereby requiring a quota snapper would apply regardless of transfer to account for an increase in This action is taken under 50 CFR whether the fish are harvested in state Virginia’s landings that would have part 648 and is exempt from review or Federal waters, as specified in 50 otherwise accrued against the North under Executive Order 12866. CFR 622.43(a)(5)(ii). Carolina quota. By this action, NMFS Authority: 16 U.S.C. 1801 et seq.

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Dated: April 21, 2011. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2011–10036 Filed 4–21–11; 4:15 pm] BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 76, No. 80

Tuesday, April 26, 2011

This section of the FEDERAL REGISTER • Mail comments to: Secretary, U.S. you do not want to be publicly contains notices to the public of the proposed Nuclear Regulatory Commission, disclosed. The NRC requests that any issuance of rules and regulations. The Washington, DC 20555–0001, Attn: party soliciting or aggregating comments purpose of these notices is to give interested Rulemakings and Adjudications Staff. received from other persons for persons an opportunity to participate in the • E-mail comments to: submission to the NRC inform those rule making prior to the adoption of the final rules. [email protected]. If you persons that the NRC will not edit their do not receive a reply e-mail confirming comments to remove any identifying or that we have received your comments, contact information, and therefore, they NUCLEAR REGULATORY contact us directly at 301–415–1677. should not include any information in COMMISSION • Hand-deliver comments to: 11555 their comments that they do not want Rockville Pike, Rockville, Maryland publicly disclosed. 10 CFR Part 26 20852, between 7:30 a.m. and 4:15 p.m. You can access publicly available Federal workdays (telephone: 301–415– information related to this document RIN 3150–AI94 1677). using the following methods: [NRC–2011–0058] • Fax comments to: Secretary, U.S. • NRC’s Public Document Room Nuclear Regulatory Commission at 301– (PDR): The public may examine and Alternative to Minimum Days Off 415–1101. have copied, for a fee, publicly available Requirements FOR FURTHER INFORMATION CONTACT: documents at the NRC’s PDR, Room O– AGENCY: Nuclear Regulatory Howard Benowitz, Office of the General 1F21, One White Flint North, 11555 Commission. Counsel, U.S. Nuclear Regulatory Rockville Pike, Rockville, Maryland 20852. ACTION: Proposed rule. Commission, Washington, DC 20555; • telephone: 301–415–4060; e-mail: NRC’s Agencywide Documents SUMMARY: The U.S. Nuclear Regulatory [email protected]. Access and Management System Commission (NRC or the Commission) (ADAMS): Publicly available documents SUPPLEMENTARY INFORMATION: is proposing to amend its regulations created or received at the NRC are governing the fitness for duty of workers I. Submitting Comments and Accessing available electronically at the NRC’s at nuclear power plants. These Information Electronic Reading Room at http:// amendments would allow holders of II. Background www.nrc.gov/reading-rm/adams.html. nuclear power plant operating licenses A. NRC’s Current Regulations From this page, the public can gain B. Stakeholder Reaction to the Current the option to use a different method entry into ADAMS, which provides text Fitness for Duty Requirements and image files of NRC’s public from the one currently prescribed in the C. Public Meetings and Commission NRC’s regulations for determining when Direction documents. If you do not have access to certain nuclear power plant workers III. Description of the Proposed Rule ADAMS or if there are problems in must be afforded time off from work to A. Maximum Weekly Average of 54 Hours accessing the documents located in ensure that such workers are not Worked Over a 6-Week Rolling Window ADAMS, contact the NRC’s PDR impaired due to cumulative fatigue B. Proposed Alternative to the Minimum reference staff at 1–800–397–4209, or caused by work schedules. Days Off Requirements 301–415–4737, or by e-mail to C. Applicability DATES: Submit comments by May 26, [email protected]. IV. Section-by-Section Analysis • Federal Rulemaking Web Site: 2011. Comments received after this date V. Specific Request for Comment will be considered if it is practical to do Public comments and supporting VI. Availability of Documents materials related to this proposed so, but the Commission is able to ensure VII. Criminal Penalties consideration only for comments VIII. Compatibility of Agreement State rulemaking can be found at http:// received before this date. Requests for Regulations www.regulations.gov by searching on extension of the comment period will IX. Plain Language Docket ID NRC–2011–0058. not be granted. X. Voluntary Consensus Standards II. Background XI. Finding of No Significant Environmental ADDRESSES: Please include Docket ID Impact A. NRC’s Current Regulations NRC–2011–0058 in the subject line of XII. Paperwork Reduction Act Statement your comments. For instructions on XIII. Regulatory Analysis On March 31, 2008, the NRC adopted submitting comments and accessing XIV. Regulatory Flexibility Certification a final rule which substantially revised documents related to this action, see XV. Backfit Analysis its regulations for fitness for duty (FFD) ‘‘Submitting Comments and Accessing in Title 10 of the Code of Federal I. Submitting Comments and Accessing Information’’ in the SUPPLEMENTARY Regulations (10 CFR) part 26 (73 FR Information INFORMATION section of this document. 16966; March 31, 2008). The revised You may submit comments by any Comments submitted in writing or in regulations updated the NRC’s FFD one of the following methods. electronic form will be posted on the requirements and made them more • Federal rulemaking Web site: Go to NRC Web site and on the Federal consistent with other relevant Federal http://www.regulations.gov and search rulemaking Web site, http:// rules, guidelines, and drug and alcohol for documents filed under Docket ID www.regulations.gov. Because your testing programs that impose similar NRC–2011–0058. Address questions comments will not be edited to remove requirements on the private sector. In about NRC dockets to Carol Gallagher, any identifying or contact information, addition, by establishing clear and telephone: 301–492–3668, e-mail: the NRC cautions you against including enforceable requirements for the [email protected]. any information in your submission that management of worker fatigue, the 2008

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amendments require nuclear power adversely [impact] the quality of life of stakeholders were less certain that the plant licensees to ensure that worker covered workers, and [result] in NRC should consider proposals to fatigue does not adversely affect public conflicts between rule requirements and change the current requirements. health and safety and the common represented bargaining unit On March 24, 2011, the Commission defense and security. Among these agreements.’’ The letter requests that the issued a Staff Requirements fatigue management requirements is a NRC ‘‘exercise enforcement discretion Memorandum that directed the NRC minimum days off requirement, which from the [minimum days off] provisions staff to conduct a rulemaking to provide requires licensees to manage cumulative of the rule’’ until the final disposition of an alternative to the minimum days off fatigue by providing workers with a PRM–26–5. requirements that would be consistent minimum number of days off over the Mr. Erik Erb, a nuclear security officer with the proposal presented by the NRC course of a period not to exceed 6 at the Nine Mile Point Nuclear Station, staff at the February 8, 2011, briefing. weeks. submitted a petition for rulemaking The Commission limited the scope of (PRM–26–6) on August 17, 2010. Mr. the rulemaking to the alternative to the B. Stakeholder Reaction to the Current Erb requests that the NRC amend 10 Fitness for Duty Requirements minimum days off requirements and CFR part 26, subpart I, to decrease the instructed the NRC staff to consider On September 3, 2010, the Nuclear minimum days off requirement for other issues related to the petitions for Energy Institute (NEI) submitted a security officers working 12-hour shifts rulemaking, other changes to 10 CFR petition for rulemaking (PRM–26–5). In from an average of 3 days per week to part 26, and comments received in this PRM–26–5, the NEI states that ‘‘the new an average of 2.5 or 2 days per week. rulemaking proceeding that are outside rule has resulted in consequences not This petition was endorsed by 91 the limited scope of this rulemaking, in originally envisioned when the rule was security officers. a separate rulemaking effort. The developed and that these consequences Commission also directed the staff to have diminished the safety benefits of C. Public Meetings and Commission Direction expedite this rulemaking and provide a the rule.’’ The NEI states that the 30-day public comment period for this unintended consequences stem from the The NRC held a public meeting on proposed rule instead of the typical 75- minimum days off requirements, November 18, 2010, to learn, directly day public comment period. specifically § 26.205(d)(3) through from the affected stakeholders, more § 26.205(d)(6), because they create an details about the unintended III. Description of the Proposed Rule consequences of the minimum days off undue level of complexity and A. Maximum Weekly Average of 54 requirements. Although some of the inflexibility in managing worker fatigue. Hours Worked Over a 6-Week Rolling stakeholders are comfortable with the These regulations mandate a specified Window minimum average number of days off current minimum days off requirements, per week, averaged over a fixed time the stakeholders at this public meeting One cause of cumulative fatigue is period. The minimum average number claimed that the unintended consecutive days of restricted or poor of days off depends on the duties the consequences have diminished the quality sleep. In turn, consecutive days individual performs and, for safety benefits of the fatigue of restricted or poor quality sleep may § 26.205(d)(3), the length of an management provisions of 10 CFR part be caused by such things as shift-work, individual’s shift schedule (i.e., whether 26 and expressed the need for an extended work days, and extended work the individual is working 8-, 10- or 12- alternative that is simpler and would weeks. Currently, Subpart I of 10 CFR hour shifts). provide greater scheduling flexibility. part 26 requires nuclear power plant The NEI requests, among other Additional public meetings were held licensees to manage cumulative fatigue changes, that 10 CFR part 26, Subpart I, on January 6, 2011, and January 25, primarily by providing individuals with be amended to replace the minimum 2011, to provide opportunities for a minimum number of days off over the days off requirements in § 26.205(d) stakeholders and the NRC to discuss course of a period not to exceed 6 with a performance-based objective, alternatives to the minimum days off weeks. The distribution of the days off consisting of an average of 54 hours requirements. during the 6-week period acts to either worked per week, averaged over a In a February 8, 2011, public meeting, prevent or mitigate cumulative fatigue. calendar quarter. The NEI also proposes the NRC staff and stakeholders briefed An alternative method for managing changing the § 26.205(e)(1) annual the Commission on the implementation cumulative fatigue would be to establish assessment of actual hours worked and of the 10 CFR part 26 fatigue a requirement to limit actual hours performance of individuals subject to management requirements. The nuclear worked instead of mandating the the work hour controls to a quarterly power industry stakeholders conveyed number of days off that individuals assessment to provide a more frequent many of the same concerns raised in the receive. A limit on actual hours worked, review of hours worked. The NEI three public meetings. The NRC staff when applied to schedules that require proposes to eliminate the minimum presented the scientific and technical regular shift coverage, would limit the days off requirements in § 26.205(d)(3) bases for the current requirements for number of work hours that can through § 26.205(d)(6), while the work managing cumulative fatigue and a contribute to cumulative fatigue and, as hour limits and break requirements in proposal to address the concerns raised a practical matter, result in periodic § 26.205(d)(1)(i)–(iii) and (d)(2)(i)–(ii), by the industry stakeholders. The NRC days off for recovery rest. A schedule respectively, would remain unchanged. staff proposed a maximum average 54- resulting in a weekly average of 54 Separately from PRM–26–5, on hour work week, averaged over a 6-week hours worked, calculated using a rolling September 23, 2010, the NEI submitted rolling period, as an alternative to the period of up to 6 weeks, would be such a request for enforcement discretion § 26.205(d)(3) minimum days off a schedule. regarding the minimum days off requirements. The NRC staff and In general, most individuals that work provisions of part 26. The request industry stakeholders generally agreed their normal shift schedule and receive reiterates the NEI’s opinion that the that this proposal could provide the only the minimum number of days off regulations that govern fatigue relief sought by the industry while required under the current minimum management impede ‘‘many safety- meeting the objectives of the minimum days off requirements of § 26.205(d)(3) beneficial practices at plant sites, days off requirements. Other could average as many as 54 hours of

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work per week. However, the NEI has proposed alternative requirements C. Applicability indicated that implementation of the simultaneously would also create a Consistent with the current rule’s minimum days off requirements has burden for NRC oversight and minimum days off requirements in reduced licensee scheduling flexibility inspections. § 26.205(d)(3), the proposed alternative and imposed a substantial Although the rolling schedule maximum average work hours administrative burden. By comparison, required under the proposed alternative provisions would apply to all periods of limiting work hours to an average of not approach would limit the number of operations, with several specified more than 54 hours per week by using consecutive extended work weeks and exceptions: during force-on-force a rolling window (i.e., averaging period) thereby limit the potential for exercises and plant emergencies and for of up to 6 weeks would limit the security personnel when they are number of consecutive weeks of cumulative fatigue, there are unusual potential circumstances in which the needed to maintain the common defense extended work hours that an individual and security. In those limited can work by using a comparable but proposed alternative requirement could be met and the schedule could be circumstances, special provisions, simpler and more flexible requirement. described below, would apply. In The 6 week limit would also remain fatiguing. Such schedules include having only one in every nine days off addition, licensees currently have the consistent with the averaging duration option under § 26.205(d)(4) to comply or consistently working the maximum and technical basis of the minimum with the minimum days off allowable hours, which would likely days off requirements, as described in requirements in either § 26.205(d)(3) or result in cumulative fatigue. However, the Statement of Considerations (SOC) § 26.205(d)(4) during unit outages when for the 2008 10 CFR part 26 final rule. the industry has stated that these the affected individuals are working on In addition, this alternative would not unusual schedules are improbable. The outage activities, and have the option depend on the length of an individual’s NRC believes that this proposed under § 26.205(d)(5) to comply with the shift schedule and would eliminate the alternative approach, together with minimum days off requirements in burden of tracking the number of days other aspects of the rule that will remain either § 26.205(d)(3) or § 26.205(d)(5) off that an individual receives in a unchanged, would provide reasonable during unit outages, security system period not to exceed 6 weeks. Based on assurance that licensees will manage outages, or increased threat conditions. stakeholder input, the alternative would cumulative fatigue in a manner that Under the proposed rule, licensees also relieve operational burdens by enabling contributes to the protection of public would have the option to comply with licensee personnel to engage in certain health and safety and common defense the maximum average work hours safety-beneficial practices with fewer and security. requirements under the above scheduling restrictions, such as holding B. Proposed Alternative to the Minimum conditions. The reasons that the off-shift shift manager meetings and Commission permits the exceptions and Days Off Requirements using the most knowledgeable workers options involving the minimum days off in responding to plant events and The NRC proposes to create a new requirements are explained in the SOC conditions. § 26.205(d)(7) that would contain the for the 2008 10 CFR part 26 final rule. In summary, the maximum number of proposed alternative. The proposed rule Because the proposed optional approach hours that could be worked under the would allow nuclear power plant would offer licensees an equivalent proposed alternative approach would be licensees and other entities identified in minimum days off alternative that is comparable to the maximum number of § 26.3(a) and, if applicable, (c) and (d) equally effective at managing hours that can be worked by most to choose whether or not to implement cumulative fatigue, the 2008 10 CFR individuals under the current 10 CFR this alternative approach, in lieu of part 26 final rule SOC also provides the part 26 minimum days off requirements, compliance with the current rule’s justification for why the proposed except that the alternative requirement alternative would apply to the minimum days off requirements in would provide for greater simplicity and exceptions and options described § 26.205(d)(3). The NRC is not flexibility. This proposed approach herein. proposing to remove the current could be used only in place of the The current rule, in § 26.205(d)(4), minimum days off requirements in § 26.205(d)(3) minimum days off offers licensees the option to apply § 26.205(d)(3) and would be applicable requirements and mandate that all different minimum days off only to individuals subject to work hour licensees instead adopt new maximum requirements during the first 60 days of controls under § 26.205(a). Under average work hour requirements. Some a unit outage for individuals working on § 26.205(a), the subject individuals are licensees may be satisfied with the outage activities. During this part of those described in § 26.4(a). The NRC current requirements. In addition, a outages, licensees are not required to determination that the proposed mandated change would constitute calculate the requisite number of an alternative would be equivalent to the backfitting under the NRC’s Backfit individual’s days off by a weekly minimum days off requirements Rule, 10 CFR 50.109. None of the average over a period of up to 6 weeks. considered the collective advantages exceptions in § 50.109(a)(4) to The regulation requires licensees who and disadvantages of having all preparation of a backfit analysis could choose the outage option to provide individuals who are subject to the work be justified, and a backfit analysis could affected individuals with a fixed hour controls under a single set of not demonstrate that a mandatory rule number of days off over a 15-day period cumulative fatigue management would constitute a cost-justified or 7-day period, depending on the requirements. Thus, licensees would not substantial increase in protection to duties performed by the individuals. be able to subject one group of public health and safety or common Similarly, the cumulative fatigue individuals under § 26.4(a) to the defense and security. For these reasons, management provisions for security requirements in § 26.205(d)(3) and the NRC has decided to propose the personnel in current § 26.205(d)(5)(i) another group of individuals under maximum weekly average of 54 work allow licensees, during the first 60 days § 26.4(a) to proposed § 26.205(d)(7) hours, averaged over a rolling window of a unit outage or a planned security requirements. Allowing licensees to of up to 6 weeks, as an alternative to the system outage, the option to comply implement the minimum days off and minimum days off requirements. with the minimum days off

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requirements in § 26.205(d)(3) or proposed § 26.205(d)(7) during the averaging periods used by the licensee. provide security personnel with a fixed period of the declared emergency. Therefore, the NRC proposes to amend number of days off over a 15-day period. The NRC Office of Enforcement § 26.203(d)(2) to include the Under proposed § 26.205(d)(4) and issued EGM–09–008, ‘‘Enforcement requirement that licensees (d)(5)(i), licensees that choose the Guidance Memorandum— implementing the requirements in alternative maximum average work Dispositioning Violations of NRC proposed § 26.205(d)(7) maintain hours approach during non-outage Requirements for Work Hour Controls records showing the beginning and end periods would have the option to use Before and Immediately After a times and dates of all 6-week or shorter the proposed alternative or the fixed Hurricane Emergency Declaration,’’ averaging periods. These licensees number of days off approaches during dated September 24, 2009, to give the would also need to retain records of the first 60 days of outages. NRC staff guidance for processing shift schedules to ensure compliance During the first 60 days of an violations of work hour controls with the requirements in § 26.205(c) and unplanned security system outage or requirements during conditions before § 26.205(d)(2). increased threat condition, current and immediately after the declaration of Section 26.203(e)(1) § 26.205(d)(5)(ii) provides a an emergency for a hurricane, when discretionary exception from the licensees sequester plant staff on site to Current § 26.203(e)(1) requires minimum days off requirement in ensure personnel are available for relief licensees to provide the NRC with an § 26.205(d)(3) and (d)(5)(i) so that of duties, and potentially granting annual summary of all instances during security personnel subject to the work enforcement discretion for the affected the previous calendar year in which the hour requirements would not be requirements. Under EGM–09–008, the licensee waived each of the work hour required to meet the minimum days off NRC may exercise enforcement controls specified in § 26.205(d)(1) requirements. The proposed discretion and not cite licensees for through (d)(5)(i) for individuals who § 26.205(d)(5)(ii) would permit licensees violations of 10 CFR 26.205(c) and (d) perform the duties listed in § 26.4(a)(1) who implement the maximum average while a licensee sequesters site through (a)(5). Section 26.203(e)(1) work hours approach during non-outage personnel in preparation for hurricane would be revised in the proposed rule periods to not meet the proposed conditions that are expected to result in to require licensees to also report the § 26.205(d)(7) requirements during the the declaration of an emergency caused instances when the licensee waived the first 60 days of an unplanned security by high winds. The EGM refers to requirements in proposed § 26.205(d)(7). system outage or increased threat § 26.205(d) generally, and therefore, the Section 26.203(e)(1)(i) and (e)(1)(ii) condition. requirements in proposed § 26.205(d)(7) Section 26.207(b) of the current would also fall under the enforcement Section 26.203(e)(1)(i) and (e)(1)(ii) regulations relieves licensees from the discretion described by EGM–09–008. requires licensees to report whether minimum days off requirements of work hour controls are waived for § 26.205(d)(3) by allowing licensees to IV. Section-by-Section Analysis individuals working on normal plant exclude shifts worked by security 10 CFR 26.203 General Provisions. operations or working on outage personnel during the actual conduct of activities. The proposed rule would NRC-evaluated force-on-force tactical Section 26.203 establishes require licensees to include whether the exercises when calculating the requirements for licensees’ fatigue alternative requirements in proposed individuals’ required number of days management policies, procedures, § 26.205(d)(7) were waived during off. The proposed rule would permit training, examinations, recordkeeping, normal plant operations or while licensees who implement the proposed and reporting. The NRC proposes to working on outage activities. alternative during non-outage periods to make conforming changes to paragraphs exclude from the proposed within § 26.203 to ensure consistency 10 CFR 26.205 Work hours. § 26.205(d)(7) calculations the hours between the implementation of the Section 26.205 sets forth the NRC’s worked by security personnel during the minimum days off requirements in requirements governing work hour actual conduct of NRC-evaluated force- § 26.205(d)(3) and the implementation controls applicable to individuals on-force tactical exercises. of the maximum average work hours performing the duties in 10 CFR Current § 26.207(c) provides a requirements in proposed § 26.205(d)(7). 26.4(a)(1) through (a)(5). The NRC licensee relief from the work hour Section 26.203(d)(2) proposes to add a new § 26.205(d)(7) control requirements of § 26.205 for and make conforming changes to security personnel upon written Section 26.203(d)(2) currently existing paragraphs within § 26.205 to notification from the NRC, for the requires licensees to retain records of ensure consistency between the purpose of assuring the common shift schedules and shift cycles of implementation of the minimum days defense and security for a period the individuals who are subject to the work off requirements in § 26.205(d)(3) and NRC defines. In the proposed rule, hour requirements established in the implementation of the maximum licensees would also be relieved from § 26.205. These records are necessary, in average work hours requirements in the requirements of proposed part, to ensure that documentation of proposed § 26.205(d)(7). § 26.205(d)(7) in this situation. the licensee’s fatigue management As stated in current § 26.207(d), a program is retained and available for the Section 26.205(b)(5) licensee need not meet the work hour NRC inspectors to verify that licensees Section 26.205(b)(5) currently allows controls, including the minimum days are complying with the work hour licensees to exclude from the off requirements, during declared requirements and waiver and fatigue calculation of an individual’s work emergencies, as defined in the licensee’s assessment provisions. Because hours unscheduled work performed off emergency plan. Under the proposed licensees that implement the alternative site (e.g., technical assistance provided rule, consistent with the current would need to show inspectors that by telephone from an individual’s approach for minimum days off individuals subject to the new work home), provided the total duration of requirements during declared hour controls have not exceeded the the work does not exceed a nominal 30 emergencies, licensees would not need average weekly work hour limit, minutes during any single break period. to meet the requirements of the inspectors would need to know the For the purposes of compliance with the

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minimum break requirements of during unit outages or unplanned Section 26.205(d)(7)(i) § 26.205(d)(2) and the minimum days security system outages. The Licensees who elect to implement the off requirements of § 26.205(d)(3) requirement limits this exception period requirements of proposed through (d)(5), such duties do not to 60 days from the beginning of the § 26.205(d)(7)(i) would manage affected constitute work periods or work shifts. outage and requires that individuals individuals’ cumulative fatigue by The proposed rule would revise performing the security duties identified limiting the number of hours they work § 26.205(b)(5) to exclude these in § 26.4(a)(5) during this period have a each week to an average of 54 hours. incidental duties from hours worked minimum of 4 days off in each non- The 54-hour average would be under proposed § 26.205(d)(7). rolling 15-day period. Proposed computed over a rolling period of up to Section 26.205(d)(3) § 26.205(d)(5)(i) would allow licensees 6 weeks. Licensees would roll (i.e., that choose the maximum average work Currently, § 26.205(d)(3) requires adjust forward) the beginning and end hours alternative during non-outage times and dates of their averaging licensees to ensure that subject periods to have the option to use the individuals have, at minimum, the days periods (of up to 6 weeks) by no more proposed alternative or the fixed than 7 consecutive calendar days at any off as specified in this section. Under number of days off approach in the proposed rule, licensees would have time. Licensees would be expected to § 26.205(d)(5)(i) for security personnel the option of either complying with the describe in their FFD procedures, as during the first 60 days of a unit outage minimum days off requirements in required by proposed § 26.205(d)(7)(ii), or unplanned security system outage. § 26.205(d)(3) or the alternative the beginning and end times and days requirements in proposed § 26.205(d)(7). Section 26.205(d)(5)(ii) of the week for the averaging periods. Section 26.205(d)(7)(ii) Section 26.205(d)(4) Current § 26.205(d)(5)(ii) provides a Current § 26.205(d)(4) provides a discretionary exception from the In proposed § 26.205(d)(7)(ii), each limited discretionary exception from the minimum days off requirements of licensee would need to explicitly state, minimum day off requirements in § 26.205(d)(3) for security personnel in its FFD policies and procedures § 26.205(d)(3) for individuals during the first 60 days of an unplanned required by 10 CFR 26.27 and 10 CFR performing the duties specified in security system outage or an increased 26.203, with which requirements it is § 26.4(a)(1) through (a)(4) (i.e., certain threat condition. Individuals performing complying: The minimum days off operations, chemistry, health physics, the security duties identified in provisions in § 26.205(d)(3) or the fire brigade, and maintenance § 26.4(a)(5) during this period do not maximum average work hours activities). The exception from the have to meet the minimum days off requirements in proposed § 26.205(d)(7). minimum days off requirements is requirements of § 26.205(d)(3). Proposed As a general matter, good regulatory available during the first 60 days of a § 26.205(d)(5)(ii) would provide that, practice requires each licensee to clearly unit outage while a subject individual is during the first 60 days of an unplanned document its licensing basis, especially working on outage activities. In these security system outage or an increased where the NRC’s requirements offer the circumstances, if the licensee elects to threat condition, licensees would not licensee one or more regulatory apply the exception, § 26.205(d)(4) need to meet the requirements of alternatives. If a licensee clearly and requires licensees to ensure that § 26.205(d)(3), § 26.205(d)(5)(i), or sufficiently documents its licensing individuals specified in § 26.4(a)(1) proposed § 26.205(d)(7) for security basis, then the licensee can more easily through (a)(3) have a minimum of 3 personnel. determine, despite changes (as days off in each successive (i.e., non- applicable) in personnel, procedures, or rolling) 15-day period and that Section 26.205(d)(7) its design, whether the licensee individuals specified in § 26.4(a)(4) continues to comply with its licensing This would be a new section have at least 1 day off in any 7-day basis and applicable NRC requirements. governing maximum average work period. Detailed guidance on the Effective documentation also allows the hours for subject individuals, with applicability of this rule provision is NRC to quickly and accurately which licensees could voluntarily available in Regulatory Guide 5.73, determine the licensee’s status of choose to comply as an alternative to ‘‘Fatigue Management for Nuclear Power compliance and affords the public an complying with comparable provisions Plant Personnel.’’ After the first 60 days opportunity to understand the legal in § 26.205(d)(3). Licensees who choose of a unit outage, regardless of whether constraints to which that licensee is to comply with this alternative would the individual is working on unit outage subject. nonetheless comply with all activities, the individual is again subject Arguably, the NRC’s regulations requirements in § 26.205 other than the to the minimum days off requirements would already require the licensee to minimum days off requirements in of § 26.205(d)(3), except as permitted by document its decision to comply with § 26.205(d)(3). § 26.205(d)(6). The NRC proposes to the alternative to the minimum days off revise § 26.205(d)(4) to allow licensees The individuals subject to the requirements in proposed § 26.205(d)(7). that choose the maximum average work proposed maximum average work hours Section 26.27 requires licensees to hours alternative during non-outage requirements in this section would be establish written FFD policies and periods to have the option to use the the same as the individuals subject to procedures, and 10 CFR 26.203(a) and proposed alternative or the fixed the comparable controls in (b) requires licensees to include in the number of days off approach during the § 26.205(d)(3), which, according to § 26.27 written policies and procedures first 60 days of a unit outage. § 26.205(a), are the individuals the specific policies and procedures for described in § 26.4(a). Unlike the the management of fatigue, including Section 26.205(d)(5)(i) minimum days off requirements, the the process for implementing the work Section 26.205(d)(5)(i) currently proposed maximum average work hours hour controls in § 26.205. However, to provides a discretionary exception from alternative would apply to all avoid ambiguity on this matter, the NRC the minimum days off requirements of individuals described in § 26.205(a) would make clear in § 26.205(d)(7)(ii) § 26.205(d)(3) for personnel performing without regard for their assigned duties the licensee’s (and applicant’s) the duties described in § 26.4(a)(5) or the length of their shift schedules. regulatory obligation to document in its

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FFD policies and procedures, required licensees to assess the actual work hours § 26.205(d)(3) and the implementation by § 26.27 and § 26.203(a) and (b), and performance of individuals whose of the maximum average hours worked including the process for implementing actual hours worked during the review requirements in proposed § 26.205(d)(7). the work hour controls, with which period exceeded an average of 54 hours Section 26.209(a) requirements it will comply: The per week in any averaging period of up requirements in § 26.205(d)(3) or to 6 weeks. The duration of the Section 26.209(a) would be amended proposed § 26.205(d)(7). averaging periods would be the same in the proposed rule to address the The cumulative fatigue management duration that the licensees use to situation when an individual is requirements with which each licensee control the individuals’ work hours to performing, or being assessed for, work elects to comply, either the comply with the requirements of under a waiver of the requirements requirements in § 26.205(d)(3) or proposed § 26.205(d)(7). contained in proposed § 26.205(d)(7) proposed § 26.205(d)(7), would be the and declares that, due to fatigue, he or legally-binding requirements for that 10 CFR 26.207 Waivers and she is unable to safely and competently licensee for all individuals subject to the Exceptions perform his or her duties. As in the work hour controls of § 26.205. For Section 26.207 provides the criteria current § 26.209(a), the licensee shall example, licensees would not be able to that licensees must meet to authorize immediately stop the individual from subject one group of individuals under waivers and enact exceptions from the performing any duties listed in § 26.4(a), § 26.4(a) to the requirements in work hour requirements in except if the individual is required to § 26.205(d)(3) and another group of § 26.205(d)(1) through (d)(5)(i). The NRC continue performing those duties under individuals under § 26.4(a) to proposed proposes to make conforming changes to other requirements in 10 CFR part 26. If § 26.205(d)(7) requirements. paragraphs within § 26.207 to ensure the subject individual must continue Implementing the minimum days off consistency between the performing the duties listed in § 26.4(a) and proposed alternative requirements implementation of the minimum days until relieved, then the licensee shall simultaneously would create a burden off requirements in § 26.205(d)(3) and immediately take action to relieve the for NRC inspectors because before they the implementation of the maximum individual. could even begin their inspection average hours worked requirements in 10 CFR 26.211 Fatigue Assessments review, the inspectors would have to proposed § 26.205(d)(7). ascertain which groups of individuals Section 26.211 currently requires were subject to which set of Section 26.207(a) licensees to conduct fatigue assessments requirements. The review itself would Section 26.207(a) permits licensees to under several conditions. The NRC then be more burdensome because the authorize waivers from the work hour proposes to make conforming changes to review would include additional steps requirements in § 26.205(d)(1) through paragraphs within § 26.211 to ensure depending on the applicable individuals (d)(5)(i) for conditions that meet the two consistency between the and requirements. In addition, the NRC criteria specified in § 26.207(a). Section implementation of the minimum days assessed the proposed alternative as 26.207(a) would be revised in the off requirements in § 26.205(d)(3) and equivalent to the minimum days off proposed rule to authorize licensees to the implementation of the maximum requirements considering the collective grant waivers from the work hour average hours worked requirements in advantages and disadvantages of having requirements in proposed § 26.205(d)(7) proposed § 26.205(d)(7). all individuals who are subject to the if the criteria in § 26.207(a) are met. Section 26.211(b)(2)(iii) work hour controls under a single set of Section 26.207(b) cumulative fatigue management Section 26.211(b)(2)(iii) prohibits requirements. Nevertheless, licensees Current § 26.207(b) relieves licensees individuals from performing a post- would be free to switch to the other set from the minimum days off event fatigue assessment if they of legally-binding requirements, so long requirements of § 26.205(d)(3) by evaluated or approved a waiver of the as the requirement of proposed allowing them to exclude shifts worked limits specified in § 26.205(d)(1) § 26.205(d)(7)(ii) was met. by security personnel during the actual through (d)(5)(i) for any of the conduct of NRC-evaluated force-on- individuals who were performing or Section 26.205(e)(1)(i) force tactical exercises when calculating directing the work activities during Currently, § 26.205(e)(1) requires the individual’s number of days off. The which the event occurred if the event licensees to review the actual work proposed rule would amend § 26.207(b) occurred while such individuals were hours and performance of individuals to permit licensees to exclude from the performing work under that waiver. The who are subject to this section for maximum average work hours proposed rule would amend consistency with the requirements of requirements of proposed § 26.205(d)(7) § 26.211(b)(2)(iii) to prohibit individuals § 26.205(c), so that licensees can the hours worked by security personnel from performing a post-event fatigue determine if they are controlling the during the actual conduct of NRC- assessment if they evaluated or work hours of individuals consistent evaluated force-on-force tactical approved a waiver of the limits with the objective of preventing exercises. specified in proposed § 26.205(d)(7) for impairment from fatigue due to the any of the individuals who were 10 CFR 26.209 Self-Declarations duration, frequency, or sequencing of performing or directing the work successive shifts. Section 26.205(e)(1)(i) Section 26.209 requires licensees to activities during which the event requires the licensees to assess the take immediate action in response to a occurred if the event occurred while actual work hours and performance of self-declaration by an individual who is such individuals were performing work individuals whose actual hours worked working under, or being considered for, under that waiver. during the review period exceeded an a waiver from the work hour controls in average of 54 hours per week in any § 26.205(d)(1) through (d)(5)(i). The NRC Section 26.211(d) shift cycle while the individuals’ work proposes to make a conforming change Current § 26.211(d) prohibits hours are subject to the requirements of to § 26.209(a) to ensure consistency licensees from concluding that fatigue § 26.205(d)(3). The NRC proposes to between the implementation of the has not degraded or will not degrade the amend § 26.205(e)(1)(i) to require minimum days off requirements in individual’s ability to safely and

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competently perform his or her duties and competently perform his or her management of cumulative fatigue as solely on the basis that the individual’s duties. the current minimum days off work hours have not exceeded any of V. Specific Request for Comment requirements? the limits specified in § 26.205(d)(1) or VI. Availability of Documents that the individual has had the The NRC is seeking advice and minimum rest breaks required in recommendations from the public on this proposed rule. The NRC will The following table lists documents § 26.205(d)(2) or the minimum days off consider all comments received within that are related to this proposed rule required in § 26.205(d)(3) through (d)(5). the limited scope of this proposed and available to the public and indicates The NRC proposes to amend § 26.211(d) rulemaking and address them in the how they may be obtained. See to include the maximum average work final rule. We are particularly interested Submitting Comments and Accessing hours among the criteria that licensees in comments and supporting rationale Information of the SUPPLEMENTARY may not solely rely on when concluding from the public on the following issue: INFORMATION section on the physical that fatigue has not degraded or will not Would the alternative approach provide locations and Web sites where the degrade an individual’s ability to safely comparable assurance of the documents may be accessed.

Electronic Document PDR Web Reading Room (Adams)

U.S. Nuclear Regulatory Commission, Regulatory Guide 5.73, ‘‘Fatigue Man- X ...... ML083450028 agement For Nuclear Power Plant Personnel’’ (March 2009). PRM–26–5, Petition to Amend 10 CFR part 26, ‘‘Fitness-for-Duty Programs,’’ X Docket ID. NRC–2010–0304 ...... ML102590440 filed by the Nuclear Energy Institute (September 3, 2010). Anthony R. Pietrangelo on Behalf of the Nuclear Energy Institute; Notice of ...... Docket ID. NRC–2010–0304. Receipt of Petition for Rulemaking, 75 FR 65249 (October 22, 2010). Request for Enforcement Discretion filed by the Nuclear Energy Institute X ...... ML102710208 (September 23, 2010). PRM–26–6, Petition to Amend 10 CFR part 26, filed by Eric Erb (August 17, X Docket ID. NRC–2010–0310 ...... ML102630127 2010). Eric Erb; Notice of Receipt of Petition for Rulemaking, 75 FR 71368 (Novem- ...... Docket ID. NRC–2010–0310. ber 23, 2010). SECY–11–0003, Status of Enforcement Discretion Request and Rulemaking X ...... ML103420201 Activities Related to 10 CFR part 26, Subpart I, ‘‘Managing Fatigue’’ (Janu- ary 4, 2011). SECY–11–0028, Options for Implementing an Alternative Interim Regulatory X ...... ML110390077 Approach to the Minimum Days Off Provisions of 10 CFR part 26, Subpart I, ‘‘Managing Fatigue’’ (February 28, 2011). EGM–09–008, ‘‘Enforcement Guidance Memorandum—Dispositioning Viola- X ...... ML092380177 tions of NRC Requirements for Work Hour Controls Before and Imme- diately After a Hurricane Emergency Declaration’’ (September 24, 2009). Staff Requirements—SECY–11–0003—Status of Enforcement Discretion Re- X ...... ML110830971 quest and Rulemaking Activities Related to 10 CFR part 26, Subpart I, ‘‘Managing Fatigue’’ and SECY–11–0028—Options for Implementing an Al- ternative Interim Regulatory Approach to the Minimum Days Off Provisions of 10 CFR part 26, Subpart I, ‘‘Managing Fatigue’’ (March 24, 2011). Updated Notice of Public Meeting to Discuss part 26, Subpart I Implementa- X ...... ML103160388 tion to Understand Unintended Consequences of the Minimum Day Off Re- quirements (November 15, 2010). Summary of November 18, 2010, Public Meeting to Discuss part 26, Subpart X ...... ML103430557 I Implementation to Understand Unintended Consequences of the Minimum Day Off Requirements (December 13, 2010). Update—Notice of Public Meeting Regarding part 26, Subpart I Minimum X ...... ML103550089 Days Off Requirements and Options Licensees May Implement to Receive Enforcement Discretion From These Requirements (December 30, 2010). Summary of January 6, 2011, Public Meeting Regarding part 26, Subpart I X ...... ML110280446 Minimum Days Off Requirements and Options Licensees May Implement to Receive Enforcement Discretion from these Requirements (February 3, 2011). Notice of Public Meeting to Discuss Alternatives to the part 26, Subpart I, X ...... ML110140315 Minimum Days Off Requirements (January 14, 2011). Summary of January 25, 2011, Public Meeting to Discuss Alternatives to the X ...... ML110340512 part 26, Subpart I, Minimum Days Off Requirements. Sunshine Federal Register Notice of February 8, 2011, Commission Briefing X ...... ML110200295 on the Implementation of part 26, 76 FR 5626 (February 1, 2011). Transcript of February 8, 2011, Commission Briefing on the Implementation of X ...... ML110410169 part 26.

VII. Criminal Penalties that would amend 10 CFR part 26 under enforcement. Criminal penalties as they one or more of Sections 161b, 161i, or apply to regulations in 10 CFR part 26 For the purposes of Section 223 of the 161o of the AEA. Willful violations of are discussed in § 26.825. Atomic Energy Act (AEA), as amended, the NRC is issuing this proposed rule the rule would be subject to criminal

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VIII. Compatibility of Agreement State requirement in this proposed rule has regulatory objective would continue to Regulations no counterpart in ANSI/ANS–3.2–1988 be met under the alternative adopted in Under the ‘‘Policy Statement on that could be adopted to manage this proposed rule, there should be no Adequacy and Compatibility of cumulative fatigue, and the NRC change in environmental impacts, Agreement State Programs,’’ approved declines to reconsider its overall during operation or while the nuclear decision in the 2008 rulemaking not to power plant is in shutdown, as by the Commission on June 20, 1997, adopt the fatigue management approach compared with the environmental and published in the Federal Register embodied in the ANS standard. impact of the current rule. on September 3, 1997 (62 FR 46517), Accordingly, the NRC concludes that The primary alternative to this action this proposed rule is classified as there are no voluntary consensus would be the no-action alternative. The compatibility ‘‘NRC.’’ Compatibility is standards that could be adopted in lieu no-action alternative could result in a not required for Category ‘‘NRC’’ of the proposal to adopt the greater administrative burden on regulations. The NRC program elements Government-unique standard in this nuclear power plant licensees in in this category are those that relate proposed rule. complying with the minimum days off directly to areas of regulation reserved requirements in the current rule, as to the NRC by the AEA or the provisions XI. Finding of No Significant compared with the alternative to the of 10 CFR, and although an Agreement Environmental Impact minimum days off requirements under State may not adopt program elements The Commission has determined the proposed rule. In addition, reserved to the NRC, it may wish to under the National Environmental individuals subject to minimum days off inform its licensees of certain Policy Act of 1969, as amended, and the requirements could personally believe requirements via a mechanism that is Commission’s regulations in Subpart A that their quality of life and work consistent with a particular State’s of 10 CFR part 51, that this proposed conditions are less under the no-action administrative procedure laws but does rule, if adopted, would not be a major alternative, as compared with the not confer regulatory authority on the Federal action significantly affecting the alternative maximum average work State. quality of the human environment and, hours requirements that could be IX. Plain Language therefore, an environmental impact selected under the proposed rule. statement is not required. This proposed The no-action alternative would The Plain Writing Act of 2010 (Pub. rule would allow licensees of nuclear provide little or no environmental L. 11 1–274) requires Federal agencies power reactors to voluntarily use a benefit. In addition, the no-action to write documents in a clear, concise, different method from the one currently alternative has led nuclear power plant well-organized manner that also follows prescribed in the NRC’s regulations for licensees to use work scheduling other best practices appropriate to the determining whether certain nuclear approaches that, for example, reduce subject or field and the intended power plant workers must be afforded their capability to use the most audience. Although regulations are time off from work. knowledgeable workers in responding to exempt under the Act, the NRC is The NRC has determined that the plant events and conditions. This may applying the same principles to its alternative for determining time off provide less safety and greater risk as rulemaking documents. Therefore, the would not significantly alter the compared with the less burdensome NRC has written this document, likelihood that there will be an increase scheduling approaches that licensees including the proposed amended and in fatigued workers causing operational would be allowed to use under the new rule language, to be consistent with problems or a radiological event, or alternative to the minimum days off the Plain Writing Act. In addition, being unable to properly perform their requirements under the proposed rule. where existing rule language must be functions. The alternative would For these reasons, the NRC concludes changed, the NRC has rewritten that provide affected licensees with a more- that this rulemaking would not have a language to improve its organization easily implemented approach for significant adverse impact on the and readability. The NRC requests determining when subject individuals environment. This discussion comment on the proposed rule must be afforded the time off. The NRC constitutes the environmental specifically with respect to the clarity recognizes that there are unusual assessment for this proposed rule. and effectiveness of the language used. potential circumstances in which the However, public stakeholders should Comments should be sent to the NRC as proposed alternative requirement could note that the NRC is seeking public explained in the ADDRESSES caption of be met and the schedule could be participation. Comments on any aspect this document. fatiguing. Such schedules include of this environmental assessment may having only one in every nine days off X. Voluntary Consensus Standards be submitted to the NRC as indicated or consistently working the maximum under the ADDRESSES section. The NRC proposes using this standard allowable hours, which would likely instead of the following voluntary result in cumulative fatigue. However, XII. Paperwork Reduction Act consensus standard developed by the the industry has stated that these Statement American Nuclear Society (ANS): unusual schedules are improbable. The The public burden for this American National Standards Institute NRC believes that this proposed information collection is estimated to be (ANSI)/ANS–3.2–1988. The NRC has alternative approach, together with 257 hours, which is insignificant. determined that using a Government- other aspects of the rule that will remain Because the burden for this information unique standard would be justified. The unchanged, would provide reasonable collection is insignificant, Office of NRC declined to use the ANS standard assurance that licensees will manage Management and Budget (OMB) when the fatigue management cumulative fatigue in a manner that clearance is not required. Existing provisions in Subpart I of 10 CFR part contributes to the protection of public requirements were approved by the 26 were adopted in 2008. (73 FR 16966; health and safety and common defense OMB Control Number 3150–0146. March 31, 2008, at 17170 (second and and security. In addition, the proposed third column)). The alternative for alternative is expected to reduce Abstract managing cumulative fatigue through a scheduling constraints on certain safety- This proposed rule would allow maximum average work hours beneficial practices. Because the NRC’s holders of nuclear power plant

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operating licenses the option to use a Christine J. Kymn, Desk Officer, Office CFR 26.205, NEI’s request for different method than the one currently of Information and Regulatory Affairs, enforcement discretion of those same prescribed in the NRC’s regulations for NEOB–10202 (3150–0146), Office of regulatory provisions in 10 CFR 26.205, determining when certain nuclear Management and Budget, Washington, evidence gathered from stakeholders at power plant workers must be afforded DC 20503. Comments received after this the three public meetings, and analysis time off from work to ensure that such date will be considered if it is practical performed by the NRC staff and workers are not impaired due to to do so, but assurance of consideration explained in a January 4, 2011, cumulative fatigue caused by work cannot be given to comments received memorandum and a February 28, 2011, schedules. Licensees using the after this date. You may also e-mail memorandum to the Commission. In alternative method would calculate the comments to these memoranda, the NRC staff number of hours worked by applicable [email protected] or documented its evaluation of the individuals, with a per-person limit of comment by telephone at 202–395– options available to the Commission to a maximum weekly average of 54 hours 4638. address the concerns raised in the worked over a 6-week rolling window. petitions for rulemaking and request for Public Protection Notification Burden would not increase for ongoing enforcement discretion. At the February requirements, such as scheduling work The NRC may not conduct or sponsor, 8, 2011, Commission briefing on the hours, recording calculations of work and a person is not required to respond implementation of 10 CFR part 26, hours, or recording and trending to, a request for information or an stakeholders appeared to support the problems regarding work hours. information collection unless the use of an expedited rulemaking process Licensees choosing to use the alternate requesting document displays a to address the issues presented by the method would incur a one-time currently valid OMB control number. industry. In view of all of this implementation burden to revise FFD XIII. Regulatory Analysis information, the NRC did not see any procedures, modify their work hour value in preparing a more detailed tracking systems and individual work The NRC has not prepared a full regulatory analysis for this proposed scheduling systems, and state in their regulatory analysis for this proposed rule. The NRC requests public comment FFD policies which method of fatigue rulemaking. The NRC has determined on this draft regulatory analysis. management is being used. that the proposed maximum average Comments on the draft regulatory The NRC is seeking public comment work hours requirement would provide analysis may be submitted to the NRC on the potential impact of the reasonable assurance that subject as indicated under the ADDRESSES information collections contained in individuals are not impaired due to section of this document. this proposed rule and on the following cumulative fatigue caused by excessive XIV. Regulatory Flexibility Certification issues: work hours. As such, adequate 1. Is the proposed information implementation of the alternative Under the Regulatory Flexibility Act collection necessary for the proper approach would maintain reasonable (5 U.S.C. 605(b)), the NRC certifies that performance of the functions of the assurance that persons subject to work this proposed rule will not, if NRC, including whether the information hour controls can safely and promulgated, have a significant will have practical utility? competently perform their assigned economic impact on a substantial 2. Is the estimate of burden accurate? duties and therefore meets the intent of number of small entities. This proposed 3. Is there a way to enhance the the current minimum days off rule affects only licensees that do not quality, utility, and clarity of the requirement. The 2008 10 CFR part 26 fall within the scope of the definition of information to be collected? final rule contained a regulatory ‘‘small entities’’ set forth in the 4. How can the burden of the analysis to support the minimum days Regulatory Flexibility Act or the size information collection be minimized, off requirement. Because the proposed standards established by the NRC (10 including the use of automated approach would offer licensees an CFR 2.810). collection techniques? alternative that is generally equivalent The public may examine and have to the current minimum days off XV. Backfitting copied, for a fee, publicly available requirements in managing cumulative The NRC has determined that the documents, including the NRC Form fatigue, the 2008 final rule regulatory Backfit Rule, 10 CFR 50.109, would not 670, ‘‘Information Required for Making analysis also supports this proposed apply to this proposed rule, nor would an Insignificant Burden Determination rule. the proposed rule be inconsistent with To Support a Decision That OMB Furthermore, both nuclear power any of the finality provisions in 10 CFR Clearance Is Not Required,’’ at the NRC’s plant licensees and individuals subject part 52. The proposed rule, in 10 CFR PDR, One White Flint North, 11555 to the NRC’s existing requirements in 10 26.205(d)(7), would provide nuclear Rockville Pike, Room O–1 F21, CFR 26.205(d)(3) governing minimum power plant licensees with an Rockville, MD 20852. The NRC Form days off would derive substantial alternative for compliance with the 670 and proposed rule are available at benefits if the NRC were to adopt an existing controls in 10 CFR 26.205(d)(3) the NRC’s Web site: http://www.nrc.gov/ alternative approach for controlling governing minimum days off for certain public-involve/doccomment/omb/ cumulative fatigue through maximum nuclear power plant workers. Licensees index.html for 30 days after the average work hours that could be would be free to comply with either the signature date of this notice. voluntarily adopted by those licensees. existing rule’s requirements governing Send comments on any aspect of In addition, the NRC concludes that minimum days off or with the proposed these proposed information collections, providing an alternative would maintain alternative requirements in 10 CFR including suggestions for reducing the the ability of those licensees to continue 26.205(d)(7). The NRC concludes that a burden and on the above issues, by May using scheduling practices that have a backfit analysis would not be required 26, 2011, to the Information Services positive safety benefit. The NRC’s for this proposed rule because this Branch, U.S. Nuclear Regulatory conclusions in this regard are based proposed rule would not contain any Commission, Washington, DC 20555– upon information presented by two provisions that constitute backfitting. 0001, or by e-mail to petitioners for rulemaking seeking The proposed rule would not be [email protected]; and to changes to the work hour controls in 10 inconsistent with any finality provisions

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in 10 CFR part 52. No standard design (e) * * * work hours in § 26.205(d)(7). For the certification rule or standard design (1) A summary for each nuclear power purposes of this section, a day off is approval issued under 10 CFR part 52, plant site of all instances during the defined as a calendar day during which or currently being considered by the previous calendar year when the an individual does not start a work shift. NRC, addresses fitness-for-duty licensee waived one or more of the work For the purposes of calculating the requirements in 10 CFR part 26. hour controls specified in § 26.205(d)(1) average number of days off required in Accordingly, there are no issues through (d)(5)(i) and (d)(7) for this paragraph, the duration of the shift resolved in those design certification individuals described in § 26.4(a). The cycle may not exceed 6 weeks. rules or design approvals that would be summary must include only those * * * * * within the scope of the minimum days waivers under which work was (4) During the first 60 days of a unit off controls in this proposed rule. In performed. If it was necessary to waive outage, licensees need not meet the addition, the NRC has not issued any more than one work hour control during requirements of § 26.205(d)(3) or (d)(7) combined licenses under 10 CFR part any single extended work period, the for individuals specified in § 26.4(a)(1) 52. Hence, there are currently no summary of instances must include through (a)(4), while those individuals holders of combined licenses who each of the work hour controls that were are working on outage activities. would be protected by applicable issue waived during the period. For each However, the licensee shall ensure that finality provisions. The NRC concludes category of individuals specified in the individuals specified in § 26.4(a)(1) that this proposed rule would not § 26.4(a), the licensee shall report: through (a)(3) have at least 3 days off in contain any provisions that would be (i) The number of instances when each successive (i.e., non-rolling) 15-day inconsistent with any of the finality each applicable work hour control period and that the individuals provisions in 10 CFR part 52. specified in § 26.205(d)(1)(i) through specified in § 26.4(a)(4) have at least 1 (d)(1)(iii), (d)(2)(i) and (d)(2)(ii), (d)(3)(i) List of Subjects in 10 CFR Part 26 day off in any 7-day period; through (d)(3)(v), and (d)(7) was waived (5) * * * Alcohol abuse, Alcohol testing, for individuals not working on outage (i) During the first 60 days of a unit Appeals, Chemical testing, Drug abuse, activities; outage or a planned security system Drug testing, Employee assistance (ii) The number of instances when outage, licensees need not meet the programs, Fitness for duty, Management each applicable work hour control requirements of § 26.205(d)(3) or (d)(7). actions, Nuclear power reactors, specified in § 26.205(d)(1)(i) through However, licensees shall ensure that Protection of information, Reporting and (d)(1)(iii), (d)(2)(i) and (d)(2)(ii), (d)(3)(i) these individuals have at least 4 days off recordkeeping requirements. through (d)(3)(v), (d)(4) and (d)(5)(i), in each successive (i.e., non-rolling) 15- For the reasons set out in the and (d)(7) was waived for individuals day period; and preamble and under the authority of the working on outage activities; and (ii) During the first 60 days of an Atomic Energy Act of 1954, as amended; * * * * * unplanned security system outage or the Energy Reorganization Act of 1974, 3. Section 26.205 is amended by increased threat condition, licensees as amended; and 5 U.S.C. 553, the NRC revising paragraphs (b)(5), (d)(4), need not meet the requirements of is proposing to adopt the following (d)(5)(i), (d)(5)(ii), and (e)(1)(i) and the § 26.205(d)(3), (d)(5)(i), or (d)(7). amendments to 10 CFR part 26. introductory text of paragraph (d)(3), * * * * * and adding a new paragraph (d)(7) to PART 26—FITNESS FOR DUTY (7) Licensees may, as an alternative to read as follows: PROGRAMS complying with the minimum days off requirements in § 26.205(d)(3), comply § 26.205 Work hours. 1. The authority citation for part 26 with the requirements for maximum continues to read as follows: * * * * * average work hours in this paragraph. (b) * * * Licensees voluntarily choosing to Authority: Secs. 53, 81, 103, 104, 107, 161, (5) Incidental duties performed off 68 Stat. 930, 935, 936, 937, 948, as amended, comply with the alternative maximum sec. 1701, 106 Stat. 2951, 2952, 2953 (42 site. Licensees may exclude from the average work hours requirements in this U.S.C. 2073, 2111, 2112, 2133, 2134, 2137, calculation of an individual’s work paragraph are not relieved from 2201, 2297f); secs. 201, 202, 206, 88 Stat. hours unscheduled work performed off complying with all other requirements 1242, 1244, 1246, as amended (42 U.S.C. site (e.g., technical assistance provided in § 26.205 other than § 26.205(d)(3). 5841, 5842, 5846). by telephone from an individual’s (i) Individuals may not work more 2. Section 26.203 is amended by home), provided the total duration of than a weekly average of 54 hours, revising paragraphs (d)(2), (e)(1) the work does not exceed a nominal 30 calculated using a rolling period of up introductory text, (e)(1)(i), and (e)(1)(ii) minutes during any single break period. to six (6) weeks, which rolls by no more to read as follows: For the purposes of compliance with the than 7 consecutive calendar days at any minimum break requirements of time. § 26.203 General provisions. § 26.205(d)(2), and the minimum days (ii) Each licensee shall state, in its * * * * * off requirements of § 26.205(d)(3) FFD policy and procedures required by (d) * * * through (d)(5) or the maximum average § 26.27 and § 26.203(a) and (b), with (2) For licensees implementing the work hours requirements of which requirements the licensee is requirements of § 26.205(d)(3), records § 26.205(d)(7), such duties do not complying: the minimum days off of shift schedules and shift cycles, or, constitute work periods, work shifts, or requirements in § 26.205(d)(3) or for licensees implementing the hours worked. maximum average work hours requirements of § 26.205(d)(7), records * * * * * requirements in § 26.205(d)(7). of shift schedules and records showing (d) * * * (e) * * * the beginning and end times and dates (3) Licensees shall either ensure that (1) * * * of all averaging periods, of individuals individuals have, at a minimum, the (i) Individuals whose actual hours who are subject to the work hour number of days off specified in this worked during the review period controls in § 26.205; paragraph, or comply with the exceeded an average of 54 hours per * * * * * requirements for maximum average week in any shift cycle while the

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individuals’ work hours are subject to were performing or directing (on site) subsequent impact on the Dutch Roll, which the requirements of § 26.205(d)(3) or in the work activities during which the constitutes an unsafe condition. any averaging period of up to 6 weeks, event occurred, if the event occurred * * * * * using the same averaging period while such individuals were performing * * * [S]everal Pedal Feel Trim Units durations that the licensees use to work under that waiver. (PFTU) have been found with loose or broken control the individuals’ work hours, screws during the accomplishment of * * * * * maintenance tasks on A330 fitted with while the individuals’ work hours are (d) The licensee may not conclude electrical rudder and A340–600. The loose or subject to the requirements of that fatigue has not or will not degrade failed screws could lead to the loss of the § 26.205(d)(7); the individual’s ability to safely and coupling between the Rotary Variable * * * * * competently perform his or her duties Differential Transducer (RVDT) shaft and the 4. Section 26.207 is amended by solely on the basis that the individual’s PFTU shaft, and consequently to a potential revising paragraphs (a) introductory text work hours have not exceeded any of rudder runaway when the BCM is activated. and (b) to read as follows: the limits specified in § 26.205(d)(1), the * * * * * individual has had the minimum breaks The unsafe condition is loss of control § 26.207 Waivers and assessments. required in § 26.205(d)(2) or minimum of the airplane. The proposed AD would (a) Waivers. Licensees may grant a days off required in § 26.205(d)(3) require actions that are intended to waiver of one or more of the work hour through (d)(5), as applicable, or the address the unsafe condition described controls in § 26.205(d)(1) through individual’s hours worked have not in the MCAI. (d)(5)(i) and (d)(7), as follows: exceeded the maximum average number DATES: We must receive comments on * * * * * of hours worked in § 26.205(d)(7). this proposed AD by June 10, 2011. (b) Force-on-force tactical exercises. * * * * * ADDRESSES: You may send comments by For the purposes of compliance with the any of the following methods: Dated at Rockville, Maryland, this 13th day • Federal eRulemaking Portal: Go to minimum days off requirements of of April, 2011. § 26.205(d)(3) or the maximum average http://www.regulations.gov. Follow the For the Nuclear Regulatory Commission. work hours requirements of instructions for submitting comments. Michael F. Weber, • Fax: (202) 493–2251. § 26.205(d)(7), licensees may exclude • shifts worked by security personnel Acting Executive Director for Operations. Mail: U.S. Department of during the actual conduct of NRC- [FR Doc. 2011–9925 Filed 4–25–11; 8:45 am] Transportation, Docket Operations, M– 30, West Building Ground Floor, Room evaluated force-on-force tactical BILLING CODE 7590–01–P exercises when calculating the W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. individual’s number of days off or hours • Hand Delivery: U.S. Department of worked, as applicable. DEPARTMENT OF TRANSPORTATION Transportation, Docket Operations, M– * * * * * 30, West Building Ground Floor, Room Federal Aviation Administration 5. Section 26.209 is amended by W12–40, 1200 New Jersey Avenue, SE., revising paragraph (a) to read as follows: Washington, DC, between 9 a.m. and 5 14 CFR Part 39 § 26.209 Self-declarations. p.m., Monday through Friday, except Federal holidays. (a) If an individual is performing, or [Docket No. FAA–2011–0385; Directorate Identifier 2010–NM–256–AD] For service information identified in being assessed for, work under a waiver this proposed AD, contact Airbus SAS— of one or more of the requirements RIN 2120–AA64 Airworthiness Office—EAL, 1 Rond contained in § 26.205(d)(1) through Point Maurice Bellonte, 31707 Blagnac (d)(5)(i) and (d)(7) and declares that, due Airworthiness Directives; Airbus Model Cedex, France; telephone +33 5 61 93 36 to fatigue, he or she is unable to safely A330–200, A330–300, A340–300, A340– 96; fax +33 5 61 93 45 80; e-mail and competently perform his or her 500, and A340–600 Series Airplanes airworthiness.A330–[email protected]; duties, the licensee shall immediately AGENCY: Internet http://www.airbus.com. You stop the individual from performing any Federal Aviation Administration (FAA), DOT. may review copies of the referenced duties listed in § 26.4(a), except if the service information at the FAA, ACTION: individual is required to continue Notice of proposed rulemaking Transport Airplane Directorate, 1601 performing those duties under other (NPRM). Lind Avenue, SW., Renton, Washington. requirements of 10 CFR part 26. If the SUMMARY: We propose to adopt a new For information on the availability of subject individual must continue airworthiness directive (AD) for the this material at the FAA, call 425–227– performing the duties listed in § 26.4(a) products listed above. This proposed 1221. until relieved, the licensee shall AD results from mandatory continuing immediately take action to relieve the Examining the AD Docket airworthiness information (MCAI) individual. You may examine the AD docket on originated by an aviation authority of the Internet at http:// * * * * * another country to identify and correct www.regulations.gov; or in person at the 6. Section 26.211 is amended by an unsafe condition on an aviation Docket Operations office between 9 a.m. revising paragraphs (b)(2)(iii) and (d) to product. The MCAI describes the unsafe and 5 p.m., Monday through Friday, read as follows: condition as: except Federal holidays. The AD docket § 26.211 Fatigue assessments. During a Back-up Control Module (BCM) contains this proposed AD, the * * * * * retrofit campaign * * *, some BCMs have regulatory evaluation, any comments (b) * * * been found with loose gyrometer screws. received, and other information. The * * * When the aeroplane is in control (2) * * * back up configuration (considered to be an street address for the Docket Operations (iii) Evaluated or approved a waiver of extremely remote case), an oscillation of the office (telephone (800) 647–5527) is in one or more of the limits specified in BCM output order may cause degradation of the ADDRESSES section. Comments will § 26.205(d)(1) through (d)(5)(i) and the BCM piloting laws, potentially leading to be available in the AD docket shortly (d)(7) for any of the individuals who erratic motion of the rudder and possible after receipt.

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FOR FURTHER INFORMATION CONTACT: for the Member States of the European during the accomplishment of maintenance Vladimir Ulyanov, Aerospace Engineer, Community, has issued EASA tasks on A330 fitted with electrical rudder International Branch, ANM–116, Airworthiness Directive 2010–0191, and A340–600. The loose or failed screws Transport Airplane Directorate, FAA, dated September 27, 2010 [Corrected could lead to the loss of the coupling 1601 Lind Avenue, SW., Renton, October 7, 2010] (referred to after this as between the Rotary Variable Differential Washington 98057–3356; telephone ‘‘the MCAI’’), to correct an unsafe Transducer (RVDT) shaft and the PFTU shaft, (425) 227–1138; fax (425) 227–1149. condition for the specified products. and consequently to a potential rudder SUPPLEMENTARY INFORMATION: The MCAI states: runaway when the BCM is activated. EASA AD 2009–0153 retained the During a Back-up Control Module (BCM) Comments Invited requirements of EASA AD 2008–0131 and retrofit campaign in accordance with EASA We invite you to send any written AD 2006–0313 requirements, some BCMs extended the applicability to A340–500/–600 relevant data, views, or arguments about have been found with loose gyrometer aeroplanes. this proposed AD. Send your comments screws. This [EASA] AD, which supersedes EASA to an address listed under the The gyrometer is installed on the DELRIN AD 2009–0153 retaining its requirements, ADDRESSES section. Include ‘‘Docket No. plate by internal screws and the DELRIN requires the installation of: FAA–2011–0385; Directorate Identifier plate is installed on BCM casing by external —a new BCM on A330 and A340–300 series 2010–NM–256–AD’’ at the beginning of screws. aeroplanes fitted with electrical rudder, and Investigations done by the BCM your comments. We specifically invite —an improved PFTU on A330 and A340–300 manufacturer SAGEM have shown that the series aeroplanes fitted with an electrical comments on the overall regulatory, root cause of these events is a lack of design economic, environmental, and energy robustness of the BCM. When the aeroplane rudder and A340–500/–600 series aspects of this proposed AD. We will is in control back up configuration aeroplanes, consider all comments received by the (considered to be an extremely remote case), which, once installed, eliminate the root closing date and may amend this an oscillation of the BCM output order may cause of the unsafe condition and cancel the proposed AD based on those comments. cause degradation of the BCM piloting laws, operational limitation. We will post all comments we potentially leading to erratic motion of the * * * * * receive, without change, to http:// rudder and possible subsequent impact on www.regulations.gov, including any the Dutch Roll, which constitutes an unsafe The unsafe condition is loss of control personal information you provide. We condition. of the airplane. You may obtain further EASA AD 2008–0131 was issued to information by examining the MCAI in will also post a report summarizing each prohibit aeroplane dispatch with FCPC3 substantive verbal contact we receive inoperative (from GO IF to NO GO) as an the AD docket. about this proposed AD. interim solution, limited to A330 and A340– Relevant Service Information Discussion 300 fitted with electrical rudder. After EASA AD 2008–0131 issuance, Airbus has issued the service The European Aviation Safety Agency several Pedal Feel Trim Units (PFTU) have bulletins in the following table. (EASA), which is the Technical Agent been found with loose or broken screws

SERVICE BULLETINS

Document Date

Airbus Mandatory Service Bulletin A330–27–3169 ...... May 3, 2010. Airbus Mandatory Service Bulletin A340–27–4167 ...... May 3, 2010. Airbus Mandatory Service Bulletin A340–27–5053 ...... May 3, 2010. Airbus Service Bulletin A330–27–3161 ...... November 6, 2009. Airbus Service Bulletin A340–27–4160 ...... November 6, 2009.

The actions described in this service Differences Between This AD and the Costs of Compliance information are intended to correct the MCAI or Service Information unsafe condition identified in the Based on the service information, we MCAI. We have reviewed the MCAI and estimate that this proposed AD would related service information and, in affect about 46 products of U.S. registry. FAA’s Determination and Requirements general, agree with their substance. But We also estimate that it would take of This Proposed AD we might have found it necessary to use about 17 work-hours per product to different words from those in the MCAI comply with the basic requirements of This product has been approved by to ensure the AD is clear for U.S. this proposed AD. The average labor the aviation authority of another operators and is enforceable. In making rate is $85 per work-hour. Required country, and is approved for operation these changes, we do not intend to differ parts would cost about $0 per product. in the United States. Pursuant to our substantively from the information Where the service information lists bilateral agreement with the State of provided in the MCAI and related required parts costs that are covered Design Authority, we have been notified service information. under warranty, we have assumed that of the unsafe condition described in the there will be no charge for these costs. MCAI and service information We might also have proposed As we do not control warranty coverage referenced above. We are proposing this different actions in this AD from those for affected parties, some parties may AD because we evaluated all pertinent in the MCAI in order to follow FAA incur costs higher than estimated here. information and determined an unsafe policies. Any such differences are Based on these figures, we estimate the condition exists and is likely to exist or highlighted in a Note within the cost of the proposed AD on U.S. develop on other products of the same proposed AD. operators to be $66,470, or $1,445 per type design. product.

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Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. the compliance times specified, unless the actions have already been done. Title 49 of the United States Code § 39.13 [Amended] specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding Dispatch Prohibition rules on aviation safety. Subtitle I, the following new AD: (g) As of the effective date of this AD, section 106, describes the authority of dispatch with the flight control primary ‘‘ Airbus: Docket No. FAA–2011–0385; computer (FCPC) 3 ‘PRIM 3’ inoperative is the FAA Administrator. Subtitle VII: Directorate Identifier 2010–NM–256–AD. Aviation Programs,’’ describes in more prohibited unless the applicable Comments Due Date modifications required by this AD have been detail the scope of the Agency’s done within the compliance time in this AD. authority. (a) We must receive comments by June 10, We are issuing this rulemaking under 2011. Airplane Flight Manual Revision the authority described in ‘‘Subtitle VII, Affected ADs (h) Within 30 days after the effective date of this AD, revise the Limitations section of Part A, Subpart III, Section 44701: (b) None. General requirements.’’ Under that the Airbus A330 or A340 airplane flight section, Congress charges the FAA with Applicability manual (AFM), as applicable, to include the following statement: ‘‘Dispatch with the flight promoting safe flight of civil aircraft in (c) This AD applies to airplanes in control primary computer (FCPC) 3 ‘PRIM 3’ air commerce by prescribing regulations paragraphs (c)(1), (c)(2), and (c)(3) of this AD, inoperative is prohibited.’’ This may be done for practices, methods, and procedures certificated in any category. by inserting a copy of this AD into the AFM. the Administrator finds necessary for (1) Airbus Model A330–201, –202, –203, –223, –223F, –243, –243F, –301, –302, –303, Note 1: When a statement identical to that safety in air commerce. This regulation –321, –322, –323, –341, –342, and –343 in paragraph (h) of this AD has been included is within the scope of that authority airplanes, all manufacturer serial numbers on in the general revisions of the AFM, the because it addresses an unsafe condition which Airbus modification 49144 (install general revisions may be inserted into the that is likely to exist or develop on electrical rudder) has been embodied in AFM, and the copy of this AD may be products identified in this rulemaking production, except those on which Airbus removed from the AFM. action. modification 58118 and Airbus modification Modification 200667 have been embodied in production. Regulatory Findings (2) Airbus Model A340–311, –312, and (i) For Airbus Model A330–201, –202, –203, –223, –223F, –243, –243F, –301, –302, We determined that this proposed AD –313 airplanes, all manufacturer serial numbers on which Airbus modification –303, –321, –322, –323, –341, –342, –343, would not have federalism implications 49144 has been embodied in production, and A340–311, –312, and –313 series under Executive Order 13132. This except those on which Airbus modification airplanes, within 48 months after the proposed AD would not have a 58118 and Airbus modification 200667 have effective date of this AD, do the actions substantial direct effect on the States, on been embodied in production. specified in paragraphs (i)(1) and (i)(2) of this the relationship between the national (3) Airbus Model A340–541 and –642 AD: airplanes, all manufacturer serial numbers, (1) Modify the BCM, in accordance with Government and the States, or on the the Accomplishment Instructions of Airbus distribution of power and except those on which Airbus modification 200667 has been embodied in production. Service Bulletin A330–27–3161 (for Model responsibilities among the various A330–201, –202, –203, –223, –223F, –243, levels of government. Subject –243F, –301, –302, –303, –321, –322, –323, For the reasons discussed above, I (d) Air Transport Association (ATA) of –341, –342, –343 airplanes) or A340–27–4160 certify this proposed regulation: America Code 27: Flight Controls. (for Model A340–311, –312, and –313 1. Is not a ‘‘significant regulatory airplanes), both dated November 6, 2009, as Reason action’’ under Executive Order 12866; applicable. ‘‘ ’’ (e) The mandatory continuing (2) Modify the PFTU, in accordance with 2. Is not a significant rule under the the Accomplishment Instructions of Airbus DOT Regulatory Policies and Procedures airworthiness information (MCAI) states: During a Back-up Control Module (BCM) Mandatory Service Bulletin A330–27–3169 (44 FR 11034, February 26, 1979); and or A340–27–4167, both dated May 3, 2010, 3. Will not have a significant retrofit campaign * * *, some BCMs have been found with loose gyrometer screws. as applicable. economic impact, positive or negative, * * * When the aeroplane is in control (j) For Airbus Model 340–541 and –642 on a substantial number of small entities back up configuration (considered to be an airplanes: Within 48 months after the under the criteria of the Regulatory extremely remote case), an oscillation of the effective date of this AD, modify the PFTU, in accordance with the Accomplishment Flexibility Act. BCM output order may cause degradation of Instructions of Airbus Mandatory Service the BCM piloting laws, potentially leading to We prepared a regulatory evaluation Bulletin A340–27–5053, dated May 3, 2010. of the estimated costs to comply with erratic motion of the rudder and possible this proposed AD and placed it in the subsequent impact on the Dutch Roll, which Terminating Action AD docket. constitutes an unsafe condition. (k) Modifying both the BCM and PFTU as * * * * * required by paragraphs (i)(1) and (i)(2) of this List of Subjects in 14 CFR Part 39 * * * [S]everal Pedal Feel Trim Units AD, terminates the requirements of Air transportation, Aircraft, Aviation (PFTU) have been found with loose or broken paragraphs (g) and (h) of this AD. safety, Incorporation by reference, screws during the accomplishment of (l) Modifying the PFTU as required by maintenance tasks on A330 fitted with paragraph (j) of this AD, terminates the Safety. electrical rudder and A340–600. The loose or requirements in paragraphs (g) and (h) of this The Proposed Amendment failed screws could lead to the loss of the AD. coupling between the Rotary Variable Accordingly, under the authority Differential Transducer (RVDT) shaft and the FAA AD Differences delegated to me by the Administrator, PFTU shaft, and consequently to a potential Note 2: This AD differs from the MCAI the FAA proposes to amend 14 CFR part rudder runaway when the BCM is activated. and/or service information as follows: No 39 as follows: * * * * * differences. The unsafe condition is loss of control of the PART 39—AIRWORTHINESS airplane. Other FAA AD Provisions DIRECTIVES (m) The following provisions also apply to Compliance this AD: 1. The authority citation for part 39 (f) You are responsible for having the (1) Alternative Methods of Compliance continues to read as follows: actions required by this AD performed within (AMOCs): The Manager, International

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Branch, ANM–116, Transport Airplane 227–1149. Information may be e-mailed to: 9- approved if they are approved by the State Directorate, FAA, has the authority to [email protected]. of Design Authority (or their delegated approve AMOCs for this AD, if requested Before using any approved AMOC, notify agent). You are required to assure the product using the procedures found in 14 CFR 39.19. your appropriate principal inspector, or is airworthy before it is returned to service. In accordance with 14 CFR 39.19, send your lacking a principal inspector, the manager of request to your principal inspector or local the local flight standards district office/ Related Information Flight Standards District Office, as certificate holding district office. The AMOC (n) Refer to MCAI European Aviation appropriate. If sending information directly approval letter must specifically reference Safety Agency Airworthiness Directive 2010– to the International Branch, send it to Attn: this AD. Vladimir Ulyanov, Aerospace Engineer, (2) Airworthy Product: For any 0191, dated September 27, 2010 [Corrected International Branch, ANM–116, Transport requirement in this AD to obtain corrective October 7, 2010], and the service bulletins Airplane Directorate, FAA, 1601 Lind actions from a manufacturer or other source, listed in table 1 of this AD, for related Avenue, SW., Renton, Washington 98057– use these actions if they are FAA-approved. information. 3356; telephone (425) 227–1138; fax (425) Corrective actions are considered FAA-

TABLE 1—AIRBUS SERVICE BULLETINS

Document Date

Airbus Mandatory Service Bulletin A330–27–3169 ...... May 3, 2010. Airbus Mandatory Service Bulletin A340–27–4167 ...... May 3, 2010. Airbus Mandatory Service Bulletin A340–27–5053 ...... May 3, 2010. Airbus Service Bulletin A330–27–3161 ...... November 6, 2009. Airbus Service Bulletin A340–27–4160 ...... November 6, 2009.

Issued in Renton, Washington, on April 18, Protection Act (the ‘‘Act’’). The Secretary, Securities and Exchange 2011. discussion will be open to the public Commission, 100 F Street, NE., Kalene C. Yanamura, with seating on a first-come, first-served Washington, DC 20549–1090; or Acting Manager, Transport Airplane basis. Members of the public may also • Electronic submission via visiting Directorate, Aircraft Certification Service. listen to the meeting by telephone. Call- http://comments.cftc.gov/ [FR Doc. 2011–10007 Filed 4–25–11; 8:45 am] in participants should be prepared to PublicComments/ BILLING CODE 4910–13–P provide their first name, last name and CommentForm.aspx?id=1000 and affiliation. The information for the submitting comments through the conference call is set forth below. CFTC’s Web site; and/or by e-mail to COMMODITY FUTURES TRADING • U.S. Toll-Free: (866) 844–9416. [email protected] (all e-mails COMMISSION • International Toll: information on must reference the file number 4–625 in international dialing can be found at the the subject field) or through the 17 CFR Chapter I following link: http://www.cftc.gov/ comment form available at: http:// PressRoom/PressReleases/ www.sec.gov/rules/other.shtml. SECURITIES AND EXCHANGE internationalnumbers021811.html. All submissions will be reviewed COMMISSION • Conference ID: 1212444. jointly by the Agencies. All comments A transcript of the public roundtable must be in English or be accompanied 17 CFR Chapter II discussion will be published at http:// by an English translation. All submissions provided to either Agency [Release No. 34–64314; File No. 4–625] www.cftc.gov/PressRoom/Events/2011/ index.htm. The roundtable discussion in any electronic form or on paper will Joint Public Roundtable on Issues will take place each day in the be published on the Web site of the Related to the Schedule for Conference Center at the CFTC’s respective Agency, without review and Implementing Final Rules for Swaps headquarters, Three Lafayette Centre, without removal of personally and Security-Based Swaps Under the 1155 21st Street, NW., Washington, DC. identifying information. Please submit only information that you wish to make Dodd-Frank Wall Street Reform and FOR FURTHER INFORMATION CONTACT: The Consumer Protection Act CFTC’s Office of Public Affairs at (202) publicly available. 418–5080 or the SEC’s Office of Public By the Commodity Futures Trading AGENCIES: Commodity Futures Trading Commission. ‘‘ ’’ Affairs at (202) 551–4120. Commission ( CFTC ) and Securities Dated: April 20, 2011. and Exchange Commission (‘‘SEC’’) SUPPLEMENTARY INFORMATION: The David A. Stawick, (each, an ‘‘Agency,’’ and collectively, the roundtable discussion will take place on ‘‘Agencies’’). Monday, May 2, 2011, and Tuesday, Secretary. ACTION: Notice of roundtable discussion; May 3, 2011, commencing each day at By the Securities and Exchange request for comment. 9:30 a.m. and ending at 4 p.m. Members Commission. of the public who wish to comment on Dated: April 20, 2011. SUMMARY: On Monday, May 2, 2011, and the topics addressed at the discussion, Elizabeth M. Murphy, Tuesday, May 3, 2011, commencing or on any other topics related to the Secretary. each day at 9:30 a.m. and ending at 4 schedule for implementing final rules p.m., staff of the Agencies will hold a for swaps and security-based swaps Concurring Statement of CFTC public roundtable meeting at which under the Act, may do so via: Commissioner Scott D. O’Malia; invited participants will discuss various • Paper submission to David Stawick, Implementation Roundtable Seriatim; issues related to the schedule for Secretary, Commodity Futures Trading Certainty & Transparency implementing final rules for swaps and Commission, Three Lafayette Centre, I concur in supporting the security-based swaps under the Dodd- 1155 21st Street, NW., Washington, DC Commission’s roundtable on the Frank Wall Street Reform and Consumer 20581, or Elizabeth M. Murphy, implementation process.

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Along with the Chairman, I believe accordance with the requirements Commission proposes to approve the that our entire rulemaking process posted on the Commission’s web site, interpretation as discussed below. should be as transparent as possible to http://www.ferc.gov. Comments may be I. Background the public. Consequently, after the submitted by any of the following Roundtable is complete, I strongly methods: 2. Section 215 of the FPA requires a recommend that the Commission submit • Electronic Submission: Documents Commission-certified Electric both a proposal on the order in which created electronically using word Reliability Organization (ERO) to the Commission will consider final processing software should be filed in develop mandatory and enforceable rulemakings and a proposed native applications or print-to-PDF Reliability Standards, which are subject implementation plan to the Federal format, and not in a scanned format, at to Commission review and approval. If Register to allow the public to comment http://www.ferc.gov/docs-filing/ approved, the Reliability Standards are before we begin to consider final rules. efiling.asp. enforced by the ERO, subject to • Once we receive and review comments, Mail/Hand Delivery: Commenters Commission oversight, or by the a final rulemaking and implementation unable to file comments electronically Commission independently. schedule should be published in the must mail or hand deliver an original 3. Pursuant to section 215 of the FPA, copy of their comments to: Federal the Commission established a process to Federal Register. This level of 3 transparency will give the market a clear Energy Regulatory Commission, select and certify an ERO and, Secretary of the Commission, 888 First subsequently, certified NERC as the picture of how the Commission intends 4 to proceed, and how we can be held Street, NE., Washington, DC 20426. ERO. On March 16, 2007, the accountable as we undertake this These requirements can be found on the Commission issued Order No. 693, massive regulatory overhaul. It will also Commission’s Web site, see, e.g., the approving 83 of the 107 Reliability provide the market with certainty ‘‘Quick Reference Guide for Paper Standards filed by NERC, including Reliability Standard TOP–001–1.5 market participants need to make the Submissions,’’ available at http:// 4. NERC’s Rules of Procedure provide critical investment decisions necessary www.ferc.gov/docs-filing/efiling.asp, or via phone from FERC Online Support at that a person that is ‘‘directly and to be in compliance with the rules upon materially affected’’ by Bulk-Power implementation. Finally, this type of 202–502–6652 or toll-free at 1–866– 208–3676. System reliability may request an transparency will help guide the interpretation of a Reliability Standard.6 Commission’s decision regarding when FOR FURTHER INFORMATION CONTACT: Robert T. Stroh (Legal Information), The ERO’s ‘‘standards process manager’’ to make critical investments in will assemble a team with relevant advanced technology that are necessary Office of the General Counsel, Federal Energy Regulatory Commission, 888 expertise to address the requested for us to effectively oversee the futures, interpretation and also form a ballot options, and swaps markets. First Street, NE., Washington, DC 20426, Telephone: (202) 502–8473. pool. NERC’s Rules provide that, within The more thoughtful, deliberate, and 45 days, the team will draft an transparent our sequencing and Eugene Blick (Technical Information), Office of Electric Reliability, Federal interpretation of the Reliability implementation processes are, the more Energy Regulatory Commission, 888 Standard, with subsequent balloting. If orderly this Commission’s regulation of First Street, NE., Washington, DC approved by ballot, the interpretation is the swaps market will be. 20426, Telephone: (202) 502–8066. appended to the Reliability Standard [FR Doc. 2011–10158 Filed 4–25–11; 8:45 am] David O’Connor (Technical and filed with the applicable regulatory BILLING CODE 8011–01–P; 6351–01–P Information), Office of Electric authority for regulatory approval. Reliability, Federal Energy Regulatory A. Reliability Standard TOP–001–1 Commission, 888 First Street, NE., DEPARTMENT OF ENERGY Washington, DC 20426, Telephone: 5. Reliability Standard TOP–001–1 (202) 502–6695. (Reliability Responsibilities and Federal Energy Regulatory SUPPLEMENTARY INFORMATION: Before Authorities) centers on the Commission Commissioners: Jon Wellinghoff, responsibilities of balancing authorities Chairman; Marc Spitzer, Philip D. and transmission operators during a 18 CFR Part 40 Moeller, John R. Norris, and Cheryl A. system emergency. Specifically, the [Docket No. RM10–29–000] LaFleur. stated purpose of Reliability Standard TOP–001–1 is to ensure reliability Electric Reliability Organization Notice of Proposed Rulemaking (Issued entities have clear decision-making Interpretation of Transmission April 21, 2011) authority and capabilities to take Operations Reliability 1. Under section 215 of the Federal appropriate actions or direct the actions Power Act (FPA),1 the Federal Energy of others to return the transmission AGENCY: Federal Energy Regulatory Regulatory Commission (Commission) Commission. proposes to approve the North 3 Rules Concerning Certification of the Electric ACTION: Notice of Proposed Rulemaking. Reliability Organization; and Procedures for the American Electric Reliability Establishment, Approval and Enforcement of Corporation’s (NERC’s) proposed SUMMARY: Under section 215 of the Electric Reliability Standards, Order No. 672, FERC interpretation of Requirement R8 in Stats. & Regs. ¶ 31,204, order on reh’g, Order No. Federal Power Act (FPA), the Federal Commission-approved NERC Reliability 672–A, FERC Stats. & Regs. ¶ 31,212 (2006). Energy Regulatory Commission 4 Standard TOP–001–1 — Reliability North American Electric Reliability Corp., 116 (Commission) proposes to approve the FERC ¶ 61,062, order on reh’g & compliance, 117 Responsibilities and Authorities.2 The North American Electric Reliability FERC ¶ 61,126 (2006), aff’d sub nom., Alcoa, Inc. Corporation’s (NERC’s) proposed v. FERC, 564 F.3d 1342 (DC Cir. 2009). 1 16 U.S.C. 824o (2006). 5 Mandatory Reliability Standards for the Bulk- interpretation of Reliability Standard, 2 The Commission is not proposing any new or Power System, Order No. 693, FERC Stats. & Regs. TOP–001–1, Requirement R8. modified text to its regulations. As provided in 18 ¶ 31,242, order on reh’g, Order No. 693–A, 120 DATES: Comments are due June 27, 2011. CFR part 40, proposed interpretation of a Reliability FERC ¶ 61,053 (2007). Standard will not become effective until approved 6 NERC Rules of Procedure, Appendix 3A, ADDRESSES: You may submit comments, by the Commission, and the ERO must post on its Reliability Standards Development Procedure, identified by docket number and in Web site each effective Reliability Standard. Version 6.1, at 27–29 (2010).

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system to normal conditions during an transmission facilities. Similarly, the communication and coordination are emergency. Requirement R8 of the Balancing Authority is responsible for addressed in the Communications standard provides: maintaining load-interchange-generation (COM) Reliability Standards.14 balance, i.e., real power balance. In the During a system emergency, the Balancing context of this requirement, the Transmission II. Proposed Determination Authority and Transmission Operator shall Operator is the functional entity that 10. We propose to approve NERC’s immediately take action to restore the Real balances reactive power. Reactive power and Reactive Power Balance. If the Balancing balancing can be accomplished by issuing interpretation of Reliability Standard Authority or Transmission Operator is unable instructions to the Balancing Authority or TOP–001–1, Requirement R8. We to restore Real and Reactive Power Balance Generator Operators to alter reactive power believe that the ERO has presented a it shall request emergency assistance from injection. Based on NERC Reliability reasonable interpretation consistent the Reliability Coordinator. If corrective Standard BAL–005–1b Requirement R6, the with the language of the Reliability action or emergency assistance is not Transmission Operator has no requirement to Standard. In addition, as discussed adequate to mitigate the Real and Reactive compute an Area Control Error (ACE) signal Power Balance, then the Reliability below, we note that a balancing or to balance real power. Based on NERC Coordinator, Balancing Authority, and authority and transmission operator Reliability Standard VAR–001–1 Transmission Operator shall implement firm each have coordination and Requirement R8, the Balancing Authority is load shedding.7 not required to resolve reactive power communication functions that are B. NERC Proposed Interpretation balance issues. According to TOP–001- necessary for maintaining real and Requirement R3, the Balancing Authority is reactive power balance. 6. NERC submitted its petition for only required to comply with Transmission Discussion approval for an interpretation of Operator or Reliability Coordinator Requirement R8 in Commission- instructions to change injections of reactive 11. We propose to approve NERC’s approved Reliability Standard TOP– power.10 interpretation of TOP–001–1, 001–1 on July 16, 2010. Consistent with 8. NERC contends that the Requirement R8. As explained by NERC, the NERC Rules of Procedure, NERC interpretation is consistent with the the interpretation supports the stated states that it assembled a team to stated purpose of the Reliability purpose of the Reliability Standard, i.e., respond to the request for interpretation Standard, which is to ensure reliability ensuring that reliability entities have and presented the proposed entities have clear decision-making clear decision-making authority and interpretation to industry ballot, using a authority and capabilities to take capabilities to take appropriate actions process similar to the process it uses for appropriate actions or direct the actions or direct the actions of others to return the development of Reliability of others to return the transmission the transmission system to normal Standards.8 According to NERC, the system to normal conditions during an conditions during an emergency.15 The interpretation was developed and emergency. NERC adds that the interpretation also clarifies the approved by industry stakeholders interpretation clarifies the responsibilities of a balancing authority using the NERC Reliability Standards responsibilities of balancing authorities and transmission operator during a Development Procedure and approved and transmission operators during a system emergency. Further, the by the NERC Board of Trustees (Board). system emergency by referencing the language is consistent with the language In the NERC Petition, NERC explains NERC Glossary of Terms Used in of the requirement. Accordingly, the that it received a request from Florida Reliability Standards as well as other Commission proposes to approve the Municipal Power Pool (FMPP) seeking relevant Reliability Standards.11 ERO’s interpretation of TOP–001–1, an interpretation of Reliability Standard 9. On February 14, 2011, NERC made Requirement R8. TOP–001–1, Requirement R8. a supplemental filing in response to a 12. We agree, as discussed in the Specifically, FMPP requested Commission staff data request.12 With interpretation, that the balancing clarification on several aspects of regard to whether Requirement R8 authority is responsible for restoring Requirement R8. FMPP asked the obligates a joint response in a system real power balance during a system following: emergency, NERC explained that emergency and the transmission Balancing real power is not a function of Requirement R8 does not use the word operator is responsible for restoring a [Transmission Operator] and balancing ‘‘joint’’ or otherwise infer joint reactive power balance during a system reactive power is not a function of a responsibility during system emergency. However, during a system [Balancing Authority]. For Requirement R8 is emergencies. Rather, NERC responded emergency, communication and the Balancing Authority responsibility to that the balancing authority and coordination between the transmission immediately take corrective action to restore transmission operator have separate Real Power Balance and is the [Transmission operator and balancing authority can be Operator] responsibility to immediately take responsibilities to restore real and essential to restore real and reactive corrective action to restore Reactive Power reactive power balance during system power balance. For example, during an Balance? 9 emergencies. NERC also stated that the emergency, the balancing authority may 7. In response to FMPP’s use of ‘‘and’’ between the two entities rely on the real power output of a interpretation request, NERC provided should not construe communication or generator to fulfill its responsibility, the following: coordination. NERC added that the while the transmission operator may 13 The answer to both questions is yes. Blackout Report correctly identifies expect the same generator unit to reduce According to the NERC Glossary of Terms communication and coordination issues real power to generate greater reactive Used in Reliability Standards, the as reliability issues and that power output.16 Transmission Operator is responsible for the reliability of its ‘‘local’’ transmission system, 10 Id. at 5–6 14 NERC Response at 4–7. and operates or directs the operations of the 11 Id. at 6. 15 Id. at 6. 12 Response of the North American Electric 16 The Blackout Report described such a scenario, 7 Reliability Standard TOP–001–1, Requirement Reliability Corporation to Request for Additional explaining that a generator unit tripped because the R8. Information Regarding Interpretation to Reliability unit’s protection system detected the Var output, Standard TOP–001–1, Requirement R8 (NERC 8 NERC Reliability Standards Development i.e., reactive power, exceeded the unit’s capability. Response). Procedure at 27–29. Blackout Report at 27. The Blackout Report also 13 Final Report on the August 14, 2003 Blackout explained that no generator units were asked to 9 NERC Petition at 5. in the United States and Canada (Blackout Report). Continued

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13. NERC acknowledges the need for proposed rule to OMB for informational significant adverse effect on the human such communication and coordination. purposes only. environment.22 The Commission has NERC maintains that this coordination 18. For the purposes of reviewing this categorically excluded certain actions and communication is required through interpretation, the Commission seeks from this requirement as not having a two currently-effective Communication information concerning whether the significant effect on the human (COM) Reliability Standards: (1) COM– interpretation will affect respondents’ environment. Included in the exclusion 001–1.1–Telecommunications and (2) burden or cost. are rules that are clarifying, corrective, COM–002–2—Communication and Title: Mandatory Reliability Standards or procedural or that do not Coordination.17 for the Bulk-Power System. substantially change the effect of the 14. We agree with NERC that the Action: FERC–725A. regulations being amended.23 The currently effective COM Reliability OMB Control No.: 1902–0244. actions proposed herein fall within this Standards provide for such Respondents: Businesses or other for- categorical exclusion in the communication and coordination. For profit institutions; not-for-profit Commission’s regulations. example, Reliability Standard COM– institutions. V. Regulatory Flexibility Act 002–2, Requirement R1 provides that Frequency of Responses: On transmission operators, balancing Occasion. 22. The Regulatory Flexibility Act of authorities and generator operators must 19. Necessity of the Information: This 1980 (RFA) 24 generally requires a have communication links with one proposed rule would approve the description and analysis of final rules another and must be staffed to address proposed interpretation of Reliability that will have significant economic a real-time emergency. Reliability Standard, TOP–001–1, Requirement R8. impact on a substantial number of small Standard EOP–001–0, Requirements R3, The proposed rule would find the entities. The RFA mandates R4.3 and R7 also contain provisions interpretation just, reasonable, not consideration of regulatory alternatives relevant to such communication and unduly discriminatory or preferential, that accomplish the stated objectives of coordination in emergencies. These and in the public interest. The TOP– a proposed rule and that minimize any provisions require balancing authorities 001–1 Reliability Standard helps ensure significant economic impact on a and transmission operators to develop the reliable operation of the North substantial number of small entities. plans to mitigate operating emergencies American Bulk-Power System by The Small Business Administration’s including coordination among adjacent ensuring ‘‘reliability entities have clear (SBA) Office of Size Standards develops transmission operators and balancing decision-making authority and the numerical definition of a small authorities. capabilities to take appropriate actions business.25 The SBA has established a 15. Accordingly, for the reasons or direct the actions of others to return size standard for electric utilities, discussed above, we propose to approve the transmission system to normal stating that a firm is small if, including NERC’s proposed interpretation of TOP– conditions during an emergency.’’ 21 its affiliates, it is primarily engaged in 001–1, Requirement R8. 20. Interested persons may obtain the transmission, generation and/or distribution of electric energy for sale III. Information Collection Statement information on the reporting requirements by contacting the and its total electric output for the 16. The Office of Management and following: Federal Energy Regulatory preceding twelve months did not exceed Budget (OMB) regulations require that 26 Commission, 888 First Street, NE., four million megawatt hours. The RFA OMB approve certain reporting and Washington, DC 20426 [Attention: Ellen is not implicated by this proposed rule recordkeeping requirements (collections Brown, Office of the Executive Director, because the interpretations discussed of information) imposed by an agency.18 e-mail: [email protected], Phone: herein will not have a significant The information contained here is also (202) 502–8663, fax: (202) 273–0873]. economic impact on a substantial subject to review under section 3507(d) For submitting comments concerning number of small entities. of the Paperwork Reduction Act of the collection of information and the 23. The Commission approved 1995.19 associated burden estimate, please Reliability Standard TOP–001–1 in 2007 17. As stated above, the Commission in Order No. 693. The proposed approved, in Order No. 693, Reliability submit your comments to FERC and to the Office of Information and Regulatory rulemaking in the immediate docket Standard TOP–001–1 that is the subject addresses an interpretation of of the current rulemaking. This Affairs, Office of Management and Budget, Washington, DC 20503 Requirement R8 of previously-approved proposed rulemaking proposes to TOP–001–1. The proposed approve the interpretation of the [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: interpretation clarifies current previously approved Reliability compliance obligations of balancing Standard, which was developed by (202) 395–7345, fax: (202) 395–7285]. Due to security concerns, comments authorities and transmission operators NERC as the ERO. The proposed and therefore, does not create an interpretation, as clarified, relates to an should be sent electronically to the following e-mail address at OMB: oira additional regulatory impact on small existing Reliability Standard, and the entities. Commission does not expect it to affect [email protected]. Please refer entities’ current reporting burden.20 to OMB Control No. 1902–0244, and the VI. Comment Procedures docket number of this proposed rule in Accordingly, we will submit this 24. The Commission invites interested your submission. persons to submit comments on the reduce their real power output to produce more IV. Environmental Analysis matters and issues proposed in this reactive power. Id. at 47. 17 NERC Response at 6–7. NERC also identifies 21. The Commission is required to 22 several ongoing Reliability Standards projects that prepare an Environmental Assessment Order No. 486, Regulations Implementing the are intended to strengthen the requirements around National Environmental Policy Act, 52 FR 47897 communication and coordination between or an Environmental Impact Statement (Dec. 17, 1987), FERC Stats. & Regs. Preambles functional entities. for any action that may have a 1986–1990 ¶ 30,783 (1987). 18 5 CFR 1320.11. 23 18 CFR 380.4(a)(2)(ii). 19 44 U.S.C. 3507(d). 21 The purpose of Standard TOP–001–1, 24 5 U.S.C. 601–612. 20 See Order No. 693, FERC Stats. & Regs. according to the NERC Web site at http:// 25 13 CFR 121.101. ¶ 31,242 at P 1901–1907. www.nerc.com/files/TOP–001–1.pdf. 26 13 CFR 121.201, Section 22, Utilities, & n.1.

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notice to be adopted, including any Public Reference Room at material be treated confidentially related matters or alternative proposals [email protected]. because of its business proprietary that commenters may wish to discuss. By the Commission. nature or for any other reason. All Comments are due 60 days from comments responding to this notice will Kimberly D. Bose, publication in the Federal Register. be a matter of public record and will be Comments must refer to Docket No. Secretary. available for inspection at Import RM10–29–000, and must include the [FR Doc. 2011–10010 Filed 4–25–11; 8:45 am] Administration’s Central Records Unit commenter’s name, the organization BILLING CODE 6717–01–P (Room 7046 of the Herbert C. Hoover they represent, if applicable, and their Building) and online at http:// address in their comments. www.Regulations.gov and on the 25. The Commission encourages DEPARTMENT OF COMMERCE Department’s Web site at http:// comments to be filed electronically via www.trade.gov/ia/. the eFiling link on the Commission’s International Trade Administration Any questions concerning file Web site at http://www.ferc.gov. The formatting, document conversion, Commission accepts most standard 19 CFR Part 351 access on the Internet, or other word processing formats. Documents [Docket No. 110420253–1253–01] electronic filing issues should be created electronically using word addressed to Andrew Lee Beller, Import processing software should be filed in RIN 0625–AA88 Administration Webmaster, at (202) native applications or print-to-PDF 482–0866, e-mail address: webmaster- Modification of Regulations Regarding format and not in a scanned format. [email protected]. the Practice of Accepting Bonds Commenters filing electronically do not During the Provisional Measures FOR FURTHER INFORMATION CONTACT: need to make a paper filing. Thomas Futtner at (202) 482–3814, 26. Commenters that are not able to Period in Antidumping and Countervailing Duty Investigations Mark Ross at (202) 482–4794, or Joanna file comments electronically must send Theiss at (202) 482–5052. an original and 14 copies of their AGENCY: Import Administration, SUPPLEMENTARY INFORMATION: comments to: Federal Energy Regulatory International Trade Administration, Commission, Secretary of the Department of Commerce. Background Commission, 888 First Street NE., ACTION: Proposed rule; request for The Department proposes to modify Washington, DC 20426. comments. its regulation to establish that the 27. All comments will be placed in provisional measures during an the Commission’s public files and may SUMMARY: The Department of Commerce antidumping or countervailing duty be viewed, printed, or downloaded (the Department) proposes to modify its investigation will normally take the remotely as described in the Document regulation that states that provisional form of a cash deposit. The provisional Availability section below. Commenters measures during an antidumping or measures period is the period between on this proposal are not required to countervailing duty investigation the publication of the Department’s serve copies of their comments on other usually take the form of a bonding preliminary affirmative determination commenters. requirement. The modification, if and the earlier of (1) the expiration of VII. Document Availability adopted, would establish that the the applicable time period set forth in provisional measures during an 28. In addition to publishing the full sections 703(d) and 733(d) the Tariff Act antidumping or countervailing duty of 1930, as amended (the Act), or (2) the text of this document in the Federal investigation will normally take the Register, the Commission provides all publication of the International Trade form of a cash deposit. Commission’s final affirmative injury interested persons an opportunity to 1 view and/or print the contents of this DATES: To be assured of consideration, determination. During the provisional document via the Internet through comments must be received no later measures period in antidumping and FERC’s Home Page (http://www.ferc.gov) than May 26, 2011. countervailing duty investigations, the and in FERC’s Public Reference Room ADDRESSES: All comments must be Department is instructed by the Act to ‘‘ during normal business hours (8:30 a.m. submitted through the Federal order the posting of a cash deposit, to 5 p.m. eastern time) at 888 First eRulemaking Portal at http:// bond, or other security, as the Street, NE., Room 2A, Washington DC www.regulations.gov, Docket No. ITA– administering authority deems ’’ 20426. 2011–0005, unless the commenter does appropriate. See Sections 703(d)(1)(B) 29. From FERC’s Home Page on the not have access to the Internet. and 733(d)(1)(B) of the Act. Internet, this information is available on Commenters who do not have access to Our regulations describe the eLibrary. The full text of this document the Internet may submit the original and preliminary determination in is available on eLibrary in PDF and two copies of each set of comments by antidumping and countervailing duty Microsoft Word format for viewing, mail or hand delivery/courier. All investigations as the first point at which printing, and/or downloading. To access comments should be addressed to the Department may provide a remedy this document in eLibrary, type the Ronald K. Lorentzen, Deputy Assistant if we preliminarily find that dumping or docket number excluding the last three Secretary for Import Administration, countervailable subsidies has occurred. digits of this document in the docket Room 1870, Department of Commerce, The regulations at 19 CFR 351.205(a) ‘‘ number field. 14th Street and Constitution Ave., NW., state that, [t]he remedy (sometimes 30. User assistance is available for Washington, DC 20230. The comments 1 Also, pursuant to sections 703(e)(2) and eLibrary and the FERC’s Web site during should also be identified by Regulation 733(e)(2) of the Act, if the Department makes an normal business hours from FERC Identifier Number (RIN) 0625–AA88. affirmative determination of critical circumstances, Online Support at 202–502–6652 (toll The Department will consider all then provisional measures shall apply on or after free at 1–866–208–3676) or e-mail at comments received before the close of the later of (A) the date which is 90 days before the date on which the suspension of liquidation was [email protected], or the the comment period. The Department first ordered, or (B) the date on which notice of the Public Reference Room at (202) 502– will not accept comments accompanied determination to initiate the investigation is 8371, TTY (202) 502–8659. E-mail the by a request that part or all of the published in the Federal Register.

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referred to as ‘provisional measures’) our view, places the requirement for significant portion of our antidumping usually takes the form of a bonding cash deposits in the appropriate part of and countervailing duty remedies. requirement to ensure payment if 19 CFR 351 (i.e., in the part that Finally, the Act provides that antidumping or countervailing duties explains the effects of an affirmative provisional measures may only be in ultimately are imposed.’’ Section preliminary determination). These force for a four-month period, which 351.205(d) states that, ‘‘[i]f the modifications would reflect the can be extended to no longer than six preliminary determination is Department’s change in practice of months in antidumping cases. affirmative, the Secretary will take the normally requiring cash deposits rather Moreover, given the nature of our actions described in section 703(d) or than bonds during the provisional retrospective duty assessment system, section 733(d) (whichever is measures period. This modification is eliminating effectively the bonding applicable).’’ also in line with 19 CFR 351.205(d), option and requiring cash deposits A key reason for requiring that the which provides that ‘‘if the preliminary during the provisional measure period provisional measures during an determination is affirmative, the should not have a significant economic antidumping or countervailing duty Secretary will take the actions described impact on small business entities. investigation take the form of a cash in section 703(d) or section 733(d) of the Under the U.S. retrospective system, for deposit is to better ensure that importers Act (whichever is applicable)’’ because the provisional measure period an bear full responsibility for any future these sections of the Act provide that estimated antidumping or antidumping and countervailing duties the Department shall order the posting countervailing duty rate is established they may owe. While most of the duties of cash deposits or bonds, as the (based on the dumping margin or on entries secured by a bond during the Department deems appropriate. subsidy rate found in the preliminary provisional measures period are Classification determination of the original ultimately collected, these collections investigation), and this rate is applied to can be very slow and involve Executive Order 12866 subject merchandise as it is imported. burdensome administrative problems This duty rate is for deposit purposes for U.S. Customs and Border Protection This rule has been determined to be not significant for purposes Executive only. Final duties are not assessed at the (CBP). time the subject merchandise is We also believe that this change to Order 12866. imported into the United States. Rather, our regulation will bring the United Regulatory Flexibility Act beginning one year after the imposition States in line with the practices of other of any antidumping or countervailing World Trade Organization (WTO) The Chief Counsel for Regulation has duty order, interested parties (e.g., Members. We are aware of no other certified to the Chief Counsel for domestic producers, importers, or WTO Member that is currently Advocacy of the Small Business foreign exporters) may request an permitting importers the option of Administration (‘‘SBA’’) under the posting bonds during the provisional provisions of the Regulatory Flexibility administrative review to determine the measures period of antidumping and Act, 5 U.S.C. 605(b), that the proposed actual amount of duties to be collected countervailing duty investigations. rule would not have a significant based on the level of dumping or economic impact on a substantial subsidization that occurred during the Explanation of Proposed Modification number of small business entities. A review period. Further, small business to 19 CFR 351.205 summary of the need for, objectives of, entities will continue to have the option The second sentence of 19 CFR and legal basis for this rule is provided to post cash deposits during the 351.205(a) states that, ‘‘[t]he remedy in the preamble, and is not repeated provisional measures period, either (sometimes referred to as ‘provisional here. from the entity’s assets or borrowed measures’) usually takes the form of a The entities upon which this from third parties. bonding requirement to ensure payment rulemaking could have an impact For all of these reasons, the proposed if antidumping or countervailing duties include foreign exporters and rule would not have a significant ultimately are imposed.’’ The producers, some of whom are affiliated economic impact on a substantial Department proposes deleting most of with U.S. companies, and U.S. number of small business entities. Since this sentence because U.S. importers importers. Some of these entities may be this proposed modification to 19 CFR would normally no longer be permitted considered small entities under the SBA 351.222, if adopted, will not have a to post bonds during the provisional small business size standard. The significant economic impact on a measures period. The Department Department is not able to estimate the substantial number of small entities, an proposes keeping the ‘‘(sometimes number of small entities this proposed Initial Regulatory Flexibility Analysis is referred to as ‘provisional measures’)’’ rule will affect; however, the not required and, therefore, has not been phrase and moving it to the first Department anticipates that it will not prepared. sentence of 19 CFR 351.205(a). We view be a substantial number based on our Paperwork Reduction Act this phrase as a useful link between this experience with the administration of part of our regulations and the antidumping and countervailing duty This rule does not contain a collection terminology under Article 7 of the WTO proceedings. of information for purposes of the Antidumping Agreement. Further, to The Department also estimates that Paperwork Reduction Act of 1980, as clarify that provisional measures will this proposed rule’s economic impact amended (44 U.S.C. 3501 et seq.). take the form of cash deposits the on small entities will not be significant. List of Subjects in 19 CFR Part 351 Department proposes adding a sentence In 2008 and 2009, antidumping and to 19 CFR 351.205(d) that states, ‘‘[w]ith countervailing duty remedies were Administrative practice and respect to section 703(d)(1)(B) and applied to less than 2% of imports into procedure, Antidumping, Business and 733(d)(1)(B) of the Act, the Secretary the United States. Further, because industry, Cheese, Confidential business will normally order the posting of cash provisional antidumping and information, Countervailing duties, deposits to ensure payment if countervailing duties only apply during Freedom of information, Investigations, antidumping or countervailing duties the investigation phase of a case, this Reporting and recordkeeping ultimately are imposed.’’ This change, in proposed rule is not applicable to a requirements.

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Dated: April 20, 2011. DEPARTMENT OF HOMELAND Wright, Program Manager, Docket Ronald K. Lorentzen, SECURITY Operations, telephone 202–366–9826. Deputy Assistant Secretary for Import SUPPLEMENTARY INFORMATION: Coast Guard Administration. Public Participation and Request for For the reasons stated, 19 CFR part 33 CFR Part 165 Comments 351 is proposed to be amended as We encourage you to participate in follows: [Docket No. USCG–2011–0230] this rulemaking by submitting RIN 1625–AA00 comments and related materials. All PART 351—ANTIDUMPING AND comments received will be posted COUNTERVAILING DUTIES Safety Zone, Newport River; Morehead without change to http:// City, NC www.regulations.gov and will include 1. The authority citation for 19 CFR any personal information you have part 351 continues to read as follows: AGENCY: Coast Guard, DHS. provided. ACTION: Notice of proposed rulemaking. Authority: 5 U.S.C. 301; 19 U.S.C 1202 Submitting Comments note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et SUMMARY: The Coast Guard proposes the seq.; and 19 U.S.C. 3538. If you submit a comment, please establishment of a safety zone on the include the docket number for this 2. In § 351.205, revise paragraphs (a) waters of the Newport River under the rulemaking (USCG–2011–0230), and (d) to read as follows: main span US 70/Morehead City— indicate the specific section of this Newport River high rise bridge in (a) Introduction. A preliminary document to which each comment Carteret County, NC. This safety zone is applies, and provide a reason for each determination in an antidumping or necessary to provide for safety of life on suggestion or recommendation. You countervailing duty investigation navigable waters during the may submit your comments and constitutes the first point at which the disestablishment of staging for bridge material online (via http:// Secretary may provide a remedy maintenance. This rule will enhance the www.regulations.gov) or by fax, mail, or (sometimes referred to as ‘‘provisional safety of the contractors performing hand delivery, but please use only one measures’’) if the Secretary preliminarily maintenance as well as the safety of the of these means. If you submit a finds that dumping or countervailable vessels that plan to transit this area comment online via http:// subsidization has occurred. Whether the between 10 a.m. and 4 p.m. on August www.regulations.gov, it will be Secretary’s preliminary determination is 20, 2011. considered received by the Coast Guard affirmative or negative, the investigation DATES: Comments and related material when you successfully transmit the continues. This section contains rules must be received by the Coast Guard on comment. If you fax, hand deliver, or regarding deadlines for preliminary or before May 26, 2011. mail your comment, it will be determinations, postponement of ADDRESSES: You may submit comments considered as having been received by preliminary determinations, notices of identified by docket number USCG– the Coast Guard when it is received at preliminary determinations, and the 2011–0230 using any one of the the Docket Management Facility. We effects of affirmative preliminary following methods: recommend that you include your name determinations. (1) Federal eRulemaking Portal: and a mailing address, an e-mail address, or a telephone number in the * * * * * http://www.regulations.gov. (2) Fax: 202–493–2251. body of your document so that we can (d) Effect of affirmative preliminary (3) Mail: Docket Management Facility contact you if we have questions determination. If the preliminary (M–30), U.S. Department of regarding your submission. determination is affirmative, the Transportation, West Building Ground To submit your comment online, go to Secretary will take the actions described Floor, Room W12–140, 1200 New Jersey http://www.regulations.gov, click on the in section 703(d) or section 733(d) of the Avenue, SE., Washington, DC 20590– ‘‘submit a comment’’ box, which will Act (whichever is applicable). With 0001. then become highlighted in blue. In the respect to section 703(d)(1)(B) and (4) Hand delivery: Same as mail ‘‘Document Type’’ drop down menu 733(d)(1)(B) of the Act, the Secretary address above, between 9 a.m. and 5 select ‘‘Proposed Rule’’ and insert will normally order the posting of cash p.m., Monday through Friday, except ‘‘USCG–2011–0230’’ in the ‘‘Keyword’’ deposits to ensure payment if Federal holidays. The telephone number box. Click ‘‘Search’’ then click on the antidumping or countervailing duties is 202–366–9329. balloon shape in the ‘‘Actions’’ column. ultimately are imposed. In making To avoid duplication, please use only If you submit your comments by mail or information available to the hand delivery, submit them in an one of these four methods. See the 1 Commission under section 703(d)(3) or ‘‘Public Participation and Request for unbound format, no larger than 8 ⁄2 by 11 inches, suitable for copying and section 733(d)(3) of the Act, the Comments’’ portion of the electronic filing. If you submit Secretary will make available to the SUPPLEMENTARY INFORMATION section comments by mail and would like to Commission and to employees of the below for instructions on submitting comments. know that they reached the Facility, Commission directly involved in the please enclose a stamped, self-addressed proceeding the information upon which FOR FURTHER INFORMATION CONTACT: If postcard or envelope. We will consider the Secretary based the preliminary you have questions on this proposed all comments and material received determination and which the rule, call or e-mail BOSN3 Joseph M. during the comment period and may Commission may consider relevant to Edge, Coast Guard Sector North change the rule based on your its injury determination. Carolina, Coast Guard; telephone 252– comments. [FR Doc. 2011–10045 Filed 4–25–11; 8:45 am] 247–4525, e-mail Viewing Comments and Documents BILLING CODE 3510–DS–P [email protected]. If you have questions on viewing or submitting To view comments, as well as material to the docket, call Renee V. documents mentioned in this preamble

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as being available in the docket, go to vessels are prohibited from transiting This rule will affect the following http://www.regulations.gov, click on the this section of the waterway while the entities, some of which may be small ‘‘read comments’’ box, which will then safety zone is in effect. Entry into the entities: the owners or operators of become highlighted in blue. In the safety zone will not be permitted except recreational and fishing vessels ‘‘Keyword’’ box insert ‘‘USCG–2011– as specifically authorized by the Captain intending to transit the specified portion 0230’’ and click ‘‘Search.’’ Click the of the Port or a designated of Newport River from 10 a.m. to 4 p.m. ‘‘Open Docket Folder’’ in the ‘‘Actions’’ representative. To seek permission to on August 20, 2011. column. You may also visit the Docket transit the area, mariners may contact This safety zone will not have a Management Facility in Room W12–140 Sector North Carolina at (252) 247– significant economic impact on a on the ground floor of the Department 4570. This zone will be enforced from substantial number of small entities for of Transportation West Building, 1200 10 a.m. to 4 p.m. on August 20, 2011. the following reasons. This rule will only be in effect for six hours from 10 New Jersey Avenue, SE., Washington, Regulatory Analyses DC 20590, between 9 a.m. and 5 p.m., a.m. to 4 p.m. Although the safety zone Monday through Friday, except Federal We developed this proposed rule after will apply to the section of the Newport holidays. We have an agreement with considering numerous statutes and River in the vicinity of the bridge, vessel the Department of Transportation to use executive orders related to rulemaking. traffic may use alternate waterways to the Docket Management Facility. Below we summarize our analyses transit safely around the safety zone. based on 13 of these statutes or Before the effective period, the Coast Privacy Act executive orders. Guard will issue maritime advisories Anyone can search the electronic Executive Order 12866 and Executive widely available to the users of the form of comments received into any of Order 13563 waterway. our dockets by the name of the If you think that your business, individual submitting the comment (or This proposed rule is not a significant organization, or governmental signing the comment, if submitted on regulatory action under section 3(f) of jurisdiction qualifies as a small entity behalf of an association, business, labor Executive Order 12866, Regulatory and that this rule would have a union, etc.). You may review a Privacy Planning and Review, as supplemented significant economic impact on it, Act notice regarding our public dockets by Executive Order 13563, and does not please submit a comment (see in the January 17, 2008, issue of the require an assessment of potential costs ADDRESSES) explaining why you think it Federal Register (73 FR 3316). and benefits under section 6(a)(3) of that qualifies and how and to what degree Order. The Office of Management and this rule would economically affect it. Public Meeting Budget has not reviewed it under that We do not now plan to hold a public Order. Assistance for Small Entities meeting. But you may submit a request Although this regulation will restrict Under section 213(a) of the Small for one using one of the four methods access to the area, the effect of this rule Business Regulatory Enforcement specified under ADDRESSES. Please will not be significant because: (i) The Fairness Act of 1996 (Pub. L. 104–121), explain why you believe a public safety zone will be in effect for a limited we want to assist small entities in meeting would be beneficial. If we time, from 10 a.m. to 4 p.m., on August understanding this proposed rule so that determine that one would aid this 20, 2011, (ii) the Coast Guard will give they can better evaluate its effects on rulemaking, we will hold one at a time advance notification via maritime them and participate in the rulemaking. and place announced by a later notice advisories so mariners can adjust their If the rule would affect your small in the Federal Register. plans accordingly, and (iii) although the business, organization, or governmental safety zone will apply to the section of jurisdiction and you have questions Basis and Purpose the Newport River in the immediate concerning its provisions or options for The State of North Carolina vicinity of the US Highway 70 Fixed compliance, please contact CWO3 Department of Transportation awarded a bridge, vessel traffic may use alternate Joseph Edge, Waterways Management contract to Astron General Contracting waterways to transit safely around the Division Chief, Sector North Carolina, at Company of Jacksonville, NC to perform safety zone. All Coast Guard vessels (252) 247–4525. The Coast Guard will bridge maintenance on the US Highway enforcing this regulated area can be not retaliate against small entities that 70 Fixed bridge crossing Newport River contacted on marine band radio VHF– question or complain about this at Morehead City, North Carolina. The FM channel 16 (156.8 MHz). proposed rule or any policy or action of contract provides for cleaning, painting, the Coast Guard. and steel repair to begin on June 1, 2011 Small Entities and will be completed by August 20, Under the Regulatory Flexibility Act Collection of Information 2011. The contractor requires the main (5 U.S.C. 601–612), we have considered This proposed rule would call for no channel in the vicinity of the bridge to whether this proposed rule would have new collection of information under the remain closed during demobilization on a significant economic impact on a Paperwork Reduction Act of 1995 (44 August 20, 2011 from 10 a.m. to 4 p.m. substantial number of small entities. U.S.C. 3501–3520.). The Coast Guard will temporarily The term ‘‘small entities’’ comprises Federalism restrict access to this section of Newport small businesses, not-for-profit River during the demobilization of the organizations that are independently A rule has implications for federalism bridge maintenance equipment. owned and operated and are not under Executive Order 13132, dominant in their fields, and Federalism, if it has a substantial direct Discussion of Proposed Rule governmental jurisdictions with effect on State or local governments and The temporary safety zone will populations of less than 50,000. would either preempt State law or encompass the waters of the Newport The Coast Guard certifies under 5 impose a substantial direct cost of River directly under the bridge, latitude U.S.C. 605(b) that this proposed rule compliance on them. We have analyzed 34°43′15″ North, longitude 076°41′39″ would not have a significant economic this proposed rule under that Order and West, and 100 yards on either side of impact on a substantial number of small have determined that it does not have the US Highway 70 Fixed bridge. All entities. implications for federalism.

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Unfunded Mandates Reform Act energy. The Administrator of the Office PART 165—REGULATED NAVIGATION The Unfunded Mandates Reform Act of Information and Regulatory Affairs AREAS AND LIMITED ACCESS AREAS of 1995 (2 U.S.C. 1531–1538) requires has not designated it as a significant Federal agencies to assess the effects of energy action. Therefore, it does not 1. The authority citation for part 165 their discretionary regulatory actions. In require a Statement of Energy Effects continues to read as follows: under Executive Order 13211. particular, the Act addresses actions Authority: 33 U.S.C. 1231; 46 U.S.C. that may result in the expenditure by a Technical Standards Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; State, local, or tribal government, in the 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; aggregate, or by the private sector of The National Technology Transfer Pub. L. 107–295, 116 Stat. 2064; Department $100,000,000 (adjusted for inflation) or and Advancement Act (NTTAA) (15 of Homeland Security Delegation No. 0170.1. more in any one year. Though this U.S.C. 272 note) directs agencies to use proposed rule would not result in such voluntary consensus standards in their 2. Add temporary § 165.T05–0230 to an expenditure, we do discuss the regulatory activities unless the agency read as follows: effects of this rule elsewhere in this provides Congress, through the Office of preamble. Management and Budget, with an § 165.T05–0230 SAFETY ZONE; Newport River, Morehead City, North Carolina. explanation of why using these Taking of Private Property standards would be inconsistent with (a) Definitions. For the purposes of This proposed rule would not cause a applicable law or otherwise impractical. this section, Captain of the Port means taking of private property or otherwise Voluntary consensus standards are the Commander, Sector North Carolina. have taking implications under technical standards (e.g., specifications Representative means any Coast Guard Executive Order 12630, Governmental of materials, performance, design, or commissioned, warrant, or petty officer Actions and Interference with operation; test methods; sampling who has been authorized to act on the Constitutionally Protected Property procedures; and related management behalf of the Captain of the Port. Rights. systems practices) that are developed or (b) Location. The following area is a Civil Justice Reform adopted by voluntary consensus standards bodies. This proposed rule safety zone: This zone includes the This proposed rule meets applicable does not use technical standards. waters of Newport River directly under standards in sections 3(a) and 3(b)(2) of Therefore, we did not consider the use the main span of the U.S. Highway 70 Executive Order 12988, Civil Justice of voluntary consensus standards. fixed bridge at Morehead City, North Reform, to minimize litigation, Carolina, located at latitude 34°43′15″ eliminate ambiguity, and reduce Environment North, longitude 076°41′39″ West, and burden. We have analyzed this proposed rule 100 yards on either side of that bridge. Protection of Children under Department of Homeland (c) Regulations. (1) The general We have analyzed this proposed rule Security Management Directive 023–01 regulations contained in § 165.23 of this under Executive Order 13045, and Commandant Instruction part apply to the area described in Protection of Children from M16475.lD, which guide the Coast paragraph (b) of this section. Guard in complying with the National Environmental Health Risks and Safety (2) Persons or vessels requiring entry Environmental Policy Act of 1969 Risks. This rule is not an economically into or passage through any portion of (NEPA) (42 U.S.C. 4321–4370f), and significant rule and would not create an the safety zone must first request have made a preliminary determination environmental risk to health or risk to authorization from the Captain of the safety that might disproportionately that this action is one of a category of Port, or a designated representative, affect children. actions that do not individually or cumulatively have a significant effect on unless the Captain of the Port Indian Tribal Governments the human environment. A preliminary previously announced via Marine Safety This proposed rule does not have environmental analysis checklist Radio Broadcast on VHF Marine Band tribal implications under Executive supporting this determination is Radio channel 22 (157.1 MHz) that this Order 13175, Consultation and available in the docket where indicated regulation will not be enforced in that Coordination with Indian Tribal under ADDRESSES. This proposed rule is portion of the safety zone. The Captain Governments, because it would not have categorically excluded, under figure 2– of the Port can be contacted at telephone a substantial direct effect on one or 1, paragraph (34)(g), of this instruction. number (252) 247–4570 or by radio on more Indian tribes, on the relationship This proposed rule involves the VHF Marine Band Radio, channels 13 between the Federal Government and establishment of a temporary safety and 16. Indian tribes, or on the distribution of zone to protect the public from bridge (d) Enforcement. The U.S. Coast power and responsibilities between the maintenance operations. We seek any Guard may be assisted in the patrol and Federal Government and Indian tribes. comments or information that may lead enforcement of the zone by Federal, Energy Effects to the discovery of a significant State, and local agencies. environmental impact from this We have analyzed this proposed rule proposed rule. (e) Enforcement period. This section under Executive Order 13211, Actions will be enforced from 10 a.m. to 4 p.m. Concerning Regulations That List of Subjects in 33 CFR Part 165 on August 20, 2011 unless cancelled Significantly Affect Energy Supply, Harbors, Marine safety, Navigation earlier by the Captain of the Port. Distribution, or Use. We have (water), Reporting and recordkeeping Dated: April 12, 2011. determined that it is not a ‘‘significant requirements, Security measures, energy action’’ under that order because A. Popiel, Waterways. it is not a ‘‘significant regulatory action’’ Captain, U.S. Coast Guard, Captain of the under Executive Order 12866 and is not For the reasons discussed in the Port North Carolina. likely to have a significant adverse effect preamble, the Coast Guard proposes to [FR Doc. 2011–9984 Filed 4–25–11; 8:45 am] on the supply, distribution, or use of amend 33 CFR part 165 as follows: BILLING CODE 9110–04–P

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DEPARTMENT OF THE INTERIOR 2134LM, Attention: Regulatory Affairs, holidays. They will also be available at Washington, DC 20003. Federal the Federal eRulemaking Portal http:// Bureau of Land Management eRulemaking Portal: http:// www.regulations.gov. Follow the www.regulations.gov. Follow the instructions at this Web site. 43 CFR Parts 2090 and 2800 instructions at this Web site. Before including your address, telephone number, e-mail address, or [WO 300–1430–PQ] FOR FURTHER INFORMATION CONTACT: Ray Brady at (202) 912–7312 or the Division other personal identifying information RIN 1004–AE19 of Lands, Realty, and Cadastral Survey in your comment, be advised that your at (202) 912–7350 for information entire comment—including your Segregation of Lands—Renewable relating to the BLM’s renewable energy personal identifying information—may Energy program or the substance of the be made publicly available at any time. AGENCY: Bureau of Land Management, proposed rule, or Ian Senio at (202) While you can ask in your comment for Interior. 912–7440 for information relating to the the BLM to withhold your personal identifying information from public ACTION: Proposed Rule. rulemaking process generally. Persons who use a telecommunications device review, we cannot guarantee that we SUMMARY: The Bureau of Land for the deaf (TDD) may call the Federal will be able to do so. Management (BLM) is proposing this Information Relay Service (FIRS) at 1– II. Background rule to amend the BLM’s regulations 800–877–8339, 24 hours a day, seven Congress has directed the Department found in 43 CFR parts 2090 and 2800 by days a week to contact the above of the Interior (Department) to facilitate adding provisions allowing the BLM to individuals. temporarily segregate from the operation the development of renewable energy SUPPLEMENTARY INFORMATION: of the public land laws, by publication resources. Promoting renewable energy of a Federal Register notice, public I. Public Comment Procedures is one of this Administration’s and this lands included in a pending or future II. Background Department’s highest priorities. In III. Section-by-Section Analysis Section 211 of the Energy Policy Act of wind or solar energy generation right-of- IV. Procedural Matters way (ROW) application, or public lands 2005 (119 Stat. 660, Aug. 8, 2005) (EPAct), Congress declared that before identified by the BLM for a potential I. Public Comment Procedures future wind or solar energy generation 2015 the Secretary of the Interior should ROW authorization under the BLM’s If you wish to comment, you may seek to have approved non-hydropower ROW regulations, in order to promote submit your comments by one of several renewable energy projects (solar, wind, and geothermal) on public lands with a the orderly administration of the public methods: You may mail comments to Director generation capacity of at least 10,000 lands. If segregated under this rule, such (630) Bureau of Land Management, U.S. megawatts (MW) of electricity. Even lands would not be subject to Department of the Interior, Mail Stop before the EPAct was enacted by appropriation under the public land 2143LM, 1849 C St., NW., Washington, Congress, President Bush issued laws, including location under the DC 20240, Attention: 1004–AE19. You Executive Order 13212, ‘‘Actions to Mining Law of 1872 (Mining Law), but may deliver comments to U.S. Expedite Energy-Related Projects’’ (May not the Mineral Leasing Act of 1920 Department of the Interior, Bureau of 18, 2001), which requires Federal (Mineral Leasing Act) or the Materials Land Management, 20 M Street, SE., agencies to expedite the production, Act of 1947 (Materials Act), subject to Room 2134LM, Attention: Regulatory transmission, or conservation of energy. valid existing rights, for a period of up Affairs, Washington, DC 20003; or After passage of the EPAct, the to 2 years. The BLM is also publishing You may access and comment on the Secretary of the Interior issued several in today’s Federal Register an interim proposed rule at the Federal orders emphasizing the importance of temporary final rule (Interim Rule) that eRulemaking Portal by following the renewable energy development on is substantively similar to this proposed instructions at that site (see ADDRESSES). public lands. On January 16, 2009, rule. The Interim Rule is effective Written comments on the proposed Secretary Kempthorne issued Secretarial immediately upon publication in the rule should be specific, should be Order 3283, ‘‘Enhancing Renewable Federal Register for a period not to confined to issues pertinent to the Energy Development on the Public exceed 2 years after publication, or the proposed rule, and should explain the Lands,’’ which states that its purpose is completion of the notice and comment reason for any recommended change. to ‘‘facilitate[ ] the Department’s efforts rulemaking process for this proposed Where possible, comments should to achieve the goal Congress established rule whichever occurs first. reference the specific section or in Section 211 of the * * * [EPAct] to DATES: You should submit your paragraph of the proposed rule that the approve non-hydropower renewable comments on the proposed rule on or comment is addressing. energy projects on the public lands with before June 27, 2011. The BLM need not The BLM need not consider or a generation capacity of at least 10,000 consider, or include in the include in the Administrative Record megawatts of electricity by 2015.’’ The administrative record for the final rule, for the proposed rule comments that we order also declared that ‘‘the comments that the BLM receives after receive after the close of the comment development of renewable energy the close of the comment period or period (see DATES) or comments resources on the public lands will comments delivered to an address other delivered to an address other than those increase domestic energy production, than those listed below (see ADDRESSES). listed above (see ADDRESSES). provide alternatives to traditional ADDRESSES: Mail: Director (630) Bureau Comments, including names and street energy resources, and enhance the of Land Management, U.S. Department addresses of respondents, will be energy security of the United States.’’ of the Interior, Mail Stop 2143LM, 1849 available for public review at the U.S. Approximately 1 year later, Secretary C St., NW., Washington, DC 20240, Department of the Interior, Bureau of Salazar issued Secretarial Order Attention: 1004–AE19. Personal or Land Management, 20 M Street, SE., 3285A1, ‘‘Renewable Energy messenger delivery: U.S. Department of Room 2134LM, Washington, DC 20003 Development by the Department of the the Interior, Bureau of Land during regular hours (7:45 a.m. to 4:15 Interior’’ (Feb. 22, 2010), which Management, 20 M Street, SE., Room p.m.) Monday through Friday, except reemphasized the development of

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renewable energy as a priority for the an area by the BLM for such ROWs mining claim require the BLM to Department. The order states: became publicly known. In addition, undertake any additional analyses, such ‘‘Encouraging the production, over the past 2 years, 437 new mining as those required by the National development, and delivery of renewable claims were located within wind energy Environmental Policy Act, 42 U.S.C. energy is one of the Department’s ROW application areas in Arizona, 4321 et seq. (NEPA). Under these highest priorities. Agencies and bureaus California, Idaho, Nevada, Oregon, Utah, circumstances, the BLM’s ability to within the Department will work and Wyoming and 216 new mining administer the public lands in an collaboratively with each other, and claims were located within solar energy orderly manner is impeded. with other Federal agencies, ROW application areas. In the BLM’s This proposed rule is needed to departments, states, local communities, experience, some of these claims are provide the BLM with the necessary and private landowners to encourage likely to be valid, but others are likely authority to ensure the orderly the timely and responsible development to be speculative and not located for administration of the public lands and of renewable energy and associated true mining purposes. As such, the to prevent conflicts between competing transmission while protecting and latter are likely filed for no other uses of those lands. By allowing for enhancing the Nation’s water, wildlife, purpose than to provide a means for the temporary segregation, it would enable and other natural resources.’’ As a result mining claimant to compel some kind of the BLM to prevent new resource of these and other initiatives, the payment from the ROW applicant to conflicts from arising as a result of new interest in renewable energy relinquish the mining claim. The mining claims that may be located development on public lands has potential for such a situation exists within land covered by any pending or increased significantly. because, while it is relatively easy and future wind or solar energy generation In addition to these specific inexpensive to file a mining claim, it facility ROW applications, or public directives, the BLM is charged generally can be difficult, time-consuming, and lands identified by the BLM for with managing the public lands for costly to prove that the mining claim potential future wind or solar energy multiple uses under the Federal Land was not properly filed or does not generation ROWs pursuant to its ROW Policy and Management Act of 1976 contain a valid discovery. Regardless of regulations. Temporary segregation is (FLPMA), 43 U.S.C. 1701, et seq., the merits of a particular claim, the generally sufficient because once a ROW including for mining and energy location of a mining claim in an area has been authorized, subsequently development. In some instances, covered by a ROW application (or located mining claims would be subject different uses may present conflicts. For identified for such an application) to the previously authorized use, and example, a mining claim located within creates uncertainty that interferes with any future mining claimant would have a proposed ROW for a utility-scale solar the orderly administration of the public notice of such use. energy generation facility could impede lands. This uncertainty makes it The proposed rule would supplement the BLM’s ability to process the ROW difficult for the BLM, energy project the authority contained in 43 CFR application because the Federal developers, and institutions that finance subpart 2091 to allow the BLM to government’s use of the surface cannot such development to proceed with such segregate from appropriation under the endanger or materially interfere with a projects because a subsequently located public land laws, including location properly located mining claim. In order mining claim potentially precludes final under the Mining Law, but not the to help avoid such conflicts while issuance of the ROW and increases Mineral Leasing Act or the Materials carrying out the Congressional and project costs, jeopardizing the planned Act, public lands included in a pending Executive mandates and direction to energy development. or future wind or solar energy prioritize the development of renewable For example, the location of a new generation ROW application or public energy, the BLM is proposing this rule. mining claim during the pendency of lands identified by the BLM for a wind This rule will help promote the orderly the BLM’s review process for a ROW or solar energy generation ROW administration of the public lands by application could preclude the authorization under 43 CFR subpart giving the BLM a tool to minimize applicant from providing a concrete 2804, subject to valid existing rights.2 potential resource conflicts between proposal for their use and occupancy of This proposed rule would not affect ROWs for proposed solar and wind the public lands. This is because under valid existing rights in mining claims energy generation facilities and other the Mining Law, a ROW cannot located before any segregation made uses of the public lands. Under existing materially interfere with a previously pursuant to the final rule. The proposed regulations, lands within a solar or wind located mining claim. Since all properly rule also would not affect ROW energy generation ROW application or located claims are treated as valid until applications for uses other than wind or within an area identified by the BLM for proven otherwise, the filing of any solar energy generation facilities. such ROWs, unlike lands proposed for mining claim can substantially delay the Segregations under the proposed rule exchange or sale, remain open to processing of a ROW application. As a would be accomplished by publishing a appropriation under the public land result, a ROW applicant could either notice in the Federal Register and laws, including location and entry wait for the BLM to determine the would be effective upon the date of under the Mining Law, while BLM is validity of a claim, or the applicant publication. The BLM considered a rule considering the ROW. could choose to modify or relocate its that would allow for segregation Over the past 5 years, the BLM has proposed surface use to avoid conflicts through notation to the public land processed 24 solar and wind energy with the newly located mining claim, records, but it rejected this approach development ROW applications. New leading to additional expense, which because it would not provide the public mining claims were located on the could jeopardize the renewable energy public lands described in two of these project.1 The BLM’s processing time for 2 The existing regulations define segregation as proposed ROWs during the BLM’s the ROW application could be ‘‘the removal for a limited period, subject to valid consideration of the applications. Many significantly increased if any changes existing rights, of a specified area of the public of the mining claims in the two lands from the operation of some or all of the public necessitated by the newly located land laws, including the mineral laws, pursuant to proposed ROWs were not located until the exercise by the Secretary of regulatory authority after the existence of the wind or solar 1 This uncertainty may also discourage banks for the orderly administration of the public lands.’’ ROW application or the identification of from financing such projects. 43 CFR 2091.0–5(b).

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with the same level of notice that a temporarily segregate lands that are notice initiating the segregation, Federal Register notice would included in pending or future whichever occurs first. The segregation accomplish. The proposed rule would applications for solar and wind facility would be effective for a period of up to provide for segregation periods of up to ROWs or on lands identified by the 2 years; however, the rule provides that 2 years, with the option, if deemed BLM for such ROWs. This would allow the segregation may be extended for an necessary by the appropriate BLM State for the orderly administration of the additional 2 years if the appropriate Director, to extend the segregation of the public lands by eliminating the BLM State Director determines and lands for up to an additional 2 years. potential for conflicts with mining documents in writing, prior to the The proposed rule would not authorize claims located after the BLM publishes expiration of the segregation, that an the BLM to continue the segregation a Federal Register notice of such ROW extension of the segregation is necessary after a final decision on a ROW has been applications or areas. for the orderly administration of the made. Finally, not all wind or solar As noted above, the development of public lands. The BLM would publish ROW applications would lead to a renewable energy is a high priority for an extension notice in the Federal segregation, as the BLM may reject some the Department of the Interior and the Register, if it determines that an applications and others may not require BLM. The location of mining claims, extension of the segregation is segregation because conflicts with however, under certain circumstances, necessary. The extension of the mining claims are not anticipated. may impede the BLM’s ability to segregation would not be for more than Segregation rules, like this proposed administer the public lands in an 2 years. The maximum total segregation rule, have been held to be ‘‘reasonably orderly manner and to carry out its period would not exceed 4 years. Congressional and Executive mandate to related’’ to the BLM’s broad authority to IV. Procedural Matters issue rules related to ‘‘the orderly facilitate renewable energy development administration of the public land on those lands because the BLM Executive Order 12866, Regulatory laws,’’ 3 because they allow the BLM to currently lacks the ability to maintain Planning and Review protect an applicant for an interest in the status quo on such lands while it is This proposed rule is not a significant such lands from ‘‘the assertion by others processing a ROW application for a regulatory action 5 and is not subject to of rights to the lands while the applicant wind or solar energy generation facility. review by the Office of Management and is prevented from taking any steps to This proposed rule would help the BLM Budget under Executive Order 12866. protect’’ its interests because it has to maintain the status quo and prevent The proposed rule would provide the wait for the BLM to act on its potential resource use conflicts by BLM with regulatory authority to application.4 It is for this purpose that allowing the BLM to temporarily segregate public lands included within existing regulations at 43 CFR subpart segregate lands being considered for a a pending or future wind or solar energy 2091 provide the BLM with the wind or solar energy generation facility. generation ROW application, or public discretion to segregate lands that are III. Section-by-Section Analysis lands identified by the BLM for a proposed for various types of land This proposed rule would revise 43 potential future wind or solar energy disposals, such as land sales, land CFR sections 2091.3–1 and 2804.25 by generation ROW authorization, from exchanges, and transfers of public land adding language that would allow the appropriation under the public land to local governments and other entities BLM to segregate lands, if the BLM laws, including location under the under the Recreation and Public determines it to be necessary for the Mining Law, but not the Mineral Purposes Act of 1926. These regulatory orderly administration of the public Leasing Act or the Materials Act, if the provisions allowing segregations were lands. This authority to segregate lands BLM determines that segregation is put in place over the years to prevent would be limited to lands included in necessary for the orderly administration resource conflicts, including conflicts a pending or future wind or solar energy of the public lands. To assess the arising from the location of new mining ROW application, or public lands potential economic impacts, the BLM claims, which could create identified by the BLM for a wind or must first make some assumptions encumbrances on the title of the public solar energy generation ROW concerning when and how often this lands identified for transfer out of authorization under the BLM’s ROW segregation authority may be exercised. Federal ownership under the applicable regulations. If segregated under this The purpose of any segregation would authorities. rule, such lands, during the limited be to allow for the orderly Such a situation occurred in Nevada, segregation period, would not be subject administration of the public lands to and the proposed land purchaser chose to appropriation under the public land facilitate the development of renewable energy resources by avoiding conflicts to pay the mining claimant to relinquish laws, including location under the between renewable energy development his claims in order to enable the sale to Mining Law, but not the Mineral and the location of mining claims. go forward. In fact, in the land sales Leasing Act or the Materials Act, subject context, the segregative period was Wind—Wind energy ROW site testing to valid existing rights. and development applications are increased from 270 days to a maximum The new language also specifies that widely scattered in many western states. term of 4 years, as it was found that the the segregative effect terminates and the Most of the public lands with pending original segregative period was lands would automatically reopen to insufficient and that conflicting mining appropriation under the public land claims were being located before sales 5 ‘‘Significant regulatory action’’ means any laws, including the mining laws: (1) regulatory action that is likely to result in a rule that could be completed. This proposed rule Upon the BLM’s issuance of a decision may: (1) Have an annual effect on the economy of would provide the BLM the same regarding whether to issue a ROW $100 million or more or adversely effect in a flexibility it currently has for land material way the economy * * *; (2) Create a authorization for the solar or wind serious inconsistency or otherwise interfere with an disposals by allowing the BLM to energy generation proposal; (2) Upon action taken or planned by another agency; (3) publication of a Federal Register notice Materially alter the budgetary impact of 3 See Bryon v. United States, 259 F. 371, 376 (9th of termination of the segregation; or (3) entitlements, grants, user fees, or loan programs Cir. 1919); Hopkins v. United States, 414 F.2d 464, * * * or (4) Raise novel legal and policy issues 472 (9th Cir. 1969). Without further administrative action at arising out of legal mandates, the President’s 4 See, e.g., Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, the end of the segregation period priorities, or * * * this Executive Order.’’ Exec. 1958). provided for in the Federal Register Order No. 12866, 58 FR 51738 (Oct. 4, 1993).

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wind energy ROW applications are lands were segregated before it located within solar energy ROW currently managed for multiple resource processes the Plan of Operations or application areas. Based on the BLM’s use, including being open to mineral accepts the filed Notice. If required, the recent experience processing solar entry under the mining laws. Over the operator is responsible to pay the cost energy ROW applications, it is past 2 fiscal years, 437 new mining of the examination and report. anticipated that approximately 25 claims were located within wind energy Within the past 2-year period, five percent of the lands with current solar ROW application areas in Arizona, Plans of Operations and two Notices energy ROW applications would reach California, Idaho, Nevada, Oregon, Utah, were filed with the BLM within wind the processing stage where a NOI is and Wyoming. Based on the BLM’s ROW application areas. Assuming (1) A issued. Without trying to identify which recent experience processing wind quarter of those filings would be on ROWs would be granted or the specific energy ROW applications, it is lands segregated under this rule, (2) the locations of new mining claims within anticipated that approximately 25 number of Plan and Notice filings those application areas, we assume a percent of the lands with current wind received in the past 2 years is somewhat quarter of those new mining claims, or energy ROW applications will reach the reflective of what might occur within a 54 new mining claims, would be located processing stage where a Notice of 2-year segregation period, and (3) the within solar ROW application areas that Intent (NOI) is issued. Without trying to BLM would require mineral would be segregated under this rule. identify specific locations of new examination reports to determine claim The actual number of claimants mining claims located within those validity on all Plans and Notices filed affected will likely be less than this application areas, we assume a quarter within the segregation period, we estimate since a single claimant of those new mining claims, or 109 new estimate two entities might be affected typically locates and holds multiple mining claims, would be located within by this rule change.6 mining claims. Of the 216 new mining wind application areas that would be Should the BLM require the claims located within solar energy ROW segregated under this new regulation. preparation of mineral examination application areas in the past 2 years, The actual number of claimants reports to determine claim validity, the there was an average of about eight affected will likely be less than this entity filing the Plan or Notice would be mining claims per claimant. Assuming estimate since a single claimant responsible for the cost of making that that there was nothing unique about the typically files and holds multiple validity determination. Understanding number and distribution of claims per mining claims. Of the 437 new mining that every mineral examination report is claimant for the past 2 years, we claims filed within the wind energy unique and the costs vary accordingly, estimate seven entities would ROW application areas in fiscal year we assume an average cost of $100,000 potentially be precluded from locating (FY) 2009 and 2010, there was an to conduct the examination and prepare new mining claims on lands segregated average of about eight mining claims per the report. Based on the number of within the identified solar energy ROW claimant. Assuming that there was Plans and Notices filed within the wind application areas under the rule change. nothing unique about the number of energy right-of-way application areas in For these entities the economic impacts claims and distribution of claims per FY 2009 and 2010, we estimate the total of the segregation would be the delay in claimant for FY 2009 and 2010, we cost of this provision could be about when they can locate their mining claim estimate that 14 entities would be $200,000 over the 2-year period. and a potential delay in the potentially precluded from filing new Solar—As noted above, the primary development of such claim because mining claims on lands that would be purpose of any segregation under this such development would be subject to segregated within the identified wind proposed rule would be to allow for the any approved ROW issued during the energy ROW application areas under orderly administration of the public segregative period. However, a this rule. For these entities, the lands to facilitate the development of meaningful estimate of the value of such economic impacts of the segregation are valuable renewable resources and to delays is hard to quantify given the the delay in when they could locate avoid conflicts between renewable available data because it depends on the their mining claims and a potential energy generation and mining claim validity and commercial viability of any delay in the development of such claims location. The main resource conflict of individual claim, and the fact that the because such development would be concern involves mining claims that are location of a mining claim is an early subject to any approved ROW issued located after the first public step in a long process that may during the segregative period. However, announcement that the BLM is eventually result in revenue generating a meaningful estimate of the value of evaluating a ROW application, and prior activity for the claimant. such delays is hard to quantify given the to when the BLM issues a final decision The other situation where entities available data because it depends on the on the ROW application. might be affected by the proposed validity and commercial viability of any Most of the public lands with pending segregation provisions is where a new individual claim, and the fact that the solar energy ROW applications are Plan of Operations or Notice is filed location of a mining claim is an early currently managed for multiple resource with the BLM during the 2-year step in a long process that may use, including mineral entry under the segregation period. In such a situation, eventually result in revenue generating mining laws. Where the BLM segregates the BLM has the discretion under the activity for the claimant. lands from mineral entry, claimants Surface Management Regulations (43 The other situation where entities would not be allowed to locate any new CFR subpart 3809) to require a mineral might be affected by the segregation mining claims during the 2-year examination to determine if the mining provision is if a new Plan of Operations segregation period. Over the past 2 claims were valid before the lands were or Notice is filed with the BLM during years, 216 new mining claims were segregated before it approves the Plan of the 2-year segregation period. In such a Operations or accepts the filed Notice. situation, the BLM has the discretion 6 With respect to any particular Plan of Operation If required, the operator is responsible under the Surface Management or Notice that might be filed in areas segregated to pay the cost of the examination and Regulations (43 CFR subpart 3809) to under the rule, the BLM would separately report. determine, on a case-by-case basis and consistent require the preparation of a mineral with the requirements of 43 CFR 3809.100(a), Within the past 2-year period, two examination report to determine if the whether to require a validity determination for such Plans of Operations and two Notices mining claims were valid before the Plan or Notice. were filed with the BLM within solar

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ROW application areas. Assuming (1) a public health or safety, or State, local, meet any of the extraordinary quarter of those filings would be on or Tribal governments or communities. circumstances criteria for categorical lands segregated under this rule, (2) the This proposed rule would not create a exclusions listed at 43 CFR 46.215. number of Plan and Notice filings serious inconsistency or otherwise Pursuant to Council on Environmental received in the past 2 years is reflective interfere with an action taken or Quality regulation (40 CFR 1508.4) and of what might occur within a 2-year planned by another agency. This the environmental policies and segregation period, and (3) the BLM proposed rule would not alter the procedures of the Department, the term would require mineral examination budgetary effects of entitlements, grants, ‘‘categorical exclusion’’ means a category reports to determine claim validity on user fees or loan programs or the rights of actions which do not individually or all Plans and Notices filed within the or obligations of their recipients; nor cumulatively have a significant effect on segregation period, we estimate one would it raise novel legal or policy the human environment and which entity might be affected by this rule issues. The full economic analysis is have been found to have no such effect change.7 available at the office listed under the on procedures adopted by a Federal Should the BLM require a mineral ADDRESSES section of this preamble. agency and for which, therefore, neither examination to determine claim an environmental assessment nor an Clarity of the Regulation validity, the entity filing the Plan or environmental impact statement is Notice would be responsible for the cost Executive Order 12866 requires each required. of making that validity determination. agency to write regulations that are Understanding that every mineral simple and easy to understand. The Regulatory Flexibility Act examination report is unique and the BLM invites your comments on how to The Congress enacted the Regulatory costs would vary accordingly, we make this proposed rule easier to Flexibility Act (RFA) of 1980, as assume an average cost of $100,000 to understand, including answers to amended, 5 U.S.C. 601–612, to ensure conduct the examination and prepare questions such as the following: that Government regulations do not the report. Based on the number of 1. Are the requirements in the unnecessarily or disproportionately Plans and Notices filed within the solar proposed rule clearly stated? burden small entities. The RFA requires energy ROW application areas in the 2. Does the proposed rule contain a regulatory flexibility analysis if a rule past 2 years, we estimate the total cost technical language or jargon that would have a significant economic of this provision could be about interferes with its clarity? impact, either detrimental or beneficial, $100,000 over the 2-year period. 3. Does the format of the proposed on a substantial number of small It is not possible to estimate the rule (grouping and order of sections, use entities. The RFA requires agencies to number of future rights-of-way for wind of headings, paragraphing, etc.) aid or analyze the economic impact of or solar energy developments that could reduce its clarity? regulations to determine the extent to be filed on areas identified as having 4. Would the regulations be easier to which there is anticipated to be a potential for either of these sources of understand if they were divided into significant economic impact on a energy. This is because there are many more (but shorter) sections? substantial number of small entities. We variables that could have an impact on 5. Is the description of the proposed anticipate that the proposed rule could such filings. Such variables include: the rule in the SUPPLEMENTARY INFORMATION potentially affect a few entities that quantity and sustainability of wind at section of this preamble helpful in might otherwise have located new any one site, the intensity and quantity understanding the proposed rule? How mining claims on public lands covered of available sunlight, the capability of could this description be more helpful by a wind or solar energy facility ROW obtaining financing for either wind or in making the proposed rule easier to application currently pending or filed in solar energy projects, the proximity of understand? the future. We further anticipate that transmission facilities that could be Please send any comments you have on most of these entities would be small used to carry the power generated from the clarity of the regulations to the entities as defined by the Small a specific wind or solar energy right-of- address specified in the ADDRESSES Business Administration; however, we way project, and the topography of the section. do not expect the potential impact to be significant. Therefore, the BLM has property involved. The number of National Environmental Policy Act mining claims would also be based on determined under the RFA that this speculation as to the mineral potential The BLM has determined that this proposed rule would not have a of an area, access to markets, potential proposed rule is administrative in significant economic impact on a for profitability, and a host of other nature and involves only procedural substantial number of small entities. A geologic factors, such as type of mineral, changes addressing segregation copy of the analysis that supports this depth of the mineral beneath the requirements. This proposed rule would determination is available at the office surface, quantity and quality of the result in no new surface disturbing listed under the ADDRESSES section of mineral, and other such considerations. activities and therefore would have no this preamble. Based on this analysis, the BLM effect on ecological or cultural resources. Potential effects from Small Business Regulatory Enforcement concludes that this proposed rule would Fairness Act not have an annual effect of $100 associated wind and/or solar ROWs million or more on the economy. It would be analyzed as part of the site- For the same reasons as discussed would not adversely affect in a material specific NEPA analysis for those under the Executive Order 12866, way the economy, productivity, activities. In promulgating this rule, the Regulatory Planning and Review section competition, jobs, the environment, government is conducting routine and of this preamble, this proposed rule is continuing government business of an not a ‘‘major rule’’ as defined at 5 U.S.C. 7 With respect to any particular Plan of Operation administrative nature having limited 804(2). That is, it would not have an or Notice that might be filed in areas segregated context and intensity. Therefore, it is annual effect on the economy of $100 under the rule, the BLM would separately categorically excluded from million or more; it would not result in determine, on a case-by-case basis and consistent with the requirements of 43 CFR 3809.100(a), environmental review under section major cost or price increases for whether to require a validity determination for such 102(2)(C) of NEPA, pursuant to 43 CFR consumers, industries, government Plan or Notice. 46.205. The proposed rule does not agencies, or regions; and it would not

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have significant adverse effects on government. It would not apply to Executive Order 13352—Facilitation of competition, employment, investment, States or local governments or State or Cooperative Conservation productivity, innovation, or the ability local government entities. Therefore, in In accordance with Executive Order of U.S.-based enterprises to compete accordance with Executive Order 13132, 13352, the BLM has determined that with foreign-based enterprises. A copy the BLM has determined that this this proposed rule would not impede of the analysis that supports this proposed rule does not have sufficient the facilitation of cooperative determination is available at the office Federalism implications to warrant conservation. The rule takes appropriate listed under the ADDRESSES section of preparation of a Federalism Assessment. account of and respects the interests of this preamble. persons with ownership or other legally Executive Order 12988, Civil Justice Unfunded Mandates Reform Act recognized interests in land or other Reform This proposed rule would not impose natural resources; properly an unfunded mandate on State, local, or Under Executive Order 12988, the accommodates local participation in the Tribal governments, in the aggregate, or BLM has determined that this proposed Federal decision-making process; and the private sector of $100 million or rule would not unduly burden the provides that the programs, projects, more per year; nor would it have a judicial system and that it meets the and activities are consistent with protecting public health and safety. significant or unique effect on State, requirements of sections 3(a) and 3(b)(2) local, or Tribal governments. The rule of the Order. Paperwork Reduction Act would impose no requirements on any The proposed rule does not contain of these entities. Therefore, the BLM Executive Order 13175, Consultation information collection requirements that does not need to prepare a statement and Coordination With Indian Tribal the Office of Management and Budget containing the information required by Governments must approve under the Paperwork the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.). In accordance with Executive Order Reduction Act of 1995. 13175, the BLM has found that this Author Executive Order 12630, Governmental proposed rule does not include policies Actions and Interference With that have Tribal implications. This rule The principal author of this rule is Jeff Constitutionally Protected Property would apply exclusively to lands Holdren, Realty Specialist, Division of Rights (Takings) administered by the BLM. It would not Lands and Realty, assisted by the This proposed rule is not a be applicable to and would have no Division of Regulatory Affairs, Washington Office, Bureau of Land government action that interferes with bearing on trust or Indian lands or Management, Department of the constitutionally protected property resources, or on lands for which title is Interior. rights. This proposed rule would set out held in fee status by Indian Tribes, or on a process, by publication of a notice in U.S. Government-owned lands managed List of Subjects the Federal Register, that could be used by the Bureau of Indian Affairs. to segregate public lands included 43 CFR Part 2090 within a pending or future solar or wind Information Quality Act Airports; Alaska; Coal; Grazing lands; energy generation ROW application, or Indian lands; Public lands; Public In developing this proposed rule, the public lands identified by the BLM for lands—classification; Public lands— a potential future wind or solar energy BLM did not conduct or use a study, mineral resources; Public lands— generation ROW authorization. This experiment, or survey requiring peer withdrawal; Seashores. review under the Information Quality segregation would remove public lands 43 CFR Part 2800 from the operation of the public land Act (Section 515 of Pub. L. 106–554). Communications; Electric power; laws, including the location of new Executive Order 13211, Actions Highways and roads; Penalties; mining claims under the Mining Law, Concerning Regulations That but not the Mineral Leasing Act or the Pipelines; Public lands—rights-of-way; Significantly Affect Energy Supply, Reporting and recordkeeping Materials Act for a period of up to 2 Distribution, or Use years, with the authority to extend the requirements. segregation for up to an additional 2- In accordance with Executive Order For the reasons stated in the preamble year period, in order to promote the 13211, the BLM has determined that and under the authorities stated below, the BLM proposes to amend 43 CFR orderly administration of the public this proposed rule is not likely to have parts 2090 and 2800 as follows: lands. Because any segregation under a significant adverse effect on energy this proposed rule would be subject to supply, distribution, or use, including a Subchapter B—Land Resource valid existing rights, it does not interfere shortfall in supply, price increase, or Management (2000) with constitutionally protected property increased use of foreign supplies. The rights. Therefore, the Department has PART 2090—SPECIAL LAWS AND BLM’s authority to segregate lands RULES determined that this proposed rule does under this rule would be of a temporary not have significant takings implications nature for the purpose of encouraging 1. The authority citation for part 2090 and does not require further discussion the orderly administration of public continues to read as follows: of takings implications under this Executive Order. lands, including the generation of Authority: 43 U.S.C. 1740. electricity from wind and solar Executive Order 13132, Federalism resources on the public lands. Any Subpart 2091—Segregation and The proposed rule would not have a increase in energy production as a result Opening of Lands substantial direct effect on the States, or of this rule from wind or solar sources 2. Amend § 2091.3–1 by adding a new the relationship between the national is not easily quantified, but the paragraph (e) to read as follows: government and the States, or on the proposed rule is expected to relieve distribution of power and obstacles and hindrances to energy § 2091.3–1 Segregation responsibilities among the levels of development on public lands. * * * * *

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(e)(1) The Bureau of Land PART 2800—RIGHTS-OF-WAY UNDER determined to be necessary, the BLM Management may segregate, if it finds it THE FEDERAL LAND POLICY AND will publish a notice in the Federal to be necessary for the orderly MANAGEMENT ACT Register, prior to expiration of the administration of the public lands, initial segregation period that the 3. The authority citation for part 2800 lands included in a right-of-way segregation is being extended for up to continues to read as follows: application for the generation of 2 years. Only one extension may be electrical energy under 43 CFR subpart Authority: 43 U.S.C. 1733, 1740, 1763, and authorized; the total segregation period 2804 from wind or solar sources. In 1764. therefore cannot exceed 4 years. addition, the Bureau of Land Subpart 2804—Applying for FLPMA Dated: April 6, 2011. Management may also segregate public Grants Wilma A. Lewis, lands that it identifies for potential Assistant Secretary of the Interior, Land and rights-of-way for electricity generation 4. Amend § 2804.25 by adding a new Minerals Management. paragraph (e) to read as follows: from wind or solar sources. Upon [FR Doc. 2011–10017 Filed 4–25–11; 8:45 am] segregation, such lands will not be § 2804.25 How will BLM process my BILLING CODE 4310–84–P subject to appropriation under the application? public lands laws, including location * * * * * under the General Mining Law, but not (e)(1) The BLM may segregate, if it DEPARTMENT OF DEFENSE the Mineral Leasing Act of 1920 (30 finds it to be necessary for the orderly U.S.C. 181 et seq.) or the Materials Act administration of the public lands, GENERAL SERVICES of 1947 (30 U.S.C. 601 et seq.). The lands included within a right-of-way ADMINISTRATION Bureau of Land Management will effect application under 43 CFR subpart 2804 such segregation by publishing a for the generation of electricity from NATIONAL AERONAUTICS AND Federal Register notice that includes a wind or solar sources. In addition, the SPACE ADMINISTRATION description of the lands covered by the BLM may segregate public lands that it segregation. The Bureau of Land identifies for potential rights-of-way for 48 CFR Parts 2, 3, 4, 7, 9, 11, 12, 13, Management may impose a segregation electricity generation from wind or solar 14, 15, 16, 18, 37, 42, 52, and 53 in this way on both pending and new sources under the BLM’s right-of-way [FAR Case 2011–001; Docket 2011–0001; right-of-way applications. regulations. Upon segregation, such lands will not be subject to Sequence 1] (2) The effective date of segregation is appropriation under the public land RIN 9000–AL82 the date of publication of the notice in laws, including location under the the Federal Register and the date of General Mining Law, but not from the Federal Acquisition Regulation; termination of the segregation is the Mineral Leasing Act of 1920 (30 U.S.C. Organizational Conflicts of Interest date that is the earliest of the following: 181 et seq.) or the Materials Act of 1947 (i) Upon issuance of a decision by the (30 U.S.C. 601 et seq.). The BLM will AGENCIES: Department of Defense (DoD), authorized officer granting, granting effect such segregation by publishing a General Services Administration (GSA), with modifications, or denying the Federal Register notice that includes a and National Aeronautics and Space application for a right-of-way; description of the lands covered by the Administration (NASA). ACTION: Proposed rule. (ii) Automatically at the end of the segregation. The Bureau of Land Management may impose a segregation segregation period provided for in the SUMMARY: DoD, GSA, and NASA are Federal Register notice initiating the in this way on both pending and new right-of-way applications. proposing to amend the Federal segregation, without further action by (2) The segregative effect of the Acquisition Regulation (FAR) to provide the authorized officer; or Federal Register notice terminates on revised regulatory coverage on (iii) Upon publication of a Federal the date that is the earliest of the organizational conflicts of interest Register notice of termination of the following: (OCIs), provide additional coverage segregation. (i) Upon issuance of a decision by the regarding contractor access to nonpublic information, and add related provisions (3) The segregation period may not authorized officer granting, granting with modifications, or denying the and clauses. Section 841 of the Duncan exceed 2 years from the date of Hunter National Defense Authorization publication of the Federal Register application for a right-of-way; (ii) Automatically at the end of the Act for Fiscal Year 2009 required a notice initiating the segregation unless, segregation period provided for in the review of the FAR coverage on OCIs. on a case-by-case basis, the Bureau of Federal Register notice initiating the This proposed rule was developed as a Land Management State Director segregation, without further action by result of a review conducted in determines and documents in writing, the authorized officer; or accordance with Section 841 by the prior to the expiration of the segregation (iii) Upon publication of a Federal Civilian Agency Acquisition Council period, that an extension is necessary Register notice of termination of the and the Defense Acquisition Regulations for the orderly administration of the segregation. Council (the Councils) and the Office of public lands. If an extension is (3) The segregation period may not Federal Procurement Policy (OFPP), in determined to be necessary, the Bureau exceed 2 years from the date of consultation with the Office of of Land Management will publish a publication of the Federal Register Government Ethics (OGE). This notice in the Federal Register, prior to notice initiating the segregation unless, proposed rule was preceded by an expiration of the initial segregation on a case by case basis, the BLM State Advance Notice of Proposed period that the segregation is being Director determines and documents in Rulemaking (ANPR), under FAR Case extended for up to 2 years. Only one writing, prior to the expiration of the 2007–018 (73 FR 15962), to gather extension may be authorized; the total segregation period, that an extension is comments from the public with regard segregation period therefore cannot necessary for the orderly administration to whether and how to improve the FAR exceed 4 years. of the public lands. If an extension is coverage on OCIs.

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DATES: Interested parties should submit significant potential conflicts before addressing OCIs, agencies do not always written comments to the Regulatory contract award.’’ perform adequate, case-by-case, fact- Secretariat at one of the addressees FAR coverage on OCIs has remained specific analysis. largely unchanged since the initial shown below on or before June 27, 2011 2. The findings of the SARA Panel, publication of the FAR in 1984. The to be considered in the formation of the which concluded that contracting final rule. FAR coverage was adapted from an officers and agencies have encountered ADDRESSES: Submit comments in appendix to the Defense Acquisition Regulation, which dated back to the difficulties implementing appropriate response to FAR case 2011–001 by any OCI avoidance and mitigation measures. of the following methods: 1960s. • 3. Responses to a 2008 ANPR which Regulations.gov: http:// B. Origins of This Case www.regulations.gov. Submit comments sought comment on whether the current via the Federal eRulemaking portal by 1. Changes in Government and guidance on OCIs adequately addresses inputting ‘‘FAR Case 2011–001’’ under Industry. In recent years, a number of the current needs of the acquisition the heading ‘‘Enter Keyword or ID’’ and trends in acquisition and industry have community or whether providing selecting ‘‘Search.’’ Select the link led to the increased potential for OCIs, standard provisions and/or clauses ‘‘Submit a Comment’’ that corresponds including— might be beneficial. The ten • Industry consolidation; ‘‘ ’’ respondents to the ANPR offered a range with FAR Case 2011–001. Follow the • Agencies’ growing reliance on ‘‘ instructions provided at the Submit a contractors for services, especially of views, from the complete rewrite of ’’ Comment screen. Please include your where the contractor is tasked with FAR subpart 9.5, to maintaining the ‘‘ name, company name (if any), and FAR providing advice to the Government; current coverage largely as is. Several ’’ Case 2011–001 on your attached and respondents encouraged the Councils to document. • The use of multiple-award task- and adopt already-existing agency-level • Fax: (202) 501–4067. regulations, while two respondents • delivery-order contracts, which permit Mail: General Services large amounts of work to be awarded stated that the regulations should Administration, Regulatory Secretariat among a limited pool of contractors. consider providing Governmentwide (MVCB), Attn: Hada Flowers, 1275 First 2. SARA Panel. In its 2007 report, the standard clauses that allow agencies to Street, NE., 7th Floor, Washington, DC Acquisition Advisory Panel (established add more stringent requirements, if 20417. pursuant to section 1423 of the Services needed, on a procurement-specific Instructions: Please submit comments Acquisition Reform Act of 2003) (SARA basis. One respondent suggested that only and cite FAR Case 2011–001, in all Panel) concluded that the FAR does not any change to FAR subpart 9.5 should correspondence related to this case. All adequately address ‘‘the range of be consistent with existing case law on comments received will be posted possible conflicts that can arise in OCIs, as developed by GAO and the without change to http:// modern Government contracting.’’ The CoFC. Copies of all responses may be www.regulations.gov, including any SARA Panel observed that the FAR obtained at http://www.regulations.gov. personal and/or business confidential provides no detailed guidance to information provided. contracting officers regarding how they 4. Public comments provided in response to Defense Federal Acquisition FOR FURTHER INFORMATION CONTACT: Mr. should detect and mitigate actual and Regulation Supplement (DFARS) Anthony Robinson, Procurement potential OCIs and called for improved Proposed Rule 2009–D015, published in Analyst, at (202) 501–2658, for guidance, to possibly include a standard clarification of content. For information OCI clause or set of clauses. See Report the Federal Register on April 22, 2010 pertaining to status or publication of the Acquisition Advisory Panel (see 75 FR 20954–20965). DFARS schedules, contact the Regulatory (January 2007), available at https:// Proposed Rule 2009–D015 was designed Secretariat at (202) 501–4755. Please www.acquisition.gov/comp/aap/ to implement section 207 of the cite FAR Case 2011–001. 24102_GSA.pdf, at pp. 405–407, 417, Weapons System Acquisition Reform Act of 2009 (WSARA) (Pub. L. 111–23), SUPPLEMENTARY INFORMATION: 422. 3. Duncan Hunter National Defense which requires DoD to revise the I. Background Authorization Act for Fiscal Year 2009. DFARS to provide uniform guidance A. Current FAR Subpart 9.5, Congress subsequently directed, in and tighten existing rules regarding Organizational and Consultant Conflicts Section 841 of the Duncan Hunter OCIs concerning major defense of Interest National Defense Authorization Act for acquisition programs. To implement Fiscal Year 2009 (Pub. L. 110–417), a section 207 in the most effective manner The integrity of the Federal review of the conflicts of interest possible, DoD concluded that the basic acquisition process is protected, in part, provisions in the FAR. Section 841 principles, policies, and practices by OCI rules currently found in FAR required that appropriate revisions, governing OCIs must be clearly subpart 9.5. These rules are designed to including contract clauses, be understood. DoD reviewed the FAR help the Government in identifying and developed as necessary, pursuant to that coverage and issued the proposed rule addressing circumstances in which a review. that clarified the prescribed general Government contractor may be unable rules and procedures for identifying, to render impartial assistance or advice C. Evaluation of FAR Subpart 9.5 evaluating, and resolving OCIs. As with to the Government or might have an The Councils have worked with OFPP the ANPR, respondents to the DFARS unfair competitive advantage based on and consulted with OGE to evaluate proposed rule provided a range of views unequal access to information or prior FAR subpart 9.5. This evaluation was involvement in setting the ground rules informed, in part, by the following: regarding the proposed coverage. for an acquisition. FAR 9.504 directs 1. A review of recent case law and II. Overview contracting agencies to ‘‘identify and opinions from the Government evaluate potential OCIs as early in the Accountability Office (GAO) and Court Based on their review, the Councils acquisition process as possible’’ and of Federal Claims (CoFC). Collectively, and OFPP reached the following main ‘‘avoid, neutralize, or mitigate this review indicated that, when conclusions regarding OCIs:

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A. Opportunity for Public Comment on D. Differences Between Proposed FAR 1. Definitions Two Alternative OCI Frameworks Rule and Proposed DFARS Rule a. Organizational Conflict of Interest. Because the proposed DFARS rule The coverage in this proposed rule The proposed FAR rule establishes a (2009–D015) not only addressed the differs from that provided by the clearer definition for ‘‘organizational requirements of the WSARA but also framework presented in the DFARS rule conflict of interest’’ (which is included contained a comprehensive OCI by— in FAR part 2 and applies throughout framework, the public now has a unique 1. Providing an analysis of the risks the FAR). The definition of opportunity to comment on two distinct posed by OCIs, and the two types of ‘‘organizational conflict of interest’’ is options for revising the regulatory harm that can come from them, i.e.,— refined to reflect the two types of coverage on OCIs. To this end, this • Harm to the integrity of the situations that give rise to OCI concerns. proposed rule diverges substantially competitive acquisition system; and ‘‘ ’’ from the framework presented in the • Harm to the Government’s business b. Address. The verb address is proposed DFARS rule, and we are interests; defined in FAR subpart 3.12, for the purposes of the subpart, to provide a seeking specific feedback regarding 2. Recognizing that harm to the summary term for the various which course of action, or whether some integrity of the competitive acquisition approaches for dealing with the risks combination of the two, is preferable. system affects not only the Government, and preventing the harms that may be but also other vendors, in addition to B. OCI Case Law caused by OCIs; each of those damaging the public trust in the The fundamental approach provided approaches is then explained in more acquisition system. The risk of such in the proposed DFARS rule is sound detail in FAR 3.1204. harm must be substantially reduced or and provides a regulatory framework eliminated. In contrast, the risk of harm c. Marketing consultant. In addition, that thoroughly implements the to the Government’s business interests the existing definition of ‘‘marketing established OCI case law. However, the may sometimes be assessed as an consultant’’ in FAR subpart 9.5 is fact that the OCI regulations are not acceptable performance risk; removed as unnecessary because the primarily based in statute means that 3. Moving coverage of unequal access proposed coverage is expanded beyond revisions to the regulations need not contracts for these entities. conform with existing case law. Rather, to nonpublic information and the substantive departures from the case requirement for resolving any resulting 2. Policy. Within the new policy law should be considered if such unfair competitive advantage out of the section at FAR 3.1203, the proposed changes will produce an OCI framework domain of OCIs and treating it rule explains the harm OCIs can cause that is clearer, easier to implement, and separately in FAR part 4. Competitive and the actions the Government must better suited to protecting the interests integrity issues caused by unequal take to address the risks of such harm. of the Government. access to nonpublic information are This involves an expanded discussion often unrelated to OCIs. Therefore, of the two types of harm that OCIs cause C. Similarities of Proposed FAR Rule to treating this topic independently will to the procurement system—harm to the Proposed DFARS Rule allow for more targeted coverage that integrity of the competitive acquisition Both this proposed FAR rule and the properly addresses the specific concerns process and harm to the Government’s proposed DFARS rule propose coverage involved in such cases; and business interests. that recognizes the present-day 4. Adding broad coverage regarding a. Harm to the Integrity of the challenges faced by acquisition officials contractor access to nonpublic Competitive Acquisition Process. In in identifying and addressing OCIs in information, to provide a more detailed cases where there is a risk of harm to the the procurement of products and framework in which to address the topic integrity of a competitive acquisition services to satisfy agency requirements. of unequal access to nonpublic process, both the Government’s interests In particular, both this proposed rule information. and the public interest in fair and the proposed DFARS framework— III. Proposed OCI Coverage competitions are at risk. For this reason, 1. Reorganize and move OCI coverage such risks must be eliminated to the The Councils propose the following to FAR part 3, so that OCIs are maximum extent possible. In the FAR coverage on OCIs: addressed along with related issues, extremely rare case that such a risk namely other business practices and A. Placement of Coverage in the FAR cannot be eliminated, but award is personal conflicts of interest (on which nonetheless necessary to meet the final coverage is pending under FAR As noted above, OCIs are currently addressed in FAR subpart 9.5, which Government’s needs, a waiver provision Case 2008–025); that requires approval at the head of the 2. Clarify key terms and provide more deals with contractor qualifications. contracting activity level or above is detailed guidance regarding how While the ability to provide impartial provided. contracting officers should identify and advice and assistance is an important address OCIs while emphasizing that qualification of a Government b. Harm to the Government’s Business each OCI case may be unique and contractor, the larger issues that Interests. In cases where the potential therefore must be approached with underlie efforts to identify and address harm from an OCI threatens only the thoughtful consideration; OCIs are more directly associated with Government’s business interests, it may 3. Provide standard OCI clauses, some of the business practices issues be appropriate to accept this potential coupled with the opportunity for discussed in FAR part 3. For this reason, harm as a performance risk. Acceptance contracting officers to tailor the clauses the Councils propose to relocate the of performance risk represents a novel as appropriate for particular FAR coverage on OCIs from FAR means of addressing OCIs and will often circumstances; and subpart 9.5 to a new FAR subpart 3.12. only be appropriate after other steps to 4. Address unique policy issues and reduce the risk have been taken, either contracting officer responsibilities B. Changes To Provide Greater Clarity of by the contractor (e.g., implementation associated with OCIs arising in the Purpose and Policy of a mitigation plan) or by the context of task- and delivery-order This proposed rule makes the Government (e.g., additional contract contracts. following changes to clarify OCI policy: management steps or oversight).

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C. Changes To Improve Policy address them. This approach should Interest, includes by reference the Implementation also help to address the criticism with definition of ‘‘organizational conflict of This proposed rule assists contracting current FAR coverage that describing interest’’ and requires the contractor to officers in implementing the OCIs only through examples misleads make a prompt and full disclosure of Government’s OCI policy by amending contracting officers to believe that OCIs any new or newly discovered OCI. • FAR 52.203–YY, Mitigation of existing FAR coverage in two ways: do not exist in contract actions that do Organizational Conflicts of Interest. This consolidating the contracting officer’s not fall within the scope of an identified clause is generally intended to be used responsibilities regarding OCIs; and example. 2. New Solicitation Provision and when the contract may involve an OCI providing standard, but customizable, Contract Clauses Related to OCIs. This that can be addressed by an acceptable solicitation provisions and contract proposed rule contains a new contractor-submitted mitigation plan clauses related to OCIs. solicitation provision and three new prior to contract award. The clause— 1. Consolidated Discussion of contract clauses related to OCIs. Æ Includes a reference to the Contracting Officer Responsibilities. Existing FAR coverage anticipates definition of ‘‘organizational conflict of This proposed rule creates a new appropriate handling of OCI issues interest;’’ section FAR 3.1206 that provides a through solicitation provisions and Æ Incorporates the mitigation plan in consolidated discussion of contracting contract clauses, but does not provide a the contract; officer responsibilities, including the Æ standard format (see FAR 9.507). The Addresses changes to the mitigation steps a contracting officer must take Councils determined that it was plan; during the different phases of an Æ desirable to provide contracting officers Addresses noncompliance with the acquisition to identify and address with standard language that can be used clause or with the mitigation plan; and OCIs. Æ Requires flowdown of the clause. or tailored as appropriate. The Councils • FAR section 3.1206–2 addresses • FAR 52.203–YZ, Limitation of used the requirements currently in FAR OCI-related responsibilities associated Future Contracting. This clause is 9.506 and 9.507 as the basis for the with presolicitation activities and intended for use when the contracting proposed provision and clauses on OCI, requires the contracting officer to officer decides to address a potential providing specific fill-ins the determine whether an acquisition has conflict of interest through a limitation contracting officer must complete, and the potential to give rise to an OCI early on future contracting. The contracting language that incorporates any enough in the acquisition process to officer must fill in the nature of the mitigation plan by reference. limitation on future contractor activities include an appropriate provision in the The proposed solicitation provision solicitation, if necessary. and the length of any such limitation. • and clauses are as follows: FAR section 3.1206–3 provides • FAR 52.203–XX, Notice of Potential D. Other Remarks guidance related to evaluating Organizational Conflict of Interest. This In addition to the changes described information from the offeror and other provision— sources to determine if an OCI is present Æ above, the Councils note the following References the definition of proposed coverage: during the evaluation phase and to then ‘‘organizational conflict of interest;’’ • address or waive any OCI before making Æ This rule continues to apply to Provides notice to offerors that the contracts with both profit and non-profit a contract award. contracting officer has determined that • FAR section 3.1206–4 addresses organizations (current FAR 9.502(a)). the nature of the work is such that OCIs • This rule does not exclude the OCI-related responsibilities associated may result from contract performance; acquisition of commercial items, with contract award. Æ Requires an offeror to disclose all including commercially available off- • FAR section 3.1206–5 addresses relevant information regarding any OCI the-shelf (COTS) items. This proposed task- and delivery-order contracts, and (including active limitations on future rule only requires use of the provision requires the contracting officer to contracting), and to represent, to the and clauses in solicitations when the consider OCIs both at the time of award best of its knowledge and belief, that it contracting officer determines that the and at the time of issuance of each has disclosed all relevant information work to be performed has the potential order. regarding any OCI; to give rise to an OCI. Therefore, use in Æ For interagency acquisitions where Æ Requires an offeror to explain the acquisitions of commercial items, the ordering (customer) agency places actions it intends to use to address any especially COTS items, will probably orders directly under another agency’s OCI, e.g., submit a mitigation plan if it not be frequent. The Councils decided ‘‘ ’’ contract (a direct acquisition ), the believes an OCI may exist or agree to a that allowing this discretion to the ordering agency would be responsible limitation on future contracting; and contracting officer is better than an for addressing OCIs. Æ Identifies the clauses that may be Æ outright exclusion of applicability to For interagency acquisitions where included in the resultant contract, contracts for the acquisition of the servicing agency performs depending upon the manner in which commercial items. acquisition activities on the requesting the OCI is addressed (i.e., FAR 52.203– • This rule applies to contract agency’s behalf (an ‘‘assisted YY or 52.203–YZ, described below); • modifications that add additional work. acquisition’’), the interagency agreement FAR 52.203–ZZ, Disclosure of The Councils recognize that contracting entered into between the servicing and Organizational Conflict of Interest After officers may not be able to identify requesting agency to establish the terms Contract Award. The Councils recognize conflicts arising from all future and conditions of the assisted that events may occur during the modifications to a contract at the time acquisition would need to identify performance of a contract that give rise of contract award. which party is responsible for carrying to a new conflict, or that a conflict • This rule adds a requirement at out these responsibilities. might be discovered only after award FAR 7.105(b)(18) to consider OCIs when By providing a more complete has been made. This clause, which is preparing acquisition plans. description of the steps involved in included in solicitations and contracts addressing OCIs, the rule will better when the solicitation includes the IV. Access to Nonpublic Information equip contracting officers to identify provision FAR 52.203–XX, Notice of FAR subpart 9.5 and the GAO and conflicts and work with contractors to Potential Organizational Conflicts of CoFC cases interpreting the subpart

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currently treat situations involving A. Definition information to sign nondisclosure contractors having an unfair competitive The definition of ‘‘nonpublic agreements and that the obligations advantage based on unequal access to information’’ provided by this proposed arising from these agreements will be nonpublic information as OCIs. rule includes information belonging to enforceable by both the Government and However, the Councils recognized that either the Government or a third party third-party information owners. By these situations do not actually involve that is not generally made publicly implementing these protections as the conflicts of interest at all, and may arise available, i.e., information that cannot default position, the proposed approach from circumstances unrelated to be released under the Freedom of substantially enhances the protection conflicts of interest, such as where a Information Act, or information for for third-party and Government former Government employee (who has which a determination has not yet been information provided by the FAR. had access to competitively useful made regarding ability to release. Many contracts of the type described nonpublic information) has been hired above involve not only multiple by a vendor. Further, the Councils B. Contractor Access to Nonpublic subcontractors, but also many lower-tier observed that the methods available to Information subcontracts. The current ad hoc resolve situations involving unequal The SARA Panel recommended that approach employed by Government access to information differ from those the Federal Acquisition Regulatory agencies for ensuring that all of these available to address actual OCIs. For (FAR) Council review existing rules and contractors have properly executed these reasons, the Councils determined regulations and, to the extent necessary, nondisclosure agreements among that separating the coverage of unfair create uniform, Governmentwide policy themselves has resulted in the existence competitive advantage based on unequal and clauses dealing with protection of of a substantial number of overlapping, access to nonpublic information from nonpublic information. Additionally, a but not necessarily uniform, the general coverage of OCIs is a recent GAO report, ‘‘Contractor Integrity: agreements—and oftentimes confusion desirable outcome, as it will remove Stronger Safeguards Needed for and misunderstandings between the some of the confusion often associated Contractor Access to Sensitive Government and its contractors. The with identifying and addressing OCIs. ’’ Councils have determined that the In developing coverage to treat Information (GAO–10–693), recommended that OFPP act with the approach of requiring inclusion of an situations involving unfair competitive ‘‘access’’ clause to protect information advantage based on unequal access to FAR Council to provide more thorough protections when contractors are disclosed to a contractor, and a ‘‘release’’ information, the Councils recognized clause to notify third-party information that much of such access comes from allowed access to sensitive information. These recommendations, combined owners of their rights when their performance on other Government information is improperly used or contracts. Accordingly, if appropriate with the need to provide preventive protections in dealing with cases of disclosed should provide thorough contractual safeguards are established protection while eliminating the need prior to, or at the time of, such access, unfair competitive advantage based on for many interconnecting nondisclosure the number of situations where unequal unequal access to information, have agreements. access to information will taint a prompted the Councils to develop the 1. Access Clause. The first element of competition can be minimized. For this coverage in this section. this new approach is the proposed reason, this proposed rule provides a Traditionally, the Government has Access clause at FAR 52.204–XX, new uniform Governmentwide policy relied primarily on civil servants to Access to Nonpublic Information. The regarding the disclosure and protection perform the functions that require purpose of the Access clause is to of nonpublic information to which access to third-party contract preclude contractors from using contractors may gain access during information and other information in Government or third-party information contract performance. This coverage the Government’s possession that for any purpose unrelated to contract provides substantial safeguards requires protection from unauthorized performance. This clause requires that designed to address some of the use and disclosure. However, in recent contractors receiving access to concerns created by unequal access to years, the Government has significantly nonpublic information must limit the nonpublic information, while leaving it increased its use of contractors to assist use of such nonpublic information to to the contracting officer to determine, in performing many such functions. In the purposes specified in the contract, for any given acquisition, whether the addition, some agencies now utilize safeguard the nonpublic information protections are adequate, or if a contractors to perform research studies from unauthorized outside disclosure, situation involving an unfair that require the contractors to access and inform employees of their competitive advantage remains to be third-party information. With the obligations and obtain written resolved. Because protection and release increasing need for contractor access to nondisclosure agreements consistent of information are administrative nonpublic information, this rule seeks with those obligations. The clause also matters, this coverage has been placed to establish a uniform, and more sets forth certain exceptions (relating to in FAR part 4. streamlined and efficient approach. The coverage provides— The Councils are proposing that the applicability of the contractor’s • A definition of ‘‘nonpublic contractors should be contractually obligations), but the exceptions do not information’’ to clearly identify the obligated to protect all nonpublic apply unless the contractor can scope of information covered; information to which they obtain access demonstrate to the contracting officer • Coverage of contractor access to by means of contract performance that an exception is applicable. nonpublic information during the (whether information from the The Access clause is subordinate to course of contract performance; Government or a third party), with all other contract clauses or • Specific coverage for situations certain exceptions (e.g., the information requirements that specifically address involving unfair competitive advantage was already in the contractor’s the access, use, handling, or disclosure based on unequal access to nonpublic possession) (see FAR 52.204–XX(c)). of nonpublic information. If any information; and Further, the Councils are proposing that restrictions or authorizations in the • Appropriate solicitation provisions contractors should require all clause are inconsistent with any other and contract clauses. employees who may access nonpublic clause or requirement of the contract,

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the other clause or requirement takes Information, that provides similar (addressing nonpublic information precedence. coverage is prescribed for all relevant to the current competition), the This rule proposes, as the default solicitations. offeror knows of no breaches of that position, mandatory use of the Access firewall. clause in solicitations and contracts C. Unequal Access to Nonpublic when contract performance may involve Information V. Solicitation of Public Comment contractor access to nonpublic 1. Policy. FAR section 4.402 addresses When commenting on the proposed information. However, the prescription situations in which access to nonpublic rule, respondents are encouraged to allows agencies to provide otherwise in information constitutes a risk to the offer their views on the following their procedures. The Access clause is competitive integrity of the acquisition questions: prescribed on the same basis for use in process. It includes a policy section, A. Do the policy and associated solicitations and contracts for the expressing the Government’s policy that principles set forth in the proposed rule acquisition of commercial items and in contracting officers must take action to provide an effective framework for simplified acquisitions. resolve situations where one or more evaluating and addressing conflicts of offerors hold an unfair competitive interest? 2. Alternate to the Access Clause advantage. The policy section also states B. Is the definition of ‘‘organizational a. Alternate I. Alternate I is prescribed that disqualification of an offeror is the conflict of interest’’ sufficiently for use if the contracting officer least-favored approach and should only comprehensive to address all potential anticipates that there may be a need for be adopted if no other method of forms of such conflicts? executing confidentiality agreements resolution will adequately protect the C. Do the enumerated techniques for between the contractor and one or more integrity of the competition. addressing OCIs adequately address the third parties that have provided 2. General Principles. FAR subsection Government’s interests? Are any too nonpublic information to the 4.402–3 contains general principles for weak or overbroad? Are there other Government. This alternate requires the determining when access to nonpublic techniques that should be addressed? contractor, if requested by the information requires resolution. D. Does the rule adequately address contracting officer, to negotiate and sign Specifically, the access must be the potential conflicts that may arise for an agreement identical, in all material Government-provided, the access must companies that have both advisory and respects, to the restrictions on use and be unequal (that is, not all of the production capabilities? What, if any, disclosure of nonpublic information in prospective offerors have access), the improvements might be made? the Access clause, with each entity that information must be competitively E. Do the proposed solicitation has provided the Government nonpublic useful, and the competitive advantage provisions and contract clauses information to which the contractor must be unfair. adequately implement the policy must now have access to perform its 3. Contracting Officer framework set forth in the proposed obligations under the contract. Responsibilities. FAR subsection 4.402– rule? For example, is a clause limiting b. Alternate II. Alternate II is for use 4 contains details covering contracting future contracting an operationally if the contracting officer anticipates that officer responsibilities. This begins with feasible means of resolving a conflict? the contractor may require access to a requirements to collect information Would it be beneficial and appropriate third party’s facilities or nonpublic regarding unequal access to nonpublic for this information generally to be information that is not in the information, both from within the made publicly available, such as Government’s possession. This alternate Government and from offerors. If the through a notice on FedBizOpps? Do the requires the contractor, if requested by contracting officer becomes aware that solicitation provisions and contract the contracting officer, to execute a an offeror may have unequal access to clauses afford sufficient flexibility to Government-approved agreement with nonpublic information, the rule requires help an agency meet its individual any party to whose facilities or that the contracting officer conduct an needs regarding a prospective or actual nonpublic information it is given access, analysis, consistent with the general conflict? restricting the contractor’s use of the principles discussed above, to F. Is there a need for additional nonpublic information to performance determine whether resolution is guidance to supplement the proposed of the contract. required. If resolution is not required, FAR coverage of OCIs (e.g., guidance 3. Release Clause. The purpose of the the contracting officer simply addressing the management of OCI Release clause at FAR 52.204–YY, documents the file. If resolution is responsibilities)? If so, what points Release of Nonpublic Information, is to required, the contracting officer must should the guidance make? obtain the consent of the original take action consistent with the section G. Is the framework presented by this owners of third-party nonpublic detailing appropriate resolution proposed rule preferable to the information for the Government to techniques, which consist of framework presented in the DFARS release such information to those information sharing, mitigation through Proposed Rule 2009–D015 published in contractors who need access to it for the use of a firewall, or disqualification. the Federal Register on April 22, 2010 purposes of contract performance and 4. Solicitation Provision. FAR (75 FR 20954–20965)? Why or why not? who have signed up to the conditions of subsection 4.402–5 prescribes a Would some hybrid of the two proposed the Access clause. solicitation provision, FAR 52.204–YZ, rules be preferable? Unless agency procedures provide Unequal Access to Nonpublic H. Does the proposed rule strike the otherwise, the contracting officer must Information, that requires offerors to right balance between providing use the Release clauses in all identify, early in the solicitation detailed guidance for contracting solicitations and contracts, including process, whether it or any of its affiliates officers and allowing appropriate solicitations and contracts for the possesses any nonpublic information flexibility for dealing with the variety of acquisition of commercial items and relevant to the solicitation and provided forms that organizational conflicts of below the simplified acquisition by the Government. It also requires that interest take and the variety of threshold. the contractor certify by submission of circumstances under which they arise? A solicitation provision at FAR its offer that, where a mitigation plan Are there certain types of contracts, or 52.204–XY, Release of Nonpublic involving a firewall is already in place contracts for certain types of services,

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that warrant coverage that is more strict the current requirements of FAR 9.505– affiliates have financial or other than that provided by the proposed 4. interests at stake in the matter, so that rule? B. However, an Initial Regulatory a reasonable person might have concern Flexibility Analysis has nevertheless that when performing work under the VI. Executive Orders 12866 and 13563 been prepared and is summarized as contract, the contractor may be This is a significant regulatory action follows: improperly influenced by its own and, therefore, was subject to Office of This proposed rule implements interests rather than the best interests of Management and Budget review under Section 841 of the Duncan Hunter the Government; or a contractor could Section 6(b) of Executive Order 12866, National Defense Authorization Act for be viewed as having an unfair Regulatory Planning and Review, dated Fiscal Year 2009 (Pub. L. 110–417) by competitive advantage in an acquisition September 30, 1993. This rule is not a providing revised regulatory coverage as a result of having previously major rule under 5 U.S.C. 804. on organizational conflicts of interest performed work on a Government In accordance with Executive Order (OCIs) and unequal access to contract, under circumstances such as 13563, Improving Regulation and information. The rule also provides those just described, that put the Regulatory Review, dated January 18, additional coverage regarding contractor contractor in a position to influence the 2011, DoD, GSA, and NASA determined access to nonpublic information, and acquisition. The circumstances that lead that this rule is not excessively adds related provisions and clauses. to OCIs are most likely to occur in large burdensome on the public, and is The objective of the rule is to help the businesses that have diverse capacity to consistent with Section 841 of the Government in identifying and provide both upfront advice and also a Duncan Hunter National Defense addressing circumstances in which a capacity for production. Although a Authorization Act for Fiscal Year 2009, Government contractor may be unable small business might become involved which required a review of the FAR to render impartial assistance or advice in OCIs through its affiliates, we coverage on OCIs. to the Government or might have an estimate that the proposed rules on OCIs unfair competitive advantage based on would not impact a significant number VII. Regulatory Flexibility Act unequal access to information or prior of small entities. Furthermore, this rule A. The proposed changes are not involvement in setting the ground rules is not adding burdens relating to OCIs expected to result in a significant for an acquisition. that are beyond the current expectations economic impact on a substantial In recent years, a number of trends in of FAR subpart 9.5. It is just providing number of small entities within the acquisition and industry have led to the standard procedures and clauses, rather meaning of the Regulatory Flexibility increased potential for OCIs, than requiring each contracting officer including— Act, 5 U.S.C. 601, et seq., because— • to craft unique provisions and clauses 1. The requirements of FAR subpart Industry consolidation; appropriate to the situation. • Agencies’ growing reliance on 3.12 do not differ from the burden With regard to contractor access to contractors for services, especially currently imposed on offerors and information, the rule will impact where the contractor is tasked with contractors by FAR subpart 9.5 and the entities that have access to nonpublic providing advice to the Government; requirements of subpart 3.12 are not information in performance of a and significantly burdensome. It is good • The use of multiple-award task- and Government contract. We estimate that business practice to have procedures in delivery-order contracts, which permit about half of the entities impacted will place to identify potential large amounts of work to be awarded be small entities (estimated at 25,000 organizational conflicts of interest and among a limited pool of contractors. small entities). Typical contracts that to have prepared mitigation plans for Section 841 of the Duncan Hunter may provide access to nonpublic obvious conflicts. This proposed rule National Defense Authorization Act for information include services contracts has also reduced the potential burden Fiscal Year 2009 (Pub. L. 110–417) such as professional, administrative, or by— directed a review of the conflicts of management support or special studies a. Not including a certification interest provisions in the FAR. Section and analyses. Furthermore, small requirement; and 841 required that appropriate revisions, entities that are submitting offers to the b. Providing for avoidance, including contract clauses, be Government must inform the neutralization, or mitigation of developed as necessary, pursuant to that Government, prior to submission of organizational conflicts or interest or, review. offers, if they possess any nonpublic under exceptional circumstances, Competitive integrity issues caused by information relevant to the current waiver of the requirement for resolution. unequal access to nonpublic solicitation (estimated at 5,750 small 2. Unless the Access clause is used information are often unrelated to OCIs. entities). with Alternate I or Alternate II, this Therefore, treating this topic This rule requires the following approach standardizes and simplifies independently will allow for more projected reporting burdens for access to the current system of third-party targeted coverage that properly information: agreements envisioned by FAR 9.505–4. addresses the specific concerns a. Provide copy of nondisclosure Having each contractor implement involved in such cases; and including agreement upon request (6,250 specific safeguards and procedures broad coverage of contractor access to respondents × .5 hours per response = should offer the same or better nonpublic information will provide a 3,125 hours). protection for information belonging to framework for the topic of unequal b. Notify contracting officer of small business entities. Moreover, this access to nonpublic information. violation (250 respondents × 4 hours per rule should ease the burden on most An OCI is defined as a situation in response = 1,000 hours). small business entities by not requiring which a Government contract requires a c. Notify contracting officer if access them to enter multiple, interrelated contractor to exercise judgment to assist information that should not have access third-party agreements with numerous the Government in a matter (such as in to (125 respondents × 1 hour per service contractors. If the Access clause drafting specifications or assessing response = 125 hours). is used with Alternate I or Alternate II, another contractor’s proposal or d. Explain in solicitation any unequal then that is no more burdensome than performance) and the contractor or its access to nonpublic information (5,750

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respondents × 3 hours per response = Total response burden hours: 215,273. Authority: 40 U.S.C. 121(c); 10 U.S.C. 17,250). 2. Contractor Access to Nonpublic chapter 137; and 42 U.S.C. 2473(c). e. Explain if firewall was not Information. implemented, or breached (rare) (10 Respondents: 24,760. PART 2—DEFINITIONS OF WORDS respondent × 5 hours per response = 50 Responses per respondent: 1. AND TERMS Total annual responses: 24,760. hours). 2. Amend section 2.101 in paragraph We estimate that the respondents will Preparation hours per response: 2. Total response burden hours: 49,520. (b)(2) by— be administrative employees earning a. Removing from paragraph (3) in the approximately $75 per hour (+ .3285 3. Total. Respondents: 55,690. definition ‘‘Advisory and assistance overhead). services’’ ‘‘(see 9.505–1(b))’’; This rule overlaps, with other Federal Responses per respondent: 1. Total annual responses: 55,690. b. Adding, in alphabetical order, the rules: FAR Cases 2007–018, 2007–019, Preparation hours per response: definition ‘‘Nonpublic information’’; and 2008–025, 2009–022, and 2009–030; 4.755. c. Revising ‘‘Organizational conflict of and DFARS Case 2009–D015. Total response burden hours: 264,793. interest.’’ The Councils identified a significant The added and revised text to read as alternative that would accomplish the B. Request for Comments Regarding follows: objectives of the statute and the policies. Paperwork Burden See the discussion in the rule preamble Submit comments, including § 2.101 Definitions. about DFARS case 2009–D015. suggestions for reducing this burden, * * * * * DoD, GSA, and NASA invite not later than June 27, 2011 to: FAR (b) * * * comments from small business concerns Desk Officer, OMB, Room 10102, NEOB, (2) * * * and other interested parties on the Washington, DC 20503, and a copy to Nonpublic information means any expected impact of this rule on small the General Services Administration, Government or third-party information entities. Regulatory Secretariat (MVCB), Attn: that— DoD, GSA, and NASA will also Hada Flowers, 1275 First Street, NE., (1) Is exempt from disclosure under consider comments from small entities 7th Floor, Washington, DC 20417. the Freedom of Information Act (5 concerning the existing regulations in Public comments are particularly U.S.C. 552) or otherwise protected from subparts affected by the rule in invited on: Whether this collection of disclosure by statute, Executive order, accordance with 5 U.S.C. 610. Interested information is necessary for the proper or regulation; or parties must submit such comments performance of functions of the FAR, separately and should cite 5 U.S.C. 610 (2) Has not been disseminated to the and will have practical utility; whether general public, and the Government has (FAR Case 2011–001), in our estimate of the public burden of this correspondence. not yet determined whether the collection of information is accurate, information can or will be made VIII. Paperwork Reduction Act and based on valid assumptions and available to the public. methodology; ways to enhance the The proposed changes to the FAR * * * * * quality, utility, and clarity of the impose a new information collection Organizational conflict of interest information to be collected; and ways in requirement that requires the approval means a situation in which— which we can minimize the burden of of the Office of Management and Budget (1) A Government contract requires a the collection of information on those under 44 U.S.C. chapter 35, et seq. contractor to exercise judgment to assist who are to respond, through the use of Under this proposed rule, an offeror the Government in a matter (such as in appropriate technological collection may be required to submit information drafting specifications or assessing techniques or other forms of information to identify an OCI and propose a another contractor’s proposal or technology. resolution, such as a mitigation plan Requester may obtain a copy of the performance) and the contractor or its submitted by the offeror with its supporting statement from the General affiliates have financial or other proposal. While this requirement Services Administration, Regulatory interests at stake in the matter, so that existed informally since 1984 in FAR Secretariat (MVCB), 1275 First Street, a reasonable person might have concern subpart 9.5, it is only now being NE., 7th Floor, Washington, DC 20417. that when performing work under the formalized via the new contract Please cite OMB Control Number 9000– contract, the contractor may be provision and clause at FAR 52.203–XX 0178, Organizational Conflicts of improperly influenced by its own and FAR 52.203–YY. Interest, in correspondence. interests rather than the best interests of the Government; or A. Annual Reporting Burden: List of Subjects in 48 CFR Parts 2, 3, 4, (2) A contractor could have an unfair Public reporting burden for this 7, 9, 11, 12, 13, 14, 15, 16, 18, 37, 42, competitive advantage in an acquisition collection of information is estimated to 52, and 53 as a result of having performed work on average approximately 4.6 hours per Government procurement. a Government contract, under response, including the time for circumstances such as those described reviewing instructions, searching Dated: April 13, 2011. in paragraph (1) of this definition, that existing data sources, gathering and Millisa Gary, put the contractor in a position to maintaining the data needed, and Acting Director, Office of Governmentwide influence the acquisition. Acquisition Policy. completing and reviewing the collection * * * * * of information. Therefore, DoD, GSA, and NASA The annual reporting burden is propose amending 48 CFR parts 2, 3, 4, PART 3—BUSINESS ETHICS AND estimated as follows: 7, 9, 11, 12, 13, 14, 15, 16, 18, 37, 42, CONFLICTS OF INTEREST 1. Organizational Conflicts of Interest. 52, and 53 as set forth below: Respondents: 30,930. 1. The authority citation for 48 CFR 3. Revise part 3 heading to read as set Responses per respondent: 1.0. parts 2, 3, 4, 7, 9, 11, 12, 13, 14, 15, 16, forth above. Total annual responses: 30,930. 18, 37, 42, 52, and 53 continues to read 4. Revise section 3.000 to read as Preparation hours per response: 6.96. as follows: follows:

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§ 3.000 Scope of part. through (c) of this definition). (See unacceptable in terms of good This part prescribes policies and 3.1204.) governance, fairness, and maintenance procedures for addressing issues of the public trust; and § 3.1202 Applicability. regarding business ethics and conflicts (2) The Government’s business of interest. (a) This subpart— interests. As a steward of public funds, (1) Applies to contracts and the Government has an interest in § 3.603 [Amended] subcontracts with both profit and ensuring both that it acquires products 5. Amend section 3.603 by removing nonprofit organizations, including and services that provide the best value from paragraph (b) ‘‘subpart 9.5’’ and nonprofit organizations created largely to the Government and that the adding ‘‘subpart 3.12’’ in its place. or wholly with Government funds. contractor’s performance in fulfilling 6. Add subpart 3.12 to read as follows: Contracts include task and delivery the Government’s requirements is orders and modifications that add work; consistent with contractual Subpart 3.12—Organizational Conflicts of and Interest expectations. In many cases, an (2) Applies to the acquisition of organizational conflict of interest will be Sec. commercial items, including accompanied by a risk that the conflict 3.1200 Scope of subpart. commercially available off-the-shelf will affect the contractor’s judgment 3.1201 Definition. items (see 12.301(d)(3)) if the 3.1202 Applicability. during performance in a way that contracting officer determines that degrades the value of its services to the 3.1203 Policy. contractor performance of the work may 3.1204 Methods of addressing Government. This type of risk is most organizational conflicts of interest. give rise to an organizational conflict of likely to appear when the exercise of 3.1204–1 Avoidance. interest. judgment is a key aspect of the service (b) Although this subpart applies to 3.1204–2 Limitation on future contracting that the contractor will be providing. every type of acquisition, organizational (neutralization). (b) Addressing organizational 3.1204–3 Mitigation. conflicts of interest are more likely to 3.1204–4 Assessment that risk is arise when at least one of the contracts conflicts of interest. (1) Agencies must acceptable. involved is for acquisition support examine and address organizational 3.1205 Waiver. services or advisory and assistance conflicts of interest on a case-by-case 3.1206 Contracting officer responsibilities. services. basis, because such conflicts arise in 3.1206–1 General. (c) Application of this subpart is various, and often unique, factual 3.1206–2 Pre-solicitation responsibilities. independent of coverage concerning settings. Contracting officers shall 3.1206–3 Addressing organizational consider both the specific facts and conflicts of interest during evaluation of unequal access to nonpublic information (see 4.402). Contracting circumstances of the contracting offers. situation and the nature and potential 3.1206–4 Contract award. officers must consider each issue 3.1206–5 Issuance of task or delivery orders separately in determining whether steps extent of the risks associated with an or blank purchase agreement calls. must be taken to protect the interests of organizational conflict of interest when 3.1207 Solicitation provision and contract the Government. determining what method or methods of clauses. (d) This subpart shall not be applied addressing the conflict will be in any manner that conflicts with an appropriate. Subpart 3.12—Organizational Conflicts agency-specific conflict of interest (2) If an organizational conflict of of Interest statute. interest is such that it risks impairing § 3.1200 Scope of subpart. the integrity of the competitive § 3.1203 Policy. acquisition process, then the contracting (a) This subpart prescribes policies (a) The Government’s interests. It is officer must take action to substantially and procedures for identifying, the Government’s policy to identify, reduce or eliminate this risk. analyzing, and addressing analyze, and address organizational organizational conflicts of interest (as (3) If the only risk created by an conflicts of interest that might otherwise defined in 2.101). It implements 41 organizational conflict of interest is a exist or arise in acquisitions in order to U.S.C. 2304 and section 841(b)(2) of performance risk relating to the maintain the public’s trust in the Public Law 110–417. Government’s business interests, then (b) This subpart does not address integrity and fairness of the Federal the contracting officer has broad unequal access to nonpublic acquisition system. Organizational discretion to select the appropriate information, which is addressed in conflicts of interest have the potential to method for addressing the conflict, 4.402. undermine the public’s trust in the including the discretion to conclude Federal acquisition system because they that the Government can accept some or § 3.1201 Definition. can impair— all of the performance risk. ‘‘To address,’’ as used in this subpart, (1) The integrity of the competitive (c) Waiver. It is the policy of the means to protect the integrity of the acquisition process. The Government Government to minimize the use of competitive acquisition process, as well has an interest in preserving its ability waivers of organizational conflicts of as the Government’s business interests to solicit competitive proposals and interest. However, in exceptional (see 3.1203(a)(2)), by one or more of the affording prospective offerors an circumstances, the agency may grant a following methods: opportunity to compete for Government waiver in accordance with 3.1205. (1) Avoidance. requirements on a level playing field. In (2) Neutralization through limitations some cases, an organizational conflict of § 3.1204 Methods of addressing on future contracting. interest will be accompanied by a risk organizational conflicts of interest. (3) Mitigation of the risks involved. that the conflicted contractor will create Organizational conflicts of interest (4) Assessment that the risk inherent for itself, or obtain, whether may be addressed by means of in the conflict is acceptable (either intentionally or not, an unfair advantage avoidance, limitations on future without further action or in conjunction in competing for a future Government contracting, mitigation, or the with application of one or more of the requirement. The result may be a Government’s assessment that the risk other methods listed in paragraphs (a) seriously flawed competition, which is inherent in the conflict is acceptable. In

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some cases, a combination of methods addressing the conflict will adequately conflict of interest will undermine the may be appropriate. protect the Government’s interest. This public’s trust in the Federal acquisition determination must be documented in system. § 3.1204–1 Avoidance. the contract file. (2) Mitigation may require Avoidance consists of Government (3) Before excluding an offeror from Government action, contractor action, or action taken in one acquisition that is participation in a procurement on the a combination of both. intended to prevent organizational basis of an organizational conflict of (b) When this approach is utilized, a conflicts of interest from arising in that interest that arises because of work done Government-approved mitigation plan, acquisition or in a future acquisition. In by an affiliate of the offeror (creating an reflecting the actions a contractor has order to successfully implement an unfair competitive advantage), the agreed to take to mitigate a conflict, avoidance strategy, the contracting contracting officer shall identify and shall be incorporated into the contract. officer should work with the program analyze the corporate and business The required complexity of the office or requiring activity early in the relationship between the offeror and the mitigation plan is related to the acquisition process. Methods of affiliate. The contracting officer’s efforts complexity of the organizational conflict avoiding organizational conflicts of should be directed toward of interest and the size of the interest include, but are not limited to, understanding the nature of the acquisition. While implementation of a the following: relationship between the entities and mitigation plan may rest largely with a (a) Drafting the statement of work to determining whether the risk associated contractor, the Government bears exclude tasks that require contractors to with the organizational conflict of responsibility for ensuring that utilize subjective judgment. This interest can be addressed through mitigation plans are properly strategy may be used to avoid or prevent mitigation (see 3.1204–3). The implemented, and the Government must organizational conflicts of interest both contracting officer should, at a not leave enforcement to the contractor. in the instant contract and in future minimum, examine whether— (c) Ways of mitigating organizational acquisitions. Tasks requiring subjective (i) The offeror and affiliate are conflicts of interest include, but are not judgment include— controlled by a common corporate limited to, the following: (1) Making recommendations; headquarters; (1) Requiring a subcontractor or team (2) Providing analysis, evaluation, (ii) The overall corporate organization member that is conflict-free to perform planning, or studies; and has established internal barriers, such as the conflicted portion of the work on the (3) Preparing statements of work or corporate resolutions, management instant contract. This technique will not other requirements and solicitation agreements, or restrictions on personnel be effective in reducing the risk documents. transfers, that limit the flow of associated with a conflict unless it is (b) Requiring the contractor (and its information, personnel, and other utilized in conjunction with a system of affiliates, as appropriate) to implement resources between the relevant entities; controls that can ensure that the structural barriers, internal corporate (iii) The offeror and affiliates are conflicted entity has no input or controls, or both, in order to forestall separate legal entities and are managed influence on the work of the organizational conflicts of interest that by separate boards of directors; subcontractor or team member could arise because, for example, the (iv) The corporate organization has performing the conflicted portion of the contractor will be participating in instituted recurring training on work. preparing specifications or work organizational conflicts of interest and (2) Requiring the contractor to statements in the performance of the protections against organizational implement structural or behavioral immediate contract. This avoidance conflicts of interest; and barriers, internal controls, or both. (i) method differs from mitigation in that it (v) The affiliate can influence the This method can be used to lessen the is used to prevent organizational offeror’s performance of its contractual risk that the potentially conflicting conflicts of interest from arising in requirements. financial interests of an affiliate will future acquisitions, rather than § 3.1204–2 Limitation on future contracting influence the contractor’s exercise of addressing organizational conflicts of (neutralization). judgment during contract performance. interest in the instant contract. (a) A limitation on future contracting The choice of specific barriers or (c) Excluding an offeror or offerors allows a contractor to perform on the controls should be based on an analysis from participation in a procurement. (1) instant contract but precludes the of the facts and circumstances of each Use of this method may be appropriate contractor from submitting offers for (or case. Examples of such methods when the contracting officer concludes participating as a subcontractor in) include, but are not limited to— that— future contracts where the contractor (A) An agreement that the contractor’s (i) The offeror will have an unfair would have an unfair advantage in board of directors will adopt a binding advantage in the competition because of competing for award (or could provide resolution prohibiting certain directors, its prior involvement (or an affiliate’s the prime contractor with such an officers, or employees, or parts of the prior involvement) in developing the advantage). The limitation on future company from any involvement with ground rules for the procurement; or contracting effectively ‘‘neutralizes’’ the contract performance; (ii) The risk that the offeror’s organizational conflict of interest. (B) A condition for a nondisclosure judgment or objectivity in performing (b) Limitations on future contracting agreement between the contractor the proposed work will be impaired shall be restricted to a fixed term of performing the contract and all of its because the substance of the work has reasonable duration that is sufficient to affiliates; the potential to affect other of the neutralize the organizational conflict of (C) A condition that the contractor’s offeror’s (or its affiliates’) current or interest. The restriction shall end on a board of directors include one or more future activities or interests is more specific date or upon the occurrence of independent directors who have no significant than the Government is an identifiable event. prior relationship with the contractor; willing to accept. and (2) This approach may be used only § 3.1204–3 Mitigation. (D) Creation of a corporate if the contracting officer has determined (a)(1) Mitigation is any action taken to organizational conflict of interest that no less restrictive method for reduce the risk that an organizational compliance official at a senior level to

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oversee implementation of any because the organizational conflict of file the rationale supporting the mitigation plan. interest involves an unfair competitive decision. (ii) A firewall will often be necessary advantage); and (4) If the contracting officer decides to implement the controls in the (ii) The waiver is necessary to that contractor performance of the previous paragraph (c)(2)(i) of this accomplish the agency’s mission. contemplated work has the potential to subsection. However, a firewall that (2) The agency head shall not delegate create an organizational conflict of serves only to limit the sharing of this waiver authority below the head of interest, the contracting officer should information, by itself, is generally not a contracting activity. consult with the program office or effective in addressing an organizational (b) Requirements. (1) Any waiver requiring activity to determine whether conflict of interest. shall— any organizational conflicts of interest (3) Obtaining advice from more than (i) Be in writing; could be avoided by drafting the one source on a particular issue, so that (ii) Cover only one contract action; requirements documents to exclude the Government is not relying solely on (iii) Describe the extent of the tasks that require the contractor to the advice of any one of the sources. organizational conflict of interest; exercise subjective judgment during (iv) Explain why the waiver is contract performance. If avoiding 3.1204–4 Assessment that risk is organizational conflicts of interest is not acceptable. necessary to accomplish the agency’s mission; and feasible at this stage, then the (a) The contracting officer shall not (v) Be approved by the appropriate contracting officer shall proceed with use this method of assessment that the official. the pre-solicitation actions described in risk is acceptable to address conflicts (2) The contracting officer shall paragraph (b) of this subsection. when the conflict could impair the include the waiver documentation and (b) Pre-solicitation actions. (1) When competitive acquisition process (see decision in the contract file. assessing the nature and scope of any 3.1203). organizational conflicts of interest that (b) The contracting officer may assess 3.1206 Contracting officer responsibilities. may arise during contract performance that the risk associated with an 3.1206–1 General. and preliminarily considering how best organizational conflict of interest is to address any such conflicts, the acceptable when— (a) The contracting officer shall assess contracting officer should weigh the (1) The only risk created by the early in the acquisition process whether following factors to the extent feasible at conflict is a performance risk relating to contractor performance of the this pre-solicitation phase: the business interests of the contemplated work is likely to create (i) The extent to which the contract Government; any organizational conflicts of interest calls for the contractor to exercise (2) The risk is manageable; and (see 3.1206–2 and 7.105(b)(18)). subjective judgment and provide advice. (3) The potential harm to the (b) The contracting officer shall (ii) The extent and severity of the Government’s interest is outweighed by exercise common sense, good judgment, expected impact of the organizational the expected benefit from having the and sound discretion— conflict of interest (for example, conflicted offeror perform the contract. (1) In deciding whether an acquisition whether it is expected to occur only (c) This method of addressing may give rise to an organizational once or twice during performance or to conflicts should generally be combined conflict of interest; and impact performance of the entire with other methods, particularly (2) In developing an appropriate contract). mitigation. For example, the contracting means for addressing any such conflicts. (iii) The extent to which the agency officer may require a mitigation plan, has effective oversight controls to 3.1206–2 Pre-solicitation responsibilities. and elect to accept the remaining risk if ensure that the contractor’s actions are the contracting officer concludes that (a) Initial assessment. (1) The unaffected by an organizational conflict the mitigation plan does not remove all contracting officer shall review the of interest during performance. of the performance risk associated with nature of the work to be performed to (iv) Whether the organizational the conflict. decide whether performance by a conflict of interest risks creation of an (d) The contracting officer shall contractor has the potential to create an unfair competitive advantage. consider all readily available organizational conflict of interest (see (v) The degree to which any information (see 3.1206–3) before 3.1202(b)). In addition to evaluating the impairment of the contractor’s concluding that the risk of harm is nature of the work to be performed on objectivity may reduce the value of its acceptable. the immediate contract, the contracting services to the agency, and the agency’s (e) All assessments that the risk is officer should also consider whether willingness to accept the performance acceptable must be in writing, setting performance of the present contract risk of that impairment. forth the extent of the conflict and could cause the contractor to have an (2) If the contracting officer concludes explaining why it is in the best interest organizational conflict of interest in a that the only risk associated with of the Government to accept the risk foreseeable future contract. organizational conflicts of interest is a associated with the conflict. (2) As appropriate to the risk to the Government’s business circumstances, the contracting officer interests, the contracting officer may 3.1205 Waiver. should obtain the assistance of the choose one of the following approaches: (a) Authority. (1) In exceptional program office, appropriate technical (i) Include consideration of potential circumstances, the agency head may specialists, and legal counsel in risks associated with organizational waive the requirement to address an identifying the potential for conflicts of interest as an evaluation organizational conflict of interest in a organizational conflicts of interest. factor in the technical rating. If the particular acquisition, but only if the (3) If the contracting officer decides Government determines that treatment agency head first determines that— that contractor performance of the of organizational conflicts of interest (i) Mitigation or other means of contemplated work does not have the through use of an evaluation factor is addressing the organizational conflict of potential to create an organizational appropriate, an appropriate evaluation interest are not feasible (e.g., the agency conflict of interest, the contracting factor must be included in the cannot assess the risk as acceptable officer shall document in the contract solicitation.

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(ii) Do not include consideration of 3.1206–3 Addressing organizational evaluation factor, then communications potential risks associated with conflicts of interest during evaluation of between the Government and an offeror organizational conflicts of interest as an offers. regarding the offeror’s mitigation plan, evaluation factor in the technical rating. (a) Sources of Information—(1) will not constitute discussions, unless In this case, the Government will Information from offerors. The the communications result in changes to address the performance risks contracting officer shall use information evaluated aspects of the offeror’s associated with any organizational provided by the offerors (see 52.203– proposal. conflicts of interest outside of the XX, Notice of Potential Organizational 3.1206–4 Contract award. evaluation process and may engage in Conflict of Interest) to identify exchanges with offerors in order to organizational conflicts of interest. (a) If organizational conflicts of understand the conflicts and assess the However, the contracting officer should interest were not considered as an feasibility of addressing the risks (see not rely solely on this contractor- evaluation factor, before withholding 3.1206–3(b)(2)(ii)). Prior to contract provided information. award from the apparent successful award, the source selection team will (2) Other sources of information. The offeror based on conflict of interest select the apparent successful offeror contracting officer should seek readily considerations, the contracting officer independent of any organizational available information about the shall— financial interests of the offerors, (1) Notify the contractor in writing; conflict of interest. The contracting (2) Provide the reasons therefore; and officer will then assess whether or not affiliates of the offerors, and prospective subcontractors from within the (3) Allow the contractor a reasonable to proceed with award, based on opportunity to respond. whether any organizational conflict of Government or from other sources and compare this information against (b) Except as provided in paragraphs interest can be addressed (see 3.1206– (c) and (d) of this subsection, the 4(a)). Award to the apparent successful information provided by the offeror. (i) Government sources. Government contracting officer shall award the offeror will not be made if any sources include the files and the contract to the apparent successful organizational conflict of interest cannot knowledge of personnel within— offeror only if all organizational be addressed. (A) The contracting office; conflicts of interest have been (3) If the contracting officer has (B) Other contracting offices; addressed. decided that contractor performance of (C) The cognizant contract (c) If the contracting officer finds that the contemplated work has the potential administration, finance, and audit it is in the best interest of the to create an organizational conflict of activities; and Government to award the contract interest, the contracting officer shall (D) The requiring activity. notwithstanding an unaddressed select the appropriate solicitation (ii) Non-Government sources. Non- conflict of interest, a request for waiver provisions and contract clauses for the Government sources include, but are not shall be submitted in accordance with resulting solicitation in accordance with limited to— 3.1205. 3.1207. (A) Offeror’s Web sites; (d) For task- or delivery-order (i) The contracting officer shall (B) Trade and financial journals; contracts or blanket purchase require the program office or requiring (C) Business directories and registers; agreements, the contracting officer shall activity to identify any contractor(s) that and attempt to identify all organizational participated in preparation of the (D) Annual corporate shareholder conflict of interest issues at the time of statement of work or other requirements reports. award of the basic task- or delivery- (b) Actions to address organizational documents, including cost or budget order contract or blanket purchase conflicts of interest. (1) Consistent with estimates. The contracting officer shall agreement. To the extent an 3.1206–3(a), the contracting officer review this list to identify the nature organizational conflict of interest can be should analyze both contractor- and scope of any conflict. The identified at the time of award of the provided and otherwise available solicitation should, if appropriate, underlying vehicle, the contracting information in determining how to include a provision identifying officer shall include a mitigation plan or address any organizational conflicts of limitation on future contracting in the contractors prohibited from competing interest. as a prime contractor or a subcontractor basic contract or agreement, unless the (2) If the acquisition involves contracting officer decides to accept the due to any applicable pre-existing contractor-submitted mitigation plans, limitations on future contracting. risk associated with the conflict without then the contracting officer shall any such actions. (ii) The contracting officer shall analyze the feasibility of mitigation of include in the solicitation a provision the organizational conflict of interest, 3.1206–5 Issuance of task or delivery and clause as prescribed in 3.1207(a) including both the expected orders or blanket purchase agreement calls. and 3.1207(b). effectiveness of the conflicted entity’s (a) The contracting officer shall (iii) If the contracting officer proposed mitigation plan and the consider organizational conflicts of anticipates that the parties will use a Government’s ability to monitor and interest at the time of issuance of each mitigation plan to address an enforce the provisions of the plan. order (going through the steps organizational conflict of interest in (i) If organizational conflicts of comparable to those in 3.1206–2, except whole or in part, the contracting officer interest were included as an evaluation that there is no solicitation involved in shall include in the solicitation a clause factor, then communications between issuance of orders). If procedures for as prescribed in 3.1207(c). the Government and an offeror that addressing an organizational conflict of (iv) When the contemplated work could result in changes to the offeror’s interest are in the basic task- or calls for the contractor to exercise mitigation plan will constitute delivery-order contract or blanket subjective judgment or provide advice discussions. Changes to an offeror’s purchase agreement at the time of its which may create an unfair competitive mitigation plan will likely also lead the award, the contracting officer may need advantage, the contracting officer shall Government to reassess the technical to appropriately tailor the procedures include in the solicitation an rating assigned to the offeror. when issuing an order. appropriate limitation on future (ii) If organizational conflicts of (b) For interagency acquisitions that contracting as prescribed in 3.1207(d). interest were not included as an are facilitated through task- or delivery-

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order contracts, including the Federal limitation is sufficient to neutralize any addressed the situation satisfactorily, Supply Schedules— unfair competitive advantage. take any appropriate action in (1) If the order is placed as a direct consultation with agency legal counsel. acquisition, the contracting officer for PART 4—ADMINISTRATIVE MATTERS 4.401–4 Solicitation provision and the ordering agency is responsible for 7. Revise the heading of subpart 4.4 to contract clauses. determining if a mitigation plan is read as follows: required, developing a Government- Unless agency procedures provide otherwise— approved plan, if necessary, and Subpart 4.4—Safeguarding Information (a)(1) The contracting officer shall administering the plan, if one is Within Industry developed; or insert the clause at 52.204–XX, Access to Nonpublic Information, in (2) If the order is placed as an assisted 8. Add sections 4.401 through 4.401– solicitations and contracts when the acquisition, the servicing agency and 4 to read as follows: contractor (or its subcontractors) may requesting agency shall identify which 4.401 Contractor access to nonpublic have access to nonpublic information. agency is responsible for the actions information. (2) If the contracting officer decides identified in paragraph (a) of this that due to the contract requirements— section and reflect this understanding in 4.401–1 Scope. (i) There may be a need for executing their interagency agreement. This section prescribes policies and procedures applicable to contracts that confidentiality agreements between the 3.1207 Solicitation provision and contract may require, authorize, or permit contractor and one or more third parties clauses. contractor access to nonpublic that have provided information to the (a)(1) The contracting officer shall information during contract Government, insert the clause with its include a solicitation provision performance. Alternate I. substantially the same as 52.203–XX, (ii) The contractor may require access Notice of Potential Organizational 4.401–2 Policy. to a third party’s facilities or proprietary Conflict of Interest, upon determining It is the Government’s policy— information that is not in the that contractor performance of the work (a) To preclude contractor use or Government’s possession, insert the may give rise to organizational conflicts disclosure of nonpublic information for clause with its Alternate II. of interest. any purpose unrelated to contract (b) The contracting officer shall insert (2) The contracting officer shall fill in performance; the provision at 52.204–XY, Release of paragraph (b)(2) of the provision, if the (b) To ensure that the contractor does Pre-Award Information, in all program office or requiring activity has not obtain any unfair competitive solicitations. identified any contractors that advantage by virtue of its access to (c) The contracting officer shall insert participated in preparation of the nonpublic information (see 4.402); and the clause at 52.204–YY, Release of statement of work or other requirements (c) To allow agencies discretion to Nonpublic Information, in all documents, including cost or budget prescribe more restrictive policies and solicitations and contracts. estimates. regulations regarding the release and 4.402 through 4.404 [Redesignated as (b) The contracting officer shall disclosure of nonpublic information 4.403–1 through 4.403–3] than are established in this subpart (e.g., include in solicitation and contracts a 9a. Redesignate sections 4.402 limitations on reassignment of clause substantially the same as 52.203– through 4.404 as sections 4.403–1 personnel, more stringent notification ZZ, Disclosure of Organizational through 4.403–3, respectively. requirements in cases of unauthorized Conflict of Interest after Contract 9b. Add new sections 4.402 and 4.403 disclosure, etc.). Award, when the solicitation includes to read as follows: the provision 52.203–XX, Notice of 4.401–3 Restrictions on access to 4.402 Unequal access to nonpublic Potential Organizational Conflict of nonpublic information. information. Interest. (a) The contracting officer shall not (c) The contracting officer shall permit contractor access to nonpublic 4.402–1 Scope. include in solicitations and contracts a information unless— This section prescribes policies and clause substantially the same as 52.203– (1) The Government is authorized to procedures for identifying and resolving YY, Mitigation of Organizational permit such access, e.g., under subpart situations in which an offeror’s access to Conflicts of Interest, when the contract 24.2. nonpublic information provides the may involve an organizational conflict (2) The access is necessary for offeror with an unfair competitive of interest that can be addressed by an performance of the contract; and advantage. acceptable contractor-submitted (3) Access is limited to persons who mitigation plan prior to contract award. require access to that information to 4.402–2 Policy. (d) The contracting officer shall perform the contract. (a) Because an unfair competitive include in solicitations and contracts a (b) If a contractor reports an advantage held by one or more offerors clause substantially the same as 52.203– unauthorized disclosure or misuse of risks tainting the integrity of the YZ, Limitation on Future Contracting, information in accordance with competitive acquisition process, the when the method of addressing the paragraph (b)(2)(vii) of 52.204–XX, Government must take action to resolve organizational conflict of interest will Access to Nonpublic Information, the any situations in which an offeror has involve a limitation on future contracting officer shall— obtained an unfair competitive contracting. (1) Review the actions taken by the advantage because of its unequal access (1) The contracting officer shall fill in contractor; to nonpublic information. the nature and duration of the limitation (2) Determine whether any action (b) When an offeror has an unfair on future contractor activities in taken by the contractor has addressed competitive advantage because of paragraph (a) of the clause. the situation satisfactorily; and unequal access to nonpublic (2) The contracting officer shall (3) If the contracting officer information, the Government shall ensure that the duration of the determines that the contractor has not disqualify the offeror from a

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competition only when no other method sharing the information with all situation (taking into consideration the of resolution is appropriate (see 4.402– offerors, see 4.402–4(c)) to resolve the policy at 4.402–2(b)) if— 4(c)). situation. (i) The nonpublic information is (c) In competing for follow-on (c) Whether having unequal access to available to some, but not all, potential requirements, incumbent contractors the nonpublic information would be offerors; will often have a natural advantage that competitively useful to an offeror (ii) The nonpublic information would is based on their experience, insights, responding to a solicitation. (1) In be competitively useful in responding to and expertise rather than any unequal assessing whether nonpublic a solicitation; and access to nonpublic information. This information would be competitively (iii) The advantage afforded to the type of competitive advantage is not useful to an offeror, the contracting contractor by its access to the nonpublic considered unfair. This situation must officer should make a reasonable effort information is unfair. be distinguished from situations in to consult with people with knowledge (2) If resolution is not required, the which an incumbent contractor also had of the market and the industry. Contracting Officer shall document the access to nonpublic information that (2) If the nonpublic information to file. could provide it, in a future acquisition, which an offeror has or had access is not (c) Resolution. Unfair competitive a competitive advantage that is unfair. competitively useful, then the advantage resulting from unequal access 4.402–3 General principles. contracting officer need not take steps to to nonpublic information may be resolve the situation. resolved by information sharing, An offeror’s unequal access to mitigation through use of a firewall, or nonpublic information may give it an 4.402–4 Contracting officer exclusion. In some cases, a combination responsibilities. unfair competitive advantage with of methods may be appropriate. respect to a particular acquisition. (a) Sources of information. (1) During (1) Information sharing. Information However, not all access to nonpublic acquisition planning, the contracting sharing consists of disseminating the information is unequal and, even where officer shall ask the relevant contracting information in question to all potential access may be unequal, such access will activity and requiring activity (as offerors, either in the solicitation, in a not always result in the offeror appropriate) to examine whether any solicitation amendment, or through obtaining an unfair competitive potential offerors may have had some other method, such as posting it advantage. Contracting officers shall Government-provided access (see online. consider the following factors when 4.402–3(a)) to nonpublic information (i) This method is generally available determining whether a particular relevant to the acquisition. when the relevant information is situation involving offeror access to (2) When initially announcing an Government information. In situations nonpublic information requires acquisition, the contracting officer shall where the information belongs to resolution: include a statement asking that potential another party (for instance, a contractor (a) Whether access to the nonpublic offerors indicate, as early as possible, if for whom a potential offeror worked as information was provided by the they have or had Government-provided a subcontractor), appropriate permission Government. (1) Nonpublic information access (see 4.402–3(a)) to any nonpublic must be obtained before such can come to an offeror from the information relevant to the acquisition. information can be shared with other Government either— (i) For contract actions, this statement (i) Directly, through, or in connection parties, and appropriate protections shall be included in the sources sought must be implemented with respect to with, performance on another notification. Government contract; or the shared information. (ii) Indirectly, through sources such as (ii) For orders placed against (ii) For this method to be effective, former Government employees or multiple-award task- and delivery-order information must be shared with employees of other contractors or contracts or blanket purchase potential offerors early enough in the subcontractors who received the agreements, this statement shall be acquisition process to allow those nonpublic information from the included in the first announcement to offerors to effectively utilize the Government. contract-holders regarding the order. information. (2) The Government has not provided (iii) For Federal Supply Schedule (2) Mitigation through use of a access to nonpublic information, even orders, this statement shall be included firewall. In cases where only some of an indirectly, when an offeror gains access in the request for quote. offeror’s employees have or had access to nonpublic information through (3) As prescribed at 4.402–5, the to the relevant information, it may be market research efforts or by way of contracting officer shall include in the possible for the offeror to create an private-sector business contacts. solicitation the provision requiring internal barrier (often called a firewall) (3) If an offeror gained access to the offerors to state whether they are aware to prevent those employees from sharing nonpublic information at issue in a of anyone in their corporate that information with others. The particular situation through a source organization, including affiliates, who contracting officer may conclude that other than the Government, then the has gained access to nonpublic this is an acceptable resolution if the contracting officer need not take steps to information relevant to the acquisition result is that none of the offeror’s resolve the situation. that was made available by the employees who are involved in the (b) Whether the nonpublic Government. competition has access to the nonpublic information (although provided by the (b) Analysis. (1) If the Contracting information. Government) is available to all potential Officer is aware that one or more (i) The contracting officer may offerors. If the nonpublic information is offerors have or had access to nonpublic determine that the requirements and otherwise available to all potential information provided by the protections of clause 52.204–XX, Access offerors, then— Government, the contracting officer to Nonpublic Information, constitute an (1) The offeror’s access to the shall determine whether resolution is adequate firewall, if nonpublic information is not unequal; and required. Consistent with the general information was gained directly through (2) The contracting officer need not principles provided in 4.402–3, the performance on another Government take steps (other than potentially contracting officer must resolve the contract that included the clause.

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(ii) Creation of a firewall may be ‘‘(see 4.404)’’ and add ‘‘(see 4.403–3)’’ in (2) Insert the provision and clauses proposed by a potential offeror, or it its place. relating to Organizational Conflicts of may be proposed by the agency. The Interest as prescribed at 3.1207 when contracting officer retains discretion to PART 7—ACQUISITION PLANNING applicable. approve or reject the proposed firewall. 10. Amend section 7.105 by (3) Insert the provision 52.204–XY, Firewalls can consist of a variety of redesignating paragraphs (b)(18) through Release of Pre-Award Information, and elements, including organizational and (b)(22) as paragraphs (b)(19) through clauses at 52.204–XX, Access to physical separation; facility and (b)(23), respectively; and adding a new Nonpublic Information, and 52.204–YY, workspace access restrictions; paragraph (b)(18) to read as follows: Release of Nonpublic Information, as information system access restrictions; prescribed at 4.401–4. Insert a provision independent compensation systems; 7.105 Contents of written acquisition substantially the same as 52.204–YZ, and individual and organizational plans. Unequal Access to Nonpublic nondisclosure agreements. * * * * * Information, as prescribed in 4.402–5. (iii) In cases involving mitigation (b) * * * * * * * * through use of a firewall, the offeror’s (18) Organizational conflicts of proposal must include a representation interest. Describe any significant (6) Insert the clause at 52.225–19, that, to the best of its knowledge and potential organizational conflicts of Contractor Personnel in a Designated belief, there were no breaches of the interest (see subpart 3.12) that may exist Operational Area or Supporting a firewall during preparation of the at time of contract award or may arise Diplomatic or Consular Mission outside proposal or must explain any breach during contract performance and the United States, as prescribed in that occurred. (See paragraph (c) of explain the proposed method of 25.301–4. provision 52.204–YZ.) addressing these conflicts. Briefly * * * * * (3) Disqualification. The contracting identify any solicitation provisions and officer must disqualify the offeror from contract clauses that would be used. PART 13—SIMPLIFIED ACQUISITION consideration for the contract if the PROCEDURES * * * * * contracting officer determines that— (i) A potential offeror has, or has had, 7.503 [Amended] 16. Amend section 13.302–5 by unequal, Government-provided access 11. Amend section 7.503 by removing adding paragraph (e) to read as follows: to nonpublic information; from paragraph (d)(11) ‘‘4.402(b)’’ and (ii) The information would provide 13.302–5 Clauses. adding ‘‘4.403–1(b)’’ in its place. the potential offeror with an unfair * * * * * competitive advantage; and PART 9—CONTRACTOR (e) Insert the provision at 52.204–XY, (iii) Neither information sharing nor QUALIFICATIONS Release of Pre-Award Information, and mitigation through use of a firewall will the clauses at 52.204–XX, Access to serve to protect the fairness of the 12. Revise section 9.000 to read as Nonpublic Information, and 52.204–YY, competition. follows: Release of Nonpublic Information, as (d) Multiple-award contracts. In prescribed at 4.401–4. Insert a provision addition to complying with the 9.000 Scope of part. This part prescribes policies, substantially the same as 52.204–YZ, requirements outlined in paragraphs (a) Unequal Access to Non-Public through (c) when placing orders under standards, and procedures pertaining to prospective contractors’ responsibility; Information, as prescribed in 4.402–5. multiple-award contract vehicles Insert the provision and clauses relating (including multiple-award indefinite- debarment, suspension, and ineligibility; qualified products; first to Organizational Conflicts of Interest as delivery/indefinite quantity contracts prescribed at 3.1207 when applicable. and multiple-award blanket purchase article testing and approval; contractor agreements), contracting officers must team arrangements; and defense PART 14—SEALED BIDDING take additional steps when awarding production pools and research and such contracts and blanket purchase development pools. 17. Amend section 14.201–6 by agreements. The contracting officer shall adding paragraph (y) to read as follows: Subpart 9.5 [Removed and Reserved] ensure that the ordering procedures 14.201–6 Solicitation provisions. clause requires the inclusion of terms 13. Remove and reserve subpart 9.5. similar to those found in the provision * * * * * at 52.204–YZ, Unequal Access to PART 11—DESCRIBING AGENCY (y) See the prescription at 4.401–4(b) Nonpublic Information, in any order NEEDS for use of the provision at 52.204–XY, competed under the multiple-award Release of Pre-Award Information. 11.000 [Amended] contract or blanket purchase agreement 18. Amend section 14.201–7 by (see 16.505(b)). 14. Amend section 11.002 by removing from paragraph (c) ‘‘Subpart adding paragraph (e) to read as follows: 4.402–5 Solicitation provision. 9.5’’ and adding ‘‘subpart 3.12’’ in its 14.201–7 Contract clauses. The contracting officer shall include place. * * * * * in all solicitations that exceed the simplified acquisition threshold a PART 12—ACQUISITION OF (e) See the clause prescription at provision substantially the same as COMMERCIAL ITEMS 4.401–4(c) for use of the clause at 52.204–YZ, Unequal Access to 52.204–YY, Release of Nonpublic 15. Amend section 12.301 in Information. Nonpublic Information. paragraph (d) by revising paragraph (2); 4.403 Safeguarding Classified Information. redesignating paragraphs (3) and (4) as PART 15—CONTRACTING BY (4) and (5), respectively; and adding NEGOTIATION 4.403–2 [Amended] new paragraphs (3) and (6) to read as 9c. In newly redesignated section follows: 19. Amend section 15.209 by adding 4.403–2, remove from paragraph (b) (d) * * * paragraph (i) to read as follows:

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15.209 Solicitation provisions and 42.1204 Applicability of novation (4) To the extent that either the offeror or contract clauses. agreements. the Government identifies any organizational * * * * * * * * * * conflicts of interest on the current contract, (i)(1) See the prescription at 4.401– (d) When considering whether to the offeror shall explain the actions it intends to use to address such conflicts, e.g., by 4(b) for use of the provision at 52.204– recognize a third party as a successor in submitting a mitigation plan and/or XY, Release of Pre-Award Information. interest to Government contracts, the accepting a limitation on future contracting. (2) See the clause prescription at responsible contracting officer shall (5) The Contracting Officer is the final 4.401–4(c) for use of the clause at identify and evaluate any significant authority in determining whether an 52.204–YY, Release of Nonpublic organizational conflicts of interest in organizational conflict of interest exists and Information. accordance with subpart 3.12. If the whether the organizational conflict of interest 20. Amend section 15.604 by revising responsible contracting officer has been adequately addressed. paragraph (a)(2) to read as follows: determines that a conflict of interest (d) Resultant contract. (1) If the offeror submits an organizational conflict of interest 15.604 Agency points of contact. cannot be addressed, but that it is in the mitigation plan, the resultant contract will best interest of the Government to (a) * * * include the Government-approved Mitigation (2) Requirements concerning approve the novation request, a request Plan and a clause substantially the same as responsible prospective contractors (see for a waiver may be submitted in 52.203–YY, Mitigation of Organizational subpart 9.1). accordance with the procedures at Conflicts of Interest. 3.1205. (2) If the resolution of the organizational * * * * * conflict of interest involves a limitation on * * * * * future contracting, the resultant contract will PART 16—TYPES OF CONTRACTS PART 52—SOLICITATION PROVISIONS include a clause substantially the same as 52.203–YZ, Limitation on Future 21. Amend section 16.505 by revising AND CONTRACT CLAUSES Contracting. paragraph (b)(1)(ii)(C) to read as follows: 25. Add sections 52.203–XX, 52.203– (End of provision) 16.505 Ordering. ZZ, 52.203–YY, and 52.203–YZ to read * * * * * as follows: 52.203–ZZ, Disclosure of Organizational (b) * * * Conflict of Interest After Contract Award. (1) * * * 52.203–XX, Notice of Potential As prescribed in 3.1207(b), insert the Organizational Conflict of Interest. (ii) * * * following clause: (C) Tailor the procedures to each As prescribed in 3.1207(a), insert a acquisition, including appropriate provision substantially the same as the Disclosure of Organizational Conflict of procedures for addressing unequal following: Interest After Contract Award (Date) access to nonpublic information (see Notice of Potential Organizational (a) Definition. Organizational conflict of 4.402); Conflict of Interest (Date) interest, as used in this clause, means a * * * * * situation in which— (a) Definition. Organizational conflict of (1) A Government contract requires a PART 18—EMERGENCY interest, as used in this provision, is defined contractor to exercise judgment to assist the ACQUISITIONS in 52.203–ZZ, Disclosure of Organizational Government in a matter (such as in drafting Conflict of Interest after Contract Award. specifications or assessing another 22. Amend section 18.000 by revising (b) Notice. (1) The Contracting Officer has contractor’s proposal or performance) and the paragraph (b) to read as follows: determined that the nature of the work to be contractor or its affiliates have financial or performed in the contract resulting from this other interests at stake in the matter, so that 18.000 Scope of part. solicitation is such that it may give rise to a reasonable person might have concern that * * * * * organizational conflicts of interest (see when performing work under the contract, (b) The acquisition flexibilities in this subpart 3.12, Organizational Conflicts of the contractor may be improperly influenced part are not exempt from the Interest). by its own interests rather than the best requirements and limitations set forth in (2) The following contractors participated interests of the Government; or Part 3, Business Ethics and Conflicts of in the preparation of the statement of work (2) A contractor could have an unfair Interest. or other requirements documents, including competitive advantage in an acquisition as a cost or budget estimates: result of having performed work on a * * * * * lllllllllllllllllllll Government contract, under circumstances [Contracting Officer to fill in, if any.] such as those described in paragraph (1) of PART 37—SERVICE CONTRACTING (c) Proposal requirements. (1) Assessment. this definition, that put the contractor in a 23. Amend section 37.110 by revising Applying the principles of subpart 3.12, the position to influence the acquisition. offeror shall assess whether there is an (b) If the Contractor identifies an paragraph (d) to read as follows: organizational conflict of interest associated organizational conflict of interest that was * * * * * with the offer it plans to submit, including not previously addressed and for which a (d) See subpart 3.12 regarding the use any potential subcontracts. waiver has not been granted, or a change to of an appropriate provision and clause (2) Disclosure. The offeror shall— any relevant facts relating to a previously concerning organizational conflicts of (i) Disclose all relevant information identified organizational conflict of interest, interest, which may at times be regarding any organizational conflicts of the Contractor shall make a prompt and full significant in solicitations and contracts interest, including information about disclosure in writing to the Contracting potential subcontracts; and Officer. Organizational conflicts of interest for services. (ii) Describe any relevant limitations on that arise during performance of the contract, * * * * * future contracting, the term of which has not as well as newly discovered conflicts that yet expired, to which the offeror or potential existed before contract award, shall be PART 42—CONTRACT subcontractor agreed. disclosed. This disclosure shall include a ADMINISTRATION AND AUDIT (3) Representation. The offeror represents, description of— SERVICES by submission of its offer, that to the best of (1) The organizational conflict of interest; its knowledge and belief it has disclosed all and 24. Amend section 42.1204 by relevant information regarding any (2) Actions to address the conflict that— revising paragraph (d) to read as organizational conflicts of interest as (i) The Contractor has taken or proposes to follows: required in paragraph (c)(2) of this provision. take; or

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(ii) The Contractor recommends that the (e) Subcontracts. The Contractor shall yet determined whether the information can Government take. include the substance of this clause, or will be made available to the public. (c) If, in compliance with this clause, the including this paragraph (e), in subcontracts (b) Restrictions on use and disclosure of Contractor identifies and promptly reports an where the work includes or may include nonpublic information. (1) The restrictions organizational conflict of interest that cannot tasks related to the organizational conflict of provided in this clause are intended to be addressed in a manner acceptable to the interest. The terms ‘‘Contractor’’ and protect both the Government and third-party Government, the Contracting Officer may ‘‘Contracting Officer’’ shall be appropriately owners of nonpublic information from terminate for the convenience of the modified to reflect the change in parties. unauthorized use or disclosure of such Government— information. (1) This contract, except as provided in (End of clause) (i) The Contractor shall indemnify and paragraph (c)(2) of this clause; hold harmless the Government, its agents, (2) If this is a task- or delivery-order 52.203–YZ, Limitation on Future and employees from every claim or liability, contract, the task or delivery order; or Contracting. including attorneys fees, court costs, and (3) If this is a blanket purchase agreement, As prescribed in 3.1207(d), insert a expenses arising out of, or in any way related the blanket purchase agreement call. clause substantially the same as the to, the misuse or unauthorized modification, (d) Subcontracts. The Contractor shall following: reproduction, release, performance, display, include the substance of this clause, or disclosure of any nonpublic information to including this paragraph (d), in subcontracts Limitation on Future Contracting (Date) which it is given access during performance where the work includes or may include of this contract. tasks that may create a potential for an (a) Limitation. The Contractor and any of (ii) Third-party owners of nonpublic organizational conflict of interest. The terms its affiliates, shall be ineligible to perform information to which the Contractor may ‘‘Contractor’’ and ‘‘Contracting Officer’’ shall llllllllll [Contracting Officer to have access during performance of this be appropriately modified to reflect the describe the work that the Contractor will be contract are third-party beneficiaries with change in parties. ineligible to perform] as a contractor or as a respect to the terms of this clause who, in (End of clause) subcontractor for a period of llllll. addition to any other rights they may have, [Contracting Officer to determine appropriate may have the right of direct action against the 52.203–YY, Mitigation of Organizational length of prohibition.] Contractor to seek damages from any Conflicts of Interest. (b) Subcontracts. The Contractor shall violation of the terms of this clause or to As prescribed in 3.1207(c), insert a include the substance of this clause, otherwise enforce the terms of this clause. including this paragraph (b), in subcontracts (2) With regard to any nonpublic clause substantially the same as the where the work includes tasks which result information to which the Contractor is given following: in an organizational conflict of interest. The access in performance of this contract, Mitigation of Organizational Conflicts terms ‘‘Contractor’’ and ‘‘Contracting Officer’’ whether the information comes from the of Interest (Date) shall be appropriately modified to reflect the Government or from third parties, the change in parties. Contractor shall— (i) Utilize the nonpublic information only (a) Definition. Organizational conflict of (End of clause) interest, as used in this clause, is defined in for the purposes of performing the services the clause 52.203–ZZ, Disclosure of 26. Amend section 52.204–2 by specified in this contract, and not for any Organizational Conflict of Interest after removing from the introductory other purposes; Contract Award. paragraph ‘‘4.404(a)’’ and adding ‘‘4.403– (ii) Safeguard the nonpublic information (b) Mitigation plan. The Government- 3(a)’’ in its place; and revising the from unauthorized use and disclosure; approved Organizational Conflict of Interest introductory texts of Alternate I and (iii) Limit access to the nonpublic information to only those persons who need Mitigation Plan (Mitigation Plan) and its Alternate II to read as follows: obligations are hereby incorporated in the it to perform services under this contract; contract by reference. 52.204–2 Security requirements. (iv) Inform persons who may have access to nonpublic information about their (c) Changes. (1) Either the Contractor or the * * * * * Government may propose changes to the obligations to utilize it only to perform the Mitigation Plan. Such changes are subject to Alternate I (Apr 1984). As prescribed in services specified in this contract and to the mutual agreement of the parties and will 4.403–3(b), add the following paragraphs (e), safeguard it from unauthorized use and become effective only upon written approval (f), and (g) to the basic clause: disclosure; of the revised Mitigation Plan by the * * * * * (v) Obtain a signed nondisclosure Contracting Officer. Alternate II (Apr 1984). As prescribed in agreement, which at a minimum includes (2) The Contractor shall update the 4.403–3(c), add the following paragraph (e) to language substantially the same as that found mitigation plan within 30 days of any the basic clause: in paragraph (b)(1) and (b)(2)(i) through (iv) changes to the legal construct of its of this clause, from each person who may organization, any subcontractor changes, or * * * * * have access to the nonpublic information; any significant management or ownership 27. Add sections 52.204–XX, 52.204– (vi) Provide a copy of any such changes. XY, 52.204–YY, and 52.204–YZ to read nondisclosure agreement to the contracting officer upon request; and (d) Noncompliance. (1) The Contractor as follows: shall report to the Contracting Officer any (vii) Report to the contracting officer any noncompliance with this clause or with the 52.204–XX, Access to Nonpublic violations of requirements (i) through (vi) of Mitigation Plan, whether by its own Information. this paragraph as soon as the violation is personnel or those of the Government or identified. This report shall include a other contractors. As prescribed in 4.401–4(a), insert the description of the violation and the proposed (2) The report shall describe the following clause: actions to be taken by the contractor in noncompliance and the actions the Access to Nonpublic Information (Date) response to the violation, with follow-up Contractor has taken or proposes to take to reports of corrective actions taken as mitigate and avoid repetition of the (a) Definition. Nonpublic information, as necessary. noncompliance. used in this clause, means any Government (3) If the Contractor receives information (3) After conducting such further inquiries or third-party information that— that is marked in a way that indicates the and discussions as may be necessary, the (1) Is exempt from disclosure under the Contractor should not receive this Contracting Officer and the Contractor shall Freedom of Information Act (5 U.S.C. 552) or information, the Contractor shall— agree on appropriate corrective action, if any, otherwise protected from disclosure by (i) Notify the Contracting Officer; or the Contracting Officer shall direct statute, Executive order, or regulation; or (ii) Use the information only in accordance corrective action, subject to the terms of this (2) Has not been disseminated to the with the instructions of the Contracting contract. general public, and the Government has not Officer; and

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(iii) Comply with any other notification (f), in subcontracts under which a contract that contains the clause at 52.204– provisions contained in this contract. subcontractor may have access to nonpublic XX, Access to Nonpublic Information, which (c) Applicability. (1) The obligations and information, The terms ‘‘contract,’’ obligates the contractor to do the following: prohibitions of paragraph (b) do not apply if ‘‘contractor,’’ and ‘‘contracting officer’’ shall (1) Utilize the nonpublic information only the Contractor can demonstrate to the be appropriately modified to preserve the for the purposes of performing the services Contracting Officer that the information— Government’s rights. specified in this contract, and not for any (i) Was in the public domain at the time other purposes; the information was accessed by the (End of clause) (2) Safeguard nonpublic information from Contractor; Alternate I (Date). As prescribed in 4.401– unauthorized use and disclosure; (ii) Was published, after having been 4(a)(2)(i), add the following paragraph (c)(3) (3) Limit access to the nonpublic accessed by the Contractor, or otherwise to the basic clause: information to only those persons who need becomes part of the public domain through (c)(3) The Contractor shall, if requested by it to perform services under this contract; no fault of the Contractor; the Contracting Officer— (4) Inform persons who may have access to (iii) Was lawfully in the Contractor’s (i) Negotiate and sign an agreement nonpublic information about their possession at the time the Contractor identical, in all material respects, to obligations to utilize it only to perform the accessed it and was not acquired directly or paragraphs (b)(2) and (c) of this clause, with services specified in this contract and to indirectly— each entity identified by the Contracting safeguard that information from (A) From the Government; or Officer that has provided the Government unauthorized use and disclosure; (B) Under another Government contract; nonpublic information to which the (5) Obtain a signed nondisclosure (iv) Was received by the Contractor from a Contractor must now have access to perform agreement from each person who may have party, other than the information owner, who its obligations under this contract; and access to the nonpublic information; and has the authority to release the information (ii) Supply a copy of the executed (6) Report to the Contracting Officer any and did not require the Contractor to hold it agreement(s) to the Contracting Officer violations of requirements (1) through (5) of in confidence. [within 30 days]. this paragraph as soon as the violation is (v) Is or becomes available, on an Alternate II (Date). As prescribed in 4.401– identified. This report shall include a unrestricted basis in a lawful manner, to a 4(a)(2)(ii), add the following paragraph (c)(3) description of the violation and the proposed third party from the information owner or to the basic clause (if Alternate I is also used, actions to be taken by the Contractor in someone acting under the control of the redesignate the following paragraph as (c)(4)): response to the violation, with follow-up information owner; (c)(3) The Contractor shall, if requested by reports of corrective actions taken as (vi) Is developed by or for the Contractor the Contracting Officer— necessary. independently of the information received (i) Execute a Government-approved (e) Paragraph (e) of the clause at 52.204– from the Government or the information agreement with each entity identified by the XX, Access to Nonpublic Information, owner and such independent development Contracting Officer to whose facilities or included in the contract of the contractor can be shown; nonpublic information the Contractor is with access to the nonpublic information (vii) Becomes available to the Contractor by given access; and provides that the third-party information wholly lawful inspection or analysis of (ii) Supply a copy of the executed owner may have the right to pursue third- products offered for sale by the information agreement(s) to the Contracting Officer. party beneficiary rights against the contractor owner or someone acting under the with access to the information for breaches information owner’s control, or an authorized 52.204–XY, Release of Pre-Award of the requirements of that clause. third-party reseller or distributor; or Information. (viii) Is provided to a third party by the As prescribed in 4.401–4(b), insert the (End of provision) Contractor with the prior written approval of following provision: the information owner. 52.204–YY, Release of Nonpublic (2) The Contractor may release nonpublic Release of Pre-Award Information Information. information to which the Contractor is given (Date) As prescribed in 4.401–4(c) insert the access in performance of this contract to a following clause: third party pursuant to the lawful order or (a) Definition. Nonpublic information, as rules of a United States Court or Federal used in this provision, means any Release of Nonpublic Information administrative tribunal or body of competent Government or third-party information that— (Date) jurisdiction, provided that the Contractor (1) Is exempt from disclosure under the gives to the information owner prior written Freedom of Information Act (5 U.S.C. 552) or (a) Definition. Nonpublic information, as notice of such obligation and the opportunity otherwise protected from disclosure by used in this clause, means any Government to oppose such disclosure. The Contractor statute, Executive order, or regulation; or or third-party information that— shall provide a copy of the notice to the (2) Has not been disseminated to the (1) Is exempt from disclosure under the Contracting Officer at the same time as notice general public, and the Government has not Freedom of Information Act (5 U.S.C. 552) or is given to the information owner. yet determined whether the information can otherwise protected from disclosure by (d) Other contractual restrictions on or will be made available to the public. statute, Executive order, or regulation; or information. This clause is subordinate to all (b) The Government may need to release (2) Has not been disseminated to the other contract clauses or requirements that some of the nonpublic information submitted general public, and the Government has not specifically address the access, use, handling, by the offeror in connection with this yet determined whether the information can or disclosure of information. If any solicitation. By submission of its offer, the or will be made available to the public. restrictions or authorizations in this clause offeror agrees that the Government may, in (b) The Contractor agrees that the are inconsistent with a requirement of any appropriate circumstances, release to its Government may, in appropriate other clause of this contract, the requirement contractors, their subcontractors, and their circumstances, release to its contractors, their of the other clause shall take precedence over individual employees, such nonpublic subcontractors, and their individual the requirement of this clause. information, subject to the protections employees, nonpublic information provided (e) Remedies available to a third-party referenced at paragraph (d) of this provision. by the Contractor in the performance of this information owner. The Contractor’s failure (c) This provision does not affect the contract, subject to the protections referenced to comply with the requirements of this agency’s responsibilities under the Freedom at paragraph (d) of this clause. clause may provide grounds for independent of Information Act or the Procurement (c) This clause does not affect the agency’s legal action or other remedies available to a Integrity Act. responsibilities under the Freedom of third-party information owner based on the (d) To receive access to nonpublic Information Act or the Procurement Integrity protections of paragraph (b)(1) of this clause information needed to assist in Act. (third-party beneficiary). accomplishing agency functions, the (d) To receive access to nonpublic (f) Subcontracts. The Contractor shall contractor that will receive access to the information needed to assist in include this clause, including this paragraph information must be operating under a accomplishing agency functions, the

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contractor that will receive access to the affiliates possesses any nonpublic rulemaking process on this issue with a nonpublic information must be operating information relevant to the current notice of proposed rulemaking later this under a contract that contains the clause at solicitation and provided by the Government, year. The determination of whether to 52.204–XX, Access to Nonpublic either directly or indirectly; the offeror issue a rule will be made in the course Information, which obligates the contractor should also advise the Contracting Officer of to do the following: any actions that the offeror proposes to take of the rulemaking proceeding, in (1) Utilize the nonpublic information only to resolve the situation. accordance with statutory criteria. for the purposes of performing the services (c) Proposal requirements. If a firewall has FOR FURTHER INFORMATION CONTACT: For specified in this contract, and not for any been used to mitigate the impact of access to technical issues: Markus Price, Office of other purposes; nonpublic information, the offeror Crash Avoidance Standards (NVS–121), (2) Safeguard nonpublic information from represents, to the best of its knowledge and NHTSA, 1200 New Jersey Avenue, SE., unauthorized use and disclosure; belief, that the firewall was implemented as West Building, Washington, DC 20590 agreed, and was not breached during the (3) Limit access to the nonpublic (Telephone: (202) 366–0098) (Fax: (202) information to only those persons who need preparation of this offer; or, by checking this it to perform services under this contract; box [ ], that the firewall was not implemented 366–7002). (4) Inform persons who may access or was breached, and additional explanatory For legal issues: Jesse Chang, Office of nonpublic information about their information is attached. the Chief Counsel (NCC–112), NHTSA, 1200 New Jersey Avenue, SE., West obligations to utilize it only to perform the (End of provision) services specified in this contract and to Building, Washington, DC 20590 safeguard that information from PART 53—FORMS (Telephone: (202) 366–2992) (Fax: (202) unauthorized use and disclosure; 366–3820). (5) Obtain a signed nondisclosure 53.204–1 [Amended] SUPPLEMENTARY INFORMATION: agreement from each person who may have 28. Amend section 53.204–1 by access to the nonpublic information; and Background (6) Report to the Contracting Officer any removing from paragraph (a) ‘‘(see violations of requirements (1) through (5) of 4.403(c)(1).)’’ and adding ‘‘(see 4.403– On March 14, 2005, MIC submitted to this paragraph as soon as the violation is 2(c)(1).)’’ in its place. the agency a petition for rulemaking identified. This report shall include a [FR Doc. 2011–9415 Filed 4–25–11; 8:45 am] requesting that the agency include an description of the violation and the proposed BILLING CODE 6820–EP–P additional subpart to FMVSS No. 108. actions to be taken by the contractor in Specifically, MIC requested the addition response to the violation, with follow-up of a subpart to be designated as reports of corrective actions taken as S5.1.1.30, which would read as follows: necessary. DEPARTMENT OF TRANSPORTATION (e) Paragraph (e) of the clause at 52.204– ‘‘S5.1.1.30 On a motorcycle where the XX, Access to Nonpublic Information, National Highway Traffic Safety upper edge of the license plate is not more included in the contract of the contractor Administration than 1.2 m (47.25 in.) from the ground, the with access to the nonpublic information plate bearing the license numbers shall face provides that the third-party information 49 CFR Part 571 between 30 degrees upward and 15 degrees owner may have the right to pursue third- downward from the vertical plane.’’ [Docket No. NHTSA–2011–0052] party beneficiary rights against the contractor MIC submitted this petition for with access to the nonpublic information for rulemaking with the understanding that breaches of the requirements of that clause. Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices, the current FMVSS No. 108 requires (f) Subcontracts. The Contractor shall ± insert this clause, including this paragraph and Associated Equipment license plates to be mounted at 15 (f), suitably modified to reflect the degrees of perpendicular to the plane on relationship of the parties, in all subcontracts AGENCY: National Highway Traffic which the vehicle stands. In their that may require the furnishing of nonpublic Safety Administration (NHTSA), petition, MIC took note that ‘‘although information to this agency under the Department of Transportation (DOT). the lighting standard doesn’t directly subcontract. ACTION: Granting petition for speak to license plate mounting, the rulemaking. (End of clause) requirement at issue is contained in SAE J587 October 1981, which is SUMMARY: 52.204–YZ, Unequal Access to Nonpublic This notice grants the petition incorporated into FMVSS No. 108 in Information. for rulemaking submitted by the Table III for license plate lamps.’’ Motorcycle Industry Council (MIC) As prescribed in 4.402–5, insert a Petitioner notes that the requirements of requesting that the agency amend the provision substantially the same as the the October 1981 Standard J587 are license plate holder requirements of following: different from the European Community Federal Motor Vehicle Safety Standard (ECE) regulations. By including the Unequal Access to Nonpublic (FMVSS) No. 108 to allow motorcycles proposed subpart, petitioner hopes to Information (Date) to mount license plates at an upward harmonize the current motorcycle angle of up to 30 degrees.1 Based on the (a) Definition. Nonpublic information, as license plate requirements with the information received in MIC’s petition requirements in the ECE regulations. used in this provision, means any and the petitions for reconsideration of Government or third-party information that— Petitioner stated that this the December 4, 2007 final rule harmonization would not adversely (1) Is exempt from disclosure under the 2 Freedom of Information Act (5 U.S.C. 552) or reorganizing FMVSS No. 108, the affect safety or law enforcement efforts otherwise protected from disclosure by agency believes that MIC’s petition but would serve to reduce unnecessary statute, Executive order, or regulation; or merits further consideration through the design and manufacturing complexities (2) Has not been disseminated to the rulemaking process. for its member companies. Further, general public, and the Government has not The National Highway Traffic Safety petitioner believes that by allowing a 30 yet determined whether the information can Administration plans to initiate the or will be made available to the public. degree upward angle, the manufacturers will be afforded greater flexibility in (b) Pre-proposal requirements. Applying 1 Motorcycle Industry Council Petition for the principles of 4.402, the offeror shall Rulemaking, March 14, 2005 (Docket No. NHTSA– design without any detriment to real inform the Contracting Officer, prior to the 2005–20286–0009) world reflective illumination of the submission of its offer, if it or any of its 2 72 FR 68234 (December 4, 2007). license plates. As additional support for

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their request, MIC mentions that SAE Issued on: April 21, 2011. Company (January 18, 2008) asking the Standard J587 was updated in 1997 to Christopher J. Bonanti, agency to reconsider the license plate also allow for the 30 degree upward Associate Administrator for Rulemaking. holder requirements in subpart S6.6.3. angle permitted by the ECE regulations. [FR Doc. 2011–10025 Filed 4–25–11; 8:45 am] A submission by the Motorcycle In addition to the MIC petition for BILLING CODE 4910–59–P Industry Council (MIC) on March 19, rulemaking of March 14, 2005, the 2009 also requested a similar change to agency has received petitions for S6.6.3. However, the MIC submission reconsideration of the December 4, 2007 DEPARTMENT OF TRANSPORTATION was not timely for the purposes of final rule that reorganized FMVSS No. reconsidering this final rule and has 108. These petitions for reconsideration National Highway Traffic Safety been considered as a petition for were also concerned with license plate Administration rulemaking per 49 CFR 553.35. holders and the mounting requirements. In subpart S6.6.3 of the December 4, In that final rule, the agency included 49 CFR Part 571 2007 final rule, the agency included provisions expressly requiring that the license plate mounting requirements [Docket No. NHTSA–2007–28322] of SAE Standard J587 (October 1981) manufacturers of motor vehicles design directly into the regulatory text. Federal Motor Vehicle Safety license plate holders so that the plane Standards; Lamps, Reflective Devices, surface of a license plate in the holder Petitioners objected on the grounds that ± ° the license plate mounting requirements and Associated Equipment would be within 15 of perpendicular of the 1981 SAE standard were never to the plane surface on which the AGENCY: National Highway Traffic incorporated into FMVSS No. 108 and vehicle stands. Safety Administration (NHTSA), thus should not be included in an Paragraph S5.1.1 of the pre- Department of Transportation (DOT). administrative rewrite of FMVSS No. reorganized version of FMVSS No. 108 required that passenger vehicles and 108 where the agency has stated no ACTION: Denying, in part, petitions for motorcycles be equipped with the intent to substantively change the reconsideration. ‘‘lamps, reflective devices, and standard. A more detailed discussion of SUMMARY: This document denies, in associated equipment’’ listed in Table III these petitions is available in today’s part, the petitions for reconsideration of of Standard 108. Table III listed lamps Federal Register where the agency has the December 4, 2007, final rule such turn signal lamps, reflectors such issued a notice denying, in part, the reorganizing Federal Motor Vehicle as reflex reflectors, and associated petitions for reconsideration of the Safety Standard (FMVSS) No. 108 (49 equipment such as turn signal operating December 4, 2007 final rule. CFR 571.108). The petitions are denied units. Further, S5.1.1 required that the Conclusion only as they relate to subpart S6.6.3 equipment listed in Table III conform to (License Plate Holder) of the final rule. the corresponding SAE Standards listed Having received this petition for FOR FURTHER INFORMATION CONTACT: For in that table. One of the listed items of rulemaking and the aforementioned technical issues: Markus Price, Office of equipment was ‘‘license plate lamps.’’ petitions for reconsideration of the Crash Avoidance Standards (NVS–121), Table III required ‘‘license plate lamps’’ December 4, 2007 final rule reorganizing NHTSA, 1200 New Jersey Avenue, SE., to be designed to conform to SAE FMVSS No. 108, the agency has decided West Building, Washington, DC 20590 Standard J587 (October 1981). Among that MIC’s petition merits further (Telephone: (202) 366–0098) (Fax: (202) other requirements, SAE Standard J587 consideration through the rulemaking 366–7002). states in paragraph 6.1 that ‘‘the angle process and hereby grants its petition For legal issues: Jesse Chang, Office of between the plane of the license plate for rulemaking. The agency plans to the Chief Counsel (NCC–112), NHTSA, and the plane on which the vehicle initiate the rulemaking process later this 1200 New Jersey Avenue, SE., West stands will be 90 ± 15 deg.’’ year through the publication of a notice Building, Washington, DC 20590 Petitioners request that the agency of proposed rulemaking. This agency (Telephone: (202) 366–2992) (Fax: (202) reconsider subpart S6.6.3 on a number also announces in a separate notice 366–3820). of grounds. First, petitioners contend published in today’s Federal Register SUPPLEMENTARY INFORMATION: that license plate holders are not lamps, that it is denying the aforementioned reflective devices, or associated petitions for reconsideration as the Background equipment listed in Table III and thus agency has decided to resolve this issue On December 30, 2005, the agency were never regulated under S5.1.1 of the through rulemaking. However, due to published in the Federal Register a pre-reorganized version of FMVSS No. the special circumstances and confusion notice of proposed rulemaking 108. Therefore, petitioners believe that surrounding the license plate mounting concerning 49 CFR 571.108 (Federal as a result of including S6.6.3 in the requirements among the relevant Motor Vehicle Safety Standard No. reorganization of FMVSS No. 108, the stakeholders, the agency announces 108).1 The agency stated that the goal of agency was imposing a new requirement through this notice that it will not the proposal was to ‘‘amend the and contravening its statement in the enforce the 15 degree license plate standard by reorganizing the regulatory December 4, 2007 final rule that the holder mounting requirement during the text so that it provides a more straight- ‘‘final rule does not impose any new pendency of rulemaking on the issue of forward and logical presentation of the substantive requirements on that requirement. applicable regulatory requirements.’’ manufacturers.’’ In addition, petitioners The granting of the petition from MIC, After the publication of a final rule on assert that the license plate mounting however, does not indicate that a final December 4, 2007,2 adopting the provisions of SAE Standard J587 are rule will be issued as requested by MIC. proposal with revisions, the agency intended to serve the purpose of The determination of whether to issue a received petitions for reconsideration ensuring an objective means of rule and the content of the rule is made from Harley-Davidson Motor Company measuring photometric performance, after the study of the requested action (January 18, 2008) and Ford Motor but not intended to be a requirement. and the various alternatives in the Finally, petitioners request that should course of the rulemaking proceeding, in 1 70 FR 77454 (December 30, 2005). the agency consider license plate accordance with statutory criteria. 2 72 FR 68234 (December 4, 2007). holders to be regulated, the agency

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should harmonize the license plate document published in today’s Federal 27, 2011. The deadline for submitting an holder requirements with the most Register. Further, due to the confusion electronic comment using the Federal recent revision of SAE Standard J587 and special circumstances surrounding eRulemaking Portal (see ADDRESSES and the requirements in European this rule, the agency announced in the section below) is 11:59 p.m. Eastern Union.3 aforementioned document in today’s Time on this date. After June 27, 2011, In 1995, the agency stated that Federal Register that it will not enforce you must submit information to the FMVSS No. 108 ‘‘incorporated SAE J587 the 15 degree license plate holder Field Office (see FOR FURTHER in its entirety, and there is no exclusion mounting requirement during the INFORMATION CONTACT section below). of paragraph 6.1.’’ The agency made this pendency of rulemaking on the issue of Please note that we might not be able to statement in an interpretation letter that requirement. address or incorporate information that addressed to Volkswagen of America, The agency also notes that it is still we receive after the above-requested Inc.4 considering the comments and requests date. Notwithstanding that interpretation, relating to other issues in the petitions ADDRESSES: NHTSA takes note that there has been for reconsideration of the December 4, You may submit significant confusion among the 2007 final rule and will respond to them information by one of the following relevant stakeholders as to whether or in a separate document. methods: not the mounting provisions of SAE • Federal eRulemaking Portal: http:// Standard J587 were incorporated into Issued on: April 21, 2011. www.regulations.gov. In the box that FMVSS No. 108 via Table III as Christopher J. Bonanti, reads ‘‘Enter Keyword or ID,’’ enter the referenced through S5.1.1. On the one Associate Administrator for Rulemaking. Docket number for this finding, which hand, the Motorcycle Industry Council [FR Doc. 2011–10030 Filed 4–25–11; 8:45 am] is FWS–R6–ES–2011–0019. Check the (MIC) petitioned this agency for BILLING CODE 4910–59–P box that reads ‘‘Open for Comment/ rulemaking in March of 2005 (before the Submission,’’ and then click the Search December 30, 2005 NPRM in this button. You should then see an icon that rulemaking) requesting that the agency DEPARTMENT OF THE INTERIOR reads ‘‘Submit a Comment.’’ Please update the incorporated SAE Standard ensure that you have found the correct J587 to allow for a 30 degree upward Fish and Wildlife Service rulemaking before submitting your angle mounting position for license comment. plates. The March 2005 petition seems 50 CFR Part 17 • U.S. mail or hand-delivery: Public to indicate that MIC believed that the [Docket No. FWS–R6–ES–2011–0019] Comments Processing, Attn: [Docket license plate mounting provisions of number FWS–R6–ES–2011–0019]; SAE Standard J587 were incorporated Endangered and Threatened Wildlife Division of Policy and Directives into FMVSS No. 108 via S5.1.1 and and Plants; 90-Day Finding on a Management; U.S. Fish and Wildlife Table III. On the other hand, the Petition To List the Arapahoe Snowfly Service; 4401 N. Fairfax Drive, MS Alliance of Automobile Manufacturers as Endangered or Threatened 2042–PDM; Arlington, VA 22203. commented on March 30, 2006 to the We will not accept e-mail or faxes. We 2005 NPRM and disputed the view that AGENCY: Fish and Wildlife Service, will post all information we receive on those provisions were ever incorporated Interior. http://www.regulations.gov. This into FMVSS No. 108. ACTION: Notice of petition finding and generally means that we will post any initiation of status review. Conclusion personal information you provide us SUMMARY: We, the U.S. Fish and (see the Request for Information section Given the confusion over whether or below for more details). not SAE Standard J587’s provisions on Wildlife Service, announce a 90-day license plate holders were incorporated finding on a petition to list the FOR FURTHER INFORMATION CONTACT: into the prior version of FMVSS No. 108 Arapahoe snowfly (Capnia arapahoe) as Susan Linner, Project Leader, by U.S. and given the petition to initiate endangered or threatened under the mail at Colorado Field Office, P.O. Box rulemaking premised on their Endangered Species Act of 1973, as 25486, Denver, CO 80225; by telephone incorporation and requesting their amended (Act), and to designate critical at (303) 236–4773, or by facsimile at relaxation, the agency has decided to habitat. Based on our review, we find (303) 236–4005. If you use a resolve this matter through rulemaking. that the petition presents substantial telecommunications device for the deaf Thus, through this document, the scientific or commercial information (TDD), please call the Federal agency denies the aforementioned indicating that listing this species may Information Relay Service (FIRS) at petitions for reconsideration as they be warranted. Therefore, with the (800) 877–8339. relate to S6.6.3 (License Plate Holder) of publication of this notice, we are SUPPLEMENTARY INFORMATION: the December 4, 2007 final rule. initiating a review of the status of the However, the agency is granting the species to determine if listing the Request for Information petition from MIC requesting the agency Arapahoe snowfly is warranted. To When we make a finding that a to initiate rulemaking to examine the ensure that this status review is petition presents substantial issue of license plate holders and their comprehensive, we are requesting information indicating that listing a mounting requirements 5 in a separate scientific and commercial data and species may be warranted, we are other information regarding this species. required to promptly review the status 3 The 1997 revision of SAE Standard J587 permits Based on the status review, we will of the species (status review). For the license plates mounted at less than 1.2 meters above issue a 12-month finding on the the ground to be angled upwards at 30 degrees and status review to be complete and based maintained the requirement for plates to be angled petition, which will address whether on the best available scientific and downward at no more than 15 degrees. the petitioned action is warranted under commercial information, we request 4 Available at http://isearch.nhtsa.gov/files/ the Act. information on the Arapahoe snowfly 0788.html. DATES: To allow us adequate time to from governmental agencies, Native 5 Motorcycle Industry Council Petition for Rulemaking, March 14, 2005 (Docket No. NHTSA– conduct this review, we request that we American Tribes, the scientific 2005–20286–0009) receive information on or before June community, industry, and any other

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interested parties. We seek information will not be considered in making a Petition History on: determination. Section 4(b)(1)(A) of the On April 6, 2010, we received a (1) The species’ biology, range, and Act directs that determinations as to petition of the same date from The population trends, including: whether any species is an endangered or Xerces Society for Invertebrate (a) Habitat requirements for feeding, threatened species must be made ‘‘solely Conservation, Dr. Boris Kondratieff, breeding, and sheltering; on the basis of the best scientific and Save the Poudre: Poudre Waterkeeper, (b) Genetics and taxonomy; commercial data available.’’ Cache la Poudre River Foundation, (c) Historical and current range, WildEarth Guardians, and Center for including distribution patterns; You may submit your information (d) Historical and current population concerning this status review by one of Native Ecosystems, requesting that the levels, and current and projected trends; the methods listed in the ADDRESSES Arapahoe snowfly be listed as and section. If you submit information via endangered and that critical habitat be (e) Past and ongoing conservation http://www.regulations.gov, your entire designated under the Act. The petition measures for the species, its habitat, or submission—including any personal clearly identified itself as such and both. identifying information—will be posted included the requisite identification (2) The factors that are the basis for on the Web site. If you submit a information for the petitioners, as making a listing determination for a hardcopy that includes personal required by 50 CFR 424.14(a). In an species under section 4(a) of the Act (16 identifying information, you may April 13, 2010, letter to the petitioners, U.S.C. 1531 et seq.) are: request at the top of your document that we responded that we reviewed the (a) The present or threatened we withhold this personal identifying information presented in the petition destruction, modification, or information from public review. and determined that issuing an curtailment of its habitat or range; However, we cannot guarantee that we emergency regulation temporarily (b) Overutilization for commercial, will be able to do so. We will post all listing the species under section 4(b)(7) recreational, scientific, or educational hardcopy submissions on http:// of the Act was not warranted. We also purposes; www.regulations.gov. stated that due to previously received (c) Disease or predation; petitions, court orders, other listing (d) The inadequacy of existing Information and supporting actions with statutory deadlines, and regulatory mechanisms; or documentation that we received and judicially approved settlement (e) Other natural or manmade factors used in preparing this finding is agreements that would take the affecting its continued existence. available for you to review at http:// remainder of Fiscal Year 2010 to If, after the status review, we regulations.gov, or you may make an complete, we anticipated responding to determine that listing the Arapahoe appointment during normal business the petition in Fiscal Year 2011. On snowfly is warranted, we will propose hours at the U.S. Fish and Wildlife December 1, 2010, the petitioners filed critical habitat (see definition in section Service, Colorado Field Office (see FOR a Notice of Intent to sue regarding our 3(5)(A) of the Act), under section 4 of FURTHER INFORMATION CONTACT). failure to complete a 90-day finding concerning their April 6, 2010, petition the Act, to the maximum extent prudent Background and determinable at the time we to list the Arapahoe snowfly. This propose to list the species. Therefore, Section 4(b)(3)(A) of the Act (16 finding addresses the petition. within the geographical range currently U.S.C. 1533(b)(3)(A)) requires that we Previous Federal Actions occupied by the Arapahoe snowfly, we make a finding on whether a petition to request data and information on: list, delist, or reclassify a species On July 30, 2007, we received a (1) What may constitute ‘‘physical or presents substantial scientific or formal petition dated July 24, 2007, biological features essential to the commercial information indicating that from Forest Guardians (now WildEarth Guardians), requesting that the Service conservation of the species’’; the petitioned action may be warranted. consider all full species in our (2) Where these features are currently We are to base this finding on Mountain-Prairie Region ranked as G1 found; and information provided in the petition, or G1G2 by the organization (3) Whether any of these features may supporting information submitted with NatureServe (except those that are require special management the petition, and information otherwise currently listed, proposed for listing, or considerations or protection. available in our files. To the maximum candidates for listing), and list each In addition, we request data and extent practicable, we are to make this ‘‘ species as either endangered or information on specific areas outside finding within 90 days of our receipt of threatened. The Arapahoe snowfly was the geographical area occupied by the the petition and publish our notice of species’’ that are ‘‘essential to the one of the 206 species included in the the finding promptly in the Federal conservation of the species.’’ Please petition. On March 19, 2008, WildEarth Register. provide specific comments and Guardians filed a complaint indicating information as to what, if any, critical Our standard for substantial scientific that the Service failed to make a habitat you think we should propose for or commercial information within the preliminary 90-day finding on their two designation if the species is proposed Code of Federal Regulations (CFR) with multiple-species petitions—one for for listing, and why such habitat meets regard to a 90-day petition finding is mountain-prairie species, and one for the requirements of section 4 of the Act. ‘‘that amount of information that would southwest species. We subsequently Please include sufficient information lead a reasonable person to believe that published two 90-day findings, on with your submission (such as scientific the measure proposed in the petition January 6, 2009 (74 FR 419), and journal articles or other publications) to may be warranted’’ (50 CFR 424.14(b)). February 5, 2009 (74 FR 6122). The allow us to verify any scientific or If we find that substantial scientific or February 5, 2009 (74 FR 6122), 90-day commercial information you include. commercial information was presented, finding concluded that the petition did Submissions merely stating support we are required to promptly conduct a not present substantial scientific or for or opposition to the action under species status review, which we commercial information indicating that consideration without providing subsequently summarize in our 12- listing may be warranted for 165 of the supporting information, although noted, month finding. 206 species, including the Arapahoe

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snowfly. The finding noted that the Feltmate 1992, p. 33). In late winter, confluence of both streams with the petition described two actions adult winter stoneflies commonly river (Colorado State University (CSU) potentially impacting Arapahoe emerge from the space that forms under 2005, p. 1). Aerial distance between snowfly—construction of a small lake in stream ice as water levels fall through these two tributaries is approximately 5 the headwaters of one tributary the winter (Hynes 1976, p. 136). In early mi (8 km). Upper reaches of the streams providing habitat for the species, and spring, both male and female adult are typified by steep slopes with recreational use along the length of the stoneflies fly upstream along the stream ponderosa pine (Pinus ponderosa) (CSU other tributary providing habitat for the corridor (Macneale et al. 2005, p. 1117). 2005, p. 1). Lower reaches, near the species. However, the 2007 petition did The Arapahoe snowfly’s dispersal confluence with the river, have a more not link these actions with impacts to capabilities are unknown. However, open topography, with narrowleaf the species. The most recent petition, known dispersal distances of other cottonwood (Populus angustifolia), dated April 6, 2010, provided new and stoneflies range from 197 feet (ft) (60 coyote willow (Salix exigua), more detailed information regarding the meters (m)) to several miles (mi) Drummond’s willow (S. Arapahoe snowfly. This finding (kilometers (km)), with long-distance drummondiana), Rocky Mountain responds to that additional information. dispersal possibly due to drifting in the maple (Acer glabrum), chokecherry wind or attraction to lights (Petersen et Species Information (Padus virginiana), and alder (Alnus al. 1999, p. 411). In their search for incana) occurring along the stream Taxonomy mates, male winter stoneflies drum (beat margins (CSU 2005, p. 1). The stream their abdomen on the ground or on dead substrate consists of pebble, cobble, and The Arapahoe snowfly is a species in vegetation) with a frequency that is the class Hexapoda (insects), in the bedrock (CSU 2005, p. 1). In summer species-specific (Hynes 1976, p. 139). and fall, portions of both streams have order Plecoptera (stonefly), the family Mated females detach a ripened egg Capniidae (small winter stoneflies), and only intermittent water flow (CSU 2005, mass onto the water (Hynes 1976, p. p. 1). the genus Capnia (NatureServe 2009, p. 140). The eggs hatch in early spring. As 1). The species was first discovered in water temperatures rise, the nymphs Both streams where the Arapahoe 1986 and was identified as a new move into the stream’s hyporheic zone snowfly has been located are within the species in 1988 (Nelson and Kondratieff (a loose rocky substrate under the Canyon Lakes Ranger District in 1988, p. 77). The Arapahoe snowfly is stream saturated with water), undergo a Roosevelt National Forest on U.S. Forest most closely related to the Utah snowfly period of inactivity (diapause) during Service (USFS) lands, but some adjacent (Capnia utahensis), found in Utah, the warm months, complete land is privately owned, particularly in Nevada, and California, and the Sequoia development during the late fall and the Elkhorn Creek watershed (Matheson snowfly (C. sequoia), found in early winter, and emerge as adults in et al. 2010, p. 9; Mazzacano undated, p. California (Nelson and Kondratieff 1988, late winter and early spring (Mazzacano 3). p. 79). Its current taxonomic status is undated, p. 1). This development is Distribution, Abundance, and Trends accepted by the scientific community completed in a 1-year life cycle. (Integrated Taxonomic Information Additional details regarding the life The distribution and abundance of the System 2010, p. 1). Therefore, we history of many species in the genus Arapahoe snowfly are not known prior recognize the Arapahoe snowfly as a Capnia are poorly known due to the to the species’ discovery in 1986. valid species and a listable entity. inherent difficulties of sampling under Elkhorn Creek and Young Gulch are the Physical Description ice in winter and distinguishing only known locations where the between species (Mazzacano undated, p. Arapahoe snowfly has been detected Arapahoe snowfly adults are dark 2). Consequently, specific feeding (CSU 2005, p. 1). From 2007 to 2009, B. colored (Mazzacano undated, p. 1) and behavior has not been observed, but Kondratieff and B. Heinold searched six have a body length of approximately 0.2 nymphs of most species in this family additional sites that have suitable inches (in) (5 millimeters (mm)) and a feed by shredding detritus (Mazzacano habitat, including the Cache la Poudre wing length of also approximately 0.2 in undated, p. 2). (5 mm) (Nelson and Kondratieff 1988, p. River and its nearby tributaries close to 77). Both sexes have unusually large Habitat Young Gulch and Elkhorn Creek, but wings for stoneflies (Nelson and Stoneflies, including the Arapahoe did not locate the species (Matheson et Baumann 1989, p. 312). The species’ snowfly, are typically found in cold, al. 2010, p. 7). Numerous visits to size at the immature stage has not been well-oxygenated streams and rivers with Young Gulch since the species was described. a mean temperature less than 61 degrees found there in 1986 have failed to yield Fahrenheit (°F) (16 degrees Celsius (°C)) additional specimens (Nelson and Life History (Baumann 1979, p. 242; Hart et al. 1991, Kondratieff 1988, p. 79; CSU 2005, p. 1; Few studies have been conducted on p. 124; Williams and Feltmate 1992, p. Mazzacano undated, p. 2). During the Arapahoe snowfly. Therefore, most 33). Stoneflies are sensitive to most routine survey work on Elkhorn Creek of the information below comes from types of pollution, and their numbers from 2007 to 2009, only 5 of the 500 knowledge about stoneflies (order will decrease with a decrease in water Capnia stoneflies collected were Plecoptera) in general, and other quality (Baumann 1979, p. 241; Hart et identified as the Arapahoe snowfly, members of the winter stonefly family al. 1991, p. 136; Williams and Feltmate indicating rarity at its only known (family Capniidae). We expect that the 1992, p. 35; Rosenberg and Resh 1993, occupied habitat (Matheson et al. 2010, life history of the Arapahoe snowfly p. 244; Barbour et al. 1999, pp. 7–15). p. 7). Based upon the information would be consistent with that found for The Arapahoe snowfly has been available, the species currently has an other stoneflies and snowflies. collected from two small tributaries to extremely narrow distribution near the Stoneflies have a complex lifecycle that the Cache la Poudre River (Young Gulch confluence of one small stream, is rare requires terrestrial habitat during adult and Elkhorn Creek) in the Front Range within its only known occupied habitat, phases and aquatic habitat during the of the Rocky Mountains of Colorado and has likely been extirpated from one immature (nymph) phases (Lillehammer (Nelson and Kondratieff 1988, p. 79). of the two streams where it was known et al. 1989, p. 183; Williams and The species was collected near the to occur.

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Evaluation of Information for This A. The Present or Threatened these sources do not directly reference Finding Destruction, Modification, or the Arapahoe snowfly or its habitat. Curtailment of Its Habitat or Range Forest Management Practices—The Section 4 of the Act (16 U.S.C. 1533) petition asserts that control of the and its implementing regulations in the Information Provided in the Petition mountain pine beetle (Dendroctonus Code of Federal Regulations (CFR) at 50 The petition asserts that recreation, ponderosae) and the Red Feather Fuels CFR 424 set forth the procedures for grazing, certain forest management Reduction Project—both conducted by adding a species to, or removing a practices, development, and barriers to the USFS—threaten the Arapahoe species from, the Federal Lists of dispersal threaten the Arapahoe snowfly (Matheson et al. 2010, p. 16). Endangered and Threatened Wildlife snowfly. These assertions are described The petition notes that spraying with and Plants. A species may be in more detail below. carbaryl to control the ongoing determined to be an endangered or Recreation—The petition asserts that mountain pine beetle outbreak is threatened species due to one or more recreation is a threat to the Arapahoe occurring at sites near Elkhorn Creek of the five factors described in section snowfly, and provides citations (USFS 2009c, pp. 1–2). It also notes that 4(a)(1) of the Act: indicating that both stream drainages, carbaryl is highly toxic to invertebrates, (A) The present or threatened but especially Young Gulch, experience including stoneflies (Beyers et al. 1995, destruction, modification, or recreational activities such as hiking, p. 32; U.S. Environmental Protection curtailment of its habitat or range; bicycling, camping, cross-country Agency (EPA) 2004, pp. 1, 46). (B) Overutilization for commercial, skiing, and horseback riding The Red Feather Fuels Reduction recreational, scientific, or educational (Singletracks 2006, p. 1; USFS 2009a, p. Project includes the removal of purposes; 1; Two Knobby Tires 2009, p. 1; hazardous timber in order to restore (C) Disease or predation; Trailcentral 2010, p. 1; Localhikes healthy forests. The petition notes that (D) The inadequacy of existing undated, p. 1). The petition asserts that road construction and controlled regulatory mechanisms; or these activities can adversely affect burning are actions associated with the Arapahoe snowfly habitat via: (1) Runoff (E) Other natural or manmade factors removal of timber, and asserts that these of pollutants from roads and trails (2) affecting its continued existence. actions impact the Arapahoe snowfly. the introduction of bacteria and excess We address potential impacts from In considering what factors might nutrients from dog, horse, and human roads under the ‘‘Development’’ section constitute threats, we must look beyond waste; (3) trampling of streamside below. The source associated with the mere exposure of the species to the riparian habitat; (4) increased controlled burns does not directly factor to determine whether the species sedimentation from erosion caused by reference the Arapahoe snowfly or its responds to the factor in a way that foot and bike traffic; and (5) the habitat (Neary et al. 2008, pp. 142–143). causes actual impacts to the species. If construction and maintenance of stream Furthermore, the petition notes that an there is exposure to a factor, but no crossings and culverts that can interrupt uncontrolled wildfire, which may be response, or only a positive response, streamflow and deposit sediments. The more likely to occur without prescribed that factor is not a threat. If there is petition provided two references that burning, would likely be catastrophic exposure and the species responds speak generally to the impacts of (Matheson et al. p. 17). negatively, the factor may be a threat recreation on stream habitats (Goeft and Development—The petition asserts and we then attempt to determine the Alder 2001, p. 193; International that the proximity of Elkhorn Creek to significance of that threat. If the threat Mountain Biking Association 2007, pp. the Red Feather Lakes community poses is significant, it may drive or contribute 1, 8); however, these sources do not risks to stream water quality and to the risk of extinction of the species directly reference the Arapahoe snowfly consequently to the Arapahoe snowfly, such that the species may warrant or its habitat. because of recreational use, road listing as threatened or endangered, as Grazing—The petition asserts that impacts, dewatering, and waste seepage those terms are defined by the Act. This grazing can degrade water quality and from septic systems. does not necessarily require empirical negatively impact aquatic invertebrates The petition notes general impacts to proof of a threat. The combination of such as the Arapahoe snowfly via: (1) water systems caused by erosion from exposure and some corroborating Livestock trampling and consuming roads (Cederholm et al. 1980, p. 1; evidence of how the species is likely riparian vegetation, (2) livestock Anderson and Potts 1987, p. 681; impacted could suffice. The mere defecating and urinating in or adjacent Furniss et al. 1991, p. 302; Forman and identification of factors that could to the stream channel, and (3) livestock Alexander 1998, p. 219; Trombulak and impact a species negatively may not be increasing rates of erosion and Frissell 2000, p. 18; Fischel 2001, p. ii; sufficient to compel a finding that sedimentation in the stream channel Gucinski et al. 2001, pp. 24–25; listing may be warranted. The (Matheson et al. 2010, p. 14). The Angermeir et al. 2004, p. 19; Center for information shall contain evidence petition provided several citations to Environmental Excellence 2009, pp. 4– sufficient to suggest that these factors support the assertions regarding the 7). The petition notes that an increase in may be operative threats that act on the general impacts of livestock on riparian recreational activities is anticipated due species to the level that the species may habitat and associated invertebrate to recently improved road and trail meet the definition of threatened or communities (Kennedy 1977, p. 52; access in the Elkhorn Creek watershed endangered under the Act. Roath and Krueger 1982, p. 100; Clary (USFS 2009b, p. 4). It also notes that In making this 90-day finding, we and Webster 1989, p. 1; Schulz and roads and trails are already causing evaluated whether information Leininger 1990, p. 295; Chaney et al. damage to Elkhorn Creek (USFS 2009a, regarding threats to the Arapahoe 1993, p. 6; Fleischner 1994, pp. 629, p. 48). The petition notes that road salts, snowfly, as presented in the petition 635; Leonard et al. 1997, p. 3; Belsky et primarily magnesium chloride, are used and other information available in our al. 1999, pp. 419, 420–424; Strand and as deicers on roads in the area and may files, is substantial, thereby indicating Merritt 1999, pp. 17–18; Agouridis et al. increase the salinity of Elkhorn Creek that the petitioned action may be 2005, p. 592; Braccia and Voshell 2007, (Lewis 1999, p. i). The petition asserts warranted. Our evaluation of this pp. 186, 196–198; McIver and McInnis that an increase in salinity could pose information is presented below. 2007, pp. 293, 294, 298, 301). However, risks to the Arapahoe snowfly (Lewis

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1999, p. 30). However, this reference trail widening, and changes in decrease, due to the introduction of does not directly address the Arapahoe vegetation (Goeft and Alder 2001, p. more animal waste. snowfly or its habitat. 193; International Mountain Biking Information we have in our files The petition also asserts that existing Association 2007, p. 1). Eroded soil can supports the assertion in the petition water withdrawals from Elkhorn Creek enter water bodies at stream crossings, that the recreational use documented for may result in higher water temperatures resulting in sedimentation that can Elkhorn Creek and Young Gulch will and decreased dissolved oxygen affect aquatic organisms and contribute increase the rate of erosion of sediments concentrations, thereby impacting the to algal blooms that deplete dissolved and the amount of fecal deposition into species, which requires cool, well- oxygen (International Mountain Biking those streams. However, the only site- oxygenated waters. The petition notes Association 2007, p. 8). Sedimentation specific water quality information we the numerous water rights associated in the stream substrate can clog pore have is that the Elkhorn Creek with the community of Red Feather spaces in the substrate, resulting in a watershed is currently rated as Class II, Lakes (Red Feather Historical Society decrease in invertebrates that depend on or ‘‘at risk’’ of no longer being able to 2004, p. 405). The petition asserts that a well-oxygenated hyporheic zone support its beneficial uses, with several dewatering can impact biological (Anderson 1996, p. 6). Hiking and areas where roads and trails are causing activity in stream substrates, rendering horseback riding can have similar increased runoff and erosion into the them unsuitable for many aquatic effects, and animal waste may have an creek (USFS 2009a, p. 48). Young Gulch invertebrates (Hancock 2002, p. 764). additional impact on water quality currently receives more recreational use However, these references do not (Mazzacano undated, p. 2). In addition, than Elkhorn Creek. Consequently, we directly address the Arapahoe snowfly the total number of species of aquatic assume that similar impacts to the or its habitat. insect larvae (including stoneflies) Young Gulch watershed are likely. More The petition notes that most present in a stream decreases as the detailed water quality information is not development in the Red Feather Lakes number of stream crossings increases available. Taxa in the order Plecoptera area relies on septic systems (George (Gucinski et al. 2001, p. 26). Young (stoneflies), which includes the Weber Environmental, Inc. 2007, p. 11). Gulch is estimated to have 30–48 stream Arapahoe snowfly, are sensitive to most The petition asserts that septic systems crossings (Singletracks 2006, p. 1; Two types of pollution, and their numbers pose a potential risk of introducing Knobby Tires 2009, p. 1; Trailcentral will decrease with a decrease in water excess nutrients and bacteria into 2010, p. 1; Localhikes undated, p. 1). quality (Baumann 1979, p. 241; Hart et Elkhorn Creek (Hancock 2002, pp. 764– Recreational use is currently lower in al. 1991, p. 136; Williams and Feltmate 765; Peterson et al. 2003, pp. 6, 16). Elkhorn Creek than in Young Gulch 1992, p. 35; Rosenberg and Resh 1993, However, these sources do not directly (USFS 2009a, p. 4). However, p. 244; Barbour et al. 1999, pp. 7.15– reference the Arapahoe snowfly or its construction of a parking area for 12 7.16). Based on the above evaluation, we habitat. cars and 6 trucks pulling horse trailers find that the information provided in Barriers to Dispersal—The petition is under way, to provide improved the petition, as well as other notes that habitat conditions in the access for hikers, bikers, and horseback information readily available in our Cache la Poudre River are impaired riders (USFS 2009b, p. 4). The Elkhorn files, presents substantial scientific or (City of Fort Collins 2008a, p. 7). The Creek watershed is currently rated as commercial information indicating that petition asserts that this may limit the Class II, or ‘‘at risk’’ of no longer being recreational use in both Elkhorn Creek capacity of the Arapahoe snowfly to use able to support its beneficial uses and Young Gulch may pose a threat to the river as a route for dispersal to related to native plants and wildlife, the Arapahoe snowfly such that the colonize other nearby tributaries. This soils, and watershed functions, with petitioned action may be warranted. outcome would result in the species several areas where roads and trails are Grazing—Three active allotments lie being entirely confined to Elkhorn causing increased runoff and erosion within the Elkhorn Creek watershed, Creek. However, this reference does not into the Creek (USFS 2009a, p. 48). including one directly upstream from directly address the Arapahoe snowfly Class-II watersheds exhibit some known Arapahoe snowfly habitat (USFS or its habitat. impairment relative to their potential 2009a, p. 56). No active grazing optimum condition (USFS 2009a, p. 48). allotments occur within the Young Evaluation of Information Provided in Taxa in the order Plecoptera (stoneflies), Gulch watershed. The effects of cattle the Petition and Available in Service which includes the Arapahoe snowfly, grazing on stream water quality in the Files are sensitive to impaired water quality western United States have been well Recreation—As the petition noted, the caused by run-off and erosion, and their documented, and include increased soil Young Gulch trail is popular with hikers numbers will decrease with a decrease erosion, sedimentation, fecal deposition, and mountain bikers (Localhikes.com in water quality (Baumann 1979, p. 241; and water temperature, as well as undated, p. 1). Young Gulch also is one Hart et al. 1991, p. 136; Williams and decreased dissolved oxygen and willow of the few trails that allows off-leash Feltmate 1992, p. 35; Rosenberg and canopy (Chaney et al. 1993, p. 6; dogs, so it is particularly popular with Resh 1993, p. 244; Barbour et al. 1999, Fleischner 1994, pp. 631–635; Belsky et dog owners (Singletracks 2006, p. 1; pp. 7.15–7.16). al. 1999, p. 420; Agouridis et al. 2005, Trailcentral 2010, p. 1; Localhikes.com Most visitors to USFS lands are from p. 592; Holland et al. 2005, p. 149; undated, p. 1). Horseback riding, cross- local areas (USFS 2008b, p. 8). The Coles-Ritchie et al. 2007, p. 733; McIver country skiing, backcountry camping, population of nearby Fort Collins has and McInnis 2007, p. 294). Livestock and hunting also are allowed (Two grown in recent years (City of Fort excrement elevates streamwater Knobby Tires 2009, p. 1). A USFS Collins 2008, p. 1; City of Fort Collins concentrations of inorganic phosphorus campground is located adjacent to 2009, p. 1). Consequently, recreational and nitrogen, which in turn increases where the Arapahoe snowfly was found use at Elkhorn Creek and Young Gulch growth of filamentous algae and in Young Gulch. is likely to increase (USFS 2009b, p. 1). production by microbes that can reduce Information in our files supports the Increased recreational use will likely dissolved oxygen concentrations (Strand assertion in the petition that mountain increase erosion and resultant and Merrit 1999, p. 17). biking can cause soil erosion and sedimentation in both streams. Water Reduced concentrations of dissolved compaction, degraded water quality, quality in both streams also is likely to oxygen can adversely affect stonefly

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nymphs, which have high oxygen buffer zones near aquatic habitats, these same parameters (Neary et al. requirements (Williams and Feltmate insecticide can be deposited in streams 2008, pp. 142–143). Consequently, there 1992, p. 39). Overall, these changes can via aerial drift or runoff from adjacent is not substantial information to suggest result in decreased populations of upland areas (Beyers et al. 1995, p. 27). that the Red Feather Fuels Reduction invertebrates that require cleaner, colder Stoneflies are particularly sensitive to Project is likely to adversely impact the waters and coarser substrates (Belsky et carbaryl. The EPA rated carbaryl as Arapahoe snowfly. Based on the above al. 1999, p. 424). When this occurs, ‘‘very highly toxic’’ to aquatic evaluation, we find that the information sensitive taxa such as stoneflies are invertebrates, and used a species of provided in the petition, as well as other typically replaced by more tolerant taxa stonefly (Chloroperla grammatica) as information readily available in our such as Chironomidae (Braccia and one of the test species in their files, does not present substantial Reese Voshell 2007, p. 186; McIver and evaluation (EPA 2004, p. 46). We scientific or commercial information McInnis 2007, p. 301). We have no site- assume that, as a species of stonefly, the indicating that the Red Feather Fuels specific water quality data regarding Arapahoe snowfly would be similarly Reduction Project may pose a threat to concentrations of phosphorus, nitrogen, vulnerable. Another study reported that the Arapahoe snowfly such that the or dissolved oxygen, or water virtually all stoneflies were dead petitioned action may be warranted. temperature or other parameters affected following an application of carbaryl Development—The petition asserts by fecal deposition from livestock. We (Courtemanch and Gibbs 1980, as that development from roads, also have no site-specific data regarding reported by Beyers et al. 1995, p. 32). In dewatering, and septic systems sedimentation caused by livestock a healthy invertebrate population, associated with the Red Feather Lakes disturbance. However, based upon the colonization by unaffected organisms community poses a risk to the Arapahoe presence of known active grazing living upstream would probably snowfly. Red Feather Lakes has allotments in the Elkhorn Creek compensate for this mortality (Beyers et approximately 600 residents, as well as watershed, and well-documented al. 1995, p. 32). However, a narrow several tourist facilities. At its closest impacts to water quality caused by endemic such as the Arapahoe snowfly point, Elkhorn Creek comes within grazing at other streams in the western could potentially be extirpated. approximately 2.5 mi (4 km) of Red United States, there appears to be Therefore, there appears to be Feather Lakes. substantial information indicating that substantial information indicating that Information in our files supports the grazing may be negatively impacting the the use of carbaryl to control the fact that road construction and species. Based on the above evaluation, ongoing outbreak of mountain pine subsequent use and maintenance can we find that the information in the beetles may be a potential threat to the result in increased erosion and petition, as well as other information Arapahoe snowfly. Based on the above sedimentation of streams, as well as decreased water quality due to readily available in our files, presents evaluation, we find that the information accidental spills and use of deicers substantial scientific or commercial provided in the petition, as well as other (Cederholm et al. 1980, p. 1; Anderson information indicating that livestock information readily available in our and Potts 1987, p. 681; Furniss et al. grazing may pose a threat to the files, presents substantial scientific or 1991, p. 302; Forman and Alexander Arapahoe snowfly such that the commercial information indicating that 1998, p. 219; Trombulak and Frissell petitioned action may be warranted. the use of carbaryl to control the 2000, p. 18; Fischel 2001, p. ii; Gucinski Forest Management Practices—The ongoing outbreak of mountain pine et al. 2001, pp. 24–25; Angermeir et al. forest management practices noted by beetles may pose a threat to the the petition were control of the 2004, p. 19; Center for Environmental Arapahoe snowfly such that the mountain pine beetle and the Red Excellence 2009, pp. 4–7). Increased petitioned action may be warranted. Feather Fuels Reduction Project. Both of sedimentation can compromise the these management practices could result The ongoing Red Feather Fuels hyporheic zone, upon which Arapahoe in increased road use or the Reduction Project includes thinning of snowfly nymphs depend (Mazzacano construction of new roads (USFS 2009a, forest stands and controlled burns. Tree undated, p. 1). We are not aware of any RAP Appendix). We address impacts removal associated with thinning can road crossings or roads running adjacent from roads in the following increase sedimentation within the to Young Gulch. There are several areas ‘‘Development’’ section. Effects from drainage basin (Anderson 1996, p. 1). where roads and trails along Elkhorn spraying insecticide, tree thinning, and Increased sedimentation can reduce Creek are causing increased runoff and controlled burns are discussed in this exchange between surface waters and erosion, and the watershed is rated as section. the hyporheic zone, and, without flow Class II or ‘‘at risk’’ (i.e., the watershed Recent mountain pine beetle to renew nutrients and oxygen and flush exhibits moderate integrity relative to its outbreaks have killed millions of trees wastes, the sediments become potential condition and is at risk of no in Colorado (Black et al. 2010, p. 3). unsuitable for invertebrates that utilize longer being able to support its Mountain pine beetle infestations are this zone (Hancock, 2002, p. 764). beneficial uses) (USFS 2009a, p. 48). building in ponderosa pine forests along Arapahoe snowfly nymphs depend Total average road density in the Red the Colorado Front Range, including in upon the hyporheic zone as habitat to Feather Lakes area of the Canyon Lakes Larimer County (Ciesla 2010, p. 2). undergo diapause during the summer Ranger District is 3.5 mi of road per Control of the mountain pine beetle in months (Mazzacano undated, p. 1). square mile (mi 2) (2.2 km of road per the Canyon Lakes Ranger District However, as noted by the petitioners, an square kilometer (km 2), with five stream includes use of the insecticide carbaryl. intense wildfire in the Elkhorn Creek crossings in the Elkhorn Creek The USFS crews sprayed more than drainage, which would be more likely to watershed (USFS 2009a, RAP 11,000 infested trees in 2009 and 16,000 occur without fuel reduction, could be Appendix). Additional temporary roads infested trees in 2010 in the Canyon catastrophic for the species. The will be constructed during the Red Lakes Ranger District, with some responses of aquatic invertebrates to fire Feather Fuels Reduction Project and locations near Elkhorn Creek, including are indirect and vary widely, with some later rehabilitated; however, they will be campgrounds at West and Bellaire Lakes studies showing a decline in abundance, in upland areas, at least 100 ft (30 m) (USFS 2009c, p. 1; Matheson 2010, p. species richness, and diversity, and from any streams or riparian areas 16). Despite the existence of no-spray others showing a long-term increase in (USFS 2008, p. 10).

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The Elkhorn Creek watershed is Society 2004, p. 4; Colorado Water Creek and Young Gulch, are considered currently rated as Class II, or ‘‘at risk’’ of Conservation Board 2009, p. 10). Based generally pristine, with no contaminants no longer being able to support its upon topographic maps, these water detected during several years of routine beneficial uses, with several areas where rights appear to be predominantly in the sampling (George Weber Environmental, roads and trails are causing increased Gordon Creek and Lone Pine watersheds Inc. 2007, p. 7). In Fort Collins, the river runoff and erosion into the Creek (USFS adjacent to Elkhorn Creek. We have no is highly modified, with reduced flow, 2009a, p. 48). Based upon the presence information indicating that these increased water temperature, and of roads in the Elkhorn Creek diversions may have an impact on the nutrient loading that are detrimental to watershed, including several stream Elkhorn Creek watershed. Similarly, aquatic insects (City of Fort Collins crossings of Elkhorn Creek, there septic systems in and around Red 2008a, pp. 5–7). However, the river appears to be substantial information Feather Lakes appear to be located reach through Fort Collins does not indicating that erosion from roads may predominantly in the Gordon Creek and have the necessary habitat for the be adversely impacting the species. Lone Pine watersheds, and not the species and is many miles downstream Based on the above evaluation, we find Elkhorn Creek watershed (Red Feather from Elkhorn Creek and Young Gulch. that the information provided in the Historical Society 2004, p. 4; Colorado Consequently, there is not substantial petition, as well as other information Water Conservation Board 2009, p. 10). information that barriers to dispersal are readily available in our files, presents However, one wastewater treatment likely to adversely impact the Arapahoe substantial scientific or commercial facility is located on Elkhorn Creek snowfly. Based on the above evaluation, information indicating that erosion from (George Weber Environmental, Inc. we find that the information provided in roads in the Elkhorn Creek watershed 2007, p. 11). Effluents in wastewater the petition, as well as other may pose a threat to the Arapahoe discharge may concentrate in the information readily available in our snowfly such that the petitioned action hyporheic zone (Hancock 2002, pp. files, does not present substantial may be warranted. 763–764). However, we have no scientific or commercial information The Colorado Department of information indicating that these septic indicating that barriers to dispersal may Transportation uses magnesium systems and treatment facility are pose a threat to the Arapahoe snowfly chloride liquid deicers on mountain impacting the Elkhorn Creek watershed. such that the petitioned action may be roads (Lewis 1999, p. i). Deicers can Consequently, there is not substantial warranted. increase salinity of nearby water bodies information that dewatering or septic Summary of Factor A that receive runoff from roads, which in systems is likely to adversely impact the Based upon the information provided turn degrades habitat for aquatic Arapahoe snowfly. Based on the above in the petition, as well as other organisms (Kaushal et al. 2005, p. evaluation, we find that the information information readily available in our 13517). If streams are frozen, flushing provided in the petition, as well as other files, and considering the very limited may not occur until temperatures rise in information readily available in our range of the Arapahoe snowfly and its the spring (Silver et al. 2009, p. 942). files, does not present substantial apparent small numbers, we find that Stoneflies are not commonly found in scientific or commercial information the petition presents substantial waters where salinities are greater than indicating that dewatering or septic scientific or commercial information 1,000 milligrams per Liter (mg/L) (1,000 systems may pose a threat to the parts per million (ppm)) (Hart et al. indicating that the Arapahoe snowfly Arapahoe snowfly such that the may warrant listing due to the present 1991, pp. 124, 136). Most studies petitioned action may be warranted. indicate that contamination begins to or threatened destruction, modification, decline within 66 ft (20 m) from the Barriers to Dispersal—Most stoneflies or curtailment of the species’ habitat or road, but may occur 660 ft (200 m) or are clumsy fliers that have difficulty range primarily due to: (1) more from the road (Trombulak and crossing even small ecological barriers Sedimentation caused primarily by Frissell 2000, p. 22). We have no (Hynes 1976, p. 135). Consequently, erosion from recreation, livestock information indicating what the amount they are poor dispersers (Lillehammer et grazing, and roads; (2) reduced of deicer used on these roads may be, al. 1989, p. 173). However, precise concentrations of dissolved oxygen or if any of the roads where deicer is dispersal capabilities for the Arapahoe caused by nutrient enrichment from used are near Elkhorn Creek or Young snowfly are unknown (Mazzacano waste deposition during recreation and Gulch. We also do not have any undated, p. 2). The species has livestock grazing; and (3) the use of evidence that these stream systems are unusually large wings for a stonefly carbaryl to control the ongoing outbreak impacted by deicers. Consequently, (Nelson and Baumann 1989, p. 312), but of mountain pine beetles. There is not there is not substantial information that there is no information indicating what substantial information to indicate that deicers are likely to adversely impact effect this may have on dispersal tree thinning, controlled burns, deicers, the Arapahoe snowfly. Based on the capabilities. There also is no dewatering, septic systems, or barriers above evaluation, we find that the information regarding whether the to dispersal are causing noticeable information provided in the petition, as species uses the Cache la Poudre River impacts within the Elkhorn Creek or well as other information readily as a dispersal corridor. Typically, adult Young Gulch watersheds. We will available in our files, does not present stoneflies fly upstream along the stream assess all of these stressors more substantial scientific or commercial corridor prior to mating and laying eggs thoroughly during our status review in information indicating that deicers may (Macneale et al. 2005, p. 1127) and, order to better quantify potential effects pose a threat to the Arapahoe snowfly therefore, would not likely use the river, on the Arapahoe snowfly. such that the petitioned action may be which is downstream of the locale. warranted. Dispersal of larval stoneflies can include B. Overutilization for Commercial, Existing and proposed water rights, downstream drift and upstream Recreational, Scientific, or Educational associated with private lands in and movement (Peterson et al. 2004, p. 935), Purposes around Red Feather Lakes, allow well so it is possible that larvae could drift The petition notes that the Arapahoe construction and irrigation diversion, downstream into the river. Upstream snowfly is not used commercially and is and may result in dewatering of portions of the river, which would not at risk of over collection. Neither the adjacent streams (Red Feather Historical include the confluences with Elkhorn petition nor information within our files

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presents substantial scientific or snowfly is not listed as a ‘‘sensitive for projects they fund, authorize, or commercial information that collection species’’ by the USFS. On June 23, 2003, carry out. The Council on was, or is, occurring at a level that we designated a portion of the Cache la Environmental Quality’s regulations for impacts the overall status of the species. Poudre River, including the confluences implementing NEPA (40 CFR 1500– Therefore, we find the petition does not of Elkhorn Creek and Young Gulch, as 1518) state that agencies shall include a present substantial scientific or critical habitat for the Preble’s meadow discussion on the environmental commercial information to indicate that jumping mouse (Zapus hudsonius impacts of the various project overutilization for commercial, preblei) (68 FR 37275). On December 15, alternatives, any adverse environmental recreational, scientific, or educational 2010, we published a revised critical effects which cannot be avoided, and purposes may present a threat to the habitat rule for Preble’s meadow any irreversible or irretrievable Arapahoe snowfly such that the jumping mouse, reaffirming the commitments of resources involved (40 petitioned action may be warranted. designation of this area (75 FR 78429). CFR 1502). Additionally, activities on However, we will assess this factor more However, the petition notes that this non-Federal lands are subject to NEPA thoroughly during our status review for designation does not affect any if there is a Federal action. NEPA is a the species. upstream activities, and there is no disclosure law, and does not require signage within the critical habitat area subsequent minimization or mitigation C. Disease or Predation of Elkhorn Creek and Young Gulch measures by the Federal agency Information Provided in the Petition indicating the presence of the mouse. involved. Although Federal agencies The petition notes that disease and Therefore, the petition asserts that the may include conservation measures for predation are not known to threaten the Arapahoe snowfly derives no protection sensitive species as a result of the NEPA Arapahoe snowfly. However, the from the critical habitat designation. process, any such measures are typically voluntary in nature and are not required petition also notes that threats from Evaluation of Information Provided in disease and predation have never been by the statute. the Petition and Available in Service Both stream reaches where the assessed. The petition asserts that the Files rarity and limited range of the species Arapahoe snowfly has been located are The Arapahoe snowfly currently make it more vulnerable to extinction included in critical habitat designated receives no direct protection under for the Preble’s meadow jumping mouse from normal population fluctuations Federal or State law. It is designated as in 2010. Critical habitat extends 360 ft resulting from disease or predation. ‘‘critically imperiled’’ at both the State (110 m) from the edge of the stream on Evaluation of Information Provided in and global level by Colorado’s Natural both sides for Young Gulch, and extends the Petition and Available in Service Heritage Program and NatureServe 394 ft (120 m) from the edge of the Files (NatureServe 2009, p. 1), respectively, stream on both sides for Elkhorn Creek. We address the potential risks due to but, as previously noted, this The bodies of the streams are not a small population size under Factor E. designation does not provide any legal included. This designation indirectly We reviewed information in our files protection for the species or its habitat. provides some protection to the and the information provided by the The Colorado Natural Heritage Program Arapahoe snowfly through section has proposed a Potential Conservation petition, and did not find substantial 7(a)(2) of the Act, which requires Area (PCA) for the species that would information to indicate that disease or Federal agencies to confer with us on encompass approximately 5,000 acres predation may be outside the natural any action funded, authorized, or (ac) (2,000 hectares (ha)) and include range of variation such that either could carried out by a Federal agency that is portions of both Elkhorn Creek and be considered a threat to the Arapahoe likely to jeopardize the continued Young Gulch (CSU 2005, p. 2). This snowfly. Therefore, we find the petition existence of the Preble’s meadow PCA has a Biodiversity Significance does not present substantial scientific or jumping mouse or destroy or adversely Rank of B1 for outstanding biodiversity commercial information to indicate that modify its critical habitat. significance. This is the highest level of Examples of specific actions that may disease or predation may present a biological diversity that can be assigned adversely affect Preble’s meadow threat to the Arapahoe snowfly such to a site. A PCA can provide planning jumping mouse critical habitat and that the petitioned action may be and management guidance, but infers no therefore require consultation include warranted. However, we will assess this legal status. The Arapahoe snowfly is land clearing, road construction, factor more thoroughly during our status designated as a ‘‘species of greatest grazing, water diversions, and activities review for the species. conservation need’’ by Colorado that change water, sediment, or nutrient D. The Inadequacy of Existing Division of Wildlife, based upon its inputs, or that significantly and Regulatory Mechanisms global and State ranking by the Colorado detrimentally alter water quantity (75 Natural Heritage Program (Colorado FR 78456). Any other activities that Information Provided in the Petition Division of Wildlife 2006, pp. 17, 20), might adversely affect critical habitat The petition claims that the Arapahoe but this also confers no protection. would also require consultation. snowfly receives no recognition or The Arapahoe snowfly occurs on However, actions that do not affect the protection under Federal or state law. USFS lands and is protected indirectly Preble’s meadow jumping mouse or its The petition notes that it is recognized by general Federal laws and regulations habitat, or do not have a Federal nexus, as ‘‘critically imperiled’’ by Colorado’s mandating how USFS lands are would not require consultation. Natural Heritage Program. This managed. However, no direct protection Additionally, Federal actions that designation means that the species is of the Arapahoe snowfly is provided by occurred prior to 2003 did not require considered to be at very high risk of USFS. consultation because critical habitat for extinction due to extreme rarity (five or Projects conducted within the species’ the Preble’s meadow jumping mouse fewer populations), very steep declines, occupied habitat may be subject to the had not yet been designated. or other factors. However, this requirements of the National Consequently, there was no potential designation does not provide any Environmental Policy Act of 1970 (42 benefit to the Arapahoe snowfly with protection for the species or its habitat. U.S.C. 4321 et seq.) (NEPA). All Federal regard to these types of actions before The petition notes that the Arapahoe agencies are required to adhere to NEPA the 2003 critical habitat designation.

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Although there are no regulatory describing current and future impacts in now evident from observations of mechanisms that directly protect the the western United States from climate increases in global average air and ocean Arapahoe snowfly, its habitat may be change (Rood et al. 2005, p. 217; Field temperatures, widespread melting of protected from future adverse impacts et al. 2007, p. 623; Barnett et al. 2008, snow and ice, and rising global average caused by Federal actions that impact p. 1080; Saunders et al. 2008, p. 42). sea level.’’ Average Northern Preble’s meadow jumping mouse critical The petition asserts that global climate Hemisphere temperatures during the habitat. It is not clear whether the change may impact the species through second half of the 20th century were existing regulatory mechanisms, increased floods and droughts and very likely the highest in at least the including consultation with Federal management actions taken in response past 1,300 years (IPCC 2007, p. 6). It is agencies under section 7 of the Act, to the proliferation of mountain pine very likely that over the past 50 years, adequately protect the Arapahoe beetles. cold days, cold nights, and frosts have become less frequent over most land snowfly from potential threats such as Evaluation of Information Provided in areas, while hot days and hot nights those determined to be substantial the Petition and Available in Service have become more frequent (IPCC 2007, under Factor A. At this phase in the Files review process, we cannot seek input p. 6). It is likely that heat waves have from outside agencies such as the USFS. Small Population Size—The become more frequent over most land However, we intend to contact them Arapahoe snowfly is currently known to areas, and the frequency of heavy during the status review regarding any occur only at one site on Elkhorn Creek precipitation events has increased over additional information that they may be near its confluence with the Cache la most areas (IPCC 2007, p. 6). able to provide on the extent to which Poudre River. It is likely extirpated from Changes in the global climate system their existing regulatory mechanisms the other known location on Young during the 21st century are likely to be serve to protect the Arapahoe snowfly. Gulch. The species is apparently rare at larger than those observed during the There is uncertainty about whether or its only known occupied habitat on 20th century (IPCC 2007, p. 19). For the not existing regulatory mechanisms are Elkhorn Creek—during routine survey next two decades, a warming of about ° ° adequate for protecting Arapahoe work from 2007 through 2009, only 5 of 0.4 F (0.2 C) per decade is projected snowfly. The petitioners present the 500 Capnia stoneflies collected were (IPCC 2007, p. 19). By the end of the information for further consideration of identified as the Arapahoe snowfly 21st century, average global this factor. The fact that the known sites (Matheson et al. 2010, p. 7). Information temperatures are expected to increase ° ° lie within the designation of Preble’s in our files supports the information 1.1 to 7.2 F (0.6 to 4.0 C) from current meadow jumping mouse critical habitat presented in the petition that a species temperatures, with the greatest warming offers the Arapahoe snowfly some with such limited distribution and rarity expected over land (IPCC 2007, p. 20). protection from several potential threat is vulnerable to extinction from Several scenarios are virtually certain or factors. Additionally, Arapahoe systematic pressures or stochastic very likely to occur in the 21st century, snowfly-occupied habitat is on USFS (random) disruptions (Shaffer 1981, p. including: (1) Over most land, there will lands that are subject to general Federal 131). This vulnerability is increased be warmer days and nights in general, laws and regulations mandating how when threats are present. Systematic fewer cold days and nights, and more pressures on the Arapahoe snowfly those lands are managed. Given the frequent hot days and nights; (2) areas include impacts on habitat from level of information that we have at this affected by drought will increase; and sedimentation caused by recreational 90-day finding stage, it is unclear (3) the frequency of warm spells and use, livestock grazing, and road whether the regulatory mechanisms heat waves over most land areas will construction. Potential stochastic pertaining to Preble’s meadow jumping likely increase (IPCC 2007, pp. 22, 27). disruptions could include natural mouse critical habitat and impacts from The IPCC predicts that the resiliency of catastrophes such as flood, fire, and Factor A are inadequate. We recognize many ecosystems is likely to be drought, or genetic changes resulting that the information presented in Factor exceeded this century by an from limited genetic diversity. unprecedented combination of climate A was substantial. Consequently, we Based upon the information discussed will assess all factors, including the change, associated disturbances (e.g., under Factor A, and considering the flooding, drought, wildfire, and insects), adequacy of existing regulatory very limited range of the Arapahoe and other global drivers. With medium mechanisms, more thoroughly during snowfly and its apparent rarity, we find confidence, IPCC predicts that our status review for the species, that the petition presents substantial approximately 20 to 30 percent of plant including consideration of stressors scientific or commercial information and animal species assessed so far are existing in the immediate vicinity of indicating that the petitioned action likely to be at an increased risk of occupied habitat, as well as stressors may be warranted due to the species’ extinction if increases in global average that exist upstream from the critical small population size. Such a small temperature exceed 3 to 5 °F (1.5 to 2.5 habitat designation. population is more vulnerable to °C). E. Other Natural or Manmade Factors systematic pressures such as those The western United States is being Affecting Its Continued Existence described above, and any adverse effects affected more by a changed climate than are likely exacerbated. However, there is any other part of the United States Information Provided in the Petition not sufficient information to indicate outside of Alaska (Saunders et al. 2008, The petition asserts that small that stochastic disruptions are likely. p. iv). Colorado is 3.1 °F (1.7 °C) warmer population size and climate change We will assess all of these stressors over the past 100 years (Saunders et al. threaten the Arapahoe snowfly. The more thoroughly during our status 2008, p. 42). Numerous studies of the petition presents one citation that review in order to better quantify western United States show more winter supports that small populations are potential effects on the Arapahoe precipitation falling as rain instead of generally at greater risk of extinction snowfly. snow, earlier snow melt, and associated from normal population fluctuations, Climate Change—According to the changes in river flow (Barnett et al. natural disasters, and loss of genetic Intergovernmental Panel on Climate 2008, p. 1080). Sensitive coldwater diversity (Shaffer 1981, p. 131). The Change (IPCC 2007, p. 6), ‘‘warming of species are likely to be stressed by petition provides several citations the climate system is unequivocal, as is increasing water temperatures (Rood et

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al. 2005, p. 217). Disturbances such as We are not aware of any information DEPARTMENT OF THE INTERIOR wildfire and insect outbreaks are regarding impacts from factors A and E increasing and are likely to intensify that specifically pertains to the Fish and Wildlife Service with drier soils and a longer growing Arapahoe snowfly. However, there is season (Field et al. 2007, p. 619). The adequate information documenting that 50 CFR Part 17 mountain pine beetle has expanded its recreation, grazing, carbaryl spraying, [Docket No. FWS–R4–ES–2011–0007; MO range into areas previously too cold to and road usage are ongoing in Elkhorn 92210–0–0008] support it (Field et al. 2007, p. 623; Creek and that recreation is occurring in Saunders et al. 2008, pp. 21, 23). The Young Gulch. There also is adequate Endangered and Threatened Wildlife USFS predicts that in Colorado and information documenting the likely and Plants; 90-Day Finding on a southern Wyoming, mountain pine adverse effects of these activities on Petition To List the Smooth-Billed Ani beetles will likely kill the majority of stoneflies. Consequently, we have as Threatened or Endangered mature lodgepole pine forests within the concluded that since the Arapahoe next 3 to 5 years (Saunders et al. 2008, snowfly is a species of stonefly, it is AGENCY: Fish and Wildlife Service, pp. 21 and 23). likely being adversely affected by these Interior. Aquatic insects may respond to activities, particularly in view of its very ACTION: Notice of 90-day petition elevated temperatures in the following narrow known range and rarity within finding. ways: (1) Behaviorally, by emigrating that range. We will assess all of these SUMMARY: We, the U.S. Fish and from, or changing distribution within, factors more thoroughly during our Wildlife Service, announce a 90-day stressed regions; or (2) physiologically, status review for the species. finding on a petition to list the smooth- by adjusting the duration and extent of Because we have found that the billed ani (Crotophaga ani) as growth and development in immature petition presents substantial threatened or endangered under the stages, and ultimate size, condition, and information indicating that listing the Endangered Species Act of 1973, as fecundity as adults (Williams and Arapahoe snowfly may be warranted, amended (Act). Based on our review, we Feltmate 1992, p. 285). Impacts from we are initiating a status review to find that the petition does not present global warming will vary greatly at the determine whether listing the Arapahoe substantial information indicating that species level (Williams and Feltmate snowfly under the Act is warranted. 1992, p. 287). The Arapahoe snowfly The ‘‘substantial information’’ listing the species may be warranted. will likely be affected by warmer standard for a 90-day finding differs Therefore, we are not initiating a status streamflows and by continuing from the Act’s ‘‘best scientific and review in response to this petition. outbreaks of mountain pine beetle. commercial data’’ standard that applies However, we ask the public to submit to However, we cannot predict the extent to a status review to determine whether us any new information that becomes to which the species will be able to a petitioned action is warranted. A 90- available concerning the status of, or adjust behaviorally or physiologically to day finding does not constitute a status threats to, the smooth-billed ani or its these changes. We will assess this factor review under the Act. In a 12-month habitat at any time. more thoroughly during our status finding, we will determine whether a DATES: The finding announced in this review for the species. petitioned action is warranted after we document was made on April 26, 2011. In summary, we find that the have completed a thorough status ADDRESSES: This finding is available on information provided in the petition, as review of the species, which is the Internet at http:// well as other information readily conducted following a substantial 90- www.regulations.gov at Docket Number available in our files, presents day finding. Because the Act’s standards FWS–R4–ES–2011–0007. Supporting substantial scientific or commercial for 90-day and 12-month findings are documentation we used in preparing information indicating that the different, as described above, a this finding is available for public petitioned action may be warranted due substantial 90-day finding does not inspection, by appointment, during to other natural or manmade factors necessarily mean that the 12-month normal business hours at the U.S. Fish affecting its continued existence such as finding will result in a warranted and Wildlife Service, South Florida the apparent small population size of finding. Ecological Services Office, 1339 20th the Arapahoe snowfly, especially given Street, Vero Beach, Florida 32960–3559. References Cited the stressors it faces from recreation, Please submit any new information, grazing, and certain forest management A complete list of references cited is materials, comments, or questions practices. The species also will likely be available on the Internet at http:// concerning this finding to the above affected by climate change; however, we www.regulations.gov or upon request address. cannot currently predict the extent to from the Colorado Field Office (see FOR FOR FURTHER INFORMATION CONTACT: which it will be able to adjust to these FURTHER INFORMATION CONTACT). changes. Spencer Simon, Assistant Field Author Supervisor, of the South Florida Finding The primary authors of this notice are Ecological Services Office (see On the basis of our determination staff members of the Regional Office and ADDRESSES) by telephone 772–562– under section 4(b)(3)(A) of the Act, we the Colorado Field Office (see 3909, or by facsimile to 772–562–4288. have determined that the petition ADDRESSES). If you use a telecommunications device presents substantial scientific or for the deaf (TDD), please call the commercial information indicating that Authority: The authority for this action is Federal Information Relay Service the Endangered Species Act of 1973, as listing the Arapahoe snowfly throughout amended (16 U.S.C. 1531 et seq.). (FIRS) at 800–877–8339. its entire range may be warranted. This SUPPLEMENTARY INFORMATION: finding is based on information Dated: April 13, 2011. provided under factors A and E. The Rowan Gould, Background information provided in the petition Director, U.S. Fish and Wildlife Service. Section 4(b)(3)(A) of the Act (16 under factors B, C, and D is not [FR Doc. 2011–9973 Filed 4–25–11; 8:45 am] U.S.C. 1531 et seq.) requires that we substantial. BILLING CODE 4310–55–P make a finding on whether a petition to

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list, delist, or reclassify a species smooth-billed ani is a medium-sized suburban areas, open areas with brush presents substantial scientific or cuculid, with a length of 12–14 inches or scrub, plantations, gardens, commercial information indicating that (30–36 centimeters) and a mass of farmlands, and forest clearings (Quinn the petitioned action may be warranted. approximately 3.5 ounces (100 grams) and Startek-Foote 2000, section 6, p. 1). We are to base this finding on (Ridgway 1916 and Loflin 1983 as cited Preferred habitat is considered to be information provided in the petition, in Quinn and Startek-Foote 2000, open grassland (Blanchard 2000, p. 5). supporting information submitted with section 2, p. 1). Males tend to be slightly In Puerto Rico, Guyana, Cuba, Jamaica, the petition, and information otherwise larger than females (Quinn and Startek- Colombia, and the Gala´pagos Islands, available in our files. To the maximum Foote 2000, section 2, p. 1). This species this species uses cow pastures and extent practicable, we are to make this is distinguished by: all-black plumage, adjacent lands (Quinn and Startek-Foote finding within 90 days of our receipt of glossed with greenish or violet 2000, section 6, p. 1). In south Florida, the petition and publish our notice of iridescence in parts; a long tail density was positively correlated with the finding promptly in the Federal (approximately 6.8 in (17.2 cm)); a large, amount of grazing lands and human Register. arched, and laterally compressed bill, habitation (Loflin 1983 as cited in Our standard for substantial scientific usually showing a raised hump on the Quinn and Startek-Foote 2000, section or commercial information within the basal half of the upper mandible; and a 6, p. 1). In general, this species typically Code of Federal Regulations (CFR) with distinctive call, including a whining occupies lowlands, often near the coast, regard to a 90-day petition finding is ‘‘ah-nee,’’ which is usually delivered 1– preferring a source of water (e.g., marsh, ‘‘that amount of information that would 4 times, along with other vocalizations pond, river) and avoiding dense forest lead a reasonable person to believe that (Quinn and Startek-Foote 2000, section (Quinn and Startek-Foote 2000, section the measure proposed in the petition 1, p. 1; section 2, p. 1; section 8, p. 1). 6, p. 1). In a study area in south Florida, may be warranted’’ (50 CFR 424.14(b)). Immature birds resemble adults, but the smooth-billed ani was found to If we find that substantial scientific or their plumage contains a mixture of dull occupy discontinuous patches of habitat commercial information was presented, and glossy blackish feathers, and the bill (e.g., parks, nurseries, small we are required to promptly conduct a is slightly shallower (Quinn and Startek- undeveloped plots of land) and avoid species status review, which we Foote 2000, section 2, p. 1). Juveniles tall grasses of the Everglades (Loflin subsequently summarize in our 12- are also similar in appearance to adults, 1983 as cited in Quinn and Startek- month finding. but with plumage that is entirely dull Foote 2000, section 6, p. 1). Petition History blackish in color with little or no gloss, Additionally, the species has been and a smaller bill without a raised found within and near impoundments On April 5, 2005, we received a hump (Quinn and Startek-Foote 2000, within the Loxahatchee National petition, dated March 23, 2005, from section 2, p. 1). Robert Showler of Homestead, Florida, Wildlife Refuge (NWR) (Service 1997, p. The smooth-billed ani occurs over a 48; 1998, p. 50; 1999a, p. 65; 2003a, pp. requesting that the smooth-billed ani considerable global geographic range. It (Crotophaga ani), a bird, be listed as 113–114) and on various outer islands is considered a resident from central within the Florida Keys NWR Complex endangered under the Act. The petition Florida south through the Caribbean, clearly identified itself as such and (Service 1992, p. 85; 1999b, p. 60; 2001, and south into Central and South p. 69; 2003b, p. 84). included the requisite identification America through Ecuador and northern information for the petitioner(s), as Argentina, except in the Andes This species feeds primarily on required by 50 CFR 424.14(a). In an (Stevenson and Anderson 1994, p. 355; insects and small vertebrates, especially April 29, 2005, letter to the petitioner, Quinn and Startek-Foote 2000, section when these forage items are abundant we responded that we received the 3, p. 1). The species is generally during the rainy season; fruit is an petition for the smooth-billed ani, and nonmigratory; however, some local important component of the diet during that because of inadequate funding for movement occurs during the dry season, the dry season (Quinn and Startek-Foote listing-related actions pursuant to court when many groups leave their territories 2000, section 1, p. 1 and section 7, pp. orders and judicially approved and gather in large flocks with 1–2; Blanchard 2000, p. 5). Fields of settlement agreements, we would not be neighboring groups (Loflin 1983 as cited grass are typically used for foraging; able to address the petition at that time. in Quinn and Startek-Foote 2000, more densely vegetated stream edges We also noted that the species had been section 5, p. 1). Records in the Dry may be used for nesting and roosting included on the list of birds of Tortugas suggest some movement (Quinn and Startek-Foote 2000, section conservation concern in peninsular between the Caribbean and Florida 6, p. 1; Blanchard 2000, p. 5). The Florida in 2002 and that we had begun (Robertson and Woolfenden 1992 as smooth-billed ani is a highly social bird to compile information on this and cited in Mlodinow and Karlson 1999, p. that nests, roosts, feeds, and travels in other species of conservation concern in 241). This species may regularly pairs or in communal groups (Quinn peninsular Florida. This finding disperse from the Bahamas and Cuba to and Startek-Foote 2000, section 9, p. 3; addresses the petition. Florida (Mlodinow and Karlson 1999, p. Blanchard 2000, pp. 5–6). This species 242). The smooth-billed ani has been uses a communal breeding system in Species Information described as a casual occurrence north which a number of females lay eggs and The smooth-billed ani (Crotophaga to North Carolina and west to Louisiana incubate in the same nest; late-laying ani) is a member of the Family (Stevenson and Anderson 1994, p. 355). females bury the eggs of early-laying Cuculidae (cuckoo family). We concur Vagrant records elsewhere in the United females with twigs and leaves, which with the petition’s taxonomic States are scarce; few acceptable records can create a number of layers, but only characterization of the smooth-billed ani outside of Florida exist (e.g., New Jersey the top layer of eggs eventually hatches (Crotophaga ani) as a species. This or Pennsylvania, North Carolina, South (Quinn and Startek-Foote 2000, section species is a resident in parts of Florida, Carolina, and Georgia) (Mlodinow and 1, p. 1; Blanchard 2000, pp. 1–101). the Caribbean, Mexico, and Central and Karlson 1999, pp. 241–242). Blanchard (2000, p. 30) found evidence South America (Stevenson and Throughout its range, and year round, for monogamy, polygamy (extra-pair Anderson 1994, p. 355; Quinn and the smooth-billed ani occupies savanna, fertilizations), and brood parasitism Startek-Foote 2000, section 3, p. 1). The disturbed and human-altered rural and (egg-laying in the nests of other birds) in

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both single-pair and group nests in a the east coast and Lee County on the reasons for the decline in south Florida study of the species’ communal west coast (Mlodinow and Karlson are not clear (Mlodinow and Karlson breeding system in Puerto Rico. 1999, p. 241). By 1968–69, the number 1999, p. 242; National Audubon Society Observed nesting groups of smooth- observed reached 1.51 per p-hr in West 2001, p. 335). billed anis ranged from a single pair to Palm Beach and 4.20 per p-hr in Fort The smooth-billed ani was one of 668 12 adults and nests containing more Lauderdale (Mlodinow and Karlson taxa evaluated in an effort to help than 30 eggs (Blanchard 2000, p. 11). 1999, p. 241). prioritize vertebrate conservation efforts Female-female competition at the nest Numbers appeared to have peaked in in Florida (Millsap et al. 1990, pp. 3– may result in the destruction of other Florida during the period 1968–1976, 57). The evaluation system ranked taxa females’ eggs through egg burial under when the species was recorded north to (species and subspecies) according to nesting material (Blanchard 2000, p. 11). Jacksonville Beach (Duval County) in biological vulnerability, extent of The smooth-billed ani has a large the east and St. Petersburg current knowledge of population status, global population, estimated in 2004 to (Hillsborough County) in the west and management needs (Millsap et al. be 20,000,000 individuals, with less (Mlodinow and Karlson 1999, p. 241; 1990, pp. 3–57). During this ranking than or equal to 1 percent occurring in Quinn and Startek-Foote 2000, section process, the smooth-billed ani was not the United States (Rich et al. 2004, p. 3, p. 2). At that time, numbers observed considered to be an imperiled taxon in 70). Global long-term trend data did not were typically in the 3.0–4.0 per p-hr Florida as indicated from its biological exist at that time (Rich et al. 2004, p. range in Fort Lauderdale, while Fort score, which was based upon facets of 70). In general, little information on Pierce reached 1.87 per p-hr and Sanibel its distribution, abundance, and life global population size or trends was Island/Captiva Island reached 0.41 per history (Millsap et al. 1990, pp. 28–29). available in Service files at the time the p-hr (Mlodinow and Karlson 1999, p. Information available in Service files petition was received. Available 241). By winter 1977–1978, numbers at the time the petition was received information suggested that the smooth- had declined sharply, returning to mid- indicated that, in 2002, the Service’s billed ani’s conservation status was ‘‘not 1960s levels (Mlodinow and Karlson Division of Migratory Bird Management threatened’’ (Quinn and Startek-Foote 1999, p. 241). This decline continued, included the smooth-billed ani as a bird 2000, section 12, p. 1). The species was and by 1988–1989, total numbers were of conservation concern in peninsular not recognized as a National Audubon comparable to those reported in the Florida in its report, entitled ‘‘Birds of Society Watch List Species or 1950s (Mlodinow and Karlson 1999, p. Conservation Concern 2002’’ (Service Stewardship Species (Rich et al. 2004, 241). The decline continued in Florida 2002, p. 68). The purpose of the report p. 70). The Audubon Watch List into the 1990s, and by 1998, the smooth- was to identify migratory and categorizes species on the list if they are billed ani was found locally from the nonmigratory birds of the United States declining rapidly and/or have very Florida Keys north to West Palm Beach and its territories that are of small populations or limited ranges and on the east coast, and north to Collier conservation concern to encourage face major conservation threats (e.g., County on the west coast (Mlodinow coordinated and proactive conservation typically species of global conservation and Karlson 1999, pp. 241–242). actions among Federal, State, and concern) or if the species are either Mlodinow and Karlson (1999, p. 242) private partners (Service 2002, p. 3). declining or rare (e.g., typically species suggested that the status of the smooth- The overall goal of that report was to of national conservation concern). billed ani in Florida in 1998 may be the accurately identify the migratory and The smooth-billed ani is an norm rather than an aberration. nonmigratory bird species (beyond uncommon-to-rare resident of southern Available information in Service files those already designated as federally Florida (Mlodinow and Karlson 1999, p. suggests that the species uses threatened or endangered) that 241). Prior to the 1930s, few records Loxahatchee NWR (Service, annual represented the Service’s highest existed in Florida, suggesting that the narrative reports from 1996 to 2005) and conservation priorities and draw species was rare or poorly known the Florida Keys NWR Complex attention to species in need of (Quinn and Startek-Foote 2000, section (Service, annual narrative reports from conservation action (Service 2002, p. 3). 3, p. 2). Sprunt (1939, pp. 335–336) 1939 to 2003). According to a notation The geographic scope of this endeavor documented the first record of breeding in the 2000 annual narrative report from comprised the United States in its in Florida in 1938. By the late 1930s, the Loxahatchee NWR, local long-time entirety, including island ‘‘territories’’ in species was considered established in birders have indicated that the numbers the Pacific and Caribbean (Service 2002, the Lake Okeechobee area, and of smooth-billed anis in south Florida p. 1). Although the smooth-billed ani subsequently breeding was recorded and on the Refuge have declined was identified as one of 78 birds of elsewhere in south Florida (Quinn and significantly and that annual Christmas conservation concern in the Southeast, Startek-Foote 2000, section 3, p. 2). The Bird Counts are showing the same trend only the U.S. mainland portion of the species’ status in Florida remained (Service 2000, p. 110). Region was identified as of concern; relatively unchanged until the 1960s, The reasons for expansion and Puerto Rico and the U.S. Virgin Islands when increasing numbers were recorded contraction of the species’ range in were not identified as of concern in central and north Florida (Quinn and Florida are not known. Expansion may (Service 2002, p. 68). In addition, the Startek-Foote 2000, section 3, p. 2). have been facilitated by residential report does not include foreign Based upon National Audubon Society development, which resulted in countries. Christmas Bird Counts, the number anthropogenic habitat changes that observed per party hour (p-hr) (average initially favored this species (Mlodinow Evaluation of Information for This number of counts per party per hour and Karlson 1999, p. 242). However, Finding spent censusing) tripled by 1962–63, continued residential and agricultural Section 4 of the Act (16 U.S.C. 1533) reaching 0.17 per p-hr in West Palm development, which reduced suitable and its implementing regulations at 50 Beach and 2.41 per p-hr in Fort habitat, and exceptionally cold winters CFR part 424 set forth the procedures Lauderdale (Mlodinow and Karlson during the 1970s may have contributed for adding a species to, or removing a 1999, p. 241). In the 1960s the species to subsequent declines (Stevenson and species from, the Federal Lists of was fairly common to common from the Anderson 1994, p. 357; Mlodinow and Endangered and Threatened Wildlife Everglades north to Brevard County on Karlson 1999, p. 242). Overall, the and Plants. A species may be

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determined to be an endangered or including the Bahamas. The petition wetland surrounded by an inner zone of threatened species due to one or more states that numerous records in the Dry pine forests and outer zones of of the five factors described in section Tortugas during the last 150 years mangroves and sandy beaches 4(a)(1) of the Act: indicate that the species is capable of (Mlodinow and Karlson 1999, p. 242). (A) The present or threatened traveling from Cuba to Florida (Birds of Substantial anthropogenic changes destruction, modification, or North America Online). The petition beginning in the 1920s, consisting of curtailment of its habitat or range; indicates that the species was reported agricultural development and low-level (B) Overutilization for commercial, in low numbers in Florida during the residential development, may have recreational, scientific, or educational 1800s and early 1900s (Sprunt 1932; created enough suitable habitat for purposes; Bent 1940), with the first report of dispersing anis to successfully colonize (C) Disease or predation; breeding in Florida in 1938 (Sprunt south Florida in the 1930s (Mlodinow (D) The inadequacy of existing 1932; Terres 1980, p. 146). It also cites and Karlson 1999, p. 242). Over time, regulatory mechanisms; or records from Louisiana and North residential development increased and (E) Other natural or manmade factors Carolina dating back to the early 1800s more intensive agricultural practices affecting its continued existence. (Bent 1940). The petition suggests that and other factors may have reduced In considering what factors might the species seems to have experienced suitable habitat and dispersal habitat, constitute threats, we must look beyond an increase in population from the late causing decreased reproductive success the mere exposure of the species to the 1950s through the early 1970s, and then and lower recruitment (Mlodinow and factor to determine whether the species a rapid decline from the 1970s to 2005. Karlson 1999, p. 242). Alsop (2002, p. responds to the factor in a way that The petition claims that smooth-billed 212) noted that the smooth-billed ani is causes actual impacts to the species. If anis are extremely rare everywhere in apparently declining in south Florida as there is exposure to a factor, but no the United States, noting data from the area continues to develop and response, or only a positive response, various National Audubon Society brushland shrub/scrub habitat is lost. that factor is not a threat. If there is Christmas Bird Counts. Information in our files supports the exposure and the species responds The petition indicates that the species statement in the petition that human negatively, the factor may be a threat generally prefers ‘‘open’’ habitats, such population growth and associated land- and we then attempt to determine how as weedy and shrubby fields, pastures, use changes are occurring in peninsular significant a threat it is. If the threat is farmland, and occasionally residential Florida, and that additional growth is significant, it may drive or contribute to areas. Based upon a variety of expected in the future. In the 50 years the risk of extinction of the species such unspecified sources, the petition states prior to 1994, more than 8 million acres that the species may warrant listing as that the species is not commonly found [(3.24 million hectares (ha)] of forest threatened or endangered as those terms in heavily forested or extensive and wetland habitats (roughly 24 are defined by the Act. This does not marshes. percent of the State) were cleared to necessarily require empirical proof of a The petition states that rapid human accommodate an expanding human threat. The combination of exposure and population growth and associated population (Cox et al. 1994, p. i). some corroborating evidence of how the development throughout peninsular Statewide, between 1936 and 1987, species is likely impacted could suffice. Florida, much of it occurring within the cropland and rangeland increased by The mere identification of factors that species’ preferred habitat and historic 4.25 million acres (1.72 million ha), or could impact a species negatively may range, may be a potential contributor to 30 percent; urban areas increased by not be sufficient to compel a finding the decline of the smooth-billed ani. 3.95 million acres (1.60 million ha), or that listing may be warranted. The The petition provides the following 538 percent; herbaceous wetlands information shall contain evidence statement: ‘‘Apparently [the ani is] declined by 3.88 million acres (1.57 sufficient to suggest that these factors declining as southern Florida continues million ha), or 56 percent; and forests may be operative threats that act on the to develop, and the brushland shrub/ declined by 4.30 million acres (1.74 ’’ species to the point that the species may scrub habitat is lost (Alsop 2002). No million ha), or 21 percent (Service meet the definition of threatened or additional information or citations 1999c, p. 4–128). endangered under the Act. relating to habitat loss as a threat are Although some anthropogenic habitat In making this 90-day finding, we given in the petition. changes may initially favor this species, areas where the smooth-billed ani can evaluated whether information Evaluation of Information Provided in be locally found in Florida, from the regarding the threats to the smooth- the Petition and Available in Service Keys north to West Palm Beach on the billed ani, as presented in the petition Files east coast and Collier County on the and other information available in our The smooth-billed ani appears to have west coast (Mlodinow and Karlson files, is substantial, thereby indicating declined from previous high levels in 1999, p. 242), are expected to grow and that the petitioned action may be Florida (Stevenson and Anderson 1994, become more urbanized. The human warranted. Our evaluation of this pp. 356–357; Mlodinow and Karlson population within south Florida information is presented below. 1999, p. 242; National Audubon Society surpassed 1 million (337 persons per A. The Present or Threatened 2005, pp. 1–3). However, it has been square mile (mi2) (130 persons per Destruction, Modification, or suggested that this species’ current square kilometer (km2)) in 1950, 3 Curtailment of Its Habitat or Range status in Florida may be the norm rather million (1,013 persons per mi2 (391 than an aberration (Mlodinow and persons per km2)) in 1970, and 6 million Information Provided in the Petition Karlson 1999, p. 242). It was not until (2,020 persons per mi2 (780 persons per The petition acknowledges that the 1938 that the species was established km2)) in 1990 (Service 1999c, p. 4–127). smooth-billed ani’s historic range in the and breeding in Florida (Sprunt 1939, South Florida’s human population was United States has largely been restricted pp. 335–336; Stevenson and Anderson projected to reach 8.2 million (2,771 to southern Florida (Bent 1940; Terres 1994, p. 355). One hypothesis suggests persons per mi2 (1,070 persons per 1980, p. 146) and that the species is that prior to the World War I era, south km2)) by 2010 (Floyd 1996 as cited in considered common in many parts of its Florida had little suitable smooth-billed Service 1999c, p. 4–127). With range throughout the Caribbean, ani habitat, since it was largely a continuing habitat loss and human

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population growth, it is likely that B. Overutilization for Commercial, In summary, disease is not known to habitat within the smooth-billed ani’s Recreational, Scientific, or Educational be a threat to the species. Although range in south Florida will continue to Purposes information on predation within our be impacted. files is limited, we do not have reason The petition did not contain The petition did not present to believe that predation is a threat to information indicating that habitat loss information, nor do we have the species. Accordingly, we find that and modification are threats to the information in our files, suggesting that the information in our files does not smooth-billed ani elsewhere in its range overutilization is threatening the present substantial scientific or (i.e., outside south Florida). Throughout smooth-billed ani. commercial information indicating that its range, this species uses disturbed C. Disease or Predation the petitioned action may be warranted and human-altered rural and suburban due to disease or predation. The petition did not provide any areas, open areas with brush or scrub, D. The Inadequacy of Existing information concerning disease or plantations, gardens, farmlands, forest Regulatory Mechanisms clearings, cow pastures, and grazing predation. Information available in lands with human habitation (Loflin Service files does not report evidence of The petition did not present 1983 as cited in Quinn and Startek- diseases. For instance, Quinn and information, nor do we have Foote 2000, section 6, p. 1; Quinn and Startek-Foote (2000, section 11, p. 2), information in our files, suggesting that Startek-Foote 2000, section 6, p. 1). found no reports of diseases for this inadequacy of existing regulatory Although the landscape throughout the species. Two species of mallophaga mechanisms is a threat to the species. smooth-billed ani’s considerable range (bird lice) have been reported in the E. Other Natural or Manmade Factors is undoubtedly changing, we do not species (Davis 1940 as cited in Quinn Affecting Its Continued Existence have evidence to suggest that the and Startek-Foote 2000, section 11, p. species is threatened by habitat loss and 2). However, we do not have any Information Provided in the Petition modification. In fact, ongoing information that ties these ectoparasites disturbance of forest habitats by humans to any specific disease affecting the The petition suggests that one popular may create additional suitable habitat smooth-billed ani. Based upon limited explanation for the smooth-billed ani’s for smooth-billed anis, suggesting the information in Service files, disease is recent decline in Florida may have been possibility that populations are not considered to be a threat for the periods of cold temperatures in south increasing within the range of the smooth-billed ani. Florida; however, the petition also provides information that contradicts species (Quinn and Startek-Foote 2000, Evaluation of Information Provided in section 11, p. 3). this explanation. Smooth-billed anis the Petition and Available in Service using the Clewiston area near Lake Information in the petition regarding Files rapid human population growth and Okeechobee were reported to have associated development in Florida is The smooth-billed ani may be survived subfreezing temperatures in the 1940s (reportedly 28 °F in 1944 and supported by information in our files. vulnerable to predators, because it is an ° Although increased habitat loss and awkward, slow-flying bird (Stevenson 26 F in 1947) (Dilley 1948, p. 314). The human population growth may have and Anderson 1994, p. 357). However, petition suggests that the apparent affected the smooth-billed ani in south the species also employs a sentinel increase in the smooth-billed ani’s Florida, reasons for the expansion and system, with usually one individual numbers during the late 1950s and early contraction of its range in Florida are positioned at an open, elevated site to 1960s (National Audubon Society unclear. The species uses a wide array warn others of predators (Loflin 1983 as Christmas Bird Count data) coincides of disturbed and human-altered habitats cited in Quinn and Startek-Foote 2000, with two cold spells, but the beginning (Quinn and Startek-Foote 2000, section section 9, p. 4). In addition, Merritt of the species’ decline in the early 1970s 6, p. 1). Expansion in Florida may have (1953 as cited in Stevenson and does not correlate with a notable period temporarily been facilitated by Anderson 1994, p. 357) has postulated of cold weather (McGovern 2004). The anthropogenic habitat changes that that a very disagreeable odor given off petition indicates that the severest cold initially favored this species; however, when the bird is alarmed ‘‘probably weather to hit south Florida was during the species’ current status in Florida tends to discourage predation.’’ Smooth- the 1980s, when smooth-billed ani may be the norm (Mlodinow and billed anis have been attacked or taken populations continued to decline, but Karlson 1999, p. 242). by sharp-shinned hawks (Accipiter the species’ decline had begun before this time. We currently have no information, striatus), fish crows (Corvus ossifragus), and the petition provided no climbing rats (Rattus rattus), and feral The petition suggests that another information, to support a determination cats (Felis catus) (Loflin 1983 as cited in explanation for this species’ decline in that this factor is a substantial risk to the Quinn and Startek-Foote 2000, section Florida may be hurricanes, but this also species in south Florida or elsewhere in 9, p. 4; Startek 1997 as cited in Quinn does not seem to be reinforced by data. its considerable range. In summary, we and Startek-Foote 2000, section 9, p. 4; The petition indicates that smooth- find that the information provided in Quinn and Startek-Foote 2000, section billed ani populations increased from the petition, as well as other 9, p. 4). In a limited study, Blanchard 1957 to 1974, when at least five information in our files, does not (2000, p. 45) noted a high incidence of hurricanes impacted south Florida. The present substantial scientific or egg and chick predation, documenting petition indicates that as populations commercial information indicating that predation at 7 of 10 nests in Puerto Rico, began to decrease in the 1970s and the petitioned action may be warranted most likely from brown rats (Rattus 1980s, south Florida was struck by only due to destruction, modification, or norvegicus) and feral cats. Predation two hurricanes (Barnes 1998). curtailment of the smooth-billed ani’s rates are not available, but group The petition, citing Birds of North habitat or range, especially given that vigilance likely limits diurnal predation America Online, suggests that possible the species uses a wide array of to low levels (Davis 1940 as cited in ingestion of pesticides resulting from disturbed habitats over a considerable Quinn and Startek-Foote 2000, section this species’ insect diet is another range. 11, p. 2). explanation for its decline.

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The petition suggests, without diet of insects could result in the Finding reference, that smooth-billed anis in the ingestion of pesticides in the In summary, the petition does not United States have undergone agricultural areas that the species often present substantial information, because inexplicable natural population inhabits; they list this as an adverse it does not provide specific information fluctuations for centuries and that no factor that may have contributed to the on threats to the smooth-billed ani and research has been conducted to smooth-billed ani’s decrease in only alludes to possible threats within investigate this phenomenon. abundance in Florida from the late Florida, which is a small portion of the Evaluation of Information Provided in 1970s through 1986. Mlodinow and species’ considerable range. Information the Petition and Available in Service Karlson (1999, p. 242) suggested that in our files indicates that the smooth- Files pesticides may have also reduced food billed ani has a large population size, The Service has only limited sources, and that this reduction was one uses a wide array of disturbed habitats, information regarding the possible possible factor contributing to the and occupies a considerable range. effects of cold temperatures on the decline in Florida. Neither the petition While we agree with the petitioner’s smooth-billed ani. The information nor the Service’s files present general statements about possible causes regarding cold temperatures as a factor information indicating that pesticides for the species’ recent decline in appears to be reliable based upon are a threat to the smooth-billed ani Florida, information in our files suggests limited information in Service files. The elsewhere in its range. that the species’ current status in decrease in numbers of smooth-billed The Service has little information on Florida may be the norm; the species anis in south Florida from the late 1970s natural population fluctuations of the was not known to breed in Florida prior to the late 1930s. Neither the petition through 1986 has been suggested to be smooth-billed ani in Florida or nor our files contain information due possibly to a series of unusually elsewhere in its range. The petition suggesting that threats affecting the cold winters, which may have affected suggests, without reference, that species’ continued existence occur birds directly or indirectly through the smooth-billed anis in the United States reduction of the supply of insects elsewhere in its range. have undergone inexplicable natural As for the threats identified in this (Stevenson and Anderson 1994, p. 357). population fluctuations for centuries Mlodinow and Karlson (1999, p. 242) petition, we found no information to and that no research has been acknowledged that a series of cold suggest that they are acting on the conducted to investigate this winters during the late 1970s likely smooth-billed ani such that the species phenomenon. Based upon limited played a role (citing Robertson and may become extinct now or in the Woolfenden 1992), but suggested that a information in our files, it appears that foreseeable future. continued decrease in the population the species has received relatively little On the basis of our determination does not seem to be explained by research attention. More research is under section 4(b)(3)(A) of the Act, we weather alone. The petition does not needed on the species’ mating system conclude that the petition does not present information, nor does the and genetic relationships, reproductive present substantial scientific or Service have information in our files, and social behaviors, habitat quality, commercial information to indicate that indicating that cold temperatures are a and foraging patterns (Quinn and listing the smooth-billed ani under the threat to the species elsewhere in its Startek-Foote 2000, section 15, p. 1). Act as threatened or endangered may be range. Blanchard (2000, pp. 1–101) studied the warranted at this time. Although we The Service has little information communal breeding system of the will not review the status of the species regarding the possible effects of species in Puerto Rico. The petition did at this time, we encourage interested hurricanes on the smooth-billed ani. not present information indicating that parties to continue to gather data that The petition acknowledges that data do such natural population fluctuations are will assist with the conservation of the not seem to reinforce the explanation a threat to the smooth-billed ani smooth-billed ani. If you wish to that hurricanes caused declines in south elsewhere in its range. We have no provide information regarding the Florida. Also, the petition does not additional information to suggest that smooth-billed ani, you may submit your present information indicating that demographic or other factors are a threat information or materials to the Field hurricanes are a threat to the species to the smooth-billed ani in Florida or Supervisor/Listing Coordinator, South elsewhere in its range. In Jamaica, the elsewhere in its range. Florida Ecological Services Office (see mean number of smooth-billed anis in Information provided by the ADDRESSES), at any time. 10 habitats before and after Hurricane Gilbert in 1988 was not significantly petitioner regarding cold temperatures, References Cited hurricanes, pesticides, and natural different (Wunderle et al. 1992, pp. A complete list of references cited is population fluctuations is generally 164–165). Similarly, no obvious decline available on the Internet at http:// supported by the limited information in in smooth-billed ani abundance was www.regulations.gov or upon request our files. However, we have no observed after Hurricane Georges in from the South Florida Ecological information or data that suggest that Puerto Rico in 1998 (Quinn and Startek- Services Office (see FOR FURTHER such factors are threats to the smooth- Foote 2000, section 11, p. 2). In general, INFORMATION CONTACT). stochastic (random) events are not likely billed ani in south Florida or elsewhere to pose a significant threat to the in its range. In summary, we find that Author smooth-billed ani, due to the species’ the information provided in the The primary author of this notice is considerable population size and petition, as well as other information in Paula Halupa of the South Florida geographic range. our files, does not present substantial Ecological Services Office (see The information provided in the scientific or commercial information ADDRESSES). petition regarding pesticides as a factor indicating that the petitioned action appears to be reliable, based upon may be warranted due to natural or Authority limited information in Service files. anthropogenic factors, especially given The authority for this action is the Stevenson and Anderson (1994, p. 357) that the species appears to have a large Endangered Species Act of 1973, as suggested that the smooth-billed ani’s population over a considerable range. amended (16 U.S.C. 1531 et seq.).

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Dated: April 13, 2011. Rowan W. Gould, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2011–9975 Filed 4–25–11; 8:45 am] BILLING CODE 4310–55–P

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Notices Federal Register Vol. 76, No. 80

Tuesday, April 26, 2011

This section of the FEDERAL REGISTER Agenda d=APHIS-2011-0014 to submit or view contains documents other than rules or USAID Administrator Rajiv Shah will comments and to view supporting and proposed rules that are applicable to the related materials available public. Notices of hearings and investigations, give remarks, followed by a panel discussion. Additional information will electronically. committee meetings, agency decisions and • Postal Mail/Commercial Delivery: rulings, delegations of authority, filing of be available on the ACVFA Web site at petitions and applications and agency http://www.usaid.gov/about_usaid/ Please send one copy of your comment statements of organization and functions are acvfa. The tentative agenda is subject to to Docket No. APHIS-2011-0014, examples of documents appearing in this change. Regulatory Analysis and Development, section. PPD, APHIS, Station 3A–03.8, 4700 Stakeholders River Road, Unit 118, Riverdale, MD The meeting is free and open to the 20737–1238. Please state that your AGENCY FOR INTERNATIONAL public. Persons wishing to attend can comment refers to Docket No. APHIS– DEVELOPMENT register online at http://www.usaid.gov/ 2011–0014. about_usaid/acvfa/ Reading Room: You may read any FY 2011 Emergency Food Assistance acvfaregistration.html. For additional comments that we receive on this Annual Program Statement information, please contact Nicole docket in our reading room. The reading Mlade at (202) 712–5512 or room is located in room 1141 of the Pursuant to the Food for Peace Act of [email protected]. USDA South Building, 14th Street and 2008 and the Foreign Assistance Act of Independence Avenue, SW., 1961 (FAA), notice is hereby given that Dated: April 18, 2011. Washington, DC. Normal reading room the FY 2011 Emergency Food Assistance Christine Brown, hours are 8 a.m. to 4:30 p.m., Monday Annual Program Statement is available Office of the Executive Secretariat. through Friday, except holidays. To be to interested parties for general viewing. [FR Doc. 2011–9998 Filed 4–25–11; 8:45 am] sure someone is there to help you, For individuals who wish to review, BILLING CODE P please call (202) 690–2817 before the FY 2011 Emergency Food Assistance coming. Annual Program Statement is available Other Information: Additional via the Food for Peace Web site: http:// DEPARTMENT OF AGRICULTURE information about APHIS and its www.usaid.gov/our_work/ programs is available on the Internet at humanitarian_assistance/ffp/ Animal and Plant Health Inspection http://www.aphis.usda.gov. emergency.html on or about April 18, Service FOR FURTHER INFORMATION CONTACT: For 2011. Interested parties can also receive [Docket No. APHIS–2011–0014] information on the Trichinae a copy of the FY 2011 Emergency Food Certification Program, contact Dr. Dave Assistance Annual Program Statement Notice of Revision and Request for Pyburn, Staff Veterinarian, Aquaculture, by contacting the Office of Food for Extension of Approval of an Swine, Equine, and Poultry Programs, Peace, U.S. Agency for International Information Collection; Trichinae VS, APHIS, 210 Walnut Street, Room Development, RRB 7.06–152, 1300 Certification Program 891, Des Moines, IA 50309; (515) 284– Pennsylvania Avenue, NW., 4122. For copies of more detailed Washington, DC 20523–7600. AGENCY: Animal and Plant Health information on the information Inspection Service, USDA. collection, contact Mrs. Celeste Sickles, Juli Majernik, ACTION: Revision and extension of APHIS’ Information Collection Grants Manager, Policy and Technical approval of an information collection; Coordinator, at (301) 851–2908. Division, Office of Food for Peace, Bureau comment request. for Democracy, Conflict and Humanitarian SUPPLEMENTARY INFORMATION: Title: Assistance. SUMMARY: In accordance with the Trichinae Certification Program. [FR Doc. 2011–9997 Filed 4–25–11; 8:45 am] Paperwork Reduction Act of 1995, this OMB Number: 0579–0323. Type of Request: Revision and BILLING CODE P notice announces the Animal and Plant Health Inspection Service’s intention to extension of approval of an information revise an information collection collection. Abstract: Under the Animal Health AGENCY FOR INTERNATIONAL associated with the voluntary Trichinae Protection Act (7 U.S.C. 8301 et seq.), DEVELOPMENT Certification Program and to request the Animal and Plant Health Inspection extension of approval of the information Service (APHIS) of the U.S. Department Notice of Meeting collection to enhance the ability of U.S. of Agriculture (USDA) is authorized, pork producers to export pork and pork among other things, to prohibit or Pursuant to the Federal Advisory products to overseas markets. Committee Act, notice is hereby given of restrict the interstate movement of a meeting of the Advisory Committee on DATES: We will consider all comments animals and animal products to prevent Voluntary Foreign Aid (ACVFA). that we receive on or before June 27, the dissemination within the United 2011. Date: Friday, May 13, 2011. States of animal diseases and pests of ADDRESSES: You may submit comments livestock and to conduct programs to Time: 9 to 11 a.m. by either of the following methods: detect, control, and eradicate pests and Location: National Press Club, 529 • Federal eRulemaking Portal: Go to diseases of livestock. In addition, under 14th Street, NW., Washington, DC http://www.regulations.gov/fdmspublic/ the Agricultural Marketing Act of 1946 20045. component/main?main=DocketDetail& (7 U.S.C. 1622), the APHIS

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Administrator has authority with information is estimated to average new lodge, construction of a race respect to voluntary inspection and 0.5280 hours per response. training center, removal and/or certification of animal products and the Respondents: Auditors (accredited relocation of inappropriately sited and inspection, testing, treatment, and veterinarians and State animal health outdated facilities, expansion of parking certification of animals. officials), pork producers, mill lots, and installation of associated APHIS regulations in 9 CFR part 149 managers, slaughter facility personnel, infrastructure. contain certification requirements for and personnel from approved The EIS will address the Proposed the voluntary Trichinae Certification laboratories. Action and the required No-Action Program, a cooperative effort by APHIS Estimated annual number of Alternative, as well as any other and the U.S. pork industry. The program respondents: 1,250. alternatives identified through public is intended to enhance the ability of Estimated annual number of scoping or internal, interdisciplinary swine producers, as well as slaughter responses per respondent: 11.3512. review. The EIS process will include a facilities and other persons that handle Estimated annual number of number of opportunities for or process swine from pork production responses: 14,189. involvement and input from the public sites that have been certified under the Estimated total annual burden on as well as interested organizations and program, to export fresh pork and respondents: 7,492 hours. (Due to agencies. products to foreign markets. averaging, the total annual burden hours Public Scoping. This notice initiates The current collection activities for may not equal the product of the annual the EIS process and provides notice of the certification program include animal number of responses multiplied by the the first opportunity for public disposal plans, animal movement reporting burden per response.) involvement, the scoping period. records, feed mill quality assurance All responses to this notice will be Comments regarding the scope of the affidavits, logbooks, recordkeeping, test summarized and included in the request EIS (i.e., the actions, alternatives, and results, documented procedures at for OMB approval. All comments will impacts it addresses) are invited. slaughter facilities for certified swine also become a matter of public record. Comments should be as specific as and edible pork products, and written Done in Washington, DC, this 21st day of possible. More information on the procedures at approved laboratories that April 2011. Proposed Action and instructions for pertain to the performance of process- Kevin Shea, submitting scoping comments are verification testing. Other activities Acting Administrator, Animal and Plant provided below. being combined with the current Health Inspection Service. Comments received in response to collection are spot audits; notification to this notice, including names and [FR Doc. 2011–10088 Filed 4–25–11; 8:45 am] APHIS of program withdrawal; and addresses of those who comment, will requests to APHIS for temporary BILLING CODE 3410–34–P be considered part of the public record program withdrawal, review of audit for this project and will be available for results or other determination, and DEPARTMENT OF AGRICULTURE public inspection. certification site audits. Although we This is also an opportunity to will collect additional information, we Forest Service participate in the National Historic project our burden to decrease due to Preservation Act, Section 106 process. the decrease in the number of annual Bend/Ft. Rock Ranger District; DATES: Comments concerning the scope respondents. Deschutes National Forest; Deschutes of the analysis must be received by 30 We are asking the Office of County, Oregon; Mt. Bachelor Ski Area days following the date that this notice Management and Budget (OMB) to Improvements Project EIS appears in the Federal Register. approve our use of these information ADDRESSES: AGENCY: Forest Service, USDA. Send written comments to collection activities for 3 years. Shane Jeffries, District Ranger, Bend- ACTION: The purpose of this notice is to solicit Notice of intent to prepare an Fort Rock Ranger District, Red Oaks comments from the public (as well as environmental impact statement. Square, 1230 NE Third Street Suite A– affected agencies) concerning our SUMMARY: The USDA, Forest Service, 262, Bend, Oregon 97701. Comments information collection. These comments may also be faxed to (541) 383–4700, will help us: will prepare an environmental impact statement (EIS) on a proposed action sent electronically to comments- (1) Evaluate whether the collection of pacificnorthwest-deschutes-bend- information is necessary for the proper comprising a number of infrastructural improvements at Mt. Bachelor ski resort, [email protected], or hand delivered to performance of the functions of the 1230 NE Third Street, Suite A–262, Agency, including whether the 22 miles southwest of Bend, Oregon. The resort lies entirely on National Bend, OR, between 7:45 a.m. and information will have practical utility; 4:30 p.m., Monday through Friday, (2) Evaluate the accuracy of our Forest System land and has operated excluding holidays. estimate of the burden of the collection under a ski area special use permit of information, including the validity of (SUP) issued by the Deschutes National FOR FURTHER INFORMATION CONTACT: the methodology and assumptions used; Forest (DNF) since 1958. The permit Amy Tinderholt, Recreation Team (3) Enhance the quality, utility, and area is 8,122 acres. Leader, Bend-Fort Rock Ranger District, clarity of the information to be The projects include on-mountain Red Oaks Square, 1230 NE Third Street collected; and improvements such as development of a Suite A–262, Bend, Oregon 97701, (4) Minimize the burden of the new chairlift and associated trails, phone (541) 383–4708. collection of information on those who shortening and/or replacement of three RESPONSIBLE OFFICIAL: The responsible are to respond, through use, as existing lifts, expanding snowmaking official is John Allen, Forest Supervisor, appropriate, of automated, electronic, coverage, construction of a lift-served, Deschutes National Forest, 1001 SW mechanical, and other collection downhill mountain bike park, and Emkay Dr., Bend, OR 97701. He will technologies; e.g., permitting electronic adding to the Nordic trail system. decide whether and under what submission of responses. Improvements to base area facilities are conditions to approve the Proposed Estimate of burden: The public also proposed, including expansion of Action or an alternative addressed in reporting burden for this collection of two existing lodges, construction of a the EIS.

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SUPPLEMENTARY INFORMATION: 1. To improve the skiing experience 3. To segregate user groups and ability Background. Under the terms of the during windy conditions. Wind causes levels. Alpine races and race training Ski Area Permit Act of 1986, routine closure of the high-elevation lift take place on the busiest part of the development and operation of ski areas and frequent closure of the northwest- mountain. Racers must mix with other on National Forest System lands is facing chairlifts at Mt. Bachelor. These skiers of varying ability levels, which guided by master development plans closures significantly reduce the detracts from both training effectiveness which describe existing conditions, available terrain at Mt. Bachelor on and the enjoyment of the recreational identify physical, environmental, and windy days, resulting in increased skier skiers. These activities need to be socio-economic opportunities and densities on the remaining pods. separated in the interest of both. This constraints, establish the permittee’s Development of the proposed Eastside need is addressed by the proposed conceptual vision for the ski area, and pod addresses this need. construction of an Alpine Training outline near-to-long-term plans for 2. To balance the capacities and Center with dedicated training terrain achieving that vision. As a condition of utilization of resort facilities. The accessed by a shortened Red Chair lift. SUP issuance, the Forest Service must existing Rainbow chairlift is The Nordic Center does not provide review and accept a ski area’s MDP. One underutilized by beginner and low- beginner terrain in the vicinity of the component of an MDP is development intermediate skiers due primarily to its Nordic lodge, and lower ability level of the ski area’s physical infrastructure, lengthy ride time. It is also one of the skiers have to navigate a more difficult some or all of which may lie on oldest lifts on the mountain. In contrast, trail to access low-gradient terrain. An National Forest System land and thus the adjacent Sunrise Express chairlift is easily accessible learning area and a require agency approval. When over-utilized on busy days, resulting in suitable trail for lower level skiers to development plans move from the excessive lift lines and less even access the trail network would increase conceptual to the concrete realm, the distribution of skiers. A better balance accessibility and use of this unique permittee submits a proposal to the in the utilization of these two chairlifts Nordic skiing opportunity. The Forest Service describing specific is needed to efficiently access the proposed learning area and two new projects, and the agency makes a terrain they serve. Shortening the Nordic trails address this need. The tubing area is currently located determination whether to accept the Rainbow lift alignment, installing the on a low, inconsistent slope with a short proposal and initiate their decision- current Sunrise Express detachable run-out. A site away from the congested making process. If the proposal has the quad lift in that shortened alignment, skier base area, with a more suitable potential to significantly impact the and replacing Sunrise Express with a slope gradient and run-out, would human environment, the agency must higher-capacity detachable six-pack provide an improved recreational analyze and disclose those chairlift address this need. The Sunrise Lodge is frequently experience for skiers and tubers alike. environmental impacts, in accordance overcrowded, even on off-peak days. A The proposed relocation of the tubing with the National Environmental Policy better balance between the lodge’s hill and support infrastructure to the Act of 1969 (NEPA). capacity and demand for the services it other side of the West Village parking Mt. Bachelor’s current MDP was provides is needed to improve the lot addresses this need. accepted by the DNF in January 2011. overall recreational experience available 4. To update outdated resort facilities The MDP documents analysis of current from the Sunrise base area. Proposed and infrastructure. The existing ski conditions at the resort and, based on improvements to the Sunrise base area patrol, clinic, and administration that analysis, outlines anticipated skier services address this need. building is undersized and outdated. development and management of the The Sunrise parking lot fills before Updated facilities are needed to serve resort over the next 10 years. As the the other parking lots because it is the these critical functions. Removal of this resort operates entirely on National first entrance to the resort and it is building and expansion of remaining Forest System land, all the proposed located on the more wind-protected east structures to better support these infrastructural improvement projects side of the mountain. Additional functions, as proposed, addresses this included in the plan require Forest parking is needed at the Sunrise base need. Service approval prior to area to maintain a balance with the The existing generator/electrical/ implementation. These projects have the lodge, lift, and trail capacity and to telephone/data building is unsightly potential to impact the human accommodate parking demand. The and outdated, and it is inappropriately environment, so they constitute the proposed parking lot expansion and located within view of the West Village Proposed Action subject to review in access improvements address this need. base and adjacent ski terrain. A more this EIS. The West Village parking lot provides aesthetically appropriate building for Purpose and Need. The purpose and parking for skiers, tubers, Nordic skiers, these utilities in an area that is further need for action reflects the difference skier-services customers, sight-seers, separated from the ski terrain is needed between existing conditions at Mt. and employees, and it fills to capacity to provide these services. Removal of Bachelor and desired conditions. The on busy days. Additional capacity is this building and developing new overarching purpose for this Proposed needed to balance with peak demand for utilities infrastructure at a less central Action is to implement direction in the parking space. The proposed employee location, as proposed, addresses this Land and Resource Plan, Deschutes and overflow parking lot at West Village need. National Forest (Forest LRMP); address this need. Mt. Bachelor currently generates specifically the Proposed Action would Bob’s Bungalow, a warming hut on emergency power with diesel assist in ‘‘Providing a wide variety of the Nordic trail network, is currently generators. Heat is provided using recreational opportunities within a undersized and in need of repair, propane. Together, these facilities forest environment where the localized resulting in crowded, less than require substantial investment in and settings may be modified to comfortable conditions at times. storage of fuel. A more cost-efficient, accommodate large number of visitors’’ Additional space and refurbishing are environmentally compatible power and (Forest LRMP p. IV–135). In order to needed to meet current demand. heat generation facility would better achieve that purpose, the Proposed Proposed improvements to the warming meet these needs. The proposed Action addresses the following needs. hut address this need. biomass co-generation facility addresses

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this need, as well as providing an adequate storage for the new lodge and 2012. The EPA will publish a Notice of attractive option for utilization of wood associated facilities. Availability (NOA) of the Draft EIS in products from forest management • Doubling the capacity of the the Federal Register, opening a 45-day projects and associated economic existing Sunrise base area wastewater period for comment on that document; benefits. treatment system, particularly the drain the DNF will then publish a legal notice 5. To maintain adequate snow field. in the newspaper of record, The Bulletin coverage in specific high-traffic areas. • Installing a restroom facility near in Bend, OR, announcing the date of the Early-season snow coverage is often the base of Skyliner Express. Federal Register notice. inadequate on several key trails on the West Village Area: The Final EIS and Record of Decision • central part of the ski mountain. Shortening the Red Chair by (ROD) are scheduled to be released in Improved snow coverage is needed to roughly 25 percent to 3,000 feet, and February 2013. The ROD will include alleviate these deficiencies. The constructing the Alpine Training Center responses to all substantive comments proposed expansion of the existing to house the resort’s alpine racing received on the Draft EIS. The EPA will snowmaking system addresses this program. publish a Notice of Availability (NOA) • need. Adding 25.4 acres to the resort’s of the Final EIS in the Federal Register, 6. To provide additional summer snowmaking coverage by expanding the and the DNF will publish a legal notice recreational opportunities. The resort existing snowmaking system onto five in the newspaper of record, opening a adjacent ski trails. 45-day period for administrative appeal currently has only one dedicated hiking • trail and one mountain bike trail, Removing outdated West Village of the decision documented in the ROD located in the base and Nordic areas. buildings (the ski patrol/administration (36 CFR part 215). building and the generator building) and Increased hiking and biking Dated: April 18, 2011. expanding the West Village Lodge by infrastructure is needed to meet Elizabeth J. Peer, demand, increase year-round utilization about 7,000 square feet. • Moving the tubing hill across the Acting District Ranger, Bend/Ft. Rock Ranger of resort resources and infrastructure, District, Deschutes National Forest. and to provide downhill mountain parking lot to the ‘‘Old Maid’’ area. • Developing a new 2.5-acre [FR Doc. 2011–9869 Filed 4–25–11; 8:45 am] biking opportunities on the Forest. The BILLING CODE 3410–11–M proposed hiking trails, mountain bike employee/overflow parking lot. • Constructing a biomass co- park, interpretive areas, zipline course, generation facility to provide electrical and rock climbing structure address this power and steam heat. It would be DEPARTMENT OF AGRICULTURE need. located near the existing maintenance Proposed Action. The Proposed Forest Service building and fuel storage area. Action can be summarized as follows: Nordic Center: Allegheny Resource Advisory Eastside Pod: • • Making minor improvements to the Committee Developing the new Eastside Nordic Center infrastructure, including Express chairlift and associated trails. a 2-acre learning area, two new trails to AGENCY: Forest Service, USDA. The lift would be a detachable-grip, access the existing trail network, and ACTION: Notice of meeting. quadruple lift about 6,800 feet long with refurbishing Bob’s Bungalow, including SUMMARY: a capacity of 2,400 persons per hour a new deck and fire pit. The Allegheny Resource (pph). Summer Activities: Advisory Committee will meet in • Constructing a new catchline at a • New hiking trails from Pine Marten Clarendon, Pennsylvania. The lower elevation and selective thinning Lodge to West Village, from the lodge to committee is authorized under the above the new catchline. the top of Northwest Express lift, and Secure Rural Schools and Community Sunrise Area: around an interpretive loop above the Self-Determination Act (Pub. L. 110– • Replacing the Rainbow lift in a lodge. 343) (the Act) and operates in shortened alignment. The alignment • A mountain bike park including a compliance with the Federal Advisory would be shortened by about 40 percent skills area near the base of Pine Marten Committee Act. The purpose of the to 3,150 feet. The current Sunshine Express lift and a series of beginner, committee is to improve collaborative Express lift, a detachable quad with a intermediate, and advanced downhill relationships and to provide advice and capacity of 1,800 pph, would replace trails accessed from the top of the lift. recommendations to the Forest Service the existing fixed-grip lift. • A canopy tour zipline course with concerning projects and funding • Replacing the Sunshine Express lift, three segments from Pine Marten Lodge consistent with the title II of the Act. a detachable quad rated at 1,800 pph, down to West Village. The meeting is open to the public. The with a new detachable six-place lift • A rock climbing structure at Pine purpose of the meeting is to organize the with a capacity of 2,800 pph. Marten Lodge. committee, draft committee by-laws and • Developing the Sunrise Learning Issues. Preliminary issues include the begin the process of soliciting Center, the venue for the resort’s effect of the Proposed Action on appropriate projects for nomination for children’s ski school program, that potential wilderness (the Eastside pod funding. would include dedicated space in the would be adjacent to an inventoried DATES: The meeting will be held May remodeled Sunrise Lodge, carpet lifts on roadless area), special status plant and 11, 2011, at 9 a.m. adjacent ‘‘bunny hills,’’ and a forested wildlife species including the northern ADDRESSES: The meeting will be held at kids ‘‘adventure zone.’’ spotted owl and several fungi, and the Mead Township Building located on • Improving Sunrise base area skier visual quality, particularly as viewed Mead Blvd., in Clarendon, services, including a new 18,000 to from the Cascade Lakes Scenic Byway. Pennsylvania. Written comments may 25,000 square foot lodge and a 115 Additional Opportunities for Public be submitted as described under percent expansion of the parking lot Involvement. A Draft EIS will be filed SUPPLEMENTARY INFORMATION. with a new access road. with the Environmental Protection All comments, including names and • Constructing a 125,000-gallon Agency (EPA) and is projected to be addresses when provided, are placed in buried water reservoir to provide released for public review in March the record and are available for public

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inspection and copying. The public may SUMMARY: The Trinity County Resource meeting on May 12, 2011 at the Tahoe inspect comments received at 4 Farm Advisory Committee (RAC) will meet in Regional Planning Agency, 128 Market Colony Drive, Warren, Pennsylvania, Weaverville, California. The committee Street, Stateline, NV 89440. This 16365. Please call ahead to Kathy is authorized under the Secure Rural Committee, established by the Secretary Mohney at (814) 728–6298 to facilitate Schools and Community Self- of Agriculture on December 15, 1998 (64 entry into the building to view Determination Act (Pub. L. 110–343) FR 2876), is chartered to provide advice comments. (the Act) and operates in compliance to the Secretary on implementing the with the Federal Advisory Committee terms of the Federal Interagency FOR FURTHER INFORMATION CONTACT: Kathy Mohney, RAC Coordinator, Act. The purpose of the committee is to Partnership on the Lake Tahoe Region Allegheny National Forest Supervisor’s improve collaborative relationships and and other matters raised by the Office, 4 Farm Colony Drive, Warren, to provide advice and recommendations Secretary. Pennsylvania, 16365, phone (814) 728– to the Forest Service concerning projects DATES: The meeting will be held May 6298 or e-mail [email protected]. and funding consistent with Title II of 12, 2011, beginning at 9 a.m. and ending the Act. The meeting is open to the Individuals who use at 12 p.m. public. The purpose of the meeting is to telecommunication devices for the deaf ADDRESSES: Tahoe Regional Planning review and consider a YCC project from (TDD) may call the Federal Information Agency, 128 Market Street, Stateline, Six Rivers National Forest that missed Relay Service (FIRS) at 1–800–877–8339 NV 89440. the submission deadline last year. The between 8 a.m. and 8 p.m., Eastern For Further Information or to Request RAC committee will also be establishing Standard Time, Monday through Friday. an Accommodation (One Week Prior to a timeline for the upcoming year. Requests for reasonable accomodation Meeting Date) Contact: Arla Hains, Lake for access to the facility or procedings DATES: The meeting will be held Tahoe Basin Management Unit, Forest may be made by contacting the person Monday, May 16 at 6:30 p.m. Service, 35 College Drive, South Lake listed For Further Information. ADDRESSES: The meeting will be held at Tahoe, CA 96150, (530) 543–2773. SUPPLEMENTARY INFORMATION: The the Trinity County Office of Education, SUPPLEMENTARY INFORMATION: Items to following business will be conducted: 201 Memorial Drive, Weaverville, be covered on the agenda: (1) Review organize the committee, review the California 96093. Written comments and discuss public comments and Secure Rural Schools Act and Title II may be submitted as described under congressional input on LTFAC’s guidelines specific to the purpose and Supplementary Information. preliminary recommendation of Lake duties of the RAC, introduce RAC FOR FURTHER INFORMATION CONTACT: Tahoe Southern Nevada Public Land members and federal officials involved Donna Harmon, Designated Federal Management Act (SNPLMA) Round 12 with the committee management and Official, at (530) 226–2595 or capital projects and science themes; (2) guidelines for the operation of the RAC, [email protected]. develop a final LTFAC recommendation schedule future meetings and begin the Individuals who use and hold a public hearing for the Lake process of soliciting appropriate projects telecommunication devices for the deaf Tahoe SNPLMA Round 12 capital for nomination for funding. (TDD) may call the Federal Information projects and science themes, and 3) Anyone who would like to bring Relay Service (FIRS) at 1–800–877–8339 public comment. related matters to the attention of the between 8 a.m. and 8 p.m., Eastern All Lake Tahoe Basin Federal committee may file written statements Standard Time, Monday through Friday. Advisory Committee meetings are open with the committee staff before or after Requests for reasonable accomodation to the public. Interested citizens are the meeting. The agenda will include for access to the facility or procedings encouraged to attend at the above time for people to make oral statements may be made by contacting the person address. Issues may be brought to the of three minutes or less. Individuals listed For Further Information. attention of the Committee during the wishing to make an oral statement SUPPLEMENTARY INFORMATION: The open public comment period at the should request in writing by May 6, meeting is open to the public. Public meeting or by filing written statements 2011, to be scheduled on the agenda. input sessions will be provided and with the secretary for the Committee Written comments and requests for time individuals will have the opportunity to before or after the meeting. Please refer for oral comments must be sent to 4 address the Trinity County Resource any written comments to the Lake Farm Colony Drive, Warren, Advisory Committee. Tahoe Basin Management Unit at the Pennsylvania, 16365, or by e-mail to Dated: April 14, 2011. contact address stated above. [email protected], or via facsimile to J. Sharon Heywood, Dated: April 20, 2011. (814) 726–1462. Forest Supervisor, Shasta-Trinity National Nancy J. Gibson, Dated: April 20, 2011. Forest. Forest Supervisor. Kathryn Albaugh, [FR Doc. 2011–9999 Filed 4–25–11; 8:45 am] [FR Doc. 2011–10002 Filed 4–25–11; 8:45 am] Acting Forest Supervisor. BILLING CODE 3410–11–P BILLING CODE 3410–11–P [FR Doc. 2011–9992 Filed 4–25–11; 8:45 am] BILLING CODE 3410–11–P DEPARTMENT OF AGRICULTURE DEPARTMENT OF AGRICULTURE

DEPARTMENT OF AGRICULTURE Forest Service Forest Service Forest Service Lake Tahoe Basin Federal Advisory Huron Manistee Resource Advisory Committee (LTFAC) Committee Trinity County Resource Advisory AGENCY: Forest Service, USDA. AGENCY: Forest Service, USDA. Committee ACTION: Notice of meeting. ACTION: Notice of meeting. AGENCY: Forest Service, USDA. SUMMARY: The Lake Tahoe Basin Federal SUMMARY: The Huron Manistee Resource ACTION: Notice of meeting. Advisory Committee will hold a Advisory Committee will meet in Mio,

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Michigan. The committee is authorized Written comments and requests for time of the rules and regulations of the under the Secure Rural Schools and for oral comments must be sent to Commission and FACA. Community Self-Determination Act Huron Manistee RAC, c/o Mio Ranger Dated in Washington, DC, April 19, 2011. (Pub. L. 110–343) (the Act) and operates Station, 107 McKinley Road, Mio Peter Minarik, in compliance with the Federal Michigan 48647 or by e-mail to Advisory Committee Act. The purpose Acting Chief, Regional Programs [email protected] or via facsimile to Coordination Unit. of the committee is to improve (989) 826–6073. [FR Doc. 2011–10000 Filed 4–25–11; 8:45 am] collaborative relationships and to Dated: April 20, 2011. provide advice and recommendations to BILLING CODE 6335–01–P Steven A. Goldman, the Forest Service concerning projects and funding consistent with the title II Designated Federal Official. of the Act. The meeting is open to the [FR Doc. 2011–9994 Filed 4–25–11; 8:45 am] DEPARTMENT OF COMMERCE public. The purpose of the meeting is to BILLING CODE 3410–11–P International Trade Administration conduct committee business and to review proposed projects. [A–351–838, A–533–840, A–570–893, A–549– DATES: The meeting will be held COMMISSION ON CIVIL RIGHTS 822, A–552–802] Thursday May 19, 2011 from 6:30 p.m. Agenda and Notice of Public Meeting Certain Frozen Warmwater Shrimp to 9:30 p.m. of the Alaska Advisory Committee From Brazil, India, the People’s ADDRESSES: The meeting will be held at Republic of China, Thailand, and the the Mio Ranger Station, 107 McKinley Notice is hereby given, pursuant to Socialist Republic of Vietnam: Road, Mio, Michigan 48647. Written the provisions of the rules and Amended Antidumping Duty Orders in comments may be submitted as regulations of the U.S. Commission on Accordance with Final Court Decision described under Supplementary Civil Rights (Commission) and the Information. Federal Advisory Committee Act AGENCY: Import Administration, All comments, including names and (FACA) that a planning meeting of the International Trade Administration, addresses when provided, are placed in Alaska Advisory Committee Department of Commerce. the record and are available for public (Committee) to the Commission will be DATES: Effective Date: April 26, 2011. inspection and copying. The public may held on Tuesday, May 17, 2011 at the SUMMARY: On April 14, 2010, the U.S. inspect comments received at the Mio Loussac Library, 3600 Denali Street, Court of International Trade (‘‘CIT’’) Ranger Station. Please call ahead to Anchorage, Alaska, 99503. The meeting sustained the remand redetermination 1 (989) 826–3252 to facilitate entry into is scheduled to begin at 2:30 p.m. and issued by the Department of Commerce the building to view comments. adjourn at approximately 5 p.m. The (‘‘Department’’) pursuant to the CIT’s FOR FURTHER INFORMATION CONTACT: purpose of the meeting is to plan a remand order involving the Steven Goldman, Designated Federal future civil rights project. antidumping duty investigations of Official or Carrie Scott, Natural Members of the public are entitled to certain frozen warmwater shrimp from Resource Planner, Huron-Manistee submit written comments. The Brazil, Ecuador, India, the People’s National Forests, Mio Ranger Station, comments must be received in the Republic of China (‘‘PRC’’), Thailand, 107 McKinley Road, Mio, MI 48647; Western Regional Office of the and the Socialist Republic of Vietnam (989) 826–3252. Commission by June 17, 2011. The (‘‘Vietnam’’).2 On March 30, 2011, the Individuals who use address is Western Regional Office, U.S. U.S. International Trade Commission telecommunication devices for the deaf Commission on Civil Rights, 300 N. Los (‘‘ITC’’) notified the Department of its (TDD) may call the Federal Information Angeles Street, Suite 2010, Los Angeles, final determinations in the five-year Relay Service (FIRS) at 1–800–877–8339 CA 90012. Persons wishing to e-mail (sunset) reviews concerning the between 8:00 a.m. and 8:00 p.m., their comments, or to present their antidumping duty orders on frozen Eastern Standard Time, Monday comments verbally at the meeting, or warmwater shrimp from Brazil, the PRC, through Friday. Requests for reasonable who desire additional information India, Thailand, and Vietnam, in which accomodation for access to the facility should contact Angelica Trevino, Office it found that revocation of these orders or procedings may be made by Manager, Western Regional Office, at would likely lead to a continuation or contacting the person listed For Further (213) 894–3437, (or for hearing impaired recurrence of material injury to an Information. TDD 913–551–1414), or by e-mail to industry in the United States within a SUPPLEMENTARY INFORMATION: The [email protected]. Hearing-impaired reasonably foreseeable time to a U.S. following business will be conducted: persons who will attend the meeting industry. The ITC also found the (1) Introductions and review of previous and require the services of a sign domestic like product to include dusted meeting; (2) Approve Huron Manistee language interpreter should contact the shrimp. See id. at footnote 22. In light RAC operating guidelines; (3) Develop Regional Office at least ten (10) working of the CIT’s final decision and the ITC’s and approve rating criteria for Title II days before the scheduled date of the sunset determination, the Department is projects; (4) Review of Title II project meeting. now issuing amended antidumping duty proposals; and (5) Public comment. Records generated from this meeting orders that include dusted shrimp Anyone who would like to bring may be inspected and reproduced at the within the scope of the orders. related matters to the attention of the Western Regional Office, as they become FOR FURTHER INFORMATION CONTACT: committee may file written statements available, both before and after the Emeka Chukwudebe or Matthew with the committee staff before or after meeting. Persons interested in the work the meeting. The agenda will include of this advisory committee are advised 1 See Final Results of Redetermination Pursuant time for people to make oral statements to go to the Commission’s Web site, to Court Remand, Court No. 05–00192 (October 29, of three minutes or less. Individuals http://www.usccr.gov, or to contact the 2009) (‘‘Final Redetermination’’), found at http:// ia.ita.doc.gov/remands/09-69.pdf. wishing to make an oral statement Western Regional Office at the above e- 2 See Ad Hoc Shrimp Trade Action Committee v. should request in writing by May 18, mail or street address. The meeting will United States, 703 F. Supp. 2d 1330 (Ct. Int’l Trade 2011 to be scheduled on the agenda. be conducted pursuant to the provisions 2010) (‘‘Ad Hoc IV’’).

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Renkey, AD/CVD Operations, Office 9, On September 2, 2010, the Department Ecuador in these amended antidumping Import Administration, International published in the Federal Register the duty orders pursuant to court decision. Trade Administration, U.S. Department amended final determinations of certain Inclusion in the Amended Antidumping of Commerce, 14th Street and frozen warmwater shrimp from Brazil, Duty Orders Constitution Ave., NW., Washington, Ecuador, India, the PRC, Thailand, and DC 20230; telephone: (202) 482–0219 or Vietnam.6 As we now find that dusted shrimp is within the scope of the orders, we have (202) 482–2312, respectively. At the time that the Department included revised scope language below. SUPPLEMENTARY INFORMATION: issued its Second Amended Final We note that the original shrimp Ad Hoc IV arose out of the Determinations, it did not issue 3 investigations also included canned Department’s final determinations and amended antidumping duty orders to 4 warmwater shrimp. However, given that amended final determinations in the include dusted shrimp absent an injury the ITC did not find injury with respect original investigations of certain frozen analysis from the ITC. On March 30, to canned warmwater shrimp in its warmwater shrimp. In Ad Hoc III, the 2011, the ITC notified the Department of original investigation and that the CIT remanded the issue of the its final determinations, which subsequent Shrimp AD Amended Finals Department’s decision to exclude addressed the injury analysis with and Orders did not include canned dusted shrimp from the scope of the respect to dusted shrimp. See Frozen warmwater shrimp, we are similarly not antidumping duty investigations on Warmwater Shrimp from Brazil, China, including any reference to canned certain frozen and canned warmwater India, Thailand, and Vietnam 5 warmwater shrimp in the revised scope shrimp. In the Final Redetermination (Investigation Nos. 731–TA–1063, 1064, language. While the Department finds submitted in response to Ad Hoc III, the 1066–1068 (Review), USITC Publication Department found that dusted shrimp that dusted shrimp are no longer 4221, March 2011 (‘‘ITC Review Final’’). should be included within the scope of excluded from the scope of the orders, Specifically, the ITC noted that: the investigations. On April 14, 2010, it has retained the five-step definition of the CIT affirmed all aspects of the ‘‘Dusted shrimp,’’ which is now expressly the dusting process, as dusting is a Department’s remand redetermination. included in the scope definition, was necessary precursor for producing expressly excluded from the scope during the battered shrimp, which remains outside original investigations. In September 2010, 3 See Notice of Final Determination of Sales at the scope. Less Than Fair Value: Certain Frozen and Canned Commerce published a notice in the Federal Warmwater Shrimp From Brazil, 69 FR 76910 Register amending the scope definition to Scope of the Orders (December 23, 2004); Notice of Final Determination include ‘‘dusted shrimp’’ pursuant to a court of Sales at Less Than Fair Value: Certain Frozen remand. ‘‘Dusted shrimp’’ has not been the The scope of the orders includes and Canned Warmwater Shrimp From Ecuador, 69 subject of any domestic like product certain warmwater shrimp and prawns, FR 76913 (December 23, 2004); Notice of Final arguments in either the original whether frozen, wild-caught (ocean Determination of Sales at Less Than Fair Value and harvested) or farm-raised (produced by Negative Final Determination of Critical investigations or these reviews. Circumstances: Certain Frozen and Canned aquaculture), head-on or head-off, shell- Warmwater Shrimp From India, 69 FR 76916 See ITC Review Final at 5–6. In turn, the on or peeled, tail-on or tail-off,8 (December 23, 2004); Notice of Final Determination ITC found that it did not need to make deveined or not deveined, cooked or of Sales at Less Than Fair Value: Certain Frozen a formal redetermination of its original raw, or otherwise processed in frozen and Canned Warmwater Shrimp From the People’s Republic of China, 69 FR 70997 (December 8, 2004); injury determinations and further stated form. Notice of Final Determination of Sales at Less Than that ‘‘[b]ecause the scope definition now The frozen warmwater shrimp and Fair Value and Negative Final Determination of includes dusted shrimp, and the record prawn products included in the scope of Critical Circumstances: Certain Frozen and Canned provides no basis for treating dusted these orders, regardless of definitions in Warmwater Shrimp From Thailand, 69 FR 76918 (December 23, 2004); Final Determination of Sales shrimp as a distinct like product, we the Harmonized Tariff Schedule of the at Less Than Fair Value: Certain Frozen and define the domestic like product to United States (‘‘HTS’’), are products Canned Warmwater Shrimp From the Socialist include dusted shrimp.’’ See id. at which are processed from warmwater Republic of Vietnam, 69 FR 71005 (December 8, footnote 22. As the ITC has found that shrimp and prawns through freezing 2004). 4 See Notice of Amended Final Determination of the domestic like product includes and which are sold in any count size. Sales at Less Than Fair Value and Antidumping dusted shrimp in its ITC Review Final, The products described above may be Duty Order: Certain Frozen Warmwater Shrimp the Department is now issuing amended processed from any species of from Brazil, 70 FR 5143 (February 1, 2005); Notice antidumping duty orders. warmwater shrimp and prawns. of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: We also note that prior to Ad Hoc IV, Warmwater shrimp and prawns are Certain Frozen Warmwater Shrimp from Ecuador, the Second Amended Final generally classified in, but are not 70 FR 5156 (February 1, 2005); Notice of Amended Determinations, and the ITC Review limited to, the Penaeidae family. Some Final Determination of Sales at Less Than Fair examples of the farmed and wild-caught Value and Antidumping Duty Order: Certain Frozen Final, the Department revoked the Warmwater Shrimp from India, 70 FR 5147 antidumping duty order with respect to warmwater species include, but are not (February 1, 2005); Notice of Amended Final Ecuador.7 Thus, we are not including limited to, whiteleg shrimp (Penaeus Determination of Sales at Less Than Fair Value and vannemei), banana prawn (Penaeus Antidumping Duty Order: Certain Frozen merguiensis), fleshy prawn (Penaeus Warmwater Shrimp From the People’s Republic of 6 See Certain Frozen Warmwater Shrimp From China, 70 FR 5149 (February 1, 2005); Notice of Brazil, India, the People’s Republic of China, chinensis), giant river prawn Amended Final Determination of Sales at Less Thailand, and the Socialist Republic of Vietnam: (Macrobrachium rosenbergii), giant tiger Than Fair Value and Antidumping Duty Order: Notice of Amended Final Determinations of Sales prawn (Penaeus monodon), redspotted Certain Frozen Warmwater Shrimp from Thailand, at Less Than Fair Value Pursuant to Court Decision, shrimp (Penaeus brasiliensis), southern 70 FR 5145 (February 1, 2005); Notice of Amended 75 FR 53947 (September 2, 2010) (‘‘Second Final Determination of Sales at Less Than Fair Amended Final Determinations’’). brown shrimp (Penaeus subtilis), Value and Antidumping Duty Order: Certain Frozen 7 See Implementation of the Findings of the WTO southern pink shrimp (Penaeus Warmwater Shrimp From the Socialist Republic of Panel in United States Antidumping Measure on notialis), southern rough shrimp Vietnam, 70 FR 5152 (February 1, Shrimp from Ecuador: Notice of Determination (Trachypenaeus curvirostris), southern 2005)(collectively, the ‘‘Shrimp AD Amended Finals Under section 129 of the Uruguay Round and Orders’’). Agreements Act and Revocation of the white shrimp (Penaeus schmitti), blue 5 See Ad Hoc Shrimp Trade Action Committee v. Antidumping Duty Order on Frozen Warmwater United States, 637 F. Supp. 2d 1166 (Ct. Int’l Trade Shrimp from Ecuador, 72 FR 48257 (August 23, 8 ‘‘Tails’’ in this context means the tail fan, which 2009) (‘‘Ad Hoc III’’). 2007). includes the telson and the uropods.

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shrimp (Penaeus stylirostris), western Collection of Cash Deposits Petitioner 3 submitted comments white shrimp (Penaeus occidentalis), The Department will instruct U.S. rebutting one of the errors alleged by and Indian white prawn (Penaeus Customs and Border Protection to Stanley. No other party in this indicus). collect cash deposits on all imports of proceeding submitted comments on the Frozen shrimp and prawns that are the subject merchandise (including Department’s final margin calculations. packed with marinade, spices or sauce dusted shrimp) entered, or withdrawn Based upon our analysis of the are included in the scope of these from warehouse, for consumption on or comments and allegations of ministerial orders. In addition, food preparations after the date of publication of this errors, we have made changes to the (including dusted shrimp), which are notice. margin calculations for Stanley, which not ‘‘prepared meals,’’ that contain more This notice is issued and published in in turn will also affect the margin for the than 20 percent by weight of shrimp or accordance with sections 735(d), 736(a), separate-rate companies, as it was the prawn are also included in the scope of and 777(i)(1) of the Act. only individually-reviewed respondent these orders. to receive a calculated rate.4 Dated: April 18, 2011. Excluded from the scope are: (1) Ronald K. Lorentzen, Scope of the Order Breaded shrimp and prawns (HTS Deputy Assistant Secretary for Import The merchandise covered by the order subheading 1605.20.10.20); (2) shrimp Administration. includes certain steel nails having a and prawns generally classified in the [FR Doc. 2011–10080 Filed 4–25–11; 8:45 am] shaft length up to 12 inches. Certain Pandalidae family and commonly BILLING CODE 3510–DS–P steel nails include, but are not limited referred to as coldwater shrimp, in any to, nails made of round wire and nails state of processing; (3) fresh shrimp and that are cut. Certain steel nails may be prawns whether shell-on or peeled (HTS DEPARTMENT OF COMMERCE of one piece construction or constructed subheadings 0306.23.00.20 and of two or more pieces. Certain steel nails 0306.23.00.40); (4) shrimp and prawns International Trade Administration may be produced from any type of steel, in prepared meals (HTS subheading [A–570–909] and have a variety of finishes, heads, 1605.20.05.10); (5) dried shrimp and shanks, point types, shaft lengths and prawns; (6) Lee Kum Kee’s shrimp shaft diameters. Finishes include, but 9 Certain Steel Nails From the People’s sauce; (7) canned warmwater shrimp Republic of China: Amended Final are not limited to, coating in vinyl, zinc and prawns (HTS subheading Results of the First Antidumping Duty (galvanized, whether by electroplating 1605.20.10.40); and (8) certain battered Administrative Review or hot-dipping one or more times), shrimp. Battered shrimp is a shrimp- phosphate cement, and paint. Head based product: (1) That is produced AGENCY: Import Administration, styles include, but are not limited to, from fresh (or thawed-from-frozen) and International Trade Administration, flat, projection, cupped, oval, brad, peeled shrimp; (2) to which a ‘‘dusting’’ Department of Commerce. headless, double, countersunk, and layer of rice or wheat flour of at least 95 DATES: Effective Date: April 26, 2011. sinker. Shank styles include, but are not percent purity has been applied; (3) FOR FURTHER INFORMATION CONTACT: limited to, smooth, barbed, screw with the entire surface of the shrimp Emeka Chukwudebe or Matthew threaded, ring shank and fluted shank flesh thoroughly and evenly coated with Renkey, AD/CVD Operations, Office 9, styles. Screw-threaded nails subject to the flour; (4) with the non-shrimp Import Administration, International this proceeding are driven using direct content of the end product constituting Trade Administration, Department of force and not by turning the fastener between four and 10 percent of the Commerce, 14th Street and Constitution using a tool that engages with the head. product’s total weight after being Avenue, NW., Washington, DC 20230; Point styles include, but are not limited dusted, but prior to being frozen; and (5) telephone: (202) 482–0219 or (202) 482– to, diamond, blunt, needle, chisel and that is subjected to individually quick 2312, respectively. no point. Finished nails may be sold in frozen (‘‘IQF’’) freezing immediately bulk, or they may be collated into strips SUPPLEMENTARY INFORMATION: after application of the dusting layer. or coils using materials such as plastic, When dusted in accordance with the Background paper, or wire. Certain steel nails definition of dusting above, the battered On March 23, 2011, the Department of subject to this proceeding are currently shrimp product is also coated with a Commerce (‘‘Department’’) published the classified under the Harmonized Tariff wet viscous layer containing egg and/or final results of the first administrative Schedule of the United States milk, and par-fried. review of the antidumping duty order (‘‘HTSUS’’) subheadings 7317.00.55, The products covered by these orders on certain steel nails (‘‘steel nails’’) from 7317.00.65 and 7317.00.75. are currently classified under the the People’s Republic of China (‘‘PRC’’).1 Excluded from the scope of this following HTS subheadings: Also on March 23, 2011, respondent proceeding are roofing nails of all 0306.13.00.03, 0306.13.00.06, Stanley 2 filed a timely allegation that lengths and diameter, whether collated 0306.13.00.09, 0306.13.00.12, the Department made two ministerial or in bulk, and whether or not 0306.13.00.15, 0306.13.00.18, errors in the Final Results and galvanized. Steel roofing nails are 0306.13.00.21, 0306.13.00.24, requested, pursuant to 19 CFR 351.224, specifically enumerated and identified 0306.13.00.27, 0306.13.00.40, that the Department correct the alleged in ASTM Standard F 1667 (2005 1605.20.10.10, and 1605.20.10.30. These ministerial errors. On March 28, 2011, revision) as Type I, Style 20 nails. Also HTS subheadings are provided for excluded from the scope of this convenience and for customs purposes 1 See Certain Steel Nails From the People’s proceeding are corrugated nails. A only and are not dispositive, but rather Republic of China: Final Results of the First corrugated nail is made of a small strip the written description of the scope of Antidumping Duty Administrative Review, 76 FR of corrugated steel with sharp points on these orders is dispositive. 16379 (March 23, 2011) (‘‘Final Results’’). one side. Also excluded from the scope 2 The Stanley Works (Langfang) Fastening of this proceeding are fasteners suitable Systems Co., Ltd., the Stanley Works/Stanley 9 The specific exclusion for Lee Kum Kee’s Fastening Systems LP, and an unaffiliated wire shrimp sauce applies only to the scope in the PRC drawing subcontractor are collectively referred to as 3 Mid Continent Nail Corporation. case. ‘‘Stanley’’ in this administrative review. 4 See Final Results, 76 FR at 16381–16382.

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for use in powder-actuated hand tools, selection of denominators represents an Disclosure not threaded and threaded, which are intentional methodological choice We will disclose the calculations currently classified under HTSUS consistent with the scope of the order performed for these amended final 7317.00.20 and 7317.00.30. Also and does not constitute a ministerial results within five days of the date of excluded from the scope of this error within the context of section publication of this notice to interested proceeding are thumb tacks, which are 751(h) of the Act or 19 CFR 351.224(f). parties in accordance with 19 CFR currently classified under HTSUS For a detailed discussion of these 351.224(b). 7317.00.10.00. Also excluded from the ministerial errors, as well as the scope of this proceeding are certain Department’s analysis of these errors, Assessment Rates brads and finish nails that are equal to see Memorandum to James C. Doyle, Upon issuance of the amended final or less than 0.0720 inches in shank from Matthew Renkey, regarding ‘‘First results, the Department will determine, diameter, round or rectangular in cross Antidumping Duty Administrative and U.S. Customs and Border Protection section, between 0.375 inches and 2.5 Review of Certain Steel Nails from the (‘‘CBP’’) shall assess, antidumping duties inches in length, and that are collated People’s Republic of China: Ministerial on all appropriate entries. The with adhesive or polyester film tape Error Memorandum,’’ dated Department intends to issue assessment backed with a heat seal adhesive. Also concurrently with this notice. instructions to CBP 15 days after the excluded from the scope of this Therefore, in accordance with section date of publication of the amended final proceeding are fasteners having a case 751(h) of the Act and 19 CFR 351.224(e), results of review, excluding any hardness greater than or equal to 50 we are amending the Final Results of the reported sales that entered during the HRC, a carbon content greater than or 5 administrative review of certain steel gap period. Pursuant to 19 CFR equal to 0.5 percent, a round head, a nails from the PRC. Listed below are the 351.212(b)(1), we will calculate secondary reduced-diameter raised head revised weighted average dumping importer-specific (or customer-specific) section, a centered shank, and a smooth margins for these amended final results: ad valorem duty assessment rates based symmetrical point, suitable for use in on the ratio of the total amount of the gas-actuated hand tools. Weighted dumping margins calculated for the While the HTSUS subheadings are examined sales to the total entered Exporter average provided for convenience and customs margin value of those same sales. In accordance purposes, the written description of the (percent) with 19 CFR 351.106(c)(2), we will scope of this proceeding is dispositive. instruct CBP to liquidate, without regard 1) Stanley ...... 10.63 Amended Final Results of the Review 2) Aironware (Shanghai) Co., to antidumping duties, all entries of subject merchandise during the period The Tariff Act of 1930, as amended Ltd ...... 10.63 3) Chiieh Yung Metal Ind. Corp. 10.63 of review for which the importer- (‘‘Act’’), defines a ‘‘ministerial error’’ as specific assessment rate is zero or de including ‘‘errors in addition, 4) China Staple Enterprise (Tianjin) Co., Ltd ...... 10.63 minimis. For the companies receiving a subtraction, or other arithmetic 5) Dezhou Hualude Hardware separate rate that were not selected for function, clerical errors resulting from Products Co., Ltd ...... 10.63 individual review, we will calculate an inaccurate copying, duplication, or the 6) Faithful Engineering Prod- assessment rate based on the simple like, and any other type of unintentional ucts Co., Ltd ...... 10.63 average of the cash deposit rates error which the administering authority 7) Hengshui Mingyao Hardware calculated for the companies selected considers ministerial.’’ See section & Mesh Products Co., Ltd .... 10.63 for individual review pursuant to 8) Huanghua Jinhai Hardware 751(h) of the Act; see also 19 CFR section 735(c)(5)(B) of the Act. 351.224(e). After analyzing Stanley’s Products Co., Ltd ...... 10.63 comments and Petitioner’s rebuttal 9) Huanghua Xionghua Hard- Cash Deposit Requirements comments, we have determined that we ware Products Co., Ltd ...... 10.63 10) Jisco Corporation ...... 10.63 The following cash deposit made certain ministerial errors, as requirements will be effective defined by section 751(h) of the Act, in 11) Koram Panagene Co., Ltd. 10.63 12) Nanjing Yuechang Hard- retroactively on any entries made on or our calculations for the Final Results. ware Co., Ltd ...... 10.63 after March 23, 2011, the date of First, we agree with Stanley that we 13) Qidong Liang Chyuan publication of the Final Results, for all made a ministerial error in the Metal Industry Co., Ltd ...... 10.63 shipments of the subject merchandise calculation of the surrogate financial 14) Qingdao D & L Group Ltd. 10.63 entered, or withdrawn from warehouse, ratios of Nasco Steel Pvt., Ltd. (‘‘Nasco’’), 15) Romp (Tianjin) Hardware for consumption on or after the which were used in Stanley’s margin Co., Ltd ...... 10.63 publication date, as provided for by calculation. Specifically, the 16) Shandong Dinglong Import section 751(a)(2)(C) of the Act: (1) For Department inadvertently used the & Export Co., Ltd ...... 10.63 the exporters listed above, the cash column for total depreciation from 17) Shanghai Jade Shuttle Hardware Tools Co., Ltd ...... 10.63 deposit rate will be established in the Schedule 4 of the financial statement, amended final results of this review when we instead intended to use the 18) Shouguang Meiqing Nail In- dustry Co., Ltd ...... 10.63 (except, if the rate is zero or de minimis, column for depreciation during the 19) Tianjin Jinchi Metal Prod- i.e., less than 0.5 percent, no cash fiscal year. Additionally, when ucts Co., Ltd ...... 10.63 deposit will be required for that reviewing the financial ratio 20) Tianjin Jinghai County company); (2) for previously calculations for Nasco to correct the Hongli Industry & Business investigated or reviewed PRC and non- above error, we also noted another Co., Ltd ...... 10.63 PRC exporters not listed above that have inadvertent error in the calculation for 21) Tianjin Zhonglian Metals the net change in inventory. Lastly, we Ware Co., Ltd...... 10.63 5 The gap period represents the period of time disagree with Stanley’s second 22) Wintime Import & Export after the expiration of the 180-day provisional ministerial error allegation, regarding Corporation Limited of measures period during the original investigation, whether net U.S. prices and normal Zhongshan ...... 10.63 to the day prior to the U.S. International Trade 23) Zhejiang Gem-Chun Hard- Commission’s final determination. In the instant value were calculated on the same ware Accessory Co., Ltd ...... 10.63 case, the gap period is July 22, 2008, to July 24, weight basis. The Department’s 2008.

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separate rates, the cash deposit rate will The Petitions coverage. The Department encourages continue to be the exporter-specific rate On March 30, 2011, the Department of all interested parties to submit such published for the most recent period; (3) Commerce (‘‘the Department’’) received comments by May 9, 2011, 20 calendar for all PRC exporters of subject antidumping duty petitions concerning days from the date of signature of this merchandise which have not been imports of bottom mount combination notice. All comments must be filed on the records of the Korea and Mexico found to be entitled to a separate rate, refrigerator-freezers (‘‘bottom mount antidumping duty investigations as well the cash deposit rate will be the PRC- refrigerators’’) from the Republic of as the Korea countervailing duty wide rate of 118.04 percent; and (4) for Korea (‘‘Korea’’) and Mexico filed in investigation. Comments should be all non-PRC exporters of subject proper form by Whirlpool Corporation addressed to Import Administration’s merchandise which have not received (‘‘the petitioner’’), a domestic producer APO/Dockets Unit, Room 1870, U.S. their own rate, the cash deposit rate will of bottom mount refrigerators. See Department of Commerce, 14th Street be the rate applicable to the PRC Bottom Mount Combination and Constitution Avenue, NW., exporters that supplied that non-PRC Refrigerator-Freezers from the Republic Washington, DC 20230. The period of exporter. These deposit requirements, of Korea and Mexico; Antidumping and when imposed, shall remain in effect scope consultations is intended to Countervailing Duty Petitions provide the Department with ample until further notice. ‘‘ ’’ (collectively, the petitions ). On April opportunity to consider all comments Reimbursement of Duties 5 and 12, 2011, the Department issued and to consult with parties prior to the This notice also serves as a final requests for additional information and issuance of the preliminary reminder to importers of their clarification of certain areas of the determinations. responsibility under 19 CFR 351.402(f) antidumping petitions on Korea and Mexico. Based on the Department’s Comments on Product Characteristics to file a certificate regarding the for Antidumping Duty Questionnaires reimbursement of antidumping duties request, the petitioner filed supplements prior to liquidation of the relevant to the petitions on Korea and Mexico on We are requesting comments from entries during this POR. Failure to April 11 and 14, 2011. interested parties regarding the comply with this requirement could In accordance with section 732(b) of appropriate physical characteristics of ‘‘ result in the Department’s presumption the Tariff Act of 1930, as amended ( the bottom mount refrigerators to be ’’ that reimbursement of antidumping Act ), the petitioner alleges that imports reported in response to the duties has occurred and the subsequent of bottom mount refrigerators from Department’s antidumping assessment of doubled antidumping Korea and Mexico are being, or are questionnaires. This information will be duties. likely to be, sold in the United States at used to identify the key physical These amended final results are less than fair value, within the meaning characteristics of the subject published in accordance with sections of section 731 of the Act, and that such merchandise in order to more accurately 751(h) and 777(i)(1) of the Act. imports materially injure, or threaten report the relevant costs of production, material injury to, an industry in the as well as to develop appropriate Dated: April 18, 2011. United States. product comparison criteria. Ronald K. Lorentzen, The Department finds that the Interested parties may provide any Deputy Assistant Secretary for Import petitioner filed these petitions on behalf information or comments that they feel Administration. of the domestic industry because the are relevant to the development of an [FR Doc. 2011–10083 Filed 4–25–11; 8:45 am] petitioner is an interested party as accurate listing of physical BILLING CODE 3510–DS–P defined in section 771(9)(C) of the Act, characteristics. Specifically, they may and it has demonstrated sufficient provide comments as to which industry support with respect to the characteristics are appropriate to use as DEPARTMENT OF COMMERCE investigations that it is requesting the (1) general product characteristics and Department to initiate (see (2) the product comparison criteria. We International Trade Administration ‘‘Determination of Industry Support for note that it is not always appropriate to [A–580–865, A–201–839] the Petitions’’ below). use all product characteristics as product comparison criteria. We base Bottom Mount Combination Scope of Investigations product comparison criteria on Refrigerator-Freezers From the The products covered by these meaningful commercial differences Republic of Korea and Mexico: investigations are bottom mount among products. In other words, while Initiation of Antidumping Duty refrigerators from Korea and Mexico. there may be some physical product Investigations For a full description of the scope of the characteristics utilized by investigations, please see the ‘‘Scope of manufacturers to describe bottom mount AGENCY: Import Administration, Investigations,’’ in Appendix I of this refrigerators, it may be that only a select International Trade Administration, notice. few product characteristics take into Department of Commerce account commercially meaningful Comments on Scope of Investigations DATES: Effective Date: April 26, 2011. physical characteristics. In addition, FOR FURTHER INFORMATION CONTACT: During our review of the petitions, we interested parties may comment on the David Goldberger (Republic of Korea) or discussed the scope with the petitioner order in which the physical Henry Almond (Mexico), AD/CVD to ensure that it is an accurate reflection characteristics should be used in Operations, Office 2, Import of the products for which the domestic product matching. Generally, the Administration, International Trade industry is seeking relief. Moreover, as Department attempts to list the most Administration, U.S. Department of discussed in the preamble to the important physical characteristics first Commerce, 14th Street and Constitution regulations (Antidumping Duties; and the least important characteristics Avenue, NW., Washington, DC 20230; Countervailing Duties; Final Rule, 62 FR last. telephone: (202) 482–4136 or (202) 482– 27296, 27323 (May 19, 1997)), we are In order to consider the suggestions of 0049, respectively. setting aside a period for interested interested parties in developing and SUPPLEMENTARY INFORMATION: parties to raise issues regarding product issuing the antidumping duty

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questionnaires, we must receive (CIT 1988), aff’d 865 F.2d 240 (Fed. Cir. Korea AD Initiation Checklist and comments at the above-referenced 1989), cert. denied 492 U.S. 919 (1989). Mexico AD Initiation Checklist, at address by May 9, 2011. Additionally, Section 771(10) of the Act defines the Attachment II. rebuttal comments must be received by domestic like product as ‘‘a product Our review of the data provided in the May 16, 2011. All comments must be which is like, or in the absence of like, petitions, supplemental submissions, filed on the records of both the Korea most similar in characteristics and uses and other information readily available and Mexico antidumping duty with, the article subject to an to the Department indicates that the investigations. investigation under this title.’’ Thus, the petitioner has established industry reference point from which the support. First, the petitions established Determination of Industry Support for domestic like product analysis begins is support from domestic producers (or the Petitions ‘‘the article subject to an investigation’’ workers) accounting for more than 50 Section 732(b)(1) of the Act requires (i.e., the class or kind of merchandise to percent of the total production of the that a petition be filed on behalf of the be investigated, which normally will be domestic like product and, as such, the domestic industry. Section 732(c)(4)(A) the scope as defined in the petition). Department is not required to take of the Act provides that a petition meets With regard to the domestic like further action in order to evaluate this requirement if the domestic product, the petitioner does not offer a industry support (e.g., polling). See producers or workers who support the definition of domestic like product section 732(c)(4)(D) of the Act, Korea petition account for: (i) At least 25 distinct from the scope of the AD Initiation Checklist and Mexico AD percent of the total production of the investigations. Based on our analysis of Initiation Checklist, at Attachment II. domestic like product; and (ii) more the information submitted on the Second, the domestic producers (or than 50 percent of the production of the record, we have determined that bottom workers) have met the statutory criteria domestic like product produced by that mount refrigerators constitute a single for industry support under section portion of the industry expressing domestic like product and we have 732(c)(4)(A)(i) of the Act because the support for, or opposition to, the analyzed industry support in terms of domestic producers (or workers) who petition. Moreover, section 732(c)(4)(D) that domestic like product. For a support the petitions account for at least of the Act provides that, if the petition discussion of the domestic like product 25 percent of the total production of the analysis in this case, see Antidumping does not establish support of domestic domestic like product. See Korea AD Duty Investigation Initiation Checklist: producers or workers accounting for Initiation Checklist and Mexico AD Bottom Mount Combination more than 50 percent of the total Initiation Checklist, at Attachment II. Refrigerator-Freezers from Korea (‘‘Korea production of the domestic like product, Finally, the domestic producers (or AD Initiation Checklist’’) and the Department shall: (i) Poll the workers) have met the statutory criteria Antidumping Duty Investigation industry or rely on other information in for industry support under section Initiation Checklist: Bottom Mount order to determine if there is support for 732(c)(4)(A)(ii) of the Act because the Combination Refrigerator-Freezers from domestic producers (or workers) who the petition, as required by Mexico (‘‘Mexico AD Initiation support the petitions account for more subparagraph (A); or (ii) determine Checklist’’), at Attachment II, Analysis than 50 percent of the production of the industry support using a statistically of Industry Support for the Petitions domestic like product produced by that valid sampling method to poll the Covering Bottom Mount Combination portion of the industry expressing industry. Refrigerator-Freezers, on file in the support for, or opposition to, the Section 771(4)(A) of the Act defines Central Records Unit (‘‘CRU’’), Room petitions. Accordingly, the Department the ‘‘industry’’ as the producers as a 7046 of the main Department of determines that the petitions were filed whole of a domestic like product. Thus, Commerce building. on behalf of the domestic industry to determine whether a petition has the In determining whether the petitioner within the meaning of section 732(b)(1) requisite industry support, the statute has standing under section 732(c)(4)(A) of the Act. See id. directs the Department to look to of the Act, we considered the industry The Department finds that the producers and workers who produce the support data contained in the petitions petitioner filed the petitions on behalf of domestic like product. The International with reference to the domestic like the domestic industry because it is an Trade Commission (‘‘ITC’’), which is product as defined in the ‘‘Scope of interested party as defined in section responsible for determining whether Investigations’’ section above. To 771(9)(C) of the Act and it has ‘‘the domestic industry’’ has been establish industry support, the demonstrated sufficient industry injured, must also determine what petitioner provided its production support with respect to the antidumping constitutes a domestic like product in volume of the domestic like product in duty investigations that it is requesting order to define the industry. While both 2010, and compared it to the estimated the Department initiate. See id. the Department and the ITC must apply total production of the domestic like the same statutory definition regarding product for the entire domestic Allegations and Evidence of Material the domestic like product (see section industry. See Volume I of the petitions, Injury and Causation 771(10) of the Act), they do so for at 8–11, Volume 2A of the petitions, at The petitioner alleges that the U.S. different purposes and pursuant to a Exhibits 4 and 5, and Supplement to the industry producing the domestic like separate and distinct authority. In AD/CVD petitions, dated April 11, 2011 product is being materially injured, or is addition, the Department’s (‘‘Supplement to the AD/CVD petitions’’) threatened with material injury, by determination is subject to limitations of at 2–4 and Exhibits S–1, S–2, and S–3. reason of the imports of the subject time and information. Although this The petitioner estimated 2010 merchandise sold at less than normal may result in different definitions of the production of the domestic like product value (‘‘NV’’). In addition, the petitioner like product, such differences do not by non-petitioning companies based on alleges that subject imports exceed the render the decision of either agency its knowledge of its competitors and negligibility threshold provided for contrary to law. See USEC, Inc. v. their production capacity. We have under section 771(24)(A) of the Act. United States, 132 F. Supp. 2d 1, 8 (CIT relied upon data the petitioner provided The petitioner contends that the 2001), citing Algoma Steel Corp., Ltd. v. for purposes of measuring industry industry’s injured condition is United States, 688 F. Supp. 639, 644 support. For further discussion, see illustrated by reduced market share,

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reduced shipments, underselling and as well as discounts and rebates, based investigation. The Statement of price depression or suppression, decline on the petitioner’s experience in and Administrative Action (‘‘SAA’’), in financial performance, lost sales and knowledge of the market. The petitioner submitted to the Congress in connection revenue, and increase in the volume of further adjusted home market price by with the interpretation and application imports and import penetration. See deducting Korean VAT and other taxes. of the Uruguay Round Agreements Act Volume I of the petitions, at 114–138, It made no other adjustments to home (‘‘URAA’’), states that an allegation of Volume 2A of the petitions, at Exhibit market price. sales below COP need not be specific to 6, Volume 2B of the petitions, at In order to calculate NV, the individual exporters or producers. See Exhibits 35 and 38–42, and Supplement petitioner made an adjustment for SAA, URAA, H. Doc. 316, Vol. 1, 103d to the AD/CVD petitions, at 5–10 and differences in costs attributable to Cong. (1994) at 833. The SAA, at 833, Exhibits S–1, S–2, S–4, and S–5. We differences in the physical states that ‘‘Commerce will consider have assessed the allegations and characteristics of the merchandise. See allegations of below-cost sales in the supporting evidence regarding material Korea AD Initiation Checklist. aggregate for a foreign country, just as injury, threat of material injury, and Commerce currently considers Mexico causation, and we have determined that allegations of sales at less than fair value these allegations are properly supported U.S. Price on a country-wide basis for purposes of by adequate evidence and meet the initiating an antidumping statutory requirements for initiation. See The petitioner provided two U.S. prices based on average model-specific investigation.’’ Korea AD Initiation Checklist and Further, the SAA provides that retail prices obtained from a market Mexico AD Initiation Checklists, at section 773(b)(2)(A) of the Act retains survey database. These prices were Attachment III, Analysis of Allegations the requirement that the Department adjusted to exclude the retailer markup, and Evidence of Material Injury and have ‘‘reasonable grounds to believe or as well as discounts and rebates, based Causation for the Petitions Covering suspect’’ that below-cost sales have on the petitioner’s experience in and Bottom Mount Combination occurred before initiating such an knowledge of the market. Because the Refrigerator-Freezers from the Republic investigation. See id. Reasonable Mexican producers sell refrigerators in of Korea and Mexico. grounds exist when an interested party the United States through affiliated provides specific factual information on Period of Investigations resellers, the petitioner calculated costs and prices, observed or constructed export price (‘‘CEP’’) by In accordance with 19 CFR constructed, indicating that sales in the deducting international freight based on 351.204(b), because these petitions were foreign market in question are at below- CBP data and U.S. freight and selling filed on March 30, 2011, the period of cost prices. investigation (‘‘POI’’) is January 1, 2010, expenses based on the petitioner’s own through December 31, 2010, for both financial statements for its U.S. Korea operations related to bottom mount Korea and Mexico. Cost of Production refrigerators. See Mexico AD Initiation Allegations of Sales at Less Than Fair Checklist. Pursuant to section 773(b)(3) of the Value Act, COP consists of the cost of The following is a description of the Normal Value manufacturing (‘‘COM’’); selling, general allegations of sales at less than fair value The petitioner provided two home and administrative (‘‘SG&A’’) expenses; upon which the Department has based market prices based on retail prices financial expenses; and packing its decision to initiate investigations available in Mexico. These prices were expenses. The petitioner relied on its with respect to Korea and Mexico. The adjusted to exclude the retailer markup, own production experience to calculate sources of, and adjustments to, the data as well as discounts and rebates, based the raw material, packing, and freight relating to U.S. price and NV are on the petitioner’s experience in and costs included in the calculation of discussed in greater detail in the Korea knowledge of the market. The petitioner COM. The petitioner adjusted these AD Initiation Checklist and the Mexico calculated a net home market price by inputs to account for known differences AD Initiation Checklist. deducting inland freight and selling in weights and technologies between the Korea expenses based on the petitioner’s petitioner’s U.S. bottom mount financial statements for its operations in refrigerator models and those of the U.S. Price Mexico related to refrigerator Korean producers’ bottom mount The petitioner provided two U.S. production and sales. refrigerator models sold in the prices based on average model-specific In order to calculate NV, the comparison market and the United retail prices obtained from a market petitioner made an adjustment for States. Inbound freight was calculated survey database. These prices were differences in costs attributable to based on the petitioner’s own adjusted to exclude the retailer markup, differences in the physical experience adjusted for differences in as well as discounts and rebates, based characteristics of the merchandise. See weight between the bottom mount on the petitioner’s experience in and Mexico AD Initiation Checklist. refrigerator models used to calculate COP/constructed value (‘‘CV’’) and the knowledge of the market. The petitioner Sales-Below-Cost Allegations deducted international freight based on Korean models. U.S. Customs and Border Protection The petitioner provided information The petitioner relied on its own labor (‘‘CBP’’) data. It made no other demonstrating reasonable grounds to costs, adjusted for known differences adjustments to U.S. price. See Korea AD believe or suspect that sales of bottom between the U.S. and Korean hourly Initiation Checklist. mount refrigerators in the Korean and compensation rates for electrical Mexican markets were made at prices equipment, appliance, and component Normal Value below the fully-absorbed cost of manufacturing in 2007, as reported by The petitioner provided two home production (‘‘COP’’), within the meaning the U.S. Bureau of Labor Statistics. The market prices based on a survey of retail of section 773(b) of the Act, and petitioner relied on its own experience prices in Korea. These prices were requested that the Department conduct to determine the per-unit factory adjusted to exclude the retailer markup, a country-wide sales-below-cost overhead costs (exclusive of labor)

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associated with the production of Mexico initiating a country-wide cost bottom mount refrigerators. investigation for Mexico. Cost of Production The petitioner stated that the bottom Normal Value Based on Constructed Pursuant to section 773(b)(3) of the mount refrigerator manufacturing Value Act, COP consists of the COM; SG&A processes in Korea are very similar to its expenses; financial expenses; and Because it alleged sales below cost for own manufacturing processes, and packing expenses. The petitioner relied Mexico, pursuant to sections 773(a)(4), therefore it is reasonable to estimate the on its own production experience to 773(b) and 773(e) of the Act, the Korean producers’ usage and factory calculate the quantity of the raw petitioner calculated NV based on CV. overhead rates based on the usage and material and packing inputs, as well as The petitioner calculated CV using the factory overhead rates experienced by a the freight costs included in the same average COM, G&A, financial and U.S. bottom mount refrigerator calculation of COM. The petitioner packing figures used to compute the producer. The petitioner also asserted adjusted the value of the raw material COP. The petitioner also included an that the use of Korean import data and packing inputs using the ratio of amount for profit in the CV calculation, results in aberrationally higher prices paid in Mexico by the bottom based upon the petitioner’s own weighted-average raw material and mount refrigerator producers to its own financial statements related to packing costs in comparison to the prices. The petitioner further adjusted production and sales of refrigerators in petitioner’s own raw material and these input values to account for known Mexico. See Mexico AD Initiation packing costs. Therefore, the reliance on differences in weights and technologies Checklist. the petitioner’s own raw material and between the petitioner’s U.S. bottom Fair Value Comparisons packing costs for purposes of calculating mount refrigerator models used for COP is conservative. purposes of calculating COP and CV and Based on the data provided by the the Mexican bottom mount refrigerator petitioner, there is reason to believe that To value SG&A and financial expense imports of bottom mount refrigerators rates, the petitioner relied on the fiscal models sold in the comparison market and the United States. Inbound freight from Mexico are being, or are likely to year 2009 financial statements of two be, sold in the United States at less than Korean producers of bottom mount was calculated based on the petitioner’s own experience adjusted for differences fair value. Based on a comparison of refrigerators. See Korea AD Initiation U.S. Price to home market price, as Checklist for further discussion. in weight between the bottom mount refrigerator models used to calculate discussed above, the estimated dumping Based upon a comparison of the COP/CV and the Mexican models. margin is 183.18 percent. Based on a prices of the foreign like product in the The petitioner relied on its own labor comparison of U.S. Price to CV, as home market to the calculated COP of costs, adjusted for known differences discussed above, the estimated dumping the most comparable product, we find between the U.S. and Mexican hourly margin is 23.10 percent. See id. reasonable grounds to believe or suspect compensation rates for electrical Initiation of Antidumping that sales of the foreign like product equipment, appliance, and component Investigations were made below the COP, within the manufacturing in 2007, as reported by Based upon the examination of the meaning of section 773(b)(2)(A)(i) of the the U.S. Bureau of Labor Statistics. The petitions on bottom mount refrigerators Act. Accordingly, the Department is petitioner relied on its own experience from Korea and Mexico and other initiating a country-wide cost to determine the per-unit factory information reasonably available to the investigation for Korea. overhead costs (exclusive of labor) Department, the Department finds that associated with the production of these petitions meet the requirements of Normal Value Based on Constructed bottom mount refrigerators. Value section 732 of the Act. Therefore, we are The petitioner stated that the bottom initiating antidumping duty Because it alleged sales below cost for mount refrigerator manufacturing investigations to determine whether Korea, pursuant to sections 773(a)(4), process in Mexico is very similar to its imports of bottom mount refrigerators 773(b) and 773(e) of the Act, the own manufacturing process, and from Korea and Mexico are being, or are petitioner calculated NV based on CV. therefore it is reasonable to estimate the likely to be, sold in the United States at The petitioner calculated CV using the Mexican producers’ usage and factory less than fair value. In accordance with same average COM, SG&A, financial and overhead rates based on the usage and section 733(b)(1)(A) of the Act, unless packing figures used to compute the factory overhead rates experienced by a postponed, we will make our COP. The petitioner did not include in U.S. bottom mount refrigerator preliminary determinations no later producer. the CV calculation an amount for profit. than 140 days after the date of this See Korea AD Initiation Checklist. To value general and administrative initiation. (G&A) expenses, the petitioner relied on Fair Value Comparisons the 2010 financial statements of its Targeted Dumping Allegations Mexican subsidiary. The petitioner On December 10, 2008, the Based on the data provided by the assumed a financial expense of zero. See Department issued an interim final rule petitioner, there is reason to believe that the Mexico AD Initiation Checklist for for the purpose of withdrawing 19 CFR imports of bottom mount refrigerators further discussion. 351.414(f) and (g), the regulatory from Korea are being, or are likely to be, Based upon a comparison of the provisions governing the targeted sold in the United States at less than fair prices of the foreign like product in the dumping analysis in antidumping duty value. Based on a comparison of U.S. home market to the calculated COP of investigations, and the corresponding Price to home market price, as discussed the most comparable product, we find regulation governing the deadline for above, the estimated dumping margin is reasonable grounds to believe or suspect targeted-dumping allegations, 19 CFR 61.82. Based on a comparison of U.S. that sales of the foreign like product 351.301(d)(5). See Withdrawal of the price to CV, as discussed above, the were made below the COP, within the Regulatory Provisions Governing estimated dumping margin is 34.16 meaning of section 773(b)(2)(A)(i) of the Targeted Dumping in Antidumping percent. See id. Act. Accordingly, the Department is Duty Investigations, 73 FR 74930

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(December 10, 2008). The Department subject merchandise. Due to limited Any party submitting factual stated that ‘‘{w}ithdrawal will allow the resources, it may not be practicable to information in an AD/CVD proceeding Department to exercise the discretion make individual weighted-average must certify to the accuracy and intended by the statute and, thereby, dumping margin determinations for completeness of that information. See develop a practice that will allow each of them. The Department, section 782(b) of the Act. Parties are interested parties to pursue all statutory therefore, will request quantity and hereby reminded that revised avenues of relief in this area.’’ See id., value information from the exporters certification requirements are in effect at 74931. and producers of bottom mount for company/government officials as In order to accomplish this objective, refrigerators that are identified in the well as their representatives in all if any interested party wishes to make petition. In the event the Department segments of any AD/CVD proceedings a targeted dumping allegation in any of decides to limit the number of initiated on or after March 14, 2011. See these investigations pursuant to section mandatory respondents, the quantity Certification of Factual Information to 777A(d)(1)(B) of the Act, such and value data received from Mexican Import Administration During allegations are due no later than 45 days exporters and producers will be used as Antidumping and Countervailing Duty before the scheduled date of the the basis to select the mandatory Proceedings: Interim Final Rule, 76 FR country-specific preliminary respondents. 7491 (February 10, 2011) (Interim Final determination. Rule) amending 19 CFR 351.303(g)(1) Distribution of Copies of the Petition and (2). The formats for the revised Respondent Selection In accordance with section certifications are provided at the end of Although the Department normally 732(b)(3)(A) of the Act and 19 CFR the Interim Final Rule. The Department relies on import data from CBP to select 351.202(f), copies of the public version intends to reject factual submissions in respondents in antidumping duty of the petitions and amendments thereto any proceeding segments initiated on or investigations involving market- have been provided to the after March 14, 2011, if the submitting economy countries, the Harmonized representatives of the Governments of party does not comply with the revised Tariff Schedule of the United States Korea and Mexico. To the extent certification requirements. (HTSUS) categories under which bottom practicable, we will attempt to provide This notice is issued and published mount refrigerators may be entered are a copy of the public version of the pursuant to section 777(i) of the Act and basket categories which include many petitions to each exporter named in the 19 CFR 351.203(c). other types of refrigerators and freezers. petition, as provided under 19 CFR Dated: April 19, 2011. Therefore, the CBP data cannot be 351.203(c)(2). Ronald K. Lorentzen, isolated to identify imports of subject ITC Notification Deputy Assistant Secretary for Import merchandise during the POI. Administration. Accordingly, the Department must rely We have notified the ITC of our on an alternate methodology for initiation, as required by section 732(d) Appendix I respondent selection, as described of the Act. Scope of the Investigations below. Preliminary Determinations by the ITC The products covered by the Korea The ITC will preliminarily determine, investigations are all bottom mount The petition names two companies as within 45 days after the date on which combination refrigerator-freezers and producers and/or exporters in Korea of the petition was filed, whether there is certain assemblies thereof from Korea bottom mount refrigerators: Samsung a reasonable indication that imports of and Mexico. For purposes of the Electronics Co., Ltd. (‘‘Samsung’’) and bottom mount refrigerators from Korea investigations, the term ‘‘bottom mount LG Electronics, Inc. (‘‘LG’’). The petition and Mexico materially injure, or combination refrigerator-freezers’’ identifies these two companies as threaten material injury to, a U.S. denotes freestanding or built-in cabinets accounting for virtually all of the industry. A negative ITC determination that have an integral source of imports of bottom mount refrigerators with respect to any country would refrigeration using compression from Korea. Moreover, we know of no result in the termination of the technology, with all of the following further exporters or producers of the investigation with respect to that characteristics: • subject merchandise because, as noted country; see section 703(a)(1) of the Act. The cabinet contains at least two above, the CBP data does not provide for Otherwise, these investigations will interior storage compartments accessible the isolation of such sales from the proceed according to statutory and through one or more separate external general ‘‘refrigerator-freezer’’ or regulatory time limits. doors or drawers or a combination ‘‘household refrigerator’’ basket HTSUS thereof; Notification to Interested Parties • categories. Accordingly, the Department The upper-most interior storage is selecting Samsung and LG as Interested parties must submit compartment(s) that is accessible mandatory respondents in this applications for disclosure under through an external door or drawer is investigation pursuant to section administrative protective orders in either a refrigerator compartment or 777A(c)(1) of the Act. We will consider accordance with 19 CFR 351.305. On convertible compartment, but is not a 1 comments from interested parties on January 22, 2008, the Department freezer compartment; and • There is at least one freezer or this respondent selection. Parties published Antidumping and convertible compartment that is wishing to comment must do so within Countervailing Duty Proceedings: mounted below the upper-most interior five days of the publication of this Documents Submission Procedures; storage compartment(s). notice in the Federal Register. APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate For purposes of the investigations, a Mexico in these investigations should ensure refrigerator compartment is capable of The CBP data is not useable for that they meet the requirements of these 1 procedures (e.g., the filing of letters of The existence of an interior sub-compartment respondent selection purposes for the for ice-making in the upper-most storage reason stated above. The petition names appearance as discussed at 19 CFR compartment does not render the upper-most four Mexican producers/exporters of the 351.103(d)). storage compartment a freezer compartment.

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storing food at temperatures above 32 Mexico, Secretariat File No. USA–MEX– LLC (collectively Bridgestone), a degrees F (0 degrees C), a freezer 2008–1904–04. domestic interested party in the original compartment is capable of storing food investigation. Based on our analysis of at temperatures at or below 32 degrees SUMMARY: Pursuant to the Order of the the comments, we have determined that F (0 degrees C), and a convertible Binational Panel dated March 10, 2011, no changes should be made in these compartment is capable of operating as affirming the final remand final results. We determine that either a refrigerator compartment or a determination described above, the subsidies are being provided to freezer compartment, as defined above. panel review was completed on April Starbright for the production and export 21, 2011. Also covered are certain assemblies of OTR Tires from the PRC. The subsidy used in bottom mount combination FOR FURTHER INFORMATION CONTACT: rate is set forth in the Final Results of refrigerator-freezers, namely: (1) Any Valerie Dees, United States Secretary, Review section below. assembled cabinets designed for use in NAFTA Secretariat, Suite 2061, 14th DATES: Effective Date: April 26, 2011. and Constitution Avenue, Washington, bottom mount combination refrigerator- FOR FURTHER INFORMATION CONTACT: DC 20230, (202) 482–5438. freezers that incorporate, at a minimum: Andrew Huston or Jun Jack Zhao, AD/ (a) an external metal shell, (b) a back SUPPLEMENTARY INFORMATION: On March CVD Operations, Office 6, Import panel, (c) a deck, (d) an interior plastic 10, 2011, the Binational Panel issued an Administration, International Trade liner, (e) wiring, and (f) insulation; (2) order, which affirmed the final remand Administration, U.S. Department of any assembled external doors designed determination of the United States Commerce, 14th Street and Constitution for use in bottom mount combination International Trade Commission Avenue, NW., Washington, DC 20230; refrigerator-freezers that incorporate, at concerning Light-Walled Rectangular telephone: (202) 482–4261 and (202) a minimum: (a) an external metal shell, Pipe and Tube from Mexico. The 482–1396, respectively. Secretariat was instructed to issue a (b) an interior plastic liner, and (c) SUPPLEMENTARY INFORMATION: insulation; and (3) any assembled Notice of Completion of Panel Review external drawers designed for use in on the 31st day following the issuance Background bottom mount combination refrigerator- of the Notice of Final Panel Action, if The following events have occurred freezers that incorporate, at a minimum: no request for an Extraordinary since the publication of the preliminary (a) an external metal shell, (b) an Challenge Committee was filed. No such results of this review. See New interior plastic liner, and (c) insulation. request was filed. Therefore, on the Pneumatic Off-the-Road Tires From the The products subject to the basis of the Panel Order and Rule 80 of People’s Republic of China: Preliminary investigations are currently classifiable the Article 1904 Panel Rules, the Panel Results of Countervailing Duty under subheadings 8418.10.0010, Review was completed and the panelists Administrative Review, 75 FR 64268 8418.10.0020, 8418.10.0030, and were discharged from their duties (October 19, 2010) (Preliminary Results). 8418.10.0040 of the Harmonized Tariff effective April 21, 2011. On November 18, 2010, the Department System of the United States (HTSUS). Dated: April 21, 2011. received case briefs from Starbright and Products subject to these investigations Valerie Dees, Titan. On November 23, 2010, the may also enter under HTSUS United States Secretary, NAFTA Secretariat. Department received rebuttal briefs from subheadings 8418.21.0010, [FR Doc. 2011–10005 Filed 4–25–11; 8:45 am] Starbright, Titan and Bridgestone. 8418.21.0020, 8418.21.0030, BILLING CODE 3510–GT–P 8418.21.0090, and 8418.99.4000, Period of Review 8418.99.8050, and 8418.99.8060. The period of review (POR) for which Although the HTSUS subheadings are DEPARTMENT OF COMMERCE we are measuring subsidies is December provided for convenience and customs 17, 2007, through December 31, 2008. purposes, the written description of the International Trade Administration Since there are only 15 days of 2007 merchandise subject to this scope is entries covered in the review, the [C–570–913] dispositive. Department preliminarily decided to [FR Doc. 2011–10048 Filed 4–25–11; 8:45 am] New Pneumatic Off-the-Road Tires calculate a single rate for subsidies BILLING CODE 3510–DS–P From the People’s Republic of China: received in calendar year 2008, and Final Results of Countervailing Duty apply this rate to entries made from Administrative Review December 17, 2007, through December DEPARTMENT OF COMMERCE 31, 2007, in addition to all of 2008, for AGENCY: Import Administration, assessment purposes. See Preliminary International Trade Administration International Trade Administration, Results, 75 FR at 64271. Since we did Department of Commerce. not receive any comments on this North American Free Trade Agreement SUMMARY: The Department of Commerce approach, we are not changing it in (NAFTA), Article 1904 Binational Panel (the Department) has conducted an these final results. Reviews: Notice of Completion of administrative review of Hebei Panel Review Starbright Tire Co., Ltd. (Starbright) Scope of the Order under the countervailing duty order on The products covered by the scope of AGENCY: NAFTA Secretariat, United certain new pneumatic off-the-road tires the order are new pneumatic tires States Section, International Trade (OTR Tires) from the People’s Republic designed for off-the-road (OTR) and off- Administration, Department of of China (PRC) for the period December highway use, subject to exceptions Commerce. 17, 2007, through December 31, 2008. identified below. Certain OTR tires are ACTION: Notice of Completion of Panel Following the preliminary results, we generally designed, manufactured and Review of the final remand received comments from Starbright, offered for sale for use on off-road or off- determination made by the United Titan Tire Corporation (Titan), the highway surfaces, including but not States International Trade Commission, petitioner in the original investigation, limited to, agricultural fields, forests, in the matter of Light-Walled and Bridgestone Americas, Inc. and construction sites, factory and Rectangular Pipe and Tube from Bridgestone Americas Tire Operations, warehouse interiors, airport tarmacs,

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ports and harbors, mines, quarries, foregoing list of vehicles and equipment safety standards. Such excluded tires gravel yards, and steel mills. The generally have in common that they are may also have the following vehicles and equipment for which used for hauling, towing, lifting, and/or designations that are used by the Tire certain OTR tires are designed for use loading a wide variety of equipment and and Rim Association: include, but are not limited to: (1) materials in agricultural, construction Prefix letter designations: Agricultural and forestry vehicles and and industrial settings. Such vehicles • P—Identifies a tire intended equipment, including agricultural and equipment, and the descriptions primarily for service on passenger cars; tractors,1 combine harvesters,2 contained in the footnotes are • LT—Identifies a tire intended agricultural high clearance sprayers,3 illustrative of the types of vehicles and primarily for service on light trucks; industrial tractors,4 log-skidders,5 equipment that use certain OTR tires, and, • agricultural implements, highway- but are not necessarily all-inclusive. ST—Identifies a special tire for towed implements, agricultural logging, While the physical characteristics of trailers in highway service. and agricultural, industrial, skid-steers/ Suffix letter designations: certain OTR tires will vary depending • mini-loaders;6 (2) construction vehicles on the specific applications and TR—Identifies a tire for service on and equipment, including earthmover conditions for which the tires are trucks, buses, and other vehicles with articulated dump products, rigid frame designed (e.g., tread pattern and depth), rims having specified rim diameter of haul trucks,7 front end loaders,8 dozers,9 nominal plus 0.156’’ or plus 0.250’’; all of the tires within the scope have in • lift trucks, straddle carriers,10 graders,11 common that they are designed for off- MH—Identifies tires for Mobile mobile cranes,12 compactors; and (3) road and off-highway use. Except as Homes; • HC—Identifies a heavy duty tire industrial vehicles and equipment, discussed below, OTR tires included in designated for use on ‘‘HC’’ 15’’ tapered including smooth floor, industrial, the scope of the proceeding range in size rims used on trucks, buses, and other mining, counterbalanced lift trucks, (rim diameter) generally but not vehicles. This suffix is intended to industrial and mining vehicles other exclusively from 8 inches to 54 inches. differentiate among tires for light trucks, than smooth floor, skid-steers/mini- The tires may be either tube-type14 or and other vehicles or other services, loaders, and smooth floor off-the-road tubeless, radial or non-radial, and which use a similar designation. counterbalanced lift trucks.13 The intended for sale either to original • Example: 8R17.5 LT, 8R17.5 HC; equipment manufacturers or the • 1 Agricultural tractors are dual-axle vehicles that LT—Identifies light truck tires for replacement market. The subject service on trucks, buses, trailers, and typically are designed to pull farming equipment in merchandise is currently classifiable the field and that may have front tires of a different multipurpose passenger vehicles used size than the rear tires. under Harmonized Tariff Schedule of in nominal highway service; and 2 Combine harvesters are used to harvest crops the United States (HTSUS) subheadings: • MC—Identifies tires and rims for such as corn or wheat. 4011.20.10.25, 4011.20.10.35, 3 Agricultural sprayers are used to irrigate motorcycles. 4011.20.50.30, 4011.20.50.50, The following types of tires are also agricultural fields. 4011.61.00.00, 4011.62.00.00, 4 Industrial tractors are dual-axle vehicles that excluded from the scope: pneumatic typically are designed to pull industrial equipment 4011.63.00.00, 4011.69.00.00, tires that are not new, including and that may have front tires of a different size than 4011.92.00.00, 4011.93.40.00, recycled or retreaded tires and used the rear tires. 4011.93.80.00, 4011.94.40.00, and tires; non-pneumatic tires, including 5 A log-skidder has a grappling lift arm that is 4011.94.80.00. While HTSUS used to grasp, lift and move trees that have been solid rubber tires; tires of a kind cut down to a truck or trailer for transport to a mill subheadings are provided for designed for use on aircraft, all-terrain or other destination. convenience and customs purposes, our vehicles, and vehicles for turf, lawn and 6 Skid-steer loaders are four-wheel drive vehicles written description of the scope is garden, golf and trailer applications. with the left-side drive wheels independent of the dispositive. Also excluded from the scope are radial right-side drive wheels and lift arms that lie Specifically excluded from the scope alongside the driver with the major pivot points and bias tires of a kind designed for use behind the driver’s shoulders. Skid-steer loaders are are new pneumatic tires designed, in mining and construction vehicles and used in agricultural, construction and industrial manufactured and offered for sale equipment that have a rim diameter settings. primarily for on-highway or on-road equal to or exceeding 39 inches. Such 7 Haul trucks, which may be either rigid frame or use, including passenger cars, race cars, articulated (i.e., able to bend in the middle) are tires may be distinguished from other typically used in mines, quarries and construction station wagons, sport utility vehicles, tires of similar size by the number of sites to haul soil, aggregate, mined ore, or debris. minivans, mobile homes, motorcycles, plies that the construction and mining 8 Front loaders have lift arms in front of the bicycles, on-road or on-highway trailers, tires contain (minimum of 16) and the vehicle. They can scrape material from one location light trucks, and trucks and buses. Such to another, carry material in their buckets, or load weight of such tires (minimum 1500 tires generally have in common that the pounds). material into a truck or trailer. ‘‘ ’’ 9 A dozer is a large four-wheeled vehicle with a symbol DOT must appear on the dozer blade that is used to push large quantities of sidewall, certifying that the tire Application of Facts Available, soil, sand, rubble, etc., typically around conforms to applicable motor vehicle Including the Application of Adverse construction sites. They can also be used to perform Inferences ‘‘rough grading’’ in road construction. additional weight incorporated into the back of the For purposes of these final results, we 10 A straddle carrier is a rigid frame, engine- machine to offset or counterbalance the weight of powered machine that is used to load and offload loads that it lifts so as to prevent the vehicle from continue to rely on facts available and containers from container vessels and load them overturning. An example of a counterbalanced lift have drawn adverse inferences, in onto (or off of) tractor trailers. truck is a counterbalanced fork lift truck. accordance with sections 776(a) and (b) 11 A grader is a vehicle with a large blade used Counterbalanced lift trucks may be designed for use of the Tariff Act of 1930, as amended to create a flat surface. Graders are typically used on smooth floor surfaces, such as a factory or to perform ‘‘finish grading.’’ Graders are commonly warehouse, or other surfaces, such as construction (the Act), with regard to Starbright’s used in maintenance of unpaved roads and road sites, mines, etc. receipt of countervailable domestic construction to prepare the base course onto which 14 While tube-type tires are subject to the scope subsidies under the provision of rubber, asphalt or other paving material will be laid. of this proceeding, tubes and flaps are not subject carbon black, and nylon cord for less 12 i.e., ‘‘on-site’’ mobile cranes designed for off- merchandise and therefore are not covered by the highway use. scope of this proceeding, regardless of the manner than adequate remuneration programs, 13 A counterbalanced lift truck is a rigid framed, in which they are sold (e.g. sold with or separately and countervailable export subsidies engine-powered machine with lift arms that has from subject merchandise). under the value added tax and import

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duty exemptions on imported materials review. The Department will instruct Comment 3 Application of the CVD Law and program. A full discussion of our CBP to liquidate shipments of subject the Administrative Procedures Act decision to apply adverse facts available merchandise by Starbright entered, or Comment 4 Starbright’s Creditworthiness for is presented in the Preliminary Results withdrawn from warehouse, for 2006 in the section ‘‘Application of Facts consumption on or after December 17, [FR Doc. 2011–9969 Filed 4–25–11; 8:45 am] Available, Including the Application of 2007, through December 31, 2008, at the BILLING CODE 3510–DS–P Adverse Inferences,’’ which is ad valorem rate listed above. Consistent with the requirements of section 703(d) unaffected by these final results. No DEPARTMENT OF COMMERCE party commented on our preliminary of the Act, shipments entered, or decision to apply facts available with withdrawn from warehouse, for International Trade Administration adverse inferences. consumption on or after April 15, 2008, and on or before September 4, 2008, the [A–570–901] Analysis of Comments Received period between the expiration of All issues raised in the case and ‘‘provisional measures’’ and the Certain Lined Paper Products From the rebuttal briefs by parties to this publication of the final affirmative People’s Republic of China: Notice of administrative review are addressed in injury determination of the U.S. Final Results of the Antidumping Duty the Memorandum to Ronald K. International Trade Commission, will be Administrative Review and Partial Lorentzen, Deputy Assistant Secretary liquidated without regard to Rescission for Import Administration, from countervailing duties. We will also AGENCY: Import Administration, Christian Marsh, Deputy Assistant instruct CBP to collect cash deposits for International Trade Administration, Secretary for Antidumping and Starbright at the countervailing duty Department of Commerce. Countervailing Duty Operations, rate indicated above on all shipments of SUMMARY: On October 18, 2010, the U.S. entitled ‘‘Issues and Decision the subject merchandise entered, or Department of Commerce (‘‘the Memorandum for the Final Results in withdrawn from warehouse, for Department’’) published the preliminary the Countervailing Duty Review of consumption on or after the date of results of the third administrative Certain New Pneumatic Off-the-Road publication of these final results of review of the antidumping duty order Tires from the People’s Republic of review. on certain lined paper products China,’’ dated concurrently with this For all non-reviewed companies, the (‘‘CLPP’’) from the People’s Republic of notice (Decision Memorandum). Department has instructed CBP to assess China (‘‘PRC’’). See Certain Lined Paper Attached to this notice as an Appendix countervailing duties at the cash deposit Products from the People’s Republic of is a list of the issues that parties have rates in effect at the time of entry, for China: Notice of Preliminary Results of raised, and to which we have responded entries from December 17, 2007, the Antidumping Duty Administrative in the Decision Memorandum. The through December 31, 2008. The cash Review, 75 FR 63814 (October 18, 2010) Decision Memorandum is on file in the deposit rates for all companies not (‘‘Preliminary Results’’). We invited Department’s Central Records Unit covered by this review are not changed parties to comment on the Preliminary (Room 7406 in the main Department of by the results of this review, and remain Results. This review covers the Commerce building). In addition, a in effect until further notice. following exporters and/or producer/ complete version of the Decision Return or Destruction of Proprietary exporters: Shanghai Lian Li Paper Memorandum can be accessed directly Information Products Co. Ltd. (‘‘Lian Li’’); Hwa Fuh on the Internet at http://ia.ita.doc.gov/ This notice serves as a reminder to Plastics Co., Ltd./Li Teng Plastics frn/. The paper copy and electronic ‘‘ parties subject to administrative (Shenzhen) Co., Ltd. ( Hwa Fuh/Li version of the Decision Memorandum Teng’’); Leo’s Quality Products Co., Ltd./ are identical in content. protective order (APO) of their responsibility concerning the Denmax Plastic Stationery Factory ‘‘ ’’ Final Results of Review disposition of proprietary information ( Leo/Denmax ); and the Watanabe Group (consisting of Watanabe Paper After reviewing comments from all disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely Products (Shanghai) Co., Ltd. parties, we have made no adjustments to ‘‘ ’’ written notification of return or ( Watanabe Shanghai ); Watanabe Paper our calculations, as explained in our ‘‘ destruction of APO materials or Products (Linqing) Co., Ltd. ( Watanabe Decision Memorandum. Consistent with ’’ conversion to judicial protective order is Linqing ); and Hotrock Stationery the Preliminary Results, and in ‘‘ hereby requested. Failure to comply (Shenzhen) Co., Ltd. ( Hotrock accordance with 19 CFR 351.221(b)(5), ’’ with the regulations and the terms of an Shenzhen ) (hereafter referred to as we have calculated an individual ‘‘ ’’ ‘‘ ’’ APO is a sanctionable violation. Watanabe or the Watanabe Group or subsidy rate for Starbright for the POR. ‘‘Respondent’’)). Based on our analysis of We determine the total countervailable We are issuing and publishing these results in accordance with sections the information and comments we subsidy to be 30.87 percent ad valorem. 1 751(a)(1) and 777(i)(1) of the Act. received from Watanabe and petitioner after the Preliminary Results, we Net subsidy Dated: April 18, 2011. Manufacturer/Exporter rate continue to apply adverse facts available (percent) Ronald K. Lorentzen, (‘‘AFA’’) to Watanabe. Further, we are Deputy Assistant Secretary for Import rescinding the review with respect to Hebei Starbright Tire Co., Administration. Lian Li, Hwa Fuh/Li Teng, and Leo/ Ltd...... 30.87 Appendix Denmax. DATES: Effective Date: April 26, 2011. Assessment Rates/Cash Deposits List of Comments in the Decision Memorandum FOR FURTHER INFORMATION CONTACT: The Department intends to issue Comment 1 Application of CVD Law to the Cindy Lai Robinson or Stephanie appropriate assessment instructions to People’s Republic of China, and Non- Moore, AD/CVD Operations, Office 3, U.S. Customs and Border Protection Market Economies (CBP) 15 days after the date of Comment 2 Application of CVD Law and 1 The petitioner is the Association of American publication of these final results of Double Remedies School Paper Suppliers (‘‘AASPS’’).

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Import Administration, International On February 4, 2011, the Department to the product, cover and/or backing Trade Administration, Department of extended the time limits for the final thereto. Commerce, 14th Street and Constitution results of this review until no later than Specifically excluded from the scope Avenue, NW., Washington, DC 20230; April 18, 2011. See Extension of Time of this order are: telephone: (202) 482–3797, or (202) Limits for the Final Results of • Unlined copy machine paper; 482–3692, respectively. Antidumping Duty Administrative • Writing pads with a backing SUPPLEMENTARY INFORMATION: Review: Certain Lined Paper Products (including but not limited to products from the People’s Republic of China, 76 commonly known as ‘‘tablets,’’ ‘‘note Background FR 6397 (February 4, 2011). pads,’’ ‘‘legal pads,’’ and ‘‘quadrille In the Preliminary Results the pads’’), provided that they do not have Department found that there was Scope of the Antidumping Duty Order a front cover (whether permanent or credible evidence on the record that The scope of this order includes removable). This exclusion does not documents submitted by Watanabe at certain lined paper products, typically apply to such writing pads if they verification were either inaccurate, school supplies (for purposes of this consist of hole-punched or drilled filler internally inconsistent, or were paper; scope definition, the actual use of or • otherwise unreliable and therefore, labeling these products as school Three-ring or multiple-ring binders, applied an AFA rate of 258.21 percent supplies or non-school supplies is not a or notebook organizers incorporating to the PRC-wide entity, including defining characteristic) composed of or such a ring binder provided that they do Watanabe. Since the publication of including paper that incorporates not include subject paper; • Index cards; Preliminary Results, the following straight horizontal and/or vertical lines • Printed books and other books that events have occurred: on ten or more paper sheets (there shall On October 22, 2010, Watanabe are case bound through the inclusion of be no minimum page requirement for submitted a letter requesting binders board, a spine strip, and cover looseleaf filler paper) including but not clarification of how the Department wrap; limited to such products as single- and plans to proceed in the final results • Newspapers; following the Department’s AFA multi-subject notebooks, composition • Pictures and photographs; decision with respect to Watanabe in books, wireless notebooks, looseleaf or • Desk and wall calendars and the Preliminary Results. On October 28, glued filler paper, graph paper, and organizers (including but not limited to 2010, petitioner provided comments on laboratory notebooks, and with the such products generally known as Watanabe’s letter. On November 16, smaller dimension of the paper ‘‘office planners,’’ ‘‘time books,’’ and 2010, the Department issued a letter to measuring 6 inches to 15 inches ‘‘appointment books’’); Watanabe requesting further (inclusive) and the larger dimension of • Telephone logs; 3 information in order to more fully the paper measuring 8 ⁄4 inches to 15 • Address books; evaluate the issues addressed in the inches (inclusive). Page dimensions are • Columnar pads & tablets, with or Preliminary Results. Watanabe measured size (not advertised, stated, or without covers, primarily suited for the submitted its response on December 8, ’’tear-out’’ size), and are measured as recording of written numerical business 2010. they appear in the product (i.e., stitched data; On December 22, 2010, the and folded pages in a notebook are • Lined business or office forms, Department informed interested parties measured by the size of the page as it including but not limited to: pre-printed of the due dates for filing case and appears in the notebook page, not the business forms, lined invoice pads and rebuttal briefs.2 On January 6, 2011, size of the unfolded paper). However, paper, mailing and address labels, Watanabe and petitioner filed their case for measurement purposes, pages with manifests, and shipping log books; briefs. On January 13, 2011, Watanabe tapered or rounded edges shall be • Lined continuous computer paper; and petitioner submitted their rebuttal measured at their longest and widest • Boxed or packaged writing briefs. points. Subject lined paper products stationary (including but not limited to In its January 13, 2011, rebuttal brief, may be loose, packaged or bound using products commonly known as ‘‘fine Watanabe alleged that AASPS’s January any binding method (other than case business paper,’’ ‘‘parchment paper’’, 6, 2011, case brief included business bound through the inclusion of binders and ‘‘letterhead’’), whether or not proprietary information (‘‘BPI’’) for board, a spine strip, and cover wrap). containing a lined header or decorative which AASPS failed to properly Subject merchandise may or may not lines; identify the person that originally contain any combination of a front • Stenographic pads (‘‘steno pads’’), submitted the BPI data, as required by cover, a rear cover, and/or backing of Gregg ruled (‘‘Gregg ruling’’ consists of a 19 CFR 351.306(c). On January 21, 2011, any composition, regardless of the single- or double-margin vertical ruling in agreement with Watanabe’s inclusion of images or graphics on the line down the center of the page. For a allegation, the Department rejected and cover, backing, or paper. Subject six-inch by nine-inch stenographic pad, removed from the record, AASPS’s case merchandise is within the scope of this the ruling would be located brief dated January 6, 2011. The order whether or not the lined paper approximately three inches from the left Department also granted a five-day and/or cover are hole punched, drilled, of the book), measuring 6 inches by 9 extension to allow petitioner to revise perforated, and/or reinforced. Subject inches. and resubmit its case brief. On January merchandise may contain accessory or Also excluded from the scope of this 26, 2011, petitioner submitted its informational items including but not order are the following trademarked revised case brief. Watanabe limited to pockets, tabs, dividers, products: resubmitted its rebuttal brief on closure devices, index cards, stencils, • Fly TM lined paper products: A February 2, 2011. protractors, writing implements, notebook, notebook organizer, loose or reference materials such as glued note paper, with papers that are 2 See Memorandum to the File, through James mathematical tables, or printed items printed with infrared reflective inks and Terpstra, Program Manager, AD/CVD Operations, such as sticker sheets or miniature readable only by a Fly TM pen-top Office 3, from Cindy Robinson, Case Analyst, titled ‘‘Certain Lined Paper Products from the People’s calendars, if such items are physically computer. The product must bear the Republic of China,’’ dated December 22, 2010. incorporated, included with, or attached valid trademark Fly TM (products found

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to be bearing an invalidly licensed or 0.019 inches (within normal Department’s decision in Silicon Metal used trademark are not excluded from manufacturing tolerances) and rear from PRC,4 the Department is rescinding the scope). cover is 0.028 inches (within normal the review with respect to Hwa Fu/Li • Zwipes TM: A notebook or notebook manufacturing tolerances). During Teng. See also Certain Steel Concrete organizer made with a blended construction, the polyester covering is Reinforcing Bars from Turkey: Final polyolefin writing surface as the cover sewn to the front cover face to face Results and Rescission of Antidumping and pocket surfaces of the notebook, (outside to outside) so that when the Duty Administrative Review in Part, 71 suitable for writing using a specially- book is closed, the stitching is FR 65082, 65083 (November 7, 2006). developed permanent marker and erase concealed from the outside. During In addition, in the Preliminary system (known as a Zwipes TM pen). construction, the polyester cover is Results, the Department applied the This system allows the marker portion sewn to the back cover with the outside reseller policy with respect to the to mark the writing surface with a of the polyester spine cover to the inside following two respondents: Lian Li and permanent ink. The eraser portion of the back cover. Both free ends (the ends not Leo/Denmax.5 Lian Li and Leo/Denmax marker dispenses a solvent capable of sewn to the cover and back) are stitched reported that they had no shipments of solubilizing the permanent ink allowing with a turned edge construction. Each subject merchandise to the United the ink to be removed. The product ring within the fixture is comprised of States during the period of review must bear the valid trademark a flexible strap portion that snaps into (‘‘POR’’). As we stated in the Preliminary Zwipes TM (products found to be bearing a stationary post which forms a closed Results, our examination of shipment an invalidly licensed or used trademark binding ring. The ring fixture is riveted data from U.S. Customs and Border are not excluded from the scope). with six metal rivets and sewn to the Protection (‘‘CBP’’) for these two • ® TM FiveStar Advance : A notebook back plastic cover and is specifically companies confirmed that there were no or notebook organizer bound by a positioned on the outside back cover. entries of subject merchandise from continuous spiral, or helical, wire and The product must bear the valid them during the POR. Further, we also with plastic front and rear covers made trademark FiveStar Flex TM (products sent an inquiry to CBP to confirm the of a blended polyolefin plastic material found to be bearing an invalidly claims made by Lian Li and Leo/ joined by 300 denier polyester, coated licensed or used trademark are not Denmax.6 In the Preliminary Results, we on the backside with PVC (poly vinyl excluded from the scope). determined not to rescind the review in chloride) coating, and extending the Merchandise subject to this order is part in these circumstances but, rather, entire length of the spiral or helical typically imported under headings to complete the review with respect to wire. The polyolefin plastic covers are 4820.10.2050, 4810.22.5044, Lian Li and Leo/Denmax and issue of specific thickness; front cover is 4811.90.9090, 4820.10.2010, appropriate instructions to CBP based 0.019 inches (within normal 4820.10.2020 of the Harmonized Tariff on the final results of the review.7 manufacturing tolerances) and rear Schedule of the United States See id. However, in practice, the cover is 0.028 inches (within normal (‘‘HTSUS’’). The HTSUS headings are Department to date has not applied the manufacturing tolerances). Integral with provided for convenience and customs the stitching that attaches the polyester purposes; however, the written Duty Administrative Review of Certain Lined Paper spine covering, is captured both ends of description of the scope of this order is Products from the People’s Republic of China: Proof a 1″ wide elastic fabric band. This band of Non-Delivery to Hwa Fu/Li Teng,’’ dated October dispositive. 7, 2010. is located 23⁄8″ from the top of the front 4 plastic cover and provides pen or pencil Analysis of Comments Received See, e.g., Silicon Metal from the People’s Republic of China: Preliminary Results and storage. Both ends of the spiral wire are All issues raised in the case and Preliminary Partial Rescission of Antidumping Duty cut and then bent backwards to overlap rebuttal briefs by parties to this Administrative Review, 73 FR 12378 (March 7, 2008) (Silicon Metal from PRC), unchanged in Final with the previous coil but specifically administrative review are addressed in outside the coil diameter but inside the Results and Final Partial Rescission of the accompanying Issues and Decision Antidumping Duty Administrative Review: Silicon polyester covering. During construction, Memorandum, which is hereby adopted Metal From the People’s Republic of China, 73 FR the polyester covering is sewn to the by this notice. A list of the issues which 46587 (August 11, 2008). front and rear covers face to face 5 We applied the reseller policy stated in our May parties have raised, and to which we 6, 2003, ‘‘automatic assessment’’ clarification. We (outside to outside) so that when the have responded in the Issues and book is closed, the stitching is explained that, where respondents in an Decision Memorandum, is attached to administrative review demonstrate that they had no concealed from the outside. Both free this notice as an Appendix. In addition, knowledge of sales through resellers to the United ends (the ends not sewn to the cover States, we would instruct CBP to liquidate such a complete version of the Issues and and back) are stitched with a turned entries at the all-others rate applicable to the Decision Memorandum can be accessed edge construction. The flexible proceeding. See Antidumping and Countervailing directly on the Internet at http:// Duty Proceedings: Assessment of Antidumping polyester material forms a covering over ia.ita.doc.gov/frn. The paper copy and Duties, 68 FR 23954 (May 6, 2003) (‘‘May 2003 the spiral wire to protect it and provide ’’ electronic version of the Issues and automatic assessment clarification ). a comfortable grip on the product. The 6 See Preliminary Results and CBP Message No. Decision Memorandum are identical in product must bear the valid trademarks 0028302, dated January 28, 2010. content. 7 FiveStar®Advance TM (products found to In addition, we stated that because ‘‘as entered’’ liquidation instructions do not alleviate the be bearing an invalidly licensed or used Final Partial Rescission concerns which the May 2003 clarification was trademark are not excluded from the In the Preliminary Results, the intended to address, we find it appropriate in this case to instruct CBP to liquidate any existing entries scope). Department preliminary rescinded this • FiveStar Flex TM: A notebook, a of merchandise produced by Lian Li and Leo/ review with respect to HwaFu/Li Teng notebook organizer, or binder with Denmax and exported by other parties at the PRC- because the Department was unable to wide entity rate should we continue to find at the plastic polyolefin front and rear covers directly serve its original questionnaire time of our final results that Lian Li and Leo/ joined by 300 denier polyester spine Denmax had no shipments of subject merchandise to HwaFu/Li Teng.3 Consistent with the cover extending the entire length of the from the PRC. In support of our decision, we cited our practice in Certain Frozen Warmwater Shrimp spine and bound by a 3-ring plastic 3 See Memorandum to the File from Cindy from India: Partial Rescission of Antidumping Duty fixture. The polyolefin plastic covers are Robinson, Senior International Trade Analyst, AD/ Administrative Review, 73 FR 77610, 77612 of a specific thickness; front cover is CVD Operations, Office 3, regarding ‘‘Antidumping (December 19, 2008).

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reseller policy in non-market economy time limits and subject to section 782(e) inference may not be drawn merely (‘‘NME’’) cases. of the Act, the Department may from a failure to respond, but only The Department’s practice concerning disregard all or part of the original and under circumstances in which it is ‘‘no-shipment’’ respondents in NME subsequent responses, as appropriate. reasonable for Commerce to expect that cases has been to rescind the Section 782(e) of the Act provides that more forthcoming responses should administrative review if the respondent the Department ‘‘shall not decline to have been made.’’ See Nippon Steel, at certifies that it had no shipments and consider information that is submitted 1382–83. the Department has confirmed through by an interested party and is its examination of data from CBP that necessary to the determination but does Watanabe there were no shipments of subject not meet all applicable requirements As discussed in the Preliminary merchandise during the POR. See established by the administering Results, the Department determined that Certain Frozen Warmwater Shrimp authority’’ if the information is timely, facts available with an adverse inference From the People’s Republic of China: can be verified, is not so incomplete that was warranted for Watanabe because Preliminary Results and Preliminary it cannot be used, and if the interested there was credible evidence on the Partial Rescission of Fifth Antidumping party acted to the best of its ability in record that certain documents submitted Duty Administrative Review, 76 FR 8338 providing the information. Where all of by Watanabe at verification were either (February 14, 2011). See also Certain these conditions are met, the statute inaccurate, internally inconsistent, and/ Frozen Fish Fillets From the Socialist requires the Department to use the or were otherwise unreliable. Further, Republic of Vietnam: Notice of information supplied if it can do so Watanabe was unable to explain the Preliminary Results and Partial without undue difficulties. discrepancies between documents Rescission of the Third Antidumping Section 776(b) of the Act further collected by the Department at Duty Administrative Review, 72 FR provides that the Department may use verification and documents provided by 53527, 53530 (September 19, 2007), an adverse inference in applying the petitioner that implicated the veracity of unchanged in Certain Frozen Fish Fillets facts otherwise available when a party Watanabe’s questionnaire response. From the Socialist Republic of Vietnam: has failed to cooperate by not acting to Subsequent to the Preliminary Final Results of Antidumping Duty the best of its ability to comply with a Results, the Department requested that Administrative Review and Partial request for information. Such an adverse Watanabe provide an explanation for Rescission, 73 FR 15479, 15480 (March inference may include reliance on the numerous discrepancies identified 24, 2008). information derived from the petition, as a result of information provided by In this case, as stated above, both Lian the final determination, a previous petitioner prior to the Preliminary Li and Leo/Denmax certified that they administrative review, or other Results. As discussed more fully in the had no shipments and the Department information placed on the record. See, Issue and Decision Memorandum has confirmed through its examination e.g., Notice of Final Results of accompanying this notice, among other of data from CBP that there were no Antidumping Duty Administrative things, Watanbe attempted to explain shipments of subject merchandise Review: Stainless Steel Bar from India, away the discrepancies by claiming any during the POR by Lian Li and/or Leo/ 70 FR 54023, 54025–26 (September 13, discrepancy was merely caused by the Denmax. Therefore, consistent with the 2005); Statement of Administrative fact that, for each sale, there are actually Department’s current practice in NME Action, reprinted in H.R. Doc. No. 103– two separate entries—revenue and cases, we are rescinding this 216, at 870 (1994) (‘‘SAA’’). Furthermore, payment. Because of the nature of the administrative review with respect to ‘‘affirmative evidence of bad faith on the issue, see Memorandum to the File, Lian Li and Leo/Denmax. part of a respondent is not required through James Terpstra, Program before the Department may make an Manager, AD/CVD Operations, Office 3, Application of Adverse Facts Available adverse inference.’’ See Antidumping Import Administration, from Cindy Section 776(a) of the Act provides Duties; Countervailing Duties; Final Robinson, Financial Analyst, titled that, the Department shall apply ‘‘facts Rule, 62 FR 27296, 27340 (May 19, ‘‘Certain Lined Paper Products from otherwise available’’ if (1) necessary 1997); see also Nippon Steel Corp. v. People’s Republic of China: Certain information is not on the record, or (2) United States, 337 F.3d 1373, 1382 (Fed. Business Proprietary Information (‘‘BPI’’) an interested party or any other person Cir. 2003) (‘‘Nippon Steel’’). in the Issues and Decision (A) withholds information that has been In Nippon Steel, the Court set out two Memorandum with Respect to the requested, (B) fails to provide requirements for drawing an adverse Watanabe Group,’’ dated concurrently information within the deadlines inference under section 776(b) of the with this notice (‘‘Watanabe BPI Memo’’) established, or in the form and manner Act. First, the Department ‘‘must make for a complete discussion. requested by the Department, subject to an objective showing that a reasonable We continue to find that the factual subsections (c)(1) and (e) of section 782 and responsible importer would have record in this review supports the of the Act, (C) significantly impedes a known that the requested information conclusion that Watanabe’s official proceeding, or (D) provides information was required to be kept and maintained books and records do not accurately that cannot be verified as provided by under the applicable statutes, rules, and reflect its actual commercial practice. section 782(i) of the Act. regulations.’’ Next the Department must The existence of two sets of invoices Where the Department determines ‘‘make a subjective showing that the (one for revenue and one for payment) that a response to a request for respondent * * * has failed to promptly undermines the credibility of the information does not comply with the produce the requested information’’ and Department’s verification as well as the request, section 782(d) of the Act that ‘‘failure to fully respond is the reliability of Watanabe’s books and provides that the Department will so result of the respondent’s lack of records and questionnaire response. inform the party submitting the cooperation in either: (a) Failing to keep Watanabe owns and generates its own response and will, to the extent and maintain all required records, or (b) accounting records and was aware that practicable, provide that party the failing to put forth its maximum efforts its sales reconciliation was based on opportunity to remedy or explain the to investigate and obtain the requested records that did not accurately reflect deficiency. If the party fails to remedy information from its records.’’ The Court the amounts charged to or received from the deficiency within the applicable clarifies further that ‘‘{a}n adverse its customers, yet it chose to not

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voluntarily explain this to the in which it requests separate rate status. Selection of Adverse Facts Available Department. Because Watanabe did not The process requires exporters to submit Rate disclose this information to the a separate-rate status application. See Department prior to or at verification, Tapered Roller Bearings and Parts In deciding which facts to use as the Department was prevented from Thereof, Finished or Unfinished, from AFA, section 776(b) of the Act and 19 conducting verification based on the People’s Republic of China: Final CFR 351.308(c)(1) provide that the accurate documentation. Rather, the Results of 2005–2006 Administrative Department may rely on information Department conducted verification on Review and Partial Rescission of derived from (1) the petition, (2) a final the basis of documents that did not Review, 72 FR 56724 (October 4, 2007), determination in the investigation, (3) reflect the true selling prices and total and Peer Bearing Co. Changshan v. any previous review or determination, sales values charged and payments United States, 587 F.Supp. 2d 1319, or (4) any other information placed on received with respect to third country the record. In selecting a rate for AFA, sales, which renders the ‘‘Completeness 1324–25 (CIT 2008) (affirming the Department’s determination in that the Department selects a rate that is Test’’ and ‘‘Quantity and Value sufficiently adverse ‘‘as to effectuate the Reconciliation’’ futile. Consequently, the review). As discussed in the Preliminary Results, and the Issues and Decision purpose of the facts available rule to accuracy and completeness of induce respondents to provide the Watanabe’s sales and factors of Memorandum accompanying this Department with complete and accurate production records, and its accounting notice, in light of the credible evidence information in a timely manner.’’ See system is called into question. placed on the record by petitioner and Furthermore, as noted above, the lack of an adequate explanation for Circular Welded Austenitic Stainless Watanabe had participated in the the discrepancies by Watanabe, we Pressure Pipe from the People’s original investigation and the second continue to conclude that the Republic of China: Final Determination administrative review and received an information in Watanabe’s of Sales at Less Than Fair Value, 74 FR AFA rate in the second review. questionnaire response is not reliable 4913 (January 28, 2009). Accordingly, it should have known that for purposes of this review. Therefore, Generally, the Department finds that it is responsible for demonstrating the Watanabe has not demonstrated that it selecting the highest rate from any reliability of its own data. operates free from government control. segment of the proceeding as AFA is Because Watanabe withheld As a result, the Department continues to appropriate. See, e.g., Certain Cased information, significantly impeded the find that Watanabe is part of the PRC- Pencils from the People’s Republic of proceeding and provided information China; Notice of Preliminary Results of that could not be verified, we find that wide entity. Antidumping Duty Administrative application of facts available is The PRC-Wide Entity appropriate under sections 776(a)(2)(A), Review and Intent to Rescind in Part, 70 (B), and (C) of the Act. We further find Because we determined that FR 76755, 76761 (December 28, 2005). that application of AFA is appropriate Watanabe is part of the PRC-wide entity, The CIT and the Court of Appeals for under section 776(b) because Watanabe the PRC-wide entity is under review. the Federal Circuit have affirmed failed to cooperate to the best of its Pursuant to section 776(a) of the Act, we decisions to select the highest margin ability in responding to the further find that because the PRC entity from any prior segment of the Department’s requests for information. (including Watanabe) failed to respond proceeding as the AFA rate on numerous occasions. See Rhone Separate Rates to the Department’s questionnaires, withheld or failed to provide Poulenc, Inc. v. United States, 899 F.2d In proceedings involving NME information in a timely manner or in the 1185, 1190 (Fed. Cir. 1990) (Rhone countries, there is a rebuttable form or manner requested by the Poulenc); NSK Ltd. v. United States, 346 presumption that all companies within F. Supp. 2d 1312, 1335 (CIT 2004) that country are subject to government Department, submitted information that cannot be verified, or otherwise (upholding the application of an AFA control and thus should be assessed a rate which was the highest available single antidumping duty rate. It is the impeded the proceeding, it is dumping margin from a different Department’s policy to assign all appropriate to apply a dumping margin respondent in an investigation). exporters of subject merchandise in an for the PRC-wide entity using the facts NME country this single rate unless an otherwise available on the record. As AFA, we have assigned to the PRC- exporter demonstrates that it is Moreover, by failing to respond to the wide entity, including Watanabe, a rate sufficiently independent so as to be Department’s requests for information, of 258.21 percent, from the investigation entitled to a separate rate. Exporters can withholding or failing to provide of CLPP from the PRC, which is the demonstrate this independence through information in a timely manner or in the highest rate on the record of all the absence of both de jure and de facto form or manner requested by the segments of this proceeding. See Notice governmental control over export Department, submitting information that of Amended Final Determination of activities. See Notice of Final cannot be verified, or otherwise Sales at Less Than Fair Value: Certain Determination of Sales at Less Than impeding the proceeding, we find that Lined Paper Products from the People’s Fair Value: Sparklers from the People’s the PRC-wide entity has failed to Republic of China; Notice of Republic of China, 56 FR 20588 (May 6, cooperate by not acting to the best of its Antidumping Duty Orders: Certain 1991), as further developed in Notice of ability to comply with the Department’s Lined Paper Products from India, Final Determination of Sales at Less requests for information in this Indonesia and the People’s Republic of Than Fair Value: Silicon Carbide from proceeding, within the meaning of China; and Notice of Countervailing the People’s Republic of China, 59 FR section 776(b) of the Act. Therefore, an Duty Orders: Certain Lined Paper 22585 (May 2, 1994). It is the adverse inference is warranted in Products from India and Indonesia, 71 Department’s practice to require a party selecting from the facts otherwise FR 56949 (September 28, 2006). As to submit evidence that it operates available. See Nippon Steel, 337 F.3d at independently of the State-controlled explained below, this rate has been entity in each segment of a proceeding 1382–83. corroborated.

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Corroboration of Secondary review. This rate was calculated based Information on information contained in the petition, which was corroborated for the Weighted-Av- Section 776(c) of the Act provides Producer/Manufacturer erage Margin that, when the Department relies on final determination. See Certain Lined secondary information rather than on Paper Products from the People’s PRC-Wide Rate (which in- 258.21% information obtained in the course of an Republic of China: Notice of Final cludes the Watanabe investigation or review, it shall, to the Results of the Antidumping Duty Group). extent practicable, corroborate that Administrative Review, 74 FR 17160 information from independent sources (April 14, 2009). No additional Assessment Rates that are reasonably at its disposal. information has been presented in the Pursuant to section 751(a)(2)(A) of the Secondary information is defined as current review which calls into question Act and 19 CFR 351.212(b), the information derived from the petition the reliability of the information. Department will determine, and CBP that gave rise to the investigation or Therefore, the Department finds that the shall assess, antidumping duties on all review, the final determination information continues to be reliable. In appropriate entries. The Department concerning the subject merchandise, or addition, the AFA rate we are applying intends to issue assessment instructions any previous review under section 751 is the rate currently in effect for the to CBP 15 days after the date of of the Act concerning the subject PRC-wide entity. publication of these final results of merchandise. See SAA at 870. review. We will instruct CBP to assess Corroborate means that the Department Furthermore, in this case, the PRC- wide rate which was applied to antidumping duties on all appropriate will satisfy itself that the secondary entries covered by this review. information to be used has probative Watanabe was corroborated and upheld value. Id. To corroborate secondary by the CIT in its recent decision Cash Deposit Requirements information, the Department will, to the Watanabe v. United States (Slip Op. 10– The following cash deposit extent practicable, examine the 139 Court No. 09–00520) (CIT December requirements will be effective upon reliability and relevance of the 22, 2010), where the CIT found that the publication of these final results of this information to be used. See Preliminary Department need not corroborate the administrative review for all shipments Results of Antidumping Duty PRC wide rate with regards to that of the subject merchandise entered, or Administrative Reviews and Partial specific respondent. Specifically, the withdrawn from warehouse, for Termination of Administrative Reviews: CIT states: ‘‘{w}here Commerce has consumption on or after the publication Tapered Roller Bearings and Parts found the respondent part of the PRC- date, as provided for by section Thereof, Finished and Unfinished from wide entity based on adverse inferences, 751(a)(2)(C) of the Act: (1) For Japan, and Tapered Roller Bearings Commerce need not corroborate the previously reviewed or investigated PRC Four Inches or Less in Outside PRC-wide rate with respect to exporters who received a separate rate Diameter, and Components Thereof, information specific to that respondent in a prior segment of the proceeding, but from Japan, 61 FR 57391, 57392 because there is ‘‘no requirement that were not reviewed in this review, the (November 6, 1996) (unchanged in the the PRC-wide entity rate based on AFA cash deposit rate will continue to be the final determination), Final Results of relate specifically to the individual rate assigned in that segment of the Antidumping Duty Administrative company.’’ See also Peer Bearing Co.- proceeding; (2) for all other PRC Reviews and Termination in Part: Changshan v. United States, 587 F. exporters of subject merchandise that Tapered Roller Bearings and Parts Supp. 2d 1319, 1327 (CIT 2008); have not been found to be entitled to a Thereof, Finished and Unfinished from Shandong Mach. Imp. & Exp. Co. v. separate rate the cash deposit rate will Japan, and Tapered Roller Bearings be the PRC-wide rate of 258.21 percent; United States, Slip Op. 09–64, 2009 WL Four Inches or Less in Outside and (3) for all non-PRC exporters of 2017042, (CIT June 24, 2009) Diameter, and Components Thereof, subject merchandise the cash deposit (Commerce has no obligation to from Japan, 62 FR 11825 (March 13, rate will be the rate applicable to the 1997). Independent sources used to corroborate the PRC-wide rate as to an PRC exporter that supplied that non- corroborate such evidence may include, individual party where that party has PRC exporter. These deposit for example, published price lists, failed to qualify for a separate rate). requirements, when imposed, shall official import statistics and customs Commerce’s permissible determination remain in effect until further notice. data, and information obtained from that Watanabe is part of the PRC-wide interested parties during the particular entity means that inquiring into Notification to Interested Parties investigation. See Notice of Preliminary Watanabe’s separate sales behavior This notice serves as the final Determination of Sales at Less Than ceases to be meaningful. reminder to importers of their Fair Value: High and Ultra-High Voltage responsibility under 19 CFR 351.402(f) Ceramic Station Post Insulators from Changes since the Preliminary Results to file a certificate regarding the Japan, 68 FR 35627 (June 16, 2003) We have made no changes from the reimbursement of antidumping duties (unchanged in final determination), Preliminary Results in the final results. prior to liquidation of the relevant Notice of Final Determination of Sales entries during this review period. at Less Than Fair Value: High and Ultra Final Results of Review Failure to comply with this requirement High Voltage Ceramic Station Post could result in the Secretary’s Insulators from Japan, 68 FR 62560 The Department has determined that presumption that reimbursement of (November 5, 2003); and Notice of Final the following dumping margin exists for antidumping duties occurred and in the Determination of Sales at Less Than the period September 1, 2008, through subsequent assessment of double Fair Value: Live Swine From Canada, 70 August 31, 2009: antidumping duties. FR 12181, 12183–84 (March 11, 2005). This notice also serves as the only The AFA rate selected here is from reminder to parties subject to the investigation and was applied to administrative protective order (‘‘APO’’) Watanabe in the second administrative of their responsibility concerning the

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return/destruction or conversion to International, Inc. (collectively, information reasonably available to judicial protective order of proprietary ‘‘Petitioners’’).1 On April 6, 2011, the Petitioners supporting their allegations. information disclosed under APO in Department issued supplemental Scope of the Investigation accordance with 19 CFR 351.305(a)(3). questions to Petitioners regarding Failure to comply with the regulations certain issues in the Petition.2 The products covered by this and terms of an APO is a violation Petitioners responded to the questions investigation are steel wheels from the which is subject to sanction. with supplemental responses on April PRC. For a full description of the scope This administrative review and this 11, 2011.3 On April 12, 2011, the of the investigation, see ‘‘Scope of the notice are published in accordance with Department requested additional Investigation,’’ in Appendix I of this sections 751(a)(1) and 777(i)(1) of the information on certain issues.4 On April notice. Act. 14, 2011, Petitioners provided a Comments on Scope of the Investigation 5 Dated: April 18, 2011. response to the Department’s requests. On April 14, 2011, the Department During our review of the Petition, we Ronald K. Lorentzen, requested further clarification with discussed the scope with Petitioners to Deputy Assistant Secretary for Import respect to the Petition, which ensure that it is an accurate reflection of Administration. Petitioners submitted on April 15, the products for which the domestic Appendix I 2011.6 On April 18, 2011, the industry is seeking relief. Moreover, as Department further clarified the scope discussed in the preamble to the List of Comments in the Accompanying 7 regulations (Antidumping Duties; Issues and Decision Memorandum of the Petition with Petitioners. In accordance with section 732(b) of Countervailing Duties; Final Rule, 62 FR Comment 1: Alleged Procedural Irregularities the Tariff Act of 1930, as amended (‘‘the 27296, 27323 (May 19, 1997)), we are Comment 2: Timeliness of Petitioner’s New Act’’), Petitioners allege that imports of setting aside a period for interested Factual Information Submission parties to raise issues regarding product Comment 3: Application of Adverse steel wheels from the PRC are being, or Inferences to Petitioner are likely to be, sold in the United States coverage. The Department encourages Comment 4: Watanabe’s Inability to Respond at less than fair value, within the interested parties to submit such Based on Bracketing of Information meaning of section 731 of the Act, and comments by Monday, May 9, 2011, Comment 5: Petitioner’s Case Brief Was that such imports materially injure, or twenty calendar days from the signature Properly Rejected but Should Not Have threaten material injury to, an industry date of this notice. Comments should be Been Allowed To Be Resubmitted in the United States. addressed to Import Administration’s Comment 6: Application of Adverse The Department finds that Petitioners APO/Dockets Unit, Room 1870, U.S. Inferences With Respect to Watanabe filed the Petition on behalf of the Department of Commerce, 14th Street Comment 7: Factors of Production and and Constitution Avenue, NW., Surrogate Values domestic industry because Petitioners are interested parties as defined in Washington, DC 20230. The period of [FR Doc. 2011–10073 Filed 4–25–11; 8:45 am] section 771(9)(C) of the Act, and they scope consultations is intended to BILLING CODE 3510–DS–P have demonstrated sufficient industry provide the Department with ample support with respect to the investigation opportunity to consider all comments and to consult with parties prior to the DEPARTMENT OF COMMERCE that they are requesting the Department to initiate (see ‘‘Determination of issuance of the preliminary International Trade Administration Industry Support for the Petition’’ determination. below). The Department also notes that, [A–570–973] Comments on Product Characteristics pursuant to section 732(b)(1) of the Act, for Antidumping Duty Questionnaires the Petition is accompanied by Certain Steel Wheels From the We are requesting comments from People’s Republic of China: Initiation 1 See the Petition for the Imposition of interested parties regarding the of Antidumping Duty Investigation Antidumping and Countervailing Duties Pursuant appropriate physical characteristics of to Sections 701 and 731 of the Tariff Act of 1930, steel wheels to be reported in response AGENCY: Import Administration, as amended (‘‘Petition’’), filed on March 30, 2011. to the Department’s antidumping International Trade Administration, 2 See April 6, 2011, Petition for the Imposition of questionnaires. This information will be Department of Commerce. Antidumping Duties on Steel Wheels from the People’s Republic of China: Supplemental used to identify the key physical DATES: Effective Date: April 26, 2011. Questions. characteristics of the merchandise under FOR FURTHER INFORMATION CONTACT: 3 See Supplement to the AD/CVD Petitions dated investigation in order to more accurately Brendan Quinn or Bobby Wong, AD/ April 11, 2011 (‘‘First Supplement to the AD/CVD report the relevant factors and costs of CVD Operations, Office 8, International Petitions’’). See also April 11, 2011, Petition for the Imposition of Antidumping Duties on Steel Wheels production, as well as to develop Trade Administration, U.S. Department from the People’s Republic of China: PRC AD appropriate product comparison of Commerce, 14th Street and Supplemental Questionnaire Response (‘‘PRC AD criteria. Constitution Avenue, NW., Washington, Supplement to the Petitions’’). Interested parties may provide any DC 20230; telephone: (202) 482–5848 4 See April 12, 2011, Memorandum to the File, information or comments that they feel regarding ‘‘Phone Conference with and Request for and (202) 482–0409, respectively. Further Information from Petitioners.’’ are relevant to the development of an SUPPLEMENTARY INFORMATION: 5 See Supplement to the AD/CVD Petitions dated accurate listing of physical April 14, 2011 (‘‘Second Supplement to the AD/ characteristics. Specifically, they may The Petition CVD Petitions’’). provide comments as to which On March 30, 2011, the Department of 6 See Supplement to the AD/CVD Petitions dated characteristics are appropriate to use as: April 15, 2011 (‘‘Third Supplement to the AD/CVD Commerce (‘‘Department’’) received an Petitions’’). (1) General product characteristics; and antidumping duty (‘‘AD’’) petition 7 See April 18, 2011, Memorandum to the File RE: (2) the product comparison criteria. We concerning imports of certain steel Petitions for the Imposition of Antidumping (‘‘AD’’) note that it is not always appropriate to wheels (‘‘steel wheels’’) from the and Countervailing Duties (‘‘CVD’’) on Steel Wheels use all product characteristics as ‘‘ ’’ from the People’s Republic of China (‘‘PRC’’), People’s Republic of China ( PRC ) filed Clarification of Scope Language, on file in the product comparison criteria. We base in proper form by Accuride Corporation Central Records Unit (‘‘CRU’’), Room 7046 of the product comparison criteria on (‘‘Accuride’’) and Hayes Lemmerz main Department of Commerce building. meaningful commercial differences

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among products. In other words, while the same statutory definition regarding industry.12 We have relied upon data there may be some physical product the domestic like product (see section Petitioners provided for purposes of characteristics utilized by 771(10) of the Act), they do so for measuring industry support.13 manufacturers to describe steel wheels, different purposes and pursuant to a Our review of the data provided in the it may be that only a select few product separate and distinct authority. In Petition, supplemental submissions, and characteristics take into account addition, the Department’s other information readily available to commercially meaningful physical determination is subject to limitations of the Department indicates that characteristics. In addition, interested time and information. Although this Petitioners have established industry parties may comment on the order in may result in different definitions of the support. First, the Petition established which the physical characteristics like product, such differences do not support from domestic producers (or should be used in product matching. render the decision of either agency workers) accounting for more than 50 Generally, the Department attempts to contrary to law.8 Section 771(10) of the percent of the total production of the list the most important physical Act defines the domestic like product as domestic like product and, as such, we characteristics first and the least ‘‘a product which is like, or in the find that the Department is not required important characteristics last. absence of like, most similar in to take further action in order to In order to consider the suggestions of characteristics and uses with, the article evaluate industry support (e.g., interested parties in developing and subject to an investigation under this polling).14 Second, we find that the issuing the antidumping duty title.’’ Thus, the reference point from domestic producers (or workers) have questionnaires, we must receive which the domestic like product met the statutory criteria for industry comments at the above-referenced analysis begins is ‘‘the article subject to support under section 732(c)(4)(A)(i) of address by May 9, 2011. Additionally, an investigation’’ (i.e., the class or kind the Act because the domestic producers rebuttal comments, limited to issues of merchandise to be investigated, (or workers) who support the Petition raised in the comments, must be which normally will be the scope as account for at least 25 percent of the received by May 16, 2011. defined in the petition). total production of the domestic like product.15 Finally, we find that the Determination of Industry Support for With regard to the domestic like the Petition domestic producers (or workers) have product, Petitioners do not offer a met the statutory criteria for industry Section 732(b)(1) of the Act requires definition of domestic like product support under section 732(c)(4)(A)(ii) of that a petition be filed on behalf of the distinct from the scope of the the Act because the domestic producers domestic industry. Section 732(c)(4)(A) investigation. Based on our analysis of (or workers) who support the Petition of the Act provides that a petition meets the information submitted on the account for more than 50 percent of the this requirement if the domestic record, we have determined that steel production of the domestic like product producers or workers who support the wheels constitute a single domestic like produced by that portion of the industry petition account for: (i) At least 25 product and we have analyzed industry expressing support for, or opposition to, percent of the total production of the support in terms of that domestic like 9 the Petition. Accordingly, the domestic like product; and (ii) more product. Department determines that the Petition than 50 percent of the production of the In determining whether Petitioners was filed on behalf of the domestic domestic like product produced by that have standing under section industry within the meaning of section portion of the industry expressing 732(c)(4)(A) of the Act, we considered 732(b)(1) of the Act. support for, or opposition to, the the industry support data contained in The Department finds that Petitioners petition. Moreover, section 732(c)(4)(D) the Petition with reference to the filed the Petition on behalf of the of the Act provides that, if the petition domestic like product as defined in the domestic industry because they are an does not establish support of domestic ‘‘Scope of Investigations’’ section in interested party as defined in section producers or workers accounting for Appendix I of this Notice. To establish 771(9)(C) of the Act and they have more than 50 percent of the total industry support, Petitioners provided demonstrated sufficient industry production of the domestic like product, their production of the domestic like support with respect to the AD the Department shall: (i) Poll the product in 2010.10 Petitioners compared investigation that they are requesting industry or rely on other information in their production to the estimated total the Department initiate.16 order to determine if there is support for production of the domestic like product Allegations and Evidence of Material the petition, as required by for the entire domestic industry.11 To Injury and Causation subparagraph (A); or (ii) determine support their estimation of industry industry support using a statistically support, Petitioners provided an Petitioners allege that the U.S. valid sampling method to poll the affidavit from an employee of Accuride, industry producing the domestic like industry. who has 40 years professional product is being materially injured, or is Section 771(4)(A) of the Act defines experience in the steel wheels threatened with material injury, by the ‘‘industry’’ as the producers as a reason of the imports of the subject whole of a domestic like product. Thus, 8 See USEC, Inc. v. United States, 25 C.I.T. 49, merchandise sold at less than normal to determine whether a petition has the 56(2001) (citing Algoma Steel Corp., Ltd. v. United value (‘‘NV’’). In addition, Petitioners requisite industry support, the statute States, 688 F. Supp. 639, 644 (CIT 1988), aff’d 865 provide data that demonstrate that directs the Department to look to F.2d 240 (Fed. Cir. 1989), cert. denied 492 U.S. 919 subject imports exceed the negligibility producers and workers who produce the (1989)). 9 For a discussion of the domestic like product domestic like product. The U.S. analysis in this case, see Antidumping Duty 12 See Second Supplement to the AD/CVD International Trade Commission (‘‘ITC’’), Investigation Initiation Checklist: Steel Wheels from Petitions, at 1, and Exhibit 1. which is responsible for determining the People’s Republic of China (‘‘Initiation 13 For further discussion, see Initiation Checklist whether ‘‘the domestic industry’’ has Checklist’’), at Attachment II, Analysis of Industry at Attachment II. Support for the Petitions Covering Steel Wheels 14 See Section 732(c)(4)(D) of the Act, and been injured, must also determine what from the People’s Republic of China, on file in the Initiation Checklist at Attachment II. constitutes a domestic like product in CRU. 15 See Initiation Checklist at Attachment II. order to define the industry. While both 10 See Volume I of the Petition, at I–3. 16 For further discussion, please see Initiation the Department and the ITC must apply 11 See id. Checklist at Attachment II.

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threshold provided for under section which the Department excludes from Petitioners claim that India is the 771(24)(A) of the Act. the calculation, and therefore, for this appropriate surrogate market economy Petitioners contend that the industry’s initiation, we have excluded the line country because it is at a comparable injured condition is illustrated by item from the calculation. Additionally, level of economic development to the reduced market share, lost sales and because the World Bank publication PRC and it is a significant producer of revenues, reduced production, reduced provided by Petitioners reported data comparable merchandise.25 Petitioners capacity utilization rate, decreased from 2009, the Department inflated the state that the Department has shipments, underselling, reduced value to be contemporaneous with the determined in previous investigations employment, reduced hours worked, proposed POI.21 and administrative reviews that India is reduced wages paid, decline in financial To value inland freight, Petitioners at a level of development comparable to performance, and an increase in import obtained information from the PRC.26 penetration.17 We have assessed the www.infobanc.com. However, for the Based on the information provided by allegations and supporting evidence initiation, the Department revised Petitioners, the Department believes that regarding material injury, threat of Petitioners’ calculation of the surrogate the use of India as a surrogate country material injury, and causation, and we inland freight expense to reflect the is appropriate for purposes of initiation. have determined that these allegations Department’s current domestic inland However, after initiation of the are properly supported by adequate freight methodology.22 investigation, interested parties will evidence and meet the statutory have the opportunity to submit Normal Value requirements for initiation.18 comments regarding surrogate country Petitioners state that, in every selection and, pursuant to 19 CFR Period of Investigation previous administrative review and less- 351.301(c)(3)(i), will be provided an In accordance with 19 CFR than-fair-value investigation involving opportunity to submit publicly available 351.204(b)(1), because this Petition was merchandise from the PRC, the information to value factors of filed on March 30, 2011, the period of Department has concluded that the PRC production within 40 days after the date investigation (‘‘POI’’) is July 1, 2010, is a non-market economy country of publication of the preliminary through December 31, 2010. (‘‘NME’’) and, as the Department has not determination. revoked this determination, its NME Allegations of Sales at Less Than Fair Petitioners provided dumping margin status remains in effect.23 In accordance Value calculations using the Department’s with section 771(18)(c)(i) of the Act, the NME methodology as required by 19 The following is a description of the presumption of NME status remains in CFR 351.202(b)(7)(i)(C) and 19 CFR allegations of sales at less than fair value effect until revoked by the Department. 351.408. Petitioners calculated NV upon which the Department has based The presumption of NME status for the based on the product-specific its decision to initiate this investigation PRC has not been revoked by the consumption rates of Accuride. with respect to imports of steel wheels Department and, therefore, remains in Petitioners note that they used from the PRC. The sources of data for effect for the purposes of initiating this Accuride’s data because the the deductions and adjustments relating investigation.24 consumption rates for the factors of to U.S. price and NV are further Accordingly, the NV of the product is production used by PRC producers are discussed in the Initiation Checklist at appropriately based on factors of not known, or reasonably available, to Attachment V. Should the need arise to production valued in a surrogate market Petitioners.27 Petitioners also believe use any of this information as facts economy country or countries, in that PRC steel wheel producers use hot- available under section 776 of the Act, accordance with section 773(c) of the rolled steel coil and a similar process in we may reexamine the information and Act. In the course of this investigation, manufacturing steel wheels as revise the margin calculations, if all parties will have the opportunity to Accuride.28 appropriate. provide relevant information related to Petitioners valued the factors of the issues of the PRC’s NME status and U.S. Price production using reasonably available the granting of separate rates to public surrogate country data, including Petitioners calculated export prices individual exporters. India import data from the Monthly ‘‘ ’’ ( EPs ) for steel wheels based on two Statistics of the Foreign Trade of India sources: (1) Price quotes from a Chinese 21 See Initiation Checklist at Attachment V. from the period February 2010 through 19 22 company, adjusted for certain See Initiation Checklist at Attachment V; see, July 2010, the most current data 20 e.g., Pure Magnesium From the People’s Republic of movement expenses, and (2) average available. Petitioners excluded from unit values (‘‘AUVs’’) for the POI of China: Final Results of the 2008–2009 Antidumping Duty Administrative Review of the Antidumping these import statistics imports from imports of steel wheels from the PRC. Duty Order, 75 FR 80791 (December 23, 2010) and countries previously determined by the To value brokerage and handing, accompanying Issues and Decision Memorandum at Department to be NME countries. Petitioners used data published in Comment 11. 23 Petitioners also excluded import Doing Business 2010: India, published See Petition Volume II, at II–1 and II–2. 24 statistics from countries previously by the World Bank. However, See generally Memorandum from the Office of Policy to David M. Spooner, Assistant Secretary for determined by the Department to Petitioners included foreign domestic Import Administration, regarding The People’s maintain broadly available, non- freight costs in its calculation of Republic of China Status as a Non-Market Economy, industry-specific export subsidies and surrogate brokerage and handling, dated May 15, 2006. This document is available online at http://ia.ita.doc.gov/download/prc-nme- import statistics for non-specified status/prc-nme-status-memo.pdf. Additionally, in 29 17 countries. See Volume I of the Petition, at I–6–12, and recent investigations, the Department has continued Exhibits I–4—I–9. to determine that the PRC is an NME country. See, 18 25 See Petition Volume II, at II–1 to II–2. For further discussion, please see Initiation e.g., Drill Pipe From the People’s Republic of China: 26 Checklist at Attachment III. Final Determination of Sales at Less Than Fair See id. 19 See Initiation Checklist and Petition Volume II Value and Critical Circumstances, 76 FR 1966 27 See id. at II–3 and Exhibit II–3–C. at Exhibit II–2–A. (January 11, 2011) (‘‘Drill Pipe from the PRC’’); and 28 See id. at II–3 and 4. 20 See Petition Volume II at Exhibit II–1–A, and Aluminum Extrusions From the People’s Republic 29 See Petition Volume II, at II–5 and Exhibit II– First Supplement to the AD/CVD Petitions, at of China: Final Determination of Sales at Less Than 3–D-l through Exhibit II–3–D–6. See also PRC AD Exhibit 5. Fair Value, 76 FR 18524 (April 4, 2011). Supplement to the Petition at 7 and Exhibit 6.

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Petitioners valued hot-rolled steel To calculate factory overhead, selling, scheduled date of the preliminary coils using HTS category 7208.36.10 general and administrative expenses, determination. because the description of the HTS and profit for integrated producers, Respondent Selection offers greater specificity with respect to Petitioners relied on the financial the thickness of the steel. Similarly, statements of Wheels India Limited and For this investigation, the Department Petitioners valued: (1) Hot-rolled steel Steel Strip Wheels Limited, Indian will request quantity and value coil using HTS category 7211.14.40; (2) producers of comparable information from known exporters and steel scrap using HTS 7204.10; and (3) merchandise.39 producers identified with complete weld wire using HTS category contact information in the Petition. The Fair Value Comparisons 8311.20.30 quantity and value data received from Petitioners explained that because Based on the data provided by NME exporters/producers will be used they were unable to obtain a suitable Petitioners, we find that there is reason as the basis to select the mandatory surrogate value for paint, Petitioners to believe that imports of steel wheels respondents. have excluded the input from the from the PRC are being, or are likely to The Department requires that the calculation of NV.31 be, sold in the United States at less than respondents submit a response to both Petitioners valued electricity using fair value. Based on the comparison of the quantity and value questionnaire the 2008 Central Electric Authority of EP and U.S. import AUVs to NV, as and the separate-rate application by the India, for small, medium, and large noted above, the estimated dumping respective deadlines in order to receive industries. These electricity rates margins for the PRC range from 30.25 consideration for separate-rate status.42 represent actual country-wide, publicly- percent to 193.54 percent. On the date of the publication of this available information on tax-exclusive Initiation of Antidumping Investigation initiation notice in the Federal Register, electricity rates charged to industries in the Department will post the quantity India. As the rates listed in this source Based upon the examination of the and value questionnaire along with the became effective on a variety of different Petition concerning steel wheels from filing instructions on the Import dates, Petitioners did not adjust the the PRC and other information Administration web site at http:// average value for inflation.32 For natural reasonably available to the Department, ia.ita.doc.gov/ia-highlights-and- gas, Petitioners used data provided by the Department finds that this Petition news.html, and a response to the the Natural Gas Authority of India.33 For meets the requirements of section 732 of quantity and value questionnaire is due water, Petitioners used the average the Act. Therefore, pursuant to section no later than May 10, 2011. Also, the water rates for the Maharashtra Province 732(c)(1)(A) of the Act, we are initiating Department will send the quantity and derived from the Maharashtra Industrial an AD investigation to determine value questionnaire to those PRC Development Corporation’s industrial whether imports of steel wheels from companies identified in Volume I of the water tariffs as of June 8, 2009.34 the PRC are being, or are likely to be, Petition, at Exhibit I–2. Petitioners submitted the wage rate sold in the United States at less than fair Interested parties must submit calculation from Drill Pipe from the value. In accordance with section applications for disclosure under APO PRC, which relies on the Department’s 733(b)(1)(A) of the Act, unless in accordance with 19 CFR 351.305. current methodology to value labor.35 postponed, we will make our Instructions for filing such applications For the purposes of initiation, to value preliminary determinations no later may be found on the Department’s Web labor the Department relied on the value than 140 days after the date of this site at http://ia.ita.doc.gov/apo. for the wage rate calculated in Drill Pipe initiation. Separate Rates Application from the PRC. Targeted Dumping Allegations Petitioners provided wholesale price In order to obtain separate-rate status On December 10, 2008, the index (‘‘WPI’’) as published by the Office in NME investigations, exporters and Department issued an interim final rule of Economic Adviser to the Government producers must submit a separate-rate 36 for the purpose of withdrawing 19 CFR of India, and explained that they were status application.43 The specific 351.414(f) and (g), the regulatory unable to obtain the WPI to cover the requirements for submitting the provisions governing the targeted entire proposed POI. Therefore, for the separate-rate application in this dumping analysis in antidumping duty initiation, the Department has adjusted investigation are outlined in detail in investigations, and the corresponding Petitioners’ calculations and applied the application itself, which will be regulation governing the deadline for that Department’s normal inflation available on the Department’s Web site methodology using WPI for the entirety targeted dumping allegations, 19 CFR 351.301(d)(5).40 The Department stated at http://ia.ita.doc.gov/ia-highlights- of the proposed POI from the and-news.html on the date of International Monetary Fund, that ‘‘withdrawal will allow the Department to exercise the discretion publication of this initiation notice in International Financial Statistics the Federal Register. The separate-rate database,37 where appropriate.38 intended by the statute and, thereby, develop a practice that will allow application will be due 60 days after publication of this initiation notice. For 30 interested parties to pursue all statutory See Petition Volume II, at II–3 through II–9; and exporters and producers who submit a Exhibit II–3–D–1 to Exhibit II–3–D–6. avenues of relief in this area.’’41 31 See PRC AD Supplement to the Petitions at 2. In order to accomplish this objective, 42 32 See Second Supplement to the AD/CVD if any interested party wishes to make See, e.g., Circular Welded Austenitic Stainless Petitions at 1 and Exhibit 2. Pressure Pipe from the People’s Republic of China: a targeted dumping allegation in this Initiation of Antidumping Duty Investigation, 73 FR 33 See Petition Volume II, at II–10 and Exhibit II– investigation pursuant to section 10221, 10225 (February 26, 2008); Initiation of 3–E–2. Antidumping Duty Investigation: Certain Artist 34 777A(d)(1)(B) of the Act, such allegation See Petition Volume II, at Exhibit II–3–E–3. Canvas From the People’s Republic of China, 70 FR 35 is due no later than 45 days before the See Third Supplement to the AD/CVD 21996, 21999 (April 28, 2005). Petitions, at Exhibit 2. 43 See Policy Bulletin 05.1: Separate-Rates 36 See Petition Volume II, at Exhibit II–3–F. 39 See Petition Volume II, at Exhibit II–3–I. Practice and Application of Combination Rates in 37 See, e.g., Drill Pipe from the PRC and 40 See Withdrawal of the Regulatory Provisions Antidumping Investigations involving Non-Market accompanying Issues and Decision Memorandum at Governing Targeted Dumping in Antidumping Duty Economy Countries, dated April 5, 2005 (‘‘Policy Comment 3. Investigations, 73 FR 74930 (December 10, 2008). Bulletin’’), available on the Department’s Web site 38 See Initiation Checklist at Attachment V. 41 Id. at 74931. at http://ia.ita.doc.gov/policy/bull05-1.pdf.

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separate-rate status application and Preliminary Determinations by the ITC assembly or separately. These products are used with both tubed and tubeless tires. Steel subsequently are selected as mandatory The ITC will preliminarily determine, respondents, these exporters and wheels, whether or not attached to tires or no later than May 16, 2011, whether axles, are included. However, if the steel producers will no longer be eligible for there is a reasonable indication that wheels are imported as an assembly attached consideration for separate rate status imports of steel wheels from the PRC are to tires or axles, the tire or axle is not covered unless they respond to all parts of the materially injuring, or threatening by the scope. The scope includes steel questionnaire as mandatory material injury to a U.S. industry. A wheels, discs, and rims of carbon and/or respondents. As noted in the negative ITC determination will result alloy composition and clad wheels, discs, ‘‘Respondent Selection’’ section above, and rims when carbon or alloy steel in the investigation being terminated; represents more than fifty percent of the the Department requires that otherwise, this investigation will respondents submit a response to both product by weight. The scope includes proceed according to statutory and wheels, rims, and discs, whether coated or the quantity and value questionnaire regulatory time limits. uncoated, regardless of the type of coating. and the separate rate application by the Imports of the subject merchandise are respective deadlines in order to receive Notification to Interested Parties provided for under the following categories consideration for separate-rate status. Interested parties must submit of the Harmonized Tariff Schedule of the applications for disclosure under United States (‘‘HTSUS’’): 8708.70.05.00, Use of Combination Rates in an NME 8708.70.25.00, 8708.70.45.30, and Investigation administrative protective orders in accordance with 19 CFR 351.305. On 8708.70.60.30. These HTSUS numbers are provided for convenience and customs The Department will calculate January 22, 2008, the Department purposes only; the written description of the combination rates for certain published Antidumping and scope is dispositive. respondents that are eligible for a Countervailing Duty Proceedings: [FR Doc. 2011–10076 Filed 4–25–11; 8:45 am] separate rate in this investigation. The Documents Submission Procedures; Policy Bulletin states: APO Procedures, 73 FR 3634. Parties BILLING CODE 3510–DS–P {W}hile continuing the practice of wishing to participate in these assigning separate rates only to exporters, all investigations should ensure that they DEPARTMENT OF COMMERCE separate rates that the Department will now meet the requirements of these assign in its NME investigations will be procedures (e.g., the filing of letters of International Trade Administration specific to those producers that supplied the appearance as discussed at 19 CFR exporter during the period of investigation. 351.103(d)). [C–580–866] Note, however, that one rate is calculated for Any party submitting factual the exporter and all of the producers which Bottom Mount Combination information in an antidumping duty or Refrigerator-Freezers From the supplied subject merchandise to it during the countervailing duty proceeding must period of investigation. This practice applies Republic of Korea: Initiation of both to mandatory respondents receiving an certify to the accuracy and completeness 44 Countervailing Duty Investigation individually calculated separate rate as well of that information. Parties are hereby as the pool of non-investigated firms reminded that revised certification AGENCY: Import Administration, receiving the weighted-average of the requirements are in effect for company/ International Trade Administration, individually calculated rates. This practice is government officials as well as their Department of Commerce. referred to as the application of ‘‘combination representatives in all segments of any DATES: Effective Date: April 26, 2011. rates’’ because such rates apply to specific antidumping duty or countervailing FOR FURTHER INFORMATION CONTACT: combinations of exporters and one or more duty proceedings initiated on or after Justin Neuman or Dana Mermelstein, producers. The cash-deposit rate assigned to March 14, 2011.45 The formats for the an exporter will apply only to merchandise AD/CVD Operations, Office 6, Import both exported by the firm in question and revised certifications are provided at the Administration, U.S. Department of produced by a firm that supplied the exporter end of the Interim Final Rule. The Commerce, 14th Street and Constitution during the period of investigation. Department intends to reject factual Avenue, NW., Washington, DC 20230; submissions in any proceeding telephone: (202) 482–0486 or (202) 482– See Policy Bulletin at 6 (emphasis segments initiated on or after March 14, 1391, respectively. added). 2011, if the submitting party does not SUPPLEMENTARY INFORMATION: Distribution of Copies of the Petition comply with the revised certification requirements. The Petition In accordance with section This notice is issued and published On March 30, 2011, the Department of 732(b)(3)(A) of the Act and 19 CFR pursuant to section 777(i) of the Act. Commerce (the Department) received a 351.202(f), copies of the public versions Dated: April 19, 2011. countervailing duty (CVD) petition of the Petition have been provided to Ronald K. Lorentzen, concerning imports of bottom mount the representatives of the Government of Deputy Assistant Secretary for Import combination refrigerator-freezers the PRC. Because of the large number of Administration. (bottom mount refrigerators) from the producers/exporters identified in the Republic of Korea (Korea) filed in Petition, the Department considers the Appendix I proper form by Whirlpool Corporation service of the public version of the Scope of the Investigation (the petitioner), a domestic producer of Petition to the foreign producers/ The products covered by this investigation bottom mount refrigerators. See ‘‘Bottom exporters satisfied by the delivery of the are steel wheels with a wheel diameter of 18 Mount Combination Refrigerator- public version to the Government of the to 24.5 inches. Rims and discs for such Freezers From the Republic of Korea PRC, consistent with 19 CFR wheels are included, whether imported as an and Mexico: Antidumping and 351.203(c)(2). Countervailing Duty Petitions on Behalf 44 ITC Notification See section 782(b) of the Act. of Whirlpool Corporation,’’ dated March 45 See Certification of Factual Information to 30, 2011 (Korea CVD Petition). On April Import Administration During Antidumping and We have notified the ITC of our Countervailing Duty Proceedings: Interim Final 5, 6, 12, and 14, 2011, the Department initiation, as required by section 732(d) Rule, 76 FR 7491 (February 10, 2011) (‘‘Interim issued additional requests for of the Act. Final Rule’’) amending 19 CFR 351.303(g)(1) and (2). information and clarification of certain

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areas of the Korea CVD Petition. Based intended to provide the Department 771(10) of the Act), they do so for on the Department’s requests, the with ample opportunity to consider all different purposes and pursuant to a petitioner timely filed additional comments and to consult with parties separate and distinct authority. In information pertaining to the Korea CVD prior to the issuance of the preliminary addition, the Department’s Petition on April 11, 14, and 18, 2011. determination. determination is subject to limitations of In accordance with section 702(b)(1) time and information. Although this Consultations of the Tariff Act of 1930, as amended, may result in different definitions of the (the Act), the petitioner alleges that Pursuant to section 702(b)(4)(A)(ii) of like product, such differences do not producers/exporters of bottom mount the Act, the Department held render the decision of either agency refrigerators from Korea received consultations in Washington, DC with contrary to law. See USEC, Inc. v. countervailable subsidies within the the Government of Korea (GOK) with United States, 132 F. Supp. 2d 1, 8 (CIT meaning of sections 701 and 771(5) of respect to the Korea CVD Petition on 2001), citing Algoma Steel Corp., Ltd. v. the Act, and that imports from these April 13, 2011. See Memorandum to the United States, 688 F. Supp. 639, 644 producers/exporters materially injure, File, ‘‘Consultations With the (CIT 1988), aff’d 865 F.2d 240 (Fed. Cir. or threaten material injury to, an Government of Korea Regarding the 1989), cert. denied 492 U.S. 919 (1989). industry in the United States. Countervailing Duty Petition on Bottom Section 771(10) of the Act defines the The Department finds that the Mount Combination Refrigerator- domestic like product as ‘‘a product petitioner has filed this CVD petition on Freezers From Korea,’’ dated April 14, which is like, or in the absence of like, behalf of the domestic industry because 2011, a public document on file in the most similar in characteristics and uses it is an interested party as defined in Central Records Unit (CRU), Room 7046 with, the article subject to an section 771(9)(C) of the Act, and the of the main Department of Commerce investigation under this title.’’ Thus, the petitioner has demonstrated sufficient building. reference point from which the industry support with respect to the Determination of Industry Support for domestic like product analysis begins is CVD investigation that it is requesting the Petition ‘‘the article subject to an investigation’’ the Department to initiate (see (i.e., the class or kind of merchandise to ‘‘Determination of Industry Support for Section 702(b)(1) of the Act requires be investigated, which normally will be the CVD Petition,’’ below). that a petition be filed on behalf of the the scope as defined in the petition). domestic industry. Section 702(c)(4)(A) With regard to the domestic like Period of Investigation of the Act provides that a petition meets product, the petitioner does not offer a The period of investigation (POI) is this requirement if the domestic definition of domestic like product calendar year 2010, i.e., January 1, 2010, producers or workers who support the distinct from the scope of the through December 31, 2010. See 19 CFR petition account for: (i) At least 25 investigation. Based on our analysis of 351.204(b)(2). percent of the total production of the the information submitted on the domestic like product; and (ii) more record, we have determined that bottom Scope of Investigation than 50 percent of the production of the mount refrigerators constitute a single The products covered by this domestic like product produced by that domestic like product and we have investigation are bottom mount portion of the industry expressing analyzed industry support in terms of refrigerators from Korea. For a full support for, or opposition to, the that domestic like product. For a description of the scope of this petition. Moreover, section 702(c)(4)(D) discussion of the domestic like product investigation, please see the ‘‘Scope of of the Act provides that, if the petition analysis in this case, see Countervailing Investigation’’ Appendix to this notice. does not establish support of domestic Duty Investigation Initiation Checklist: producers or workers accounting for Comments on Scope of Investigation Bottom Mount Combination more than 50 percent of the total Refrigerator-Freezers from Korea (Korea During our review of the Korea CVD production of the domestic like product, CVD Initiation Checklist) at Attachment Petition, we discussed the scope with the Department shall: (i) Poll the II, ‘‘Analysis of Industry Support for the the petitioner to ensure that it is an industry or rely on other information in Petitions Covering Bottom Mount accurate reflection of the products for order to determine if there is support for Combination Refrigerator-Freezers,’’ on which the domestic industry is seeking the petition, as required by file in the CRU. relief. Moreover, as discussed in the subparagraph (A); or (ii) determine In determining whether the petitioner preamble to the regulations (See industry support using a statistically has standing under section 702(c)(4)(A) Antidumping Duties; Countervailing valid sampling method to poll the of the Act, we considered the industry Duties; Final Rule, 62 FR 27296, 27323 industry. support data contained in the petition (May 19, 1997)), we are setting aside a Section 771(4)(A) of the Act defines with reference to the domestic like period for interested parties to raise the ‘‘industry’’ as the producers as a product as defined in the ‘‘Scope of issues regarding product coverage. The whole of a domestic like product. Thus, Investigation’’ section above. To Department encourages all interested to determine whether a petition has the establish industry support, the parties to submit such comments by requisite industry support, the statute petitioner provided its production May 9, 2011, twenty calendar days from directs the Department to look to volume of the domestic like product in the signature date of this notice. All producers and workers who produce the 2010, and compared it to the estimated comments must be filed on the records domestic like product. The International total production of the domestic like of the Korea and Mexico antidumping Trade Commission (ITC), which is product for the entire domestic duty investigations as well as the Korea responsible for determining whether industry. See Volume I of the Korea countervailing duty investigation. ‘‘the domestic industry’’ has been CVD Petition, at 8–11, Volume 2A of the Comments should be addressed to injured, must also determine what petition, at Exhibits 4 and 5, and Import Administration’s APO/Dockets constitutes a domestic like product in Supplement to the AD/CVD petitions, Unit, Room 1870, U.S. Department of order to define the industry. While both dated April 11, 2011 at 2–4 and Exhibits Commerce, 14th Street and Constitution the Department and the ITC must apply S–1, S–2, and S–3. The petitioner Avenue, NW., Washington, DC 20230. the same statutory definition regarding estimated 2010 production of the The period of scope consultations is the domestic like product (see section domestic like product by non-

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petitioning companies based on its Allegations and Evidence of Material We are including in our investigation knowledge of its competitors and their Injury and Causation the following programs alleged in the production capacity. We have relied Korea CVD Petition to provide upon data the petitioner provided for The petitioner alleges that imports of countervailable subsidies to producers/ purposes of measuring industry support. the subject merchandise are benefitting exporters of the subject merchandise: For further discussion, see Korea CVD from countervailable subsidies and that 1. Korean Export-Import Bank (KEXIM) Initiation Checklist, at Attachment II. such imports are causing, or threatening Subsidy Programs to cause, material injury to the U.S. a. KEXIM Short-Term Export Credit Our review of the data provided in the industry producing the domestic like b. KEXIM Export Factoring petition, supplemental submissions, and product. In addition, the petitioner c. KEXIM Export Loan Guarantees other information readily available to alleges that subject imports exceed the d. KEXIM Trade Bill Rediscounting the Department indicates that the negligibility threshold provided for Program petitioner has established industry under section 771(24)(A) of the Act. 2. Korea Development Bank (KDB) and support. First, the petition established The petitioner contends that the Industrial Bank of Korea (IBK) support from domestic producers (or industry’s injured condition is Short-Term Discounted Loans for workers) accounting for more than 50 illustrated by reduced market share, Export Receivables percent of the total production of the reduced shipments, underselling and 3. Korea Trade Insurance Corporation— domestic like product and, as such, the price depression or suppression, decline Export Insurance and Export Credit Department is not required to take in financial performance, lost sales and Guarantees further action in order to evaluate revenue, and increase in the volume of a. Short-Term Export Insurance industry support (e.g., polling). See imports and import penetration. See b. Export Credit Guarantees section 702(c)(4)(D) of the Act and Volume I of the Korea CVD Petition, at 4. Production Facilities Subsidies: Korea CVD Initiation Checklist, at 114–138, Volume 2A of the petition, at Gwangju Metropolitan City Attachment II. Second, the domestic Exhibit 6, Volume 2B of the petition, at Programs producers (or workers) have met the Exhibits 35 and 38–42, and Supplement a. Tax Reductions/Tax Exemptions statutory criteria for industry support to the AD/CVD petitions, at 5–10 and b. Relocation Grants under section 702(c)(4)(A)(i) of the Act Exhibits S–1, S–2, S–4, and S–5. We c. Facilities Grants because the domestic producers (or have assessed the allegations and d. Employment Grants workers) who support the petition supporting evidence regarding material e. Training Grants account for at least 25 percent of the injury, threat of material injury, and f. Consulting Grants total production of the domestic like causation, and we have determined that g. Preferential Financing for Business product. See Korea CVD Initiation these allegations are properly supported Restructuring Checklist, at Attachment II. Finally, the by adequate evidence and meet the h. Interest Grants for the Stabilization domestic producers (or workers) have statutory requirements for initiation. See of Management Costs met the statutory criteria for industry Korea CVD Initiation Checklist at i. ‘‘Special Support’’ for Large support under section 702(c)(4)(A)(ii) of Attachment III, ‘‘Analysis of Allegations Corporate Investors the Act because the domestic producers and Evidence of Material Injury and j. Research and Development and (or workers) who support the petition Causation for the Petitions Covering Other Technical Support Services account for more than 50 percent of the Bottom Mount Combination 5. Production Facilities Subsidies: production of the domestic like product Refrigerator-Freezers from the Republic Changwon City Subsidy Programs produced by that portion of the industry of Korea and Mexico.’’ a. Relocation Grants expressing support for, or opposition to, b. Employment Grants the petition. Accordingly, the Initiation of Countervailing Duty c. Training Grants Department determines that the petition Investigation d. Facilities Grants was filed on behalf of the domestic e. Grant for ‘‘Moving Metropolitan Section 702(b)(1) of the Act requires Area-Base Company to Changwon’’ industry within the meaning of section the Department to initiate a CVD 702(b)(1) of the Act. See id. f. Preferential Financing for Land investigation whenever an interested Purchase The Department finds that the party files a CVD petition on behalf of g. Tax Reductions and Exemptions petitioner filed the petition on behalf of an industry that: (1) Alleges the h. Financing for the Stabilization of the domestic industry because it is an elements necessary for an imposition of Business Activities interested party as defined in section a duty under section 701(a) of the Act; i. Special Support for Large 771(9)(C) of the Act and it has and (2) is accompanied by information Companies demonstrated sufficient industry reasonably available to the petitioner 6. Gyeongsangnam-do Province and support with respect to the supporting the allegations. Korea Energy Management countervailing duty investigation that it The Department has examined the Corporation Energy Savings is requesting the Department initiate. countervailing duty petition on bottom Subsidies See id. mount refrigerators from Korea and 7. Government of Korea Facilities Injury Test finds that it complies with the Investment Support: Article 26 of requirements of section 702(b)(1) of the the Restriction of Special Taxation Because Korea is a ‘‘Subsidies Act. Therefore, in accordance with Act (RSTA) Agreement Country’’ within the meaning section 702(b)(1) of the Act, we are 8. Government of Korea Targeted of section 701(b) of the Act, section initiating a CVD investigation to Subsidies 701(a)(2) of the Act applies to this determine whether Korean producers/ a. Research, Supply, or Workforce investigation. Accordingly, the ITC must exporters of bottom mount refrigerators Development Investment Tax determine whether imports of the receive countervailable subsidies. For a Deductions for ‘‘New Growth subject merchandise from Korea discussion of evidence supporting our Engines’’ Under RSTA Art. 10(1)(1) materially injure, or threaten material initiation determination, see Korea CVD b. Research, Supply, or Workforce injury to, a U.S. industry. Initiation Checklist. Development Expense Tax

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Deductions for ‘‘Core Technologies’’ Distribution of Copies of the CVD the Interim Final Rule. The Department Under RSTA Art. 10(1)(2) Petition intends to reject factual submissions in c. RSTA Art. 25(2) Tax Deductions for In accordance with section any proceeding segments initiated on or Investments in Energy Economizing 702(b)(4)(A)(i) of the Act, copies of the after March 14, 2011, if the submitting Facilities public versions of the Korea CVD party does not comply with the revised d. Targeted Facilities Subsidies Petition and amendments thereto have certification requirements. through Korea Finance Corporation been provided to the GOK. To the extent This notice is issued and published (KoFC), KDB, and IBK ‘‘New Growth practicable, we will attempt to provide pursuant to section 777(i) of the Act. Engines Industry Fund’’ a copy of the public version of the Korea Dated: April 19, 2011. e. Government of Korea Green Fund CVD Petition to each exporter named in Subsidies Ronald K. Lorentzen, the petition, as provided under 19 CFR Deputy Assistant Secretary for Import For a description of each of these 351.203(c)(2). Administration. programs and a full discussion of the Department’s decision to initiate an ITC Notification Appendix investigation of these programs, see We have notified the ITC of our Scope of the Investigation Korea CVD Initiation Checklist. initiation, as required by section 702(d) The products covered by the investigation We are not including in our of the Act. are all bottom mount combination investigation the following program Preliminary Determination by the ITC refrigerator-freezers and certain assemblies alleged to benefit producers/exporters of thereof from Korea. the subject merchandise in Korea: The ITC will preliminarily determine, For purposes of the investigation, the term within 45 days after the date on which ‘‘bottom mount combination refrigerator- 1. Changwon City Provision of Waste the petition was filed, whether there is freezers’’ denotes freestanding or built-in Heat Electricity a reasonable indication that imports of cabinets that have an integral source of For further information explaining allegedly subsidized bottom mount refrigeration using compression technology, with all of the following characteristics: why the Department is not initiating an refrigerators from Korea materially • investigation of this program, see CVD The cabinet contains at least two interior injure, or threaten material injury to, a storage compartments accessible through one Initiation Checklist. U.S. industry. See section 703(a)(2) of or more separate external doors or drawers or Respondent Selection the Act. A negative ITC determination a combination thereof; will result in the investigation being • The upper-most interior storage Although the Department normally terminated; see section 703(a)(1) of the compartment(s) that is accessible through an relies on import data from CBP to select Act. Otherwise, the investigation will external door or drawer is either a refrigerator respondents in countervailing duty proceed according to statutory and compartment or convertible compartment, investigations, the Harmonized Tariff regulatory time limits. but is not a freezer compartment; 1 and Schedule of the United States (HTSUS) • There is at least one freezer or categories under which bottom mount Notification to Interested Parties convertible compartment that is mounted refrigerators may be entered are basket Interested parties must submit below the upper-most interior storage categories which include many other compartment(s). applications for disclosure under For purposes of the investigation, a types of refrigerators and freezers. administrative protective orders in refrigerator compartment is capable of storing Therefore, the CBP data cannot be accordance with 19 CFR 351.305. On food at temperatures above 32 degrees F (0 isolated to identify imports of subject January 22, 2008, the Department degrees C), a freezer compartment is capable merchandise during the POI. published Antidumping and of storing food at temperatures at or below 32 Accordingly, the Department must rely Countervailing Duty Proceedings: degrees F (0 degrees C), and a convertible on an alternate methodology for Documents Submission Procedures; compartment is capable of operating as either respondent selection. APO Procedures (73 FR 3634). Parties a refrigerator compartment or a freezer The petition names two companies as wishing to participate in this compartment, as defined above. producers and/or exporters in Korea of investigation should ensure that they Also covered are certain assemblies used in bottom mount combination refrigerator- bottom mount refrigerators: Samsung meet the requirements of these Electronics Co., Ltd. (Samsung) and LG freezers, namely: (1) Any assembled cabinets procedures (e.g., the filing of letters of designed for use in bottom mount Electronics, Inc. (LG). The petition appearance as discussed at 19 CFR combination refrigerator-freezers that identifies these two companies as 351.103(d)). incorporate, at a minimum: (a) an external accounting for virtually all of the Any party submitting factual metal shell, (b) a back panel, (c) a deck, (d) imports of bottom mount refrigerators information in an AD/CVD proceeding an interior plastic liner, (e) wiring, and (f) from Korea. Moreover, we know of no must certify to the accuracy and insulation; (2) any assembled external doors further exporters or producers of the completeness of that information. See designed for use in bottom mount subject merchandise because, as noted section 782(b) of the Act. Parties are combination refrigerator-freezers that above, the CBP data does not provide for hereby reminded that revised incorporate, at a minimum: (a) an external the isolation of such sales from the certification requirements are in effect metal shell, (b) an interior plastic liner, and (c) insulation; and (3) any assembled external general ‘‘refrigerator-freezer’’ or for company/government officials as drawers designed for use in bottom mount ‘‘household refrigerator’’ basket HTSUS well as their representatives in all combination refrigerator-freezers that categories. Accordingly, the Department segments of any AD/CVD proceedings incorporate, at a minimum: (a) an external is selecting Samsung and LG as initiated on or after March 14, 2011. See metal shell, (b) an interior plastic liner, and mandatory respondents in this Certification of Factual Information to (c) insulation. investigation pursuant to section Import Administration During The products subject to the investigation 777A(e)(1) of the Act. We will consider Antidumping and Countervailing Duty are currently classifiable under subheadings comments from interested parties on Proceedings: Interim Final Rule, 76 FR 8418.10.0010, 8418.10.0020, 8418.10.0030, this respondent selection. Parties 7491 (February 10, 2011) (Interim Final 1 The existence of an interior sub-compartment wishing to comment must do so within Rule) amending 19 CFR 351.303(g)(1) for ice-making in the upper-most storage five days of the publication of this and (2). The formats for the revised compartment does not render the upper-most notice in the Federal Register. certifications are provided at the end of storage compartment a freezer compartment.

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and 8418.10.0040 of the Harmonized Tariff responses on April 11, 2011.3 On April Comments on Scope of Investigation System of the United States (HTSUS). 12, 2011, the Department requested Products subject to the investigation may also During our review of the Petition, we additional information on certain discussed the scope with Petitioners to enter under HTSUS subheadings issues.4 On April 14, 2011, Petitioners 8418.21.0010, 8418.21.0020, 8418.21.0030, ensure that it is an accurate reflection of 8418.21.0090, and 8418.99.4000, provided a response to the Department’s the products for which the domestic 8418.99.8050, and 8418.99.8060. Although requests.5 On April 14, 2011, the industry is seeking relief. Moreover, as the HTSUS subheadings are provided for Department requested further discussed in the preamble to the convenience and customs purposes, the clarification with respect to the Petition, regulations (Antidumping Duties; written description of the merchandise which Petitioners submitted on April Countervailing Duties; Final rule, 62 FR subject to this scope is dispositive. 6 15, 2011. On April 18, 2011, the 27296, 27323 (May 19, 1997)), we are [FR Doc. 2011–10050 Filed 4–25–11; 8:45 am] Department further clarified the scope setting aside a period for interested BILLING CODE 3510–DS–P of the Petition with Petitioners.7 parties to raise issues regarding product In accordance with section 702(b)(1) coverage. The Department encourages interested parties to submit such DEPARTMENT OF COMMERCE of the Tariff Act of 1930, as amended (the Act), Petitioners allege that comments by Monday, May 9, 2011, International Trade Administration producers/exporters of steel wheels twenty calendar days from the signature from the PRC received countervailable date of this notice. Comments should be addressed to Import Administration’s [C–570–974] subsidies within the meaning of sections 701 and 771(5) of the Act, and APO/Dockets Unit, Room 1870, U.S. Certain Steel Wheels From the that imports from these producers/ Department of Commerce, 14th Street People’s Republic of China: Initiation exporters materially injure, and threaten and Constitution Avenue, NW., of Countervailing Duty Investigation further material injury to, an industry in Washington, DC 20230. The period of the United States. scope consultations is intended to AGENCY: Import Administration, provide the Department with ample The Department finds that Petitioners International Trade Administration, opportunity to consider all comments filed the Petition on behalf of the Department of Commerce. and to consult with parties prior to the domestic industry because Petitioners issuance of the preliminary DATES: Effective Date: April 26, 2011. are interested parties, as defined in determination. FOR FURTHER INFORMATION CONTACT: section 771(9)(C) of the Act, and they Kristen Johnson or Eric B. Greynolds, have demonstrated sufficient industry Consultations AD/CVD Operations, Office 3, Import support with respect to the investigation Pursuant to section 702(b)(4)(A)(ii) of Administration, International Trade that they are requesting the Department the Act, on March 30, 2011, the Administration, U.S. Department of to initiate (see ‘‘Determination of Department invited representatives of Commerce, 14th Street and Constitution Industry Support for the Petition’’ the Government of the PRC (the GOC) Avenue, NW., Washington, DC 20230; below). The Department also notes that, for consultations with respect to the telephone: (202) 482–4793 and (202) pursuant to section 702(b)(1) of the Act, CVD petition. On April 14, 2011, the 482–6071, respectively. the Petition is accompanied by Department held consultations with SUPPLEMENTARY INFORMATION: information reasonably available to representatives of the GOC via a Petitioners supporting their allegations. conference call. See Memorandum on The Petition Consultations with Officials from the Period of Investigation On March 30, 2011, the Department of Government of the People’s Republic of Commerce (the Department) received a The proposed period of investigation China on the Countervailing Duty countervailing duty (CVD) petition is January 1, 2010, through December Petitions regarding Steel Wheels and concerning imports of certain steel 31, 2010. Galvanized Steel Wire (April 15, 2011). wheels (steel wheels) from the People’s Scope of Investigation Determination of Industry Support for Republic of China (the PRC) filed in the Petition proper form by Accuride Corporation The products covered by this (Accuride) and Hayes Lemmerz Section 702(b)(1) of the Act requires investigation are steel wheels from the that a petition be filed on behalf of the International, Inc. (collectively, PRC. For a full description of the scope 1 domestic industry. Section 702(c)(4)(A) Petitioners). of the investigation, see ‘‘Scope of the On April 6, 2011, the Department of the Act provides that a petition meets Investigation,’’ in Appendix I of this this requirement if the domestic issued supplemental questions to notice. Petitioners regarding certain issues in producers or workers who support the the Petition.2 Petitioners responded to petition account for: (i) At least 25 3 See Supplement to the AD/CVD Petitions dated percent of the total production of the the questions with supplemental April 11, 2011 (First Supplement to the AD/CVD Petitions). domestic like product; and (ii) more than 50 percent of the production of the 1 See Petition for the Imposition of Countervailing 4 See April 12, 2011, Memorandum to the File, Duties (Petition), filed on March 30, 2011. A public regarding ‘‘Phone Conference with and Request for domestic like product produced by that version of the Petition and all other public Further Information from Petitioners.’’ portion of the industry expressing documents and public versions are available on the 5 See Supplement to the AD/CVD Petitions dated support for, or opposition to, the public file in the Central Records Unit (CRU), Room April 14, 2011 (Second Supplement to the AD/CVD petition. Moreover, section 702(c)(4)(D) 7046 of the main Department of Commerce Petitions). building. 6 See Supplement to the AD/CVD Petitions dated of the Act provides that, if the petition 2 See April 6, 2011, Petition for the Imposition of April 15, 2011 (Third Supplement to the AD/CVD does not establish support of domestic Countervailing Duties on Steel Wheels from the Petitions). producers or workers accounting for People’s Republic of China: Supplemental 7 See April 18, 2011, Memorandum to the File, more than 50 percent of the total Questions, and April 6, 2011, Petition for the regarding ‘‘Petitions for the Imposition of production of the domestic like product, Imposition of Antidumping Duties on Steel Wheels Antidumping and Countervailing Duties on Steel from the People’s Republic of China: Supplemental Wheels from the People’s Republic of China— the Department shall: (i) Poll the Questions. Clarification of Scope Language.’’ industry or rely on other information in

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order to determine if there is support for In determining whether Petitioners domestic industry because they are the petition, as required by have standing under section interested parties as defined in section subparagraph (A); or (ii) determine 702(c)(4)(A) of the Act, we considered 771(9)(C) of the Act and they have industry support using a statistically the industry support data contained in demonstrated sufficient industry valid sampling method to poll the the Petition with reference to the support with respect to the CVD industry. domestic like product as defined in the investigation that they are requesting Section 771(4)(A) of the Act defines ‘‘Scope of Investigation’’ section in the Department initiate.16 Appendix I of this notice. To establish the ‘‘industry’’ as the producers as a Injury Test whole of a domestic like product. Thus, industry support, Petitioners provided to determine whether a petition has the their production of the domestic like Because the PRC is a ‘‘Subsidies 10 requisite industry support, the statute product in 2010. Petitioners compared Agreement Country’’ within the meaning directs the Department to look to their production to the estimated total of section 701(b) of the Act, section producers and workers who produce the production of the domestic like product 701(a)(2) of the Act applies to this 11 domestic like product. The U.S. for the entire domestic industry. To investigation. Accordingly, the ITC must International Trade Commission (ITC), support their estimation of industry determine whether imports of subject which is responsible for determining support, Petitioners provided an merchandise from the PRC materially whether ‘‘the domestic industry’’ has affidavit from an employee of Accuride, injure, or threaten material injury to, a been injured, must also determine what who has 40 years professional U.S. industry. experience in the steel industry.12 We constitutes a domestic like product in Allegations and Evidence of Material order to define the industry. While both have relied upon data Petitioners provided for purposes of measuring Injury and Causation the Department and the ITC must apply 13 the same statutory definition regarding industry support. Petitioners allege that imports of steel Our review of the data provided in the the domestic like product (see section wheels from the PRC are benefitting Petition, supplemental submissions, and 771(10) of the Act), they do so for from countervailable subsidies and that other information readily available to different purposes and pursuant to a such imports are causing, or threaten to the Department indicates that separate and distinct authority. In cause, material injury to the domestic Petitioners have established industry addition, the Department’s industry producing steel wheels. In support. First, the Petition established determination is subject to limitations of addition, Petitioners provide data that support from domestic producers (or time and information. Although this demonstrates that the alleged imports workers) accounting for more than 50 exceed the negligibility threshold may result in different definitions of the percent of the total production of the like product, such differences do not provided for under section 771(24)(A) of domestic like product and, as such, we the Act. render the decision of either agency find that the Department is not required contrary to law.8 Section 771(10) of the Petitioners contend that the industry’s to take further action in order to injured condition is illustrated by Act defines the domestic like product as evaluate industry support (e.g., ‘‘a product which is like, or in the reduced market share, lost sales and polling).14 Second, we find that the revenues, reduced production, reduced absence of like, most similar in domestic producers (or workers) have characteristics and uses with, the article capacity utilization rate, decreased met the statutory criteria for industry shipments, underselling, reduced subject to an investigation under this support under section 702(c)(4)(A)(i) of title.’’ Thus, the reference point from employment, reduced hours worked, the Act because the domestic producers and reduced wages paid, decline in which the domestic like product (or workers) who support the Petition analysis begins is ‘‘the article subject to financial performance, and an increase account for at least 25 percent of the 17 an investigation’’ (i.e., the class or kind in import penetration. We have total production of the domestic like assessed the allegations and supporting of merchandise to be investigated, 15 product. Finally, we find that the evidence regarding material injury, which normally will be the scope as domestic producers (or workers) have defined in the petition). threat of material injury, and causation, met the statutory criteria for industry and we have determined that these With regard to the domestic like support under section 702(c)(4)(A)(ii) of allegations are properly supported by product, Petitioners do not offer a the Act because the domestic producers adequate evidence and meet the definition of domestic like product (or workers) who support the Petition statutory requirements for initiation.18 distinct from the scope of the account for more than 50 percent of the investigation. Based on our analysis of production of the domestic like product Initiation of Countervailing Duty the information submitted on the produced by that portion of the industry Investigation record, we have determined that steel expressing support for, or opposition to, Section 702(b)(1) of the Act requires wheels constitute a single domestic like the Petition. Accordingly, the the Department to initiate a CVD product and we have analyzed industry Department determines that the Petition proceeding whenever an interested support in terms of that domestic like was filed on behalf of the domestic party files a petition on behalf of an 9 product. industry within the meaning of section industry that: (1) Alleges the elements 702(b)(1) of the Act. necessary for an imposition of a duty 8 See USEC, Inc. v. United States, 132 F. Supp. The Department finds that Petitioners under section 701(a) of the Act; and (2) 2d 1, 8 (CIT 2001), citing Algoma Steel Corp., Ltd. filed the Petition on behalf of the v. United States, 688 F. Supp. 639, 644 (CIT 1988), is accompanied by information aff’d 865 F.2d 240 (Fed. Cir. 1989), cert. denied 492 reasonably available to the petitioner(s) 10 See Volume I of the Petition at I–3. U.S. 919 (1989). supporting the allegations. The 11 See id. 9 For a discussion of the domestic like product 12 See Second Supplement to the AD/CVD Department has examined the Petition analysis in this case, see Countervailing Duty on steel wheels from the PRC and finds Investigation Initiation Checklist: Certain Steel Petitions, at 1, and Exhibit 1. Wheels from the People’s Republic of China 13 For further discussion, see Initiation Checklist (Initiation Checklist), at Attachment II, Analysis of at Attachment II. 16 See id. Industry Support for the Petitions Covering Steel 14 See section 702(c)(4)(D) of the Act, and 17 See Volume I of the Petition, at I–6 to 12, and Wheels from the People’s Republic of China, on file Initiation Checklist at Attachment II. Exhibits 1–4 to 1–9. in the CRU. 15 See Initiation Checklist at Attachment II. 18 See Initiation Checklist at Attachment III.

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that it complies with the requirements F. Grant Programs the particularly large number of of section 702(b) of the Act. Therefore, 1. State Key Technology Renovation producers/exporters identified in the in accordance with section 702(b) of the Fund. Petition, the Department considers the Act, we are initiating a CVD 2. Export Assistance Grants in service of the public version of the investigation to determine whether Zhejiang Province.20 Petition to the foreign producers/ manufacturers, producers, or exporters 3. GOC and Sub-Central Government exporters satisfied by the delivery of the of steel wheels in the PRC receive Grants, Loans, and Other Incentives for public version to the GOC, consistent countervailable subsidies. For a Development of Famous Brands and with 19 CFR 351.203(c)(2). discussion of evidence supporting our China World Top Brands. ITC Notification initiation determination, see Initiation For further information explaining We have notified the ITC of our Checklist. why the Department is investigating initiation, as required by section 702(d) We are including in our investigation these programs, see Initiation Checklist. of the Act. the following programs alleged in the We are not including in our Petition to have provided investigation the following programs Preliminary Determination by the ITC countervailable subsidies to producers alleged to benefit producers and and exporters of the subject The ITC will preliminarily determine, exporters of the subject merchandise in within 45 days after the date on which merchandise in the PRC: the PRC: the Petition is filed, whether there is a A. Preferential Loans and Interest Rates A. Subsidies to Steel Wheel Producers reasonable indication that imports of 1. Policy Loans to the Steel Wheels Located in Economic Development subsidized steel wheels from the PRC Industry. Zones are causing material injury, or 2. Treasury Bond Loans. threatening to cause material injury, to B. Privatization Related Subsidies to a U.S. industry. See section 703(a)(2) of 3. Preferential Loans for State-Owned Zhengxing Wheel Group Co., Ltd. Enterprises (SOEs). the Act. A negative ITC determination 1. Debt Forgiveness. will result in the investigation being B. Income Tax and Other Direct Tax 2. Non-Arm’s Length Privatization. terminated; otherwise, the investigation Benefit Program will proceed according to statutory and C. Export Loans From Policy Banks and regulatory time limits. 1. Income Tax Credits for State-Owned Commercial Banks Domestically-Owned Companies Notification to Interested Parties Purchasing. Domestically-Produced D. Currency Manipulation Equipment. For further information explaining Interested parties must submit applications for disclosure under C. Subsidies for Foreign Invested why the Department is not investigating these programs, see Initiation Checklist. administrative protective orders in Enterprises (FIEs) accordance with 19 CFR 351.305. On 1. Two Free, Three Half Program. Respondent Selection January 22, 2008, the Department 2. Local Income Tax Exemption and For this investigation, the Department published Antidumping and Reduction Programs for Productive FIEs. expects to select respondents based on Countervailing Duty Proceedings: 3. Preferential Tax Programs for FIEs U.S. Customs and Border Protection Documents Submission Procedures; Recognized as High or New Technology (CBP) data for U.S. imports during the APO Procedures 73 FR 3634. Parties Enterprises. period of investigation. We intend to wishing to participate in this 4. Income Tax Reductions for Export- release the CBP data under the investigation should ensure that they Oriented FIEs. Administrative Protective Order (APO) meet the requirements of these to all parties with access to information procedures (e.g., the filing of letters of D. Indirect Tax and Tariff Exemption appearance as discussed at 19 CFR Programs protected by APO within five days of the announcement of the initiation of 351.103(d)). 1. Import Tariff and VAT Exemptions this investigation. Interested parties may Any party submitting factual for FIEs and Certain Domestic submit comments regarding the CBP information in an antidumping duty or Enterprises. Using Imported Equipment data and respondent selection within countervailing duty proceeding must In Encouraged Industries. seven calendar days of publication of certify to the accuracy and completeness 2. Deed Tax Exemption for SOEs this notice. We intend to make our of that information. See section 782(b) Undergoing Mergers or Restructuring. decision regarding respondent selection of the Act. Parties are hereby reminded 3. Export Subsidies Characterized as within 20 days of publication of this that revised certification requirements ‘‘VAT Rebates.’’ Federal Register notice. Interested are in effect for company/government E. Government Provision of Goods and parties must submit applications for officials as well as their representatives Services for Less Than Adequate disclosure under APO in accordance in all segments of any antidumping duty Remuneration (LTAR) with 19 CFR 351.305(b). Instructions for or countervailing duty proceedings filing such applications may be found initiated on or after March 14, 2011. See 1. Provision of Land to SOEs for Certification of Factual Information to LTAR. on the Department’s Web site at http://ia.ita.doc.gov/apo. Import Administration During 2. Provision of Land Use Rights Antidumping and Countervailing Duty Within Donghai Economic Development Distribution of Copies of the Petition Proceedings: Interim Final Rule, 76 FR Zone.19 7491 (February 10, 2011) (Interim Final 3. Provision of Hot-Rolled Steel for In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR Rule), amending 19 CFR 351.303(g)(1) LTAR. and (2). The formats for the revised 4. Provision of Electricity for LTAR. 351.202(f), a copy of the public version of the Petition has been provided to the certifications are provided at the end of the Interim Final Rule. The Department 19 This program was alleged as ‘‘Provision of Land representatives of the GOC. Because of Use Rights Within Designated Geographical Areas intends to reject factual submissions in for Less Than Adequate Remuneration’’ in the 20 This program was alleged as ‘‘Export Assistance any proceeding segments initiated on or Petition (see page III–22). Grants’’ in the Petition (see page III–25). after March 14, 2011, if the submitting

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party does not comply with the revised coriacea) for purposes of scientific would capture the animals using a certification requirements. research. breakaway hoopnet. Turtles would be This notice is issued and published DATES: Written, telefaxed, or e-mail measured, weighed, photographed and pursuant to section 777(i) of the Act. comments must be received on or before videotaped, flipper and passive Dated: April 19, 2011. May 26, 2011. integrated transponder tagged, blood, tissue, and fecal sampled, cloacal, oral, Ronald K. Lorentzen, ADDRESSES: The application and related and nasal swabbed, tagged with an documents are available for review by Deputy Assistant Secretary for Import electronic transmitter, and released. The Administration. selecting Records Open for Public permit would be issued for 5 years. Attachment I Comment from the Features box on the Applications and Permits for Protected Dated: April 19, 2011. Scope of the Investigation Species (APPS) home page, https:// P. Michael Payne, The products covered by this apps.nmfs.noaa.gov, and then selecting Chief, Permits, Conservation and Education investigation are steel wheels with a File No. 15672 from the list of available Division, Office of Protected Resources, National Marine Fisheries Service. wheel diameter of 18 to 24.5 inches. applications. Rims and discs for such wheels are These documents are also available [FR Doc. 2011–10037 Filed 4–25–11; 8:45 am] included, whether imported as an upon written request or by appointment BILLING CODE 3510–22–P assembly or separately. These products in the following offices: Permits, Conservation and Education are used with both tubed and tubeless DEPARTMENT OF COMMERCE tires. Steel wheels, whether or not Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room attached to tires or axles, are included. National Oceanic and Atmospheric 13705, Silver Spring, MD 20910; phone However, if the steel wheels are Administration imported as an assembly attached to (301) 713–2289; fax (301) 713–0376; and tires or axles, the tire or axle is not Northeast Region, NMFS, 55 Great Availability of Seats for the Stellwagen covered by the scope. The scope Republic Drive, Gloucester, MA 01930; Bank National Marine Sanctuary includes steel wheels, discs, and rims of phone (978) 281–9328; fax (978) 281– Advisory Council carbon and/or alloy composition and 9394. Written comments on this application AGENCY: Office of National Marine clad wheels, discs, and rims when should be submitted to the Chief, Sanctuaries (ONMS), National Ocean carbon or alloy steel represents more Permits, Conservation and Education Service (NOS), National Oceanic and than fifty percent of the product by Division: Atmospheric Administration, weight. The scope includes wheels, • By e-mail to Department of Commerce (DOC). rims, and discs, whether coated or [email protected] (include ACTION: uncoated, regardless of the type of Notice and request for the File No. in the subject line of the e- coating. applications. mail), Imports of the subject merchandise • By facsimile to (301) 713–0376, or SUMMARY: The ONMS is seeking are provided for under the following • At the address listed above. applicants for the following seat on the categories of the Harmonized Tariff Those individuals requesting a public Stellwagen Bank National Marine Schedule of the United States (HTSUS): hearing should submit a written request Sanctuary Advisory Council: (1) At- 8708.70.05.00, 8708.70.25.00, to the Chief, Permits, Conservation and Large (Alternate) seat. Applicants are 8708.70.45.30, and 8708.70.60.30. These Education Division at the address listed chosen based upon their particular HTSUS numbers are provided for above. The request should set forth the expertise and experience in relation to convenience and customs purposes specific reasons why a hearing on this the seat for which they are applying; only; the written description of the application would be appropriate. community and professional affiliations; scope is dispositive. FOR FURTHER INFORMATION CONTACT: philosophy regarding the protection and [FR Doc. 2011–10078 Filed 4–25–11; 8:45 am] Colette Cairns or Amy Hapeman, (301) management of marine resources; and BILLING CODE 3510–DS–P 713–2289. possibly the length of residence in the area affected by the sanctuary. SUPPLEMENTARY INFORMATION: The Applicants who are chosen as members subject permit is requested under the DEPARTMENT OF COMMERCE should expect to serve 3-year terms, authority of the Endangered Species Act pursuant to the Council’s Charter. The of 1973, as amended (ESA; 16 U.S.C. National Oceanic and Atmospheric Council consists also of three state and 1531 et seq.) and the regulations Administration three federal non-voting ex-officio seats. governing the taking, importing, and DATES: exporting of endangered and threatened Applications are due by 10 June RIN 0648–XA385 species (50 CFR 222–226). 2011. ADDRESSES: Application kits may be Endangered Species; File No. 15672 Research authorized under Permit No. 15672 would characterize the obtained from AGENCY: National Marine Fisheries distribution, movements and dive [email protected], Stellwagen Service (NMFS), National Oceanic and behavior of leatherback sea turtles in the Bank National Marine Sanctuary, 175 Atmospheric Administration (NOAA), waters of New England. This research Edward Foster Road, Scituate, MA Commerce. would inform our understanding of 02066. Telephone 781–545–8026, ext. 201. Completed applications should be ACTION: Notice; receipt of application. leatherback habitat utilization, foraging behavior, and threats posed by sent to the same address or email, or SUMMARY: Notice is hereby given that entanglement risk. Researchers propose faxed to 781–545–8036. Molly Lutcavage, PhD, University of to conduct research on up to 30 FOR FURTHER INFORMATION: Contact Massachusetts, Amherst, 108 Main leatherback sea turtles annually. [email protected], External Street, Gloucester MA, 01930, has Researchers would use animals that Affairs Coordinator, telephone: 781– applied in due form for a permit to take have been disentangled from fishing 545–8026, ext. 206. leatherback sea turtles (Dermochelys gear by the stranding network or they SUPPLEMENTARY INFORMATION:

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The Council was established in March DATES: This authorization is effective for requirements pertaining to the 2001 to assure continued public the period of one year, from April 21, mitigation, monitoring and reporting of participation in the management of the 2011, through April 20, 2012. such takings are set forth. NMFS has Sanctuary. The Council’s 23 members ADDRESSES: A copy of the IHA and defined ‘‘negligible impact’’ in 50 CFR represent a variety of local user groups, related documents are available by 216.103 as ‘‘* * * an impact resulting as well as the general public, plus seven writing to Michael Payne, Chief, from the specified activity that cannot local, state and Federal government Permits, Conservation and Education be reasonably expected to, and is not agencies. Since its establishment, the Division, Office of Protected Resources, reasonably likely to, adversely affect the Council has played a vital role in National Marine Fisheries Service, 1315 species or stock through effects on advising NOAA on critical issues and is East West Highway, Silver Spring, MD annual rates of recruitment or survival.’’ currently focused on the sanctuary’s 20910. Section 101(a)(5)(D) of the MMPA final five-year Management Plan. A copy of the application containing established an expedited process by The Stellwagen Bank National Marine a list of the references used in this which citizens of the United States can Sanctuary encompasses 842 square document may be obtained by writing to apply for an authorization to miles of ocean, stretching between Cape the address specified above, telephoning incidentally take small numbers of Ann and Cape Cod. Renowned for its the contact listed below (see FOR marine mammals by Level B harassment scenic beauty and remarkable FURTHER INFORMATION CONTACT), or as defined below. Section 101(a)(5)(D) productivity, the sanctuary supports a visiting the Internet at: http:// establishes a 45-day time limit for rich diversity of marine life including www.nmfs.noaa.gov/pr/permits/ NMFS review of an application 22 species of marine mammals, more incidental.htm. Supplemental followed by a 30-day public notice and than 30 species of seabirds, over 60 documents provided by SCWA may also comment period on any proposed species of fishes, and hundreds of be found at the same address: Pinniped authorizations for the incidental marine invertebrates and plants. Monitoring Plan; Report of Activities harassment of marine mammals. Within and Monitoring Results—April 1 to 45 days of the close of the comment Authority: 16 U.S.C. Sections 1431, et seq. December 31, 2010; and Russian River period, NMFS must either issue or deny (Federal Domestic Assistance Catalog Estuary Outlet Channel Adaptive the authorization. If authorized, the IHA Number 11.429 Marine Sanctuary Program) Management Plan. NMFS’ would be effective for one year from Dated: April 15, 2011. Environmental Assessment (2010) and date of issuance. Daniel J. Basta, associated Finding of No Significant Except with respect to certain Director, Office of National Marine Impact, prepared pursuant to the activities not pertinent here, the MMPA Sanctuaries, National Ocean Service, National Environmental Policy Act, are defines ‘‘harassment’’ as: National Oceanic and Atmospheric available at the same site. Documents any act of pursuit, torment, or annoyance Administration. cited in this notice, including NMFS’ which (i) has the potential to injure a marine [FR Doc. 2011–9867 Filed 4–25–11; 8:45 am] Biological Opinion (2008) on the effects mammal or marine mammal stock in the wild BILLING CODE 3510–NK–M of Russian River management activities [Level A harassment]; or (ii) has the potential on salmonids, may also be viewed, by to disturb a marine mammal or marine appointment, during regular business mammal stock in the wild by causing DEPARTMENT OF COMMERCE hours, at the aforementioned address. disruption of behavioral patterns, including, but not limited to, migration, breathing, National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: Ben nursing, breeding, feeding, or sheltering Administration Laws, Office of Protected Resources, [Level B harassment]. NMFS, (301) 713–2289. Summary of Request SUPPLEMENTARY INFORMATION: RIN 0648–XA244 NMFS received an application on Background February 15, 2011 from SCWA for Takes of Marine Mammals Incidental to renewal of an IHA for the taking, by Specified Activities; Russian River Sections 101(a)(5)(A) and (D) of the Level B harassment only, of marine Estuary Management Activities MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, mammals incidental to ongoing activities conducted in management of AGENCY: National Marine Fisheries upon request, the incidental, but not Service (NMFS), National Oceanic and intentional, taking of small numbers of the Russian River estuary in Sonoma Atmospheric Administration (NOAA), marine mammals by U.S. citizens who County, California. SCWA was first Commerce. engage in a specified activity (other than issued an IHA, valid for a period of one commercial fishing) within a specified year, on April 1, 2010 (75 FR 17382). ACTION: Notice; issuance of an incidental geographical region if certain findings Management activities include harassment authorization. are made and either regulations are management of a naturally-formed issued or, if the taking is limited to barrier beach at the mouth of the river SUMMARY: In accordance with the harassment, a notice of a proposed in order to minimize potential for regulations implementing the Marine authorization is published in the flooding of properties adjacent to the Mammal Protection Act (MMPA) as Federal Register to provide public Russian River estuary and enhance amended, notification is hereby given notice and initiate a 30-day comment habitat for juvenile salmonids, and that NMFS has issued an Incidental period. biological and physical monitoring of Harassment Authorization (IHA) to the Authorization for incidental takings the estuary. Flood control-related Sonoma County Water Agency (SCWA) shall be granted if NMFS finds that the breaching of barrier beach at the mouth to incidentally harass, by Level B taking will have a negligible impact on of the river may include artificial harassment only, three species of the species or stock(s), will not have an breaches, as well as construction and marine mammals during estuary unmitigable adverse impact on the maintenance of a lagoon outlet channel. management activities conducted at the availability of the species or stock(s) for The latter activity, an alternative mouth of the Russian River, Sonoma subsistence uses (where relevant), and if management technique conducted to County, California. the permissible methods of taking and mitigate impacts of flood control on

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rearing habitat for salmonids listed as habitat; (2) traditional artificial 2.1 m) in elevation. Management threatened and endangered under the breaching, with the sole objective of practices will be incrementally modified Endangered Species Act (ESA), occurs flood risk abatement; and (3) physical over the course of the lagoon only from May 15 through October 15 and biological monitoring in and near management period in an effort to (hereafter, the ‘‘lagoon management the estuary, required under the terms of improve performance in meeting the period’’). All estuary management the BiOp, to understand response to goals of the BiOp while preventing activities are conducted by SCWA in water surface elevation management in flooding. accordance with a Reasonable and the estuary-lagoon system. Ideally, initial implementation of the Prudent Alternative (RPA) included in SCWA’s estuary management outlet channel would produce a stable NMFS’ Biological Opinion (BiOp) for activities generally involve the use of channel for the duration of the lagoon Water Supply, Flood Control heavy equipment and increased human management period. However, the sheer Operations, and Channel Maintenance presence on the beach, in order to number of variables and lack of past conducted in the Russian River excavate and maintain an outlet channel site-specific experience likely preclude watershed (NMFS 2008). Species known from the lagoon to the ocean or to this outcome, and succeeding from the haul-out at the mouth of the conduct artificial breaching. Pupping excavation attempts may be required. Russian River include the harbor seal season for harbor seals at the mouth of The precise number of excavations (Phoca vitulina), California sea lion the Russian River typically peaks during would depend on uncontrollable (Zalophus californianus), and northern May. However, pupping is known to variables such as seasonal ocean wave elephant seal (Mirounga angustirostris). begin in March and may continue conditions (e.g., wave heights and through the end of June; pupping season lengths), river inflows, and the success Description of the Specified Activity for harbor seals is conservatively of previous excavations (e.g., the Breaching of naturally-formed barrier defined here as March 15 to June 30. success of selected channel widths and beach at the mouth of the Russian River During pupping season, management meander patterns) in forming an outlet requires the use of heavy equipment events may occur over a maximum of channel that effectively maintains (e.g., bulldozer, excavator) and two consecutive days per event and all lagoon water surface elevations. Based increased human presence. As a result, estuary management events on the on lagoon management operations pinnipeds hauled out on the beach may beach must be separated by a minimum under similar conditions at Carmel exhibit behavioral responses that no-work period of one week. The use of River, and expectations regarding how indicate incidental take by Level B heavy equipment and increased human wave action and sand deposition may harassment under the MMPA. Numbers presence has the potential to harass increase beach height or result in of harbor seals, the species most hauled-out marine mammals by causing closure, it is predicted that up to three commonly encountered at the haul-out, movement or flushing into the water. successive outlet channel excavation have been recorded extensively since Mitigation and monitoring measures events, at increasingly higher beach 1972 at the haul-out near the mouth of described later in this document are elevations, may be necessary to produce the Russian River. designed to minimize this harassment to a successful outlet channel. In the event The estuary is located about 97 km the lowest practicable level. that an outlet channel fails through (60 mi) northwest of San Francisco in Equipment (e.g., bulldozer, excavator) breaching (i.e., erodes the barrier beach Sonoma County, near Jenner, California is off-loaded in the parking lot of Goat and forms a tidal inlet), SCWA would (see Figure 1 of SCWA’s application). Rock State Park and driven onto the resume adaptive management of the The Russian River watershed beach via an existing access point. outlet channel’s width, slope, and encompasses 3,847 km2 (1,485 mi2) in Personnel on the beach will include up alignment in consultation with NMFS Sonoma, Mendocino, and Lake to two equipment operators, three safety and the California Department of Fish Counties. The mouth of the Russian team members on the beach (one on and Game (CDFG), only after ocean River is located at Goat Rock State each side of the channel observing the wave action naturally reforms a barrier Beach; the estuary extends from the equipment operators, and one at the beach and closes the river’s mouth mouth upstream approximately 10 to 11 barrier to warn beach visitors away from during the lagoon management period. km (6–7 mi) between Austin Creek and the activities), and one safety team Implementation and Maintenance— the community of Duncans Mills member at the overlook on Highway 1 Upon successful construction of an (Heckel 1994). The proposed action above the beach. Occasionally, there outlet channel, adaptive management, involves management of the estuary to will be two or more additional people or maintenance, may be required for the prevent flooding while avoiding adverse on the beach (SCWA staff or regulatory channel to continue achieving modification to critical habitat for ESA- agency staff) to observe the activities. performance criteria. In order to reduce listed salmonids. During the lagoon SCWA staff will be followed by the disturbance to seals and other wildlife, management period only, this involves equipment, which will then be followed as well as beach visitors, the amount construction and maintenance of a by an SCWA vehicle (typically a small and frequency of mechanical lagoon outlet channel that would pickup truck, to be parked at the intervention will be minimized. As facilitate formation of a perched lagoon, previously posted signs and barriers on technical staff and maintenance crews which will reduce flooding while the south side of the excavation gain more experience with maintaining appropriate conditions for location). implementing the outlet channel and juvenile salmonids. Additional breaches observing its response, maintenance is of barrier beach may be conducted for Lagoon Outlet Channel Management anticipated to be less frequent, with the sole purpose of reducing flood risk. Active management of estuarine/ events of lesser intensity. During There are three components to lagoon water levels commences pupping season, machinery may only SCWA’s estuary management activities: following the first closure of the barrier operate on up to two consecutive (1) Lagoon outlet channel management, beach during this period. When this working days, including during initial during the lagoon management period happens, SCWA monitors lagoon water construction of the outlet channel. In only, required to accomplish the dual surface elevation and creates an outlet addition, SCWA must maintain a one purposes of flood risk abatement and channel when water levels in the week no-work period between maintenance of juvenile salmonid estuary are between 4.5 and 7.0 ft (1.4– management events during pupping

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season, unless flooding is a threat, to to disturb pinnipeds. The majority of The MMC recommended that NMFS allow for adequate disturbance recovery monitoring is required under the BiOp issue the requested authorization, period. During the no-work period, and occurs approximately during the subject to inclusion of the proposed equipment must be removed from the lagoon management period (mid-May mitigation and monitoring measures as beach. SCWA seeks to avoid conducting through October or November), described in NMFS’ notice of proposed management activities on weekends depending on river dynamics. Beach IHA and the application. All measures (Friday-Sunday) in order to reduce topographic surveys occur year-round. proposed in the initial Federal Register disturbance of beach visitors. In notice are included within the addition, activities are to be conducted Comments and Responses authorization and NMFS has in such a manner as to effect the least NMFS published a notice of receipt of determined that they will effect the least practicable adverse impacts to SCWA’s application and proposed IHA practicable impact on the species or pinnipeds and their habitat as described in the Federal Register on March 18, stocks and their habitats. later in this document (see 2011 (76 FR 14924). During the 30-day Description of Marine Mammals in the ‘‘Mitigation’’). comment period, NMFS received Area of the Specified Activity Artificial Breaching comment from three private individuals and a letter from the Marine Mammal The marine mammal species that may The estuary may close naturally Commission (MMC). be harassed incidental to estuary throughout the year as a result of barrier management activities are the harbor The individuals expressed general beach formation at the mouth of the seal, California sea lion, and the Russian River. Although closures may concern about the proposed activities, northern elephant seal. None of these occur at any time of the year, the mouth as well as about management of Russian species are listed as threatened or usually closes during the spring, River water resources in general, and endangered under the ESA, nor are they summer, and fall (Heckel 1994; Merritt questioned the need for and efficacy of categorized as depleted under the Smith Consulting 1997, 1998, 1999, SCWA’s lagoon management efforts to MMPA. NMFS presented a more 2000; SCWA and Merritt Smith date. NMFS understands the concerns detailed discussion of the status of these Consulting 2001). Closures result in expressed but would point out that stocks and their occurrence in the action lagoon formation in the estuary and, as NMFS’ 2008 BiOp contained a area in the notice of the proposed IHA water surface levels rise, flooding may Reasonable and Prudent Alternative that (76 FR 14924, March 18, 2011). occur. For decades, artificial breaching was designed to address the full range Potential Effects of the Specified has been performed in the absence of of threats to salmonids in the Russian Activity on Marine Mammals natural breaching, in order to alleviate River. SCWA’s lagoon construction and potential flooding of low-lying shoreline maintenance is an important component NMFS provided a detailed discussion properties near the town of Jenner. of the suite of prescribed management of the potential effects of the specified Artificial breaching, as defined here, is actions and, while difficult choices are activity on marine mammals in the conducted for the sole purpose of the norm in natural resource notice of the proposed IHA (76 FR reducing flood risk, and thus is a management, there is no evidence to 14924; March 18, 2011). A summary of different type of event, from an date that the incidental harassment of anticipated effects is provided below. engineering perspective, than are the harbor seals described herein will result A significant body of monitoring data previously described lagoon in long-term or population level impacts exists for pinnipeds at the mouth of the management events. Artificial breaching to harbor seals. One commenter further Russian River. Pinnipeds have co- activities occur in accordance with the stated that long-term abandonment of existed with regular estuary BiOp, and primarily occur outside the the haul-out by harbor seals could occur management activity for decades, as lagoon management period (i.e., due to the long-term, cumulative well as with regular human use activity artificial breaching would primarily adverse impacts of construction activity at the beach, and are likely habituated occur from October 16 to May 14). over time and the secondary impacts of to human presence and activity. However, if conditions present estuary management; notably, the Nevertheless, SCWA’s estuary unacceptable risk of flooding during the likelihood of increased human and dog management activities have the lagoon management period, SCWA may presence on the beach resulting from potential to harass pinnipeds present on artificially breach the sandbar a increased access. NMFS does not have the beach. During breaching operations, maximum of two times during that jurisdiction over human access and use past monitoring has revealed that some period. Implementation protocol would of Goat Rock Beach State Park, and or all of the seals present typically move follow that described previously for would suggest that the Stewards or flush from the beach in response to lagoon outlet channel management Sealwatch program continue its the presence of crew and equipment, events, with the exception that only one excellent work in providing outreach though some may remain hauled-out. piece of heavy equipment is likely to be and education to the beachgoing public. No stampeding of seals—a potentially required per event, rather than two. While the estuary management activities dangerous occurrence in which large prescribed in the BiOp have goals numbers of animals succumb to mass Physical and Biological Monitoring additional to flood management (and panic and rush away from a stimulus— SCWA is required by the BiOp and thus potentially changed duration and has been documented since SCWA other State and Federal permits to intensity of management effort), there is developed protocols to prevent such collect biological and physical habitat no evidence, from decades of managing events in 1999. While it is likely data in conjunction with estuary the estuary through artificial breaching, impossible to conduct required estuary management. Monitoring requires the that the activities described herein will management activities without use of boats and nets in the estuary, result in haul-out abandonment. In the provoking some response in hauled-out among other activities, and will require future, any requests from SCWA for animals, precautionary mitigation activities to occur in the vicinity of incidental take authorization will measures, described later in this beach and river haul-outs (see Figure 4 continue to be evaluated on the basis of document, ensure that animals are of SCWA’s application); these the most up-to-date information gradually apprised of human approach. monitoring activities have the potential available. Under these conditions, seals typically

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exhibit a continuum of responses, estuary management activities. Harbor rising water surface elevations. beginning with alert movements (e.g., seal pups are extremely precocious, Breaching of the barrier beach, raising the head), which may then swimming and diving immediately after subsequent to the temporary habitat escalate to movement away from the birth and throughout the lactation disturbance, will likely increase stimulus and possible flushing into the period, unlike most other phocids suitability and availability of habitat for water. Flushed seals typically re-occupy which normally enter the sea only after pinnipeds. Biological and water quality the haul-out within minutes to hours of weaning (Lawson and Renouf 1985; monitoring will not physically alter the stimulus. In addition, eight other Cottrell et al. 2002; Burns et al. 2005). pinniped habitat. In summary, there haul-outs exist nearby that may Lawson and Renouf (1987) investigated will be temporary physical alteration of accommodate flushed seals. In the harbor seal mother-pup bonding in the beach. However, natural opening absence of appropriate mitigation response to natural and anthropogenic and closure of the beach results in the measures, it is possible that pinnipeds disturbance. In summary, they found same impacts to habitat; therefore, seals could be subject to injury, serious that the most critical bonding time is are likely adapted to this cycle. In injury, or mortality, likely through within minutes after birth. As described addition, the increase in rearing habitat stampeding or abandonment of pups. previously, the peak of pupping season quality has the goal of increasing California sea lions and northern is typically concluded by mid-May, salmon abundance, ultimately providing elephant seals, which have been noted when the lagoon management period more food for seals present within the only infrequently in the action area, begins. As such, it is expected that action area. have been observed as less sensitive to mother-pup bonding would likely be stimulus than harbor seals during concluded as well. The number of Summary of Previous Monitoring monitoring at numerous other sites. For management events during the months SCWA complied with the mitigation example, monitoring of pinniped of March and April has been relatively and monitoring required under the disturbance as a result of abalone low in the past (see Table 1), and the previous authorization. In accordance research in the Channel Islands showed breaching activities occur in a single with the 2010 IHA, SCWA submitted a that while harbor seals flushed at a rate day over several hours. In addition, Report of Activities and Monitoring of 84 percent, California sea lions mitigation measures described later in Results, covering the period of April 1 flushed at a rate of only sixteen percent. this document further reduce the through December 31, 2010. During the The rate for elephant seals declined to likelihood of any impacts to pups, dates covered by the 2010 monitoring 0.2 percent (VanBlaricom 2010). In the whether through injury or mortality or report, SCWA conducted one outlet unlikely event that either of these interruption of mother-pup bonding. channel implementation event, two species is present during management Therefore, based on a significant body artificial breaching events, and activities, they would be expected to of site-specific monitoring data, harbor associated biological and physical display a minimal reaction to seals are unlikely to sustain any monitoring. During the course of these maintenance activities—less than that harassment that may be considered activities, SCWA did not exceed the expected of harbor seals. biologically significant. Individual take levels authorized under the 2010 Although the Jenner haul-out is not animals would, at most, flush into the IHA. NMFS provided a detailed known as a primary pupping beach, water in response to maintenance description of previous monitoring harbor seal pups have been observed activities but may also simply become results in the notice of the proposed during the pupping season; therefore, alert or move across the beach away IHA (76 FR 14924; March 18, 2011). NMFS has evaluated the potential for from equipment and crews. NMFS has injury, serious injury or mortality to determined that impacts to hauled-out Mitigation pups. There is a lack of published data pinnipeds during estuary management In order to issue an IHA under regarding pupping at the mouth of the activities would be behavioral Section 101(a)(5)(D) of the MMPA, Russian River, but SCWA monitors have harassment of limited duration (i.e., less NMFS must set forth the permissible observed pups on the beach. No births than one day) and limited intensity (i.e., methods of taking pursuant to such were observed during monitoring in temporary flushing at most). activity, and other means of effecting 2010, but were inferred based on signs Stampeding, and therefore injury or the least practicable adverse impact on indicating pupping (e.g., blood spots on mortality, is not expected—nor been such species or stock and its habitat, the sand, birds consuming possible documented—in the years since paying particular attention to rookeries, placental remains). Pup injury or appropriate protocols were established mating grounds, and areas of similar mortality would be most likely to occur (see ‘‘Mitigation’’ for more details). significance, and on the availability of in the event of extended separation of a Further, the continued, and increasingly such species or stock for taking for mother and pup, or trampling in a heavy, use of the haul-out despite certain subsistence uses. stampede. As discussed previously, no decades of breaching events indicates SCWA will continue the following stampedes have been recorded since that abandonment of the haul-out is mitigation measures, as implemented development of appropriate protocols in unlikely. during the previous IHA, designed to 1999. Any California sea lions or Anticipated Effects on Habitat minimize impact to affected species and northern elephant seals present would stocks: be independent juveniles or adults; NMFS provided a detailed discussion • SCWA crews will cautiously therefore, analysis of impacts on pups is of the potential effects of this action on approach the haul-out ahead of heavy not relevant for those species. Pups less marine mammal habitat in the notice of equipment to minimize the potential for than one week old are characterized by the proposed IHA (76 FR 14924; March sudden flushes, which may result in a being up to 15 kg, thin for their body 18, 2011). SCWA’s estuary management stampede—a particular concern during length, or having an umbilicus or natal activities will result in temporary pupping season. pelage. physical alteration of the Jenner haul- • SCWA staff will avoid walking or Similarly, the period of mother-pup out. With barrier beach closure, seal driving equipment through the seal bonding, critical time needed to ensure usage of the beach haul-out declines, haul-out. pup survival and maximize pup health, and the three nearby river haul-outs • Crews on foot will make an effort to is not expected to be impacted by may not be available for usage due to be seen by seals from a distance, if

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possible, rather than appearing includes consideration of the following of the level of taking or impacts on suddenly at the top of the sandbar, again factors in relation to one another: (1) populations of marine mammals that are preventing sudden flushes. The manner in which, and the degree to expected to be present. • During breaching events, all which, the successful implementation of The applicant has developed a monitoring will be conducted from the the measure is expected to minimize Pinniped Monitoring Plan which overlook on the bluff along Highway 1 adverse impacts to marine mammals, (2) describes the proposed monitoring adjacent to the haul-out in order to the proven or likely efficacy of the efforts. This Monitoring Plan can be minimize potential for harassment. specific measure to minimize adverse found on the NMFS Web site at • A water level management event impacts as planned; (3) the http://www.nmfs.noaa.gov/pr/permits/ may not occur for more than two practicability of the measure for incidental.htm. The purpose of this consecutive days unless flooding threats applicant implementation, including monitoring plan, which is carried out cannot be controlled. consideration of personnel safety, and collaboratively with the Stewards of the In addition, SCWA will continue practicality of implementation. Coasts and Redwoods (Stewards) mitigation measures specific to pupping Injury, serious injury, or mortality to organization, is to detect the response of season (March 15–June 30), as pinnipeds would likely result from pinnipeds to estuary management implemented in the previous IHA: startling animals inhabiting the haul-out activities at the Russian River estuary. • SCWA will maintain a one week into a stampede reaction, or from SCWA has designed the plan both to no-work period between water level extended mother-pup separation as a satisfy the requirements of the IHA, and management events (unless flooding is result of such a stampede. Long-term to address the following questions of an immediate threat) to allow for an impacts to pinniped usage of the haul- interest: adequate disturbance recovery period. out could result from significantly During the no-work period, equipment 1. Under what conditions do increased presence of humans and pinnipeds haul out at the Russian River must be removed from the beach. equipment on the beach. To avoid these • estuary mouth at Jenner? If a pup less than one week old is possibilities, NMFS and SCWA have on the beach where heavy machinery 2. How do seals at the Jenner haul-out developed the previously described respond to activities associated with the will be used or on the path used to mitigation measures. These are designed construction and maintenance of the access the work location, the to reduce the possibility of startling lagoon outlet channel and artificial management action will be delayed pinnipeds, by gradually apprising them breaching activities? until the pup has left the site or the of the presence of humans and 3. Does the number of seals at the latest day possible to prevent flooding equipment on the beach, and to reduce Jenner haul-out significantly differ from while still maintaining suitable fish the possibility of impacts to pups by rearing habitat. In the event that a pup eliminating or altering management historic averages with formation of a remains present on the beach in the activities on the beach when pups are summer (May 15 to October 15) lagoon presence of flood risk, SCWA will present and by setting limits on the in the Russian River estuary? consult with NMFS and CDFG to frequency and duration of events during 4. Are seals at the Jenner haul-out determine the appropriate course of pupping season. During the past twelve displaced to nearby river and coastal action. SCWA will coordinate with the years of flood control management, haul-outs when the mouth remains locally established seal monitoring implementation of similar mitigation closed in the summer? program (Stewards’ Seal Watch) to measures has resulted in no known In summary, monitoring includes the determine if pups less than one week stampede events and no known injury, following: old are on the beach prior to a breaching serious injury, or mortality. Over the Baseline Monitoring event. course of that time period, management • Physical and biological monitoring events have generally been infrequent Seals at the Jenner haul-out are will not be conducted if a pup less than and of limited duration. Based upon the counted twice monthly for the term of one week old is present at the SCWA’s record of management at the the IHA. This baseline information will monitoring site or on a path to the site. mouth of the Russian River, as well as provide SCWA with details that may Equipment will be driven slowly on information from monitoring SCWA’s help to plan estuary management the beach and care will be taken to implementation of the improved activities in the future to minimize minimize the number of shut downs mitigation measures as prescribed under pinniped interaction. This census and start-ups when the equipment is on the previous IHA, NMFS has begins at local dawn and continues for the beach. All work will be completed determined that the mitigation measures eight hours. All seals hauled out on the as efficiently as possible, with the included in the final IHA provide the beach are counted every thirty minutes smallest amount of heavy equipment means of effecting the least practicable from the overlook on the bluff along possible, to minimize disturbance of adverse impacts on marine mammal Highway 1 adjacent to the haul-out seals at the haul-out. Boats operating species or stocks and their habitat. using high powered spotting scopes. near river haul-outs during monitoring Monitoring may conclude for the day if will be kept within posted speed limits Monitoring and Reporting weather conditions affect visibility (e.g., and driven as far from the haul-outs as In order to issue an ITA for an heavy fog in the afternoon). Counts are safely possible to minimize flushing activity, Section 101(a)(5)(D) of the scheduled for two days out of each seals. MMPA states that NMFS must set forth month, with the intention of capturing NMFS has carefully evaluated the ‘‘requirements pertaining to the a low and high tide each in the morning applicant’s mitigation measures as monitoring and reporting of such and afternoon. Depending on how the proposed and considered their taking’’. The MMPA implementing sandbar is formed, seals may haul out in effectiveness in past implementation, to regulations at 50 CFR 216.104 (a)(13) multiple groups at the mouth. At each determine whether they are likely to indicate that requests for IHAs must thirty-minute count, the observer effect the least practicable adverse include the suggested means of indicates where groups of seals are impact on the affected marine mammal accomplishing the necessary monitoring hauled out on the sandbar and provides species and stocks and their habitat. Our and reporting that will result in a total count for each group. If possible, evaluation of potential measures increased knowledge of the species and adults and pups are counted separately.

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In addition to the census data, In an attempt to understand whether Reporting disturbances of the haul-out are seals from the Jenner haul-out are SCWA is required to submit a report recorded. The method for recording displaced to coastal and river haul-outs on all activities and marine mammal disturbances follows those in Mortenson nearby when management events occur, monitoring results to the Office of (1996). Disturbances will be recorded on other nearby haul-outs are monitored Protected Resources, NMFS, and the a three-point scale that represents an concurrently with event monitoring. Southwest Regional Administrator, increasing seal response to the This provides an opportunity to NMFS, 90 days prior to the expiration disturbance. The time, source, and qualitatively assess whether these haul- of the IHA if a renewal is sought, or duration of the disturbance, as well as outs are being used by seals displaced within 90 days of the expiration of the an estimated distance between the from the Jenner haul-out. This permit otherwise. This annual report source and haul-out, are recorded. It monitoring will not provide definitive will also be distributed to California should be noted that only responses results regarding displacement to nearby State Parks and Stewards, and would be falling into Mortenson’s Levels 2 and 3 coastal and river haul-outs, as available to the public on SCWA’s Web (i.e., movement or flight) will be individual seals are not marked, but is site. This report will contain the considered as harassment under the useful in tracking general trends in following information: MMPA. Weather conditions are haul-out use during disturbance. As • The number of seals taken, by recorded at the beginning of each volunteers are required to monitor these species and age class (if possible); census. These include temperature, peripheral haul-outs, haul-out locations • Behavior prior to and during water percent cloud cover, and wind speed may need to be prioritized if there are level management events; (Beaufort scale). Tide levels and estuary • Start and end time of activity; water surface elevations are correlated not enough volunteers available. In that • Estimated distances between source to the monitoring start and end times. case, priority will be assigned to the nearest haul-outs (North Jenner and and seals when disturbance occurs; In an effort towards understanding • possible relationships between use of Odin Cove), followed by the Russian Weather conditions (e.g., River estuary haul-outs, and finally the temperature, wind, etc.); the Jenner haul-out and nearby coastal • and river haul-outs, several other haul- more distant coastal haul-outs. Haul-out reoccupation time of any seals based on post activity monitoring; outs on the coast and in the Russian For all counts, the following • Tide levels and estuary water River estuary are monitored as well (see information will be recorded in thirty surface elevation; and Figure 2 of SCWA’s Pinniped minute intervals: (1) Pinniped counts, • Monitoring Plan). The peripheral haul- Seal census from bi-monthly and by species; (2) behavior; (3) time, source nearby haul-out monitoring. outs are visited for ten minute counts and duration of any disturbance; (4) twice during each baseline monitoring The annual report includes estimated distances between source of descriptions of monitoring day. All pinnipeds hauled out were disturbance and pinnipeds; (5) weather counted from the same vantage point(s) methodology, tabulation of estuary conditions (e.g., temperature, wind); management events, summary of at each haul-out using a high-powered and (5) tide levels and estuary water spotting scope or binoculars. monitoring results, and discussion of surface elevation. problems noted and proposed remedial Estuary Management Event Monitoring Monitoring During Pupping Season— measures. As described previously, the pupping Activities associated with artificial Estimated Take by Incidental breaching or initial construction of the season is defined as March 15 to June Harassment outlet channel, as well as the 30. Baseline, lagoon outlet channel, and maintenance of the channel that may be artificial breaching monitoring during NMFS is authorizing SCWA to take required, will be monitored for the pupping season will include records harbor seals, California sea lions, and disturbances to the seals at the Jenner of neonate (pups less than one week northern elephant seals, by Level B haul-out. A one-day pre-event channel old) observations. Characteristics of a harassment only, incidental to estuary survey will be made within one to three neonate pup include: Body weight less management activities. These activities, days prior to constructing the outlet than 15 kg; thin for their body length; involving increased human presence channel. The haul-out will be monitored an umbilicus or natal pelage present; and the use of heavy equipment and on the day the outlet channel is wrinkled skin; and awkward or jerky support vehicles, are expected to harass constructed and daily for up to the movements on land. SCWA will pinnipeds present at the haul-out maximum two days allowed for channel coordinate with the Seal Watch through behavioral disturbance only. In excavation activities. Monitoring will monitoring program to determine if addition, monitoring activities also occur on each day that the outlet pups less than one week old are on the prescribed in the BiOp may result in channel is maintained using heavy beach prior to a water level management harassment of additional individuals at equipment for the duration of the lagoon event. the Jenner haul-out and at the three management period. Monitoring will haul-outs located in the estuary. correspond with that described under If, during monitoring, observers sight Estimates of the number of harbor seals, the ‘‘Baseline’’ section previously, with any pup that might be abandoned, California sea lions, and northern the exception that management activity SCWA will contact the NMFS stranding elephant seals that may be harassed by monitoring duration is defined by event response network immediately and also the activities is based upon the number duration, rather than being set at eight report the incident to NMFS’ Southwest of potential events associated with hours. On the day of the management Regional Office and NMFS Headquarters Russian River estuary management event, pinniped monitoring begins at within 48 hours. Observers will not activities and the average number of least one hour prior to the crew and approach or move the pup. Potential individuals of each species that are equipment accessing the beach work indications that a pup may be present during conditions appropriate to area and continues through the duration abandoned are no observed contact with the activity. As described previously in of the event, until at least one hour after adult seals, no movement of the pup, this document, monitoring effort at the the crew and equipment leave the and the pup’s attempts to nurse are mouth of the Russian River has shown beach. rebuffed. that the number of seals utilizing the

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haul-out declines during bar-closed Methodology of take estimation was proposed IHA (76 FR 14924; March 18, conditions. Tables 1 and 2 detail the discussed in detail in NMFS’ notice of 2011). total number of authorized takes.

TABLE 1.—ESTIMATED NUMBER OF HARBOR SEAL TAKES RESULTING FROM RUSSIAN RIVER ESTUARY MANAGEMENT ACTIVITIES

a b,c Potential total number of individual Number of animals expected to occur Number of events animals that may be taken

Lagoon Outlet Channel Management (May 15 to October 15)

Implementation: 103 d ...... Implementation: 3 ...... Implementation: 309

Maintenance and Monitoring: ...... Maintenance: ...... Maintenance: 913 May: 103 ...... May: 1 ...... June: 100 ...... June-Sept: 4/month ...... Oct: 1.

July: 75 ...... Monitoring: ...... Monitoring: 416 Aug: 17 ...... June-Sept: 2/month.

Sept: 5 ...... Oct: 1 ...... Total: 1,638 Oct: 22 ......

Artificial Breaching

Oct: 22 ...... Oct: 2 ...... Oct: 44 Nov: 11 ...... Nov: 2 ...... Nov: 22 Dec: 134 ...... Dec: 2 ...... Dec: 268 Jan: 118 ...... Jan: 1 ...... Jan: 118 Feb: 137 ...... Feb: 1 ...... Feb: 137 Mar: 167 ...... Mar: 1 ...... Mar: 167 Apr: 173 ...... Apr: 1 ...... Apr: 173 May: 103 ...... May: 1 ...... May: 103

11 events maximum ...... Total: 1,032

Biological and Physical Habitat Monitoring in the Estuary

1e ...... 65 ...... 65

Total ...... 2,735 a For events occurring from April through November, average daily number of animals corresponds with data from Table 4. For events occur- ring from December through March, average daily number of animals corresponds with data from Table 5. b For implementation of the lagoon outlet channel, an event is defined as a single, two-day episode. It is assumed that the same individual seals would be hauled out during a single event. For the remaining activities, an event is defined as a single day on which an activity occurs. Some events may include multiple activities listed in Table 2. c Number of events for artificial breaching derived from historical data (Table 1). The average number of events for each month was rounded up to the nearest whole number; estimated number of events for December was increased from one to two because multiple closures resulting from storm events have occurred in recent years during that month. These numbers likely represent an overestimate, as the average annual number of events is six. d Although implementation could occur at any time during the lagoon management period, the highest daily average per month from that period was used. e Based on past experience, SCWA expects that no more than one seal may be present, and thus have the potential to be disturbed, at each of the three river haul-outs.

TABLE 2.—ESTIMATED NUMBER OF CALIFORNIA SEA LION AND ELEPHANT SEAL TAKES RESULTING FROM RUSSIAN RIVER ESTUARY MANAGEMENT ACTIVITIES

Potential total Number of ani- number of in- Species mals expected Number of dividual ani- to occur events mals that may be taken

Lagoon Outlet Channel Management (May 15 to October 15)

California sea lion (potential to encounter once per event) ...... 1 3 3

Northern elephant seal (potential to encounter once per event) ...... 1 3 3

Artificial Breaching

California sea lion (potential to encounter once per month, Sept-Apr) ...... 1 8 8

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TABLE 2.—ESTIMATED NUMBER OF CALIFORNIA SEA LION AND ELEPHANT SEAL TAKES RESULTING FROM RUSSIAN RIVER ESTUARY MANAGEMENT ACTIVITIES—Continued

Potential total Number of ani- number of in- Species mals expected Number of dividual ani- to occur events mals that may be taken

Northern elephant seal (potential to encounter once per month Dec-May) ...... 1 6 6

Biological and Physical Habitat Monitoring in the Estuary

California sea lion (potential to encounter once per month Sept-Apr) ...... 1 8 8

Northern elephant seal (potential to encounter once per month Dec-May) ...... 1 6 6

Total.

California sea lion ...... 19

Elephant seal ...... 15

Negligible Impact and Small Numbers that harbor seal populations have mother-pup bonding is likely to occur Analysis and Determination reached carrying capacity; populations within minutes. Delay of events will NMFS has defined ‘‘negligible impact’’ of California sea lions and northern further ensure that mother-pup bonding in 50 CFR 216.103 as ‘‘ * * * an impact elephant seals in California are also is not interfered with. considered healthy. resulting from the specified activity that Based on the foregoing analysis, The number of animals authorized to cannot be reasonably expected to, and is behavioral disturbance to pinnipeds at be taken for each species of pinnipeds not reasonably likely to, adversely affect the mouth of the Russian River will be can be considered small relative to the of low intensity and limited duration. the species or stock through effects on population size. There are an estimated annual rates of recruitment or survival.’’ To ensure minimal disturbance, SCWA 34,233 harbor seals in the California will implement the mitigation measures In determining whether or not stock, 238,000 California sea lions, and authorized incidental take will have a described previously, which NMFS has 124,000 northern elephant seals in the determined will serve as the means for negligible impact on affected species California breeding population. Based stocks, NMFS considers a number of effecting the least practicable adverse on extensive monitoring effort specific effect on marine mammals stocks or criteria regarding the impact of the to the affected haul-out and historical proposed action, including the number, populations and their habitat. NMFS data on the frequency of the specified finds that SCWA’s estuary management nature, intensity, and duration of Level activity, NMFS is authorizing take, by B harassment take that may occur. activities will result in the incidental Level B harassment only, of 2,735 take of small numbers of marine Although SCWA’s estuary management harbor seals, nineteen California sea mammals, and that the authorized activities may harass pinnipeds hauled lions, and fifteen northern elephant number of takes will have no more than out at the mouth of the Russian River, seals, representing 8.0, 0.008, and 0.012 a negligible impact on the affected as well as those hauled out at several percent of the populations, respectively. species and stocks. locations in the estuary during recurring However, this represents an monitoring activities, impacts are overestimate of the number of Impact on Availability of Affected occurring to a small, localized group of individuals harassed over the duration Species for Taking for Subsistence Uses animals. No mortality or injury is of the proposed IHA, because the take anticipated, nor will the action result in estimates include multiple instances of There are no relevant subsistence uses long-term impacts such as permanent harassment to a given individual. of marine mammals implicated by this abandonment of the haul-out. Seals will California sea lion and elephant seal action. likely become alert or, at most, flush pups are not known to occur within the Endangered Species Act (ESA) into the water in reaction to the action area and thus will not be affected presence of crews and equipment on the by the specified activity. The action is There are no ESA-listed marine beach. However, breaching the sandbar not likely to cause injury or mortality to mammals found in the action area; has been shown to increase seal any harbor seal pup, nor will it impact therefore, no consultation under the abundance on the beach, with seals mother-pup bonding. The peak of ESA is required. As described elsewhere quickly re-inhabiting the haul-out harbor seal pupping season occurs in this document, SCWA and the Corps following cessation of activity. In during May, when few management consulted with NMFS under Section 7 addition, the implementation of the activities are anticipated. However, the of the ESA regarding the potential lagoon management plan may provide pupping season has been conservatively effects of their operations and increased availability of prey species defined as March 15–June 30 for maintenance activities, including (salmonids). No impacts are expected at mitigation purposes, and any SCWA’s estuary management program, the population or stock level. management activity that is required on ESA-listed salmonids. As a result of No pinniped stocks known from the during pupping season will be delayed this consultation, NMFS issued the action area are listed as threatened or in the event that a pup less than one Russian River Biological Opinion endangered under the ESA or week old is present on the beach. As (NMFS 2008) and RPA, which determined to be strategic or depleted described previously in this document, prescribes modifications to SCWA’s under the MMPA. Recent data suggests harbor seal pups are precocious, and estuary management activities.

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National Environmental Policy Act DEPARTMENT OF DEFENSE minimize the reporting burden on the (NEPA) public and helps the public understand Department of the Navy the Department’s information collection In compliance with the National requirements and provide the requested Environmental Policy Act of 1969 (42 Notice of Intent To Grant Partially data in the desired format. The Director, U.S.C. 4321 et seq.), as implemented by Exclusive Patent License; Sean Information Collection Clearance the regulations published by the Linehan Division, Privacy, Information and Council on Environmental Quality (40 Records Management Services, Office of CFR parts 1500–1508), and NOAA AGENCY: Department of the Navy, DoD. Management, invites comments on the Administrative Order 216–6, NMFS ACTION: Notice. proposed information collection prepared an Environmental Assessment requests as required by the Paperwork (EA) to consider the direct, indirect and SUMMARY: The invention listed below is Reduction Act of 1995. cumulative effects to the human assigned to the United States DATES: environment resulting from issuance of Government as represented by the Interested persons are invited to an IHA to SCWA. NMFS signed a Secretary of the Navy. The Department submit comments on or before June 27, Finding of No Significant Impact of the Navy hereby gives notice of its 2011. (FONSI) on March 30, 2010. NMFS has intent to grant to Sean Linehan a ADDRESSES: Comments regarding burden reviewed SCWA’s application and revocable, nonassignable, partially and/or the collection activity determined that there are no substantial exclusive license to practice in the requirements should be electronically changes to the proposed action and that United States, the Government-owned mailed to [email protected] or there are no new direct, indirect, or invention described in U.S. Patent mailed to U.S. Department of Education, cumulative effects to the human 7,222,525 (Navy Case 84945): Issued 400 Maryland Avenue, SW., LBJ, environment resulting from renewal of May 29, 2007, entitled ‘‘SKIN AND Washington, DC 20202–4537. Please an IHA to SCWA. Therefore, NMFS has TISSUE SIMULANT FOR MUNITIONS note that written comments received in determined that a new or supplemental TESTING’’. response to this notice will be EA or Environmental Impact Statement DATES: Anyone wishing to object to the considered public records. is unnecessary, and reaffirms the grant of this license must file written SUPPLEMENTARY INFORMATION: Section existing FONSI for this action. The objections along with supporting 3506 of the Paperwork Reduction Act of existing EA and FONSI for this action evidence, if any, not later than May 11, 1995 (44 U.S.C. Chapter 35) requires are available for review at http:// 2011. that Federal agencies provide interested parties an early opportunity to comment www.nmfs.noaa.gov/pr/permits/ ADDRESSES: Written objections are to be incidental.htm. filed with Naval Surface Warfare Center, on information collection requests. The Director, Information Collection Determinations Crane Division, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522–5001. Clearance Division, Information NMFS has determined that the impact Management and Privacy Services, FOR FURTHER INFORMATION CONTACT: Mr. Office of Management, publishes this of conducting the specific estuary Christopher Monsey, Naval Surface management activities described in this notice containing proposed information Warfare Center, Crane Division, Code collection requests at the beginning of notice and in the IHA request in the OOL, Bldg 2, 300 Highway 361, Crane, specific geographic region in Sonoma the Departmental review of the IN 47522–5001, telephone 812–854– information collection. The Department County, California may result, at worst, 4100. in a temporary modification in behavior of Education is especially interested in (Level B harassment) of small numbers Authority: 35 U.S.C. 207, 37 CFR part 404. public comment addressing the of marine mammals. Further, this Dated: April 19, 2011. following issues: (1) Is this collection activity is expected to result in a D.J. Werner necessary to the proper functions of the negligible impact on the affected species Lieutenant Commander, Office of the Judge Department; (2) will this information be or stocks of marine mammals. The Advocate General, U.S. Navy, Federal processed and used in a timely manner; provision requiring that the activity not Register Liaison Officer. (3) is the estimate of burden accurate; have an unmitigable impact on the [FR Doc. 2011–9993 Filed 4–25–11; 8:45 am] (4) how might the Department enhance the quality, utility, and clarity of the availability of the affected species or BILLING CODE 3810–FF–P stock of marine mammals for information to be collected; and (5) how subsistence uses is not implicated for might the Department minimize the burden of this collection on the this action. DEPARTMENT OF EDUCATION respondents, including through the use Authorization Notice of Proposed Information of information technology. As a result of these determinations, Collection Requests Dated: April 21, 2011. NMFS has issued an IHA to SCWA to Darrin A. King, AGENCY: Department of Education. conduct estuary management activities Director, Information Collection Clearance in the Russian River from the period of ACTION: Comment Request. Division, Privacy, Information and Records April 21, 2011, through April 20, 2012, Management Services, Office of Management. provided the previously mentioned SUMMARY: The Department of Education Office of Elementary and Secondary mitigation, monitoring, and reporting (the Department), in accordance with Education requirements are incorporated. the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), Type of Review: Extension. Dated: April 20, 2011. provides the general public and Federal Title of Collection: Migrant Education James H. Lecky, agencies with an opportunity to Program (MEP) Migrant Student Director, Office of Protected Resources, comment on proposed and continuing Information Exchange (MSIX) User National Marine Fisheries Service. collections of information. This helps Application. [FR Doc. 2011–10038 Filed 4–25–11; 8:45 am] the Department assess the impact of its OMB Control Number: 1810–0686. BILLING CODE 3510–22–P information collection requirements and Agency Form Number(s): N/A.

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Frequency of Responses: Once. information collection requirements and Agency Form Number(s): N/A. Affected Public: Individuals or minimize the reporting burden on the Frequency of Responses: Annually. households; State, Local, or Tribal public and helps the public understand Affected Public: Not-for-profit Government, State Educational the Department’s information collection institutions; State, Local, or Tribal Agencies or Local Educational Agencies. requirements and provide the requested Government, State Educational Total Estimated Number of Annual data in the desired format. The Director, Agencies or Local Educational Agencies. Responses: 10,452. Information Collection Clearance Total Estimated Number of Annual Total Estimated Number of Annual Division, Privacy, Information and Responses: 82. Burden Hours: 3,476. Records Management Services, Office of Abstract: State educational agencies Management, invites comments on the Total Estimated Number of Annual (SEAs) with Migrant Education proposed information collection Burden Hours: 1,066. Programs collect information from state requests as required by the Paperwork Abstract: The Rehabilitation Services and local education officials who desire Reduction Act of 1995. Administration (RSA) of the U.S. access to the Migrant Student DATES: Interested persons are invited to Department of Education (ED) will use Information Exchange (MSIX) system. submit comments on or before June 27, this data collection form to capture the The form verifies the applicant’s need 2011. annual performance report data from the for MSIX data and authorizes the user’s grantees funded under the American ADDRESSES: Comments regarding burden access to that data. The burden hours Indian Vocational Rehabilitation and/or the collection activity associated with the data collection are Services program. RSA and ED will use requirements should be electronically required to meet the statutory mandate the information gathered annually to: (a) mailed to [email protected] or in Sec. 1308(b) of Elementary and Comply with reporting requirements mailed to U.S. Department of Education, Secondary Education Act, as amended under the Education Department 400 Maryland Avenue, SW., LBJ, by No Child Left Behind, which is to General Administration Regulations and Washington, DC 20202–4537. Please facilitate the electronic exchange by the provide annual information to Congress note that written comments received in SEAs of a set of minimum data elements on activities conducted under the response to this notice will be to address the educational and related program, (b) measure performance on considered public records. needs of migratory children. the program’s Government Performance SUPPLEMENTARY INFORMATION: Copies of the proposed information Section Result Act indicators, and (c) to collect collection request may be accessed from 3506 of the Paperwork Reduction Act of information that is consistent with the http://edicsweb.ed.gov, by selecting the 1995 (44 U.S.C. Chapter 35) requires common measures for federal job ‘‘Browse Pending Collections’’ link and that Federal agencies provide interested training programs. by clicking on link number 4553. When parties an early opportunity to comment The proposed changes to the existing you access the information collection, on information collection requests. The form will improve user friendliness and click on ‘‘Download Attachments’’ to Director, Information Collection the clarity and accuracy of data view. Written requests for information Clearance Division, Information reported. These revisions are not of a should be addressed to U.S. Department Management and Privacy Services, substantial manner nor significantly of Education, 400 Maryland Avenue, Office of Management, publishes this different from the original collection, SW., LBJ, Washington, DC 20202–4537. notice containing proposed information but are proposed to provide clarity and Requests may also be electronically collection requests at the beginning of consistency. In many areas, the data mailed to [email protected] or faxed the Departmental review of the element language has been modified to 202–401–0920. Please specify the information collection. The Department with direct language instead of passive complete title of the information of Education is especially interested in terminology and, in order to preserve collection and OMB Control Number public comment addressing the consistency, all numerals are replaced when making your request. following issues: (1) Is this collection with the corresponding word. Individuals who use a necessary to the proper functions of the telecommunications device for the deaf Department; (2) will this information be Copies of the proposed information (TDD) may call the Federal Information processed and used in a timely manner; collection request may be accessed from Relay Service (FIRS) at 1–800–877– (3) is the estimate of burden accurate; http://edicsweb.ed.gov, by selecting the 8339. (4) how might the Department enhance ‘‘Browse Pending Collections’’ link and [FR Doc. 2011–10024 Filed 4–25–11; 8:45 am] the quality, utility, and clarity of the by clicking on link number 4579. When BILLING CODE 4000–01–P information to be collected; and (5) how you access the information collection, might the Department minimize the click on ‘‘Download Attachments’’ to burden of this collection on the view. Written requests for information DEPARTMENT OF EDUCATION respondents, including through the use should be addressed to U.S. Department of information technology. of Education, 400 Maryland Avenue, Notice of Proposed Information SW., LBJ, Washington, DC 20202–4537. Collection Requests Dated: April 21, 2011. Requests may also be electronically Darrin A. King, AGENCY: Department of Education. mailed to [email protected] or faxed Director, Information Collection Clearance to 202–401–0920. Please specify the ACTION: Comment Request. Division, Privacy, Information and Records complete title of the information Management Services, Office of Management. SUMMARY: The Department of Education collection and OMB Control Number (the Department), in accordance with Office of Special Education and when making your request. the Paperwork Reduction Act of 1995 Rehabilitative Services Individuals who use a (PRA) (44 U.S.C. 3506(c)(2)(A)), Type of Review: Revision. telecommunications device for the deaf provides the general public and Federal Title of Collection: Annual Progress (TDD) may call the Federal Information agencies with an opportunity to Reporting Form for the American Indian Relay Service (FIRS) at 1–800–877– comment on proposed and continuing Vocational Rehabilitation Services 8339. collections of information. This helps (AIVRS) Program. [FR Doc. 2011–10022 Filed 4–25–11; 8:45 am] the Department assess the impact of its OMB Control Number: 1820–0655. BILLING CODE 4000–01–P

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DEPARTMENT OF EDUCATION and June 9 agency review portion of the Management and Budget and the June 2011 NACIQI meeting: Department of Defense. The Secretary National Advisory Committee on uses the NACIQI as the review Nationally Recognized Accrediting Institutional Quality and Integrity committee required for this purpose. (NACIQI) Meeting Agencies Instructions for Making a Third-Party Petitions for Renewal of Recognition Oral Comment Concerning the Agencies AGENCY: National Advisory Committee Scheduled for Review: There are two 1. Accreditation Commission for on Institutional Quality and Integrity, methods the public may use to make a Office of Postsecondary Education, U.S. Acupuncture and Oriental Medicine. third-party oral comment of three to five Department of Education. 2. Accrediting Bureau of Health minutes concerning one of the agencies Education Schools. ACTION: Announcement of requests from scheduled for review on June 8 and June the public to make oral comments 3. Accrediting Commission of Career 9, 2011. concerning the ten (10) accrediting Schools and Colleges. Method One: Submit a request by e- agencies and one (1) Federal institution 4. Accrediting Council for mail in advance of the meeting to make scheduled for review. Independent Colleges and Schools. a third-party oral presentation. All 5. American Bar Association, Council individuals or groups submitting an ADDRESSES: U.S. Department of of the Section of Legal Education and advance request in accordance with this Education, Office of Postsecondary Admission to the Bar. notice will be afforded an opportunity Education, 1990 K Street, NW., Room 6. American Osteopathic Association, to speak for a minimum of three 8060, Washington, DC 20006. Commission on Osteopathic College minutes each. Each request must Accreditation. SUMMARY: This notice invites the public concern the recognition of a single to make oral comments concerning the 7. American Psychological agency or institution tentatively agencies/institution scheduled for Association, Committee on scheduled in this notice for review, review at the NACIQI’s June 8–10, 2011 Accreditation. must be received no later than thirty meeting. This notice is required under 8. Commission on Accrediting of the days after the date of publication of this Section 10(a)(2) of the Federal Advisory Association of Theological Schools. notice, and must be sent to Committee Act (FACA) and Section 9. Council on Occupational [email protected] with the 114(d)(1)(B) of the Higher Education Act Education. subject line ‘‘Oral Comment Request re: of 1965, as amended (HEA). 10. Transnational Association of (Agency/Institution Name.’’ Your Christian Colleges and Schools, request (no more than one page SUPPLEMENTARY INFORMATION: The Accreditation Commission. maximum) must include: NACIQI meeting will be held on June 8– 1. The name, title, affiliation, mailing 10, 2011, from 8:30 a.m. to Note: Teacher Education Accreditation Council, Accreditation Committee, was listed address, e-mail address, telephone and approximately 5:30 p.m., at the Holiday facsimile numbers, and Web site (if any) Inn and Suites, Commonwealth in the Federal Register notice (76 FR 12947) published March 9, 2011; however, the of the person/group requesting to speak; Ballroom, 625 First Street, Alexandria, agency will not be reviewed at this meeting. and, Virginia 22314. 2. A brief summary of the principal Changes to the Agenda: Since the points to be made during the oral publication of the March 9, 2011 Federal Agency Seeking Degree- Granting Authority presentation. Federal Register notice (76 FR 12947), Please do not send material directly to the Department and the NACIQI Air University, Maxwell Air Force NACIQI members. Chairman changed the order of the Base, Montgomery, Alabama (request to Method Two: Register on June 8 or scheduled activities. On June 8 and the award a Doctor of Philosophy degree in June 9, 2011, for an oral presentation morning of June 9, 2011, the agenda will Military Strategy). opportunity during the NACIQI’s now include ten (10) accrediting Under 10 U.S.C., Section 9134, in deliberations concerning a particular agencies that submitted petitions for the order for the U.S. Air Force’s Air agency or institution scheduled for renewal of recognition and the review of University to offer a new degree review. The requestor should provide one (1) Federal institution that program, the Secretary of the U.S. his or her name, title, affiliation, mailing submitted an application for degree- Department of Education must have address, e-mail address, telephone and granting authority. (The agencies and approved the degree in accordance with facsimile numbers, and Web site (if the Federal institution scheduled for the Federal Policy Governing the any). A total of up to fifteen minutes review are listed below.) Granting of Academic Degrees by during each agency’s/institution’s At approximately 4:00 p.m. on June 8, Federal Agencies and Institutions review will be allotted for commenters 2011, the NACIQI will hold an (approved by a letter, dated December who register on June 8 or June 9, 2011. administrative session to conduct the 23, 1954, from the Director, Bureau of Individuals or groups that register on members’ annual required ethics the Budget, to the Secretary, Health, June 8 or June 9, 2011, will be selected training. The training session will not be Education, and Welfare). Under the on a first-come, first-served basis. If open to the public. During the afternoon policy, the Secretary is required to selected, each commenter may speak of June 9 and on June 10, 2011, the establish a review committee to advise from three to five minutes, depending NACIQI will hear presentations and the Secretary concerning any proposal on the number of individuals or groups public comments on issues related to to authorize the granting of degrees by who signed up the day of the meeting. the reauthorization of the HEA. a Federal agency. After considering the The Committee may engage the Following public comments on each, criteria established by the policy, the commenter in discussion afterwards. If the NACIQI will then begin review committee forwards its report a person or group requests to make development of recommendations for concerning a Federal agency’s proposed comments in advance, they cannot also the Committee’s report to the Secretary degree-granting authority to the register for an oral presentation on the reauthorization of the HEA. Secretary, who then forwards the opportunity on the meeting day. The following agencies/institution are committee’s report and the Secretary’s Members of the public will be eligible scheduled for review during the June 8 recommendation to the Office of to make third-party oral comments

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concerning the agencies scheduled for —Any other advisory functions relating documents published by the review only in accordance with these to accreditation and institutional Department. instructions. The oral comments made eligibility that the Secretary may Eduardo M. Ochoa, will become part of the official record prescribe. and will be considered by the Assistant Secretary for Postsecondary Access to Records of the Meeting: The Education. Department and NACIQI in their Department will post the official report deliberations. Individuals and groups [FR Doc. 2011–10033 Filed 4–25–11; 8:45 am] of the meeting on the NACIQI Web site making oral presentations concerning BILLING CODE 4000–01–P scheduled agencies/institution may not shortly after the meeting. Pursuant to distribute written materials at the the FACA, the public may also inspect DEPARTMENT OF EDUCATION meeting. the materials at 1990 K Street, NW., Oral comments about agencies Washington, DC, by e-mailing [email protected] or by calling National Advisory Committee on seeking continued recognition must Institutional Quality and Integrity (202) 219–7067 to schedule an relate to the Criteria for the Recognition (NACIQI) Meeting of Accrediting Agencies, which are appointment. available at: http://www.ed.gov/admins/ Reasonable Accommodations: AGENCY: National Advisory Committee finaid/accred/index.html. Individuals who will need on Institutional Quality and Integrity, Comments concerning the Air accommodations for a disability in order Office of Postsecondary Education, U.S. University’s degree-granting authority to attend the June 8–10, 2011 meeting Department of Education. request must relate to the criteria used (i.e., interpreter services, assistive ADDRESSES: U.S. Department of to evaluate the institution. Those listening devices, and/or materials in Education, Office of Postsecondary criteria may be obtained by submitting alternative format), should contact Education, 1990 K Street, NW., Room a request to: [email protected] 8060, Washington, DC 20006. with the subject line listed as ‘‘Request Department staff by telephone: (202) ACTION: Opportunities for the public to for Degree-Granting Authority Criteria.’’ 219–7011; or, e-mail: make written comments and/or oral Written Comments: This notice [email protected], no later comments concerning the NACIQI’s invites third-party oral testimony about than May 15, 2011. We will attempt to report on the reauthorization of the the agencies scheduled for review, not meet requests after this date, but we Higher Education Act (HEA). written comment. The Federal Register cannot guarantee the availability of the notice that requested written comments requested accommodation. The meeting SUMMARY: This notice invites the public on the agencies scheduled for review site is accessible. to submit written comments and was published in the Federal Register FOR FURTHER INFORMATION CONTACT: requests to make oral comments on March 9, 2011 (76 FR 12946). The Contact Melissa Lewis, Executive concerning the NACIQI’s report on the NACIQI will receive and consider only Director, NACIQI, U.S. Department of reauthorization of the HEA. This notice written comments that were submitted is required under Section 10(a)(2) of the as specified in the above referenced Education, Room 8060, 1990 K Street, NW., Washington, DC 20006, telephone: Federal Advisory Committee Act Federal Register notice. (FACA) and Section 114(d)(1)(B) of the Written and Oral Comments (202) 219–7009; e-mail: [email protected]. Individuals who Higher Education Act of 1965, as Concerning Reauthorization of the HEA: amended (HEA). A separate Federal Register notice will use a telecommunications device for the SUPPLEMENTARY INFORMATION: The be published that contains instructions deaf (TDD) may call the Federal NACIQI meeting will be held on June 8– for providing written or oral comments Information Relay Service at 1–800– 10, 2011, from 8:30 a.m. to about reauthorization of the HEA. 877–8339, between 8:00 a.m. and 8:00 NACIQI’s Statutory Authority an p.m., Eastern Standard Time, Monday approximately 5:30 p.m., at the Holiday Inn and Suites, Commonwealth Functions: The NACIQI is established through Friday. Ballroom, 625 First Street, Alexandria, under Section 114 of the Higher Electronic Access to This Document: Education Act (HEA), as amended, 20 U. VA 22314. The official version of this document is S. C. 1011C. The NACIQI advises the Changes to the Agenda: Since the the document published in the Federal Secretary of Education about: publication of the March 9, 2011 —The establishment and enforcement of Register. Free Internet access to the Federal Register notice (74 FR 12947), the Criteria for Recognition of official edition of the Federal Register the Department and the NACIQI accrediting agencies or associations and the Code of Federal Regulations is Chairman changed the order of the under Subpart 2, Part H, Title IV, available via the Federal Digital System scheduled activities. On June 8 and the HEA, as amended; at: http://www.gpo.gov/fdsys . At this morning of June 9, the NACIQI will now —The recognition of specific accrediting site you can view this document, as well hold a traditional NACIQI meeting agencies or associations, or a specific as all other documents of this involving the review of specific State approval agency; Department published in the Federal accrediting agencies that submitted —The preparation and publication of Register, in text or Adobe Portable petitions for the renewal of recognition the list of nationally recognized Document Format (PDF). To use PDF, and a Federal institution that submitted accrediting agencies and associations; you must have Adobe Acrobat Reader, an application for degree-granting —The eligibility and certification which is available free at this site. authority. Refer to the Federal Register process for institutions of higher notices published on March 9, 2011 (76 education under Title IV, HEA; You may also access documents of the FR 12947) and on April 26, 2011 —The relationship between: (1) Department published in the Federal concerning the meeting notice and Accreditation of institutions of higher Register by using the article search instructions for submitting written education and the certification and feature at http:// comments and requests to make oral eligibility of such institutions, and (2) www.federalregister.gov. Specifically, comments concerning the accrediting State licensing responsibilities with through the advanced search feature at agencies and the Federal institution respect to such institutions; and, this site, you can limit your search to scheduled for review.

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At approximately 4:00 p.m. on June 8, two methods the public may use to were previously published on March 9, 2011, the NACIQI will hold an make an oral comment concerning the 2011 and April 26, 2011. Those notices administrative session to conduct the reauthorization of the HEA. contained the meeting notice and members’ annual required ethics Method One: Submit a request by e- instructions for providing written or training. The training session will not be mail in advance of the meeting to make oral comments concerning the agencies open to the public. During the afternoon an oral comment. All individuals or and the Federal institution scheduled of June 9 and on June 10, 2011, the groups submitting an advance request in for review. portion of the meeting concerning the accordance with this notice will be NACIQI’S Statutory Authority and reauthorization of the HEA will occur. afforded an opportunity to speak for up Functions: The NACIQI is established Agenda for the Reauthorization to a maximum of three minutes each. under Section 114 of the Higher Portion of the Meeting: The Each request must be received no later Education Act (HEA), as amended, 20 reauthorization portion of the meeting than May 26, 2011, and must be sent to U.S.C. 1011c. The NACIQI advises the will consist of presentations and public [email protected] with the Secretary of Education about: comments, which the NACIQI will then subject line ’’Oral Comment Request re: —The establishment and enforcement of deliberate on, concerning the following Issue Number (list Issue Number(s) from the Criteria for Recognition of three broad reauthorization-related above issue description regarding the accrediting agencies or associations issues that are described below. reauthorization of the HEA.’’ Your under Subpart 2, Part H, Title IV, Issue One: REGULATORY BURDEN request (no more than one page HEA, as amended; and DATA NEEDS: This issue focuses maximum) must include: —The recognition of specific accrediting on the concerns about the regulatory 1. The name, title, affiliation, mailing agencies or associations, or a specific burdens and costs of accreditation to address, e-mail address, telephone and State approval agency; institutions, students, and taxpayers. facsimile numbers, and Web site (if any) —The preparation and publication of Also included are questions about the of the person/group requesting to speak; the list of nationally recognized nature, quality, and quantity of data and accrediting agencies and associations; gathering and reporting required on the 2. A brief summary of the principal —The eligibility and certification points to be made during the oral part of institutions and accrediting process for institutions of higher presentation. agencies. education under Title IV, HEA; ‘‘ ’’ Please do not send material directly to Issue Two: THE TRIAD : This issue —The relationship between: (1) the NACIQI members. focuses on clarification of the roles, accreditation of institutions of higher responsibilities, and capacities of Method Two: Depending on the day the issue will be reviewed, register on education and the certification and federal, state, and accreditor entities in eligibility of such institutions, and (2) issues of accreditation and institutional June 9 or 10, 2011, for an opportunity to comment on one or more of the issues State licensing responsibilities with aid eligibility. Included are questions respect to such institutions; and about the link between institutional aid during the NACIQI’s deliberations on the reauthorization of the HEA. The —Any other advisory functions relating eligibility and accreditation. to accreditation and institutional Issue Three: ACCREDITOR SCOPE, requester should provide his or her eligibility that the Secretary may ALIGNMENT, AND name, title, affiliation, mailing address, prescribe. ACCOUNTABILITY: This issue focuses e-mail address, telephone and facsimile on accreditor scope, alignment, and numbers, and Web site (if any). Up to Access to Records of the Meeting: The accountability. Included are questions 30 minutes total will be allotted for oral Department will record the meeting and about the sectors and scope of varying commenters who register on June 9 or post the official report of the meeting on accrediting agencies, the alignment of 10, 2011 (in addition to those the NACIQI Web site shortly after the standards across accreditors, and commenters who signed up in advance). meeting. Pursuant to the FACA, the accountability for accreditation Individuals or groups that register to public may also inspect the materials at decisions. make oral comments June 9 or 10, 2011, 1990 K Street, NW., Washington, DC, by Submission of Written Comments will be selected on a first-come, first- e-mailing [email protected] or Concerning the Reauthorization of the served basis for each issue reviewed. If by calling (202) 219–7067 to schedule HEA: Submit your written comments by selected, each commenter may speak an appointment. e-mail no later than May 26, 2011, to from three to five minutes, depending Reasonable Accommodations: [email protected] with the on the number of individuals or groups Individuals who will need subject line ‘‘Written Comments re: Issue who registered for an oral presentation accommodations for a disability in order Number (list Issue Number(s) from opportunity for each issue. The to attend the June 8–10, 2011 meeting above issue description regarding the Committee may engage the commenter (i.e., interpreter services, assistive reauthorization of the HEA.) Do not in discussion afterwards. If a person or listening devices, and/or materials in send material directly to NACIQI group requests to make comments in alternative format), should contact members. advance, they cannot also sign up to Department staff by telephone: (202) Only materials submitted by the make comments on June 9–10, 2011. 219–7011; or, e-mail: deadline to the e-mail address listed in Members of the public will be eligible [email protected], no later this notice, and in accordance with to make oral comments concerning the than May 15, 2011. We will attempt to these instructions, become part of the reauthorization of the HEA only in meet requests after this date, but we official record concerning the accordance with these instructions. The cannot guarantee the availability of the reauthorization of the HEA and are oral comments made will become part requested accommodation. The meeting considered by the Department and the of the official record and will be site is accessible. NACIQI in their deliberations. Do not considered by the Department and the For Further Information: Contact send material directly to the NACIQI NACIQI in their deliberations. Melissa Lewis, Executive Director, members. Written and Oral Comments NACIQI, U.S. Department of Education, Instructions for Requests To Make Concerning the Agencies/Institutions Room 8060, 1990 K Street, NW., Oral Comments Concerning the Scheduled for Review on June 8–9, 2011: Washington, DC 20006, telephone: (202) Reauthorization of the HEA: There are Two separate Federal Register notices 219–7009; e-mail:

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[email protected]. Individuals who Filed Date: 04/18/2011 Any person desiring to intervene or to use a telecommunications device for the Accession Number: 20110418–5233 protest in any of the above proceedings deaf (TDD) may call the Federal Comment Date: 5 p.m. Eastern Time must file in accordance with Rules 211 Information Relay Service at 1–800– on Monday, May 09, 2011 and 214 of the Commission’s Rules of 877–8339, between 8:00 a.m. and 8:00 Take notice that the Commission Practice and Procedure (18 CFR 385.211 p.m., Eastern Standard Time, Monday received the following electric rate and 385.214) on or before 5 p.m. Eastern through Friday. filings: time on the specified comment date. It Electronic Access to This Document: Docket Numbers: ER11–2256–001 is not necessary to separately intervene The official version of this document is Applicants: California Independent again in a subdocket related to a the document published in the Federal System Operator Corporation compliance filing if you have previously Register. Free Internet access to the Description: California Independent intervened in the same docket. Protests official edition of the Federal Register System Operator Corporation submits will be considered by the Commission Digital System at: http://www.gpo.gov/ tariff filing per 35: 2011–04–18 CAISO’s in determining the appropriate action to fdsys. At this site you can view this CPM Compliance Filing to be effective be taken, but will not serve to make document, as well as all other 4/1/2011. protestants parties to the proceeding. documents of this Department Filed Date: 04/18/2011 Anyone filing a motion to intervene or published in the Federal Register, in Accession Number: 20110418–5229 protest must serve a copy of that text or Adobe Portable Document Comment Date: 5 p.m. Eastern Time document on the Applicant. In reference Format (PDF). To use PDF, you must on Monday, May 09, 2011 to filings initiating a new proceeding, have Adobe Acrobat Reader, which is Docket Numbers: ER11–3384–000 interventions or protests submitted on available free at this site. Applicants: PJM Interconnection, or before the comment deadline need You may also access documents of the L.L.C. not be served on persons other than the Department published in the Federal Description: PJM Interconnection, Applicant. Register by using the article search L.L.C. submits tariff filing per 35: As it relates to any qualifying facility feature at http:// Compliance filing per Order issued in filings, the notices of self-certification www.federalregister.gov. Specifically, Docket No. EL08–47–006 to be effective [or self-recertification] listed above, do through the advanced search feature at 4/16/2011. not institute a proceeding regarding this site, you can limit your search to Filed Date: 04/18/2011 qualifying facility status. A notice of documents published by the Accession Number: 20110418–5230 self-certification [or self-recertification] Department. Comment Date: 5 p.m. Eastern Time simply provides notification that the on Monday, May 09, 2011 entity making the filing has determined Eduardo M. Ochoa, the facility named in the notice meets Take notice that the Commission Assistant Secretary for Postsecondary the applicable criteria to be a qualifying Education. received the following open access facility. Intervention and/or protest do [FR Doc. 2011–10032 Filed 4–25–11; 8:45 am] transmission tariff filings: not lie in dockets that are qualifying BILLING CODE 4000–01–P Docket Numbers: OA07–37–004 facility self-certifications or self- Applicants: E. ON U.S. LLC recertifications. Any person seeking to Description: Penalty Distribution challenge such qualifying facility status DEPARTMENT OF ENERGY Compliance Filing of Louisville Gas & may do so by filing a motion pursuant Electric Company, et. al. to 18 CFR 292.207(d)(iii). Intervention Federal Energy Regulatory Filed Date: 04/18/2011 and protests may be filed in response to Commission Accession Number: 20110418–5200 notices of qualifying facility dockets Comment Date: 5 p.m. Eastern Time other than self-certifications and self- Combined Notice of Filings #1 on Monday, May 09, 2011 recertifications. Take notice that the Commission Docket Numbers: OA07–39–007; The Commission encourages received the following electric corporate OA08–71–007 electronic submission of protests and filings: Applicants: Xcel Energy Services Inc., interventions in lieu of paper, using the Docket Numbers: EC11–49–000 Public Service Company of Colorado FERC Online links at http:// Applicants: Ameren Energy Description: Public Service Company www.ferc.gov. To facilitate electronic Generating Company of Colorado’s Annual Report of Penalty service, persons with Internet access Description: Amendment to Assessments and Distributions in who will eFile a document and/or be Application of Ameren Energy Accordance with Order Nos. 890 and listed as a contact for an intervenor Generating Company, Filing 890–A. must create and validate an supplements 203 application to include Filed Date: 04/18/2011 eRegistration account using the horizontal and vertical power analysis Accession Number: 20110418–5204 eRegistration link. Select the eFiling and requests shortened notice period of Comment Date: 5 p.m. Eastern Time link to log on and submit the 10 days. on Monday, May 09, 2011 intervention or protests. Filed Date: 04/12/2011 Docket Numbers: OA11–7–000 Persons unable to file electronically Accession Number: 20110412–5042 Applicants: New York Independent should submit an original and 14 copies Comment Date: 5 p.m. Eastern Time System Operator, Inc. of the intervention or protest to the on Friday April 29, 2011 Description: Annual Compliance Federal Energy Regulatory Commission, Docket Numbers: EC11–69–000 Report of New York Independent 888 First St., NE., Washington, DC Applicants: White Oak Energy System Operator, Inc. Regarding 20426. Holdings LLC Unreserved Use and Late Study The filings in the above proceedings Description: White Oak Energy Penalties. are accessible in the Commission’s Holdings LLC’s Application for Filed Date: 04/18/2011 eLibrary system by clicking on the Approval under Section 203 of the Accession Number: 20110418–5236 appropriate link in the above list. They Federal Power Act and Request for Comment Date: 5 p.m. Eastern Time are also available for review in the Expedited Action. on Monday, May 09, 2011 Commission’s Public Reference Room in

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Washington, DC. There is an Docket Numbers: ER01–48–022. Applicants: California Independent eSubscription link on the Web site that Applicants: Powerex Corp. System Operator Corporation. enables subscribers to receive e-mail Description: Powerex Corp. Notice of Description: California Independent notification when a document is added Non-Material Change in Status. System Operator Corporation submits to a subscribed dockets(s). For Filed Date: 04/19/2011. tariff filing per 35.13(a)(2)(iii): 2011–04– assistance with any FERC Online Accession Number: 20110419–5115. 19 CAISO’s Rate Schedule No. 69 and service, please e-mail Comment Date: 5 p.m. Eastern Time Termination of Rate Schedule No. 42 to [email protected] or call on Tuesday, May 10, 2011. be effective 5/1/2011. (866) 208–3676 (toll free). For TTY, call Docket Numbers: ER10–3096–002. Filed Date: 04/19/2011. (202) 502–8659. Applicants: Public Service Company Accession Number: 20110419–5122. of New Mexico. Comment Date: 5 p.m. Eastern Time Dated: April 19, 2011. on Tuesday, May 10, 2011. Nathaniel J. Davis, Sr., Description: Public Service Company Docket Numbers: ER11–3388–000. Deputy Secretary. of New Mexico submits tariff filing per 35: WestConnect Experimental Tariff to Applicants: California Independent [FR Doc. 2011–9977 Filed 4–25–11; 8:45 am] be effective 9/28/2010. System Operator Corporation. BILLING CODE 6717–01–P Filed Date: 04/19/2011. Description: California Independent Accession Number: 20110419–5080. System Operator Corporation submits tariff filing per 35.13(a)(2)(iii): 2011–04– DEPARTMENT OF ENERGY Comment Date: 5 p.m. Eastern Time on Tuesday, May 10, 2011. 19 CAISO’s Service Agreement 1965 BAAPST with BANC to be effective Federal Energy Regulatory Docket Numbers: ER11–2074–001. 5/1/2011. Commission Applicants: PJM Interconnection, Filed Date: 04/19/2011. L.L.C. Combined Notice of Filings #2 Accession Number: 20110419–5124. Description: PJM Interconnection, Comment Date: 5 p.m. Eastern Time Take notice that the Commission L.L.C. submits tariff filing per 35: on Tuesday, May 10, 2011. received the following electric corporate Compliance Filing per Jan 20, 2011 Docket Numbers: ER11–3389–000. filings: Order in Docket ER11–2074–000 (ER09– Applicants: Public Service Company Docket Numbers: EC11–70–000. 1063–003) to be effective 6/18/2011. of Colorado. Applicants: Iberdrola Renovables, Filed Date: 04/19/2011. Description: Public Service Company S.A. and Its Public Utility Affiliates. Accession Number: 20110419–5123. of Colorado submits tariff filing per Description: Joint Application of Comment Date: 5 p.m. Eastern Time 35.13(a)(2)(iii): 4–19–2011_PSCo- Iberdrola Renovables, S.A. and Its on Tuesday, May 10, 2011. WestConnect-Extend-Term-Filing to be Public Utility Affiliates under Section Docket Numbers: ER11–3051–001. effective 7/1/2011. 203 of the Federal Power Act, and Applicants: Macho Springs Power I, Filed Date: 04/19/2011. Requests for Waivers of Filing LLC. Accession Number: 20110419–5125. Requirements, Shortened Comment Description: Macho Springs Power I, Comment Date: 5 p.m. Eastern Time Period and Expedited Consideration. LLC submits tariff filing per 35.17(b): on Tuesday, May 10, 2011. Filed Date: 04/19/2011. MBR Compliance Filing to be effective Docket Numbers: ER11–3390–000. Accession Number: 20110419–5110. 5/1/2011. Applicants: Interstate Power and Comment Date: 5 p.m. Eastern Time Filed Date: 04/19/2011. Light Company. on Tuesday, May 10, 2011. Accession Number: 20110419–5176. Description: Interstate Power and Docket Numbers: EC11–71–000. Comment Date: 5 p.m. Eastern Time Light Company submits tariff filing per Applicants: FirstEnergy Generation on Friday, April 29, 2011. 35.13(a)(2)(iii): IPL Changes in Corp. Docket Numbers: ER11–3385–000. Depreciation Rates for Wholesale Description: FirstEnergy Generation Applicants: ISO New England Inc., Production Service to be effective Corp. Application for Authorization New England Power Pool Participants 6/30/2011. Filed Date: 04/19/2011. Pursuant to Section 203 of the Federal Committee. Accession Number: 20110419–5126. Power Act and Requests for Waivers of Description: ISO New England Inc. Filing Requirements and Confidential Comment Date: 5 p.m. Eastern Time submits tariff filing per 35.13(a)(2)(iii): on Tuesday, May 10, 2011. Treatment. Rev. to Sch. 16 of the OATT to Adjust Filed Date: 04/19/2011. Filing and Effective Date to be effective Docket Numbers: ER11–3391–000. Accession Number: 20110419–5174. Applicants: Dempsey Ridge Wind Comment Date: 5 p.m. Eastern Time 6/20/2011. Filed Date: 04/19/2011. Farm, LLC. on Tuesday, May 10, 2011. Description: Dempsey Ridge Wind Accession Number: 20110419–5114. Take notice that the Commission Farm, LLC submits tariff filing per Comment Date: 5 p.m. Eastern Time received the following exempt 35.12: Application for Market-Based on Tuesday, May 10, 2011. wholesale generator filings: Rate Authority to be effective 10/1/2011. Docket Numbers: EG11–75–000. Docket Numbers: ER11–3386–000. Filed Date: 04/19/2011. Applicants: Dempsey Ridge Wind Applicants: PJM Interconnection, Accession Number: 20110419–5133. Farm, LLC. L.L.C. Comment Date: 5 p.m. Eastern Time Description: EWG Self-Certification Description: Application of PJM on Tuesday, May 10, 2011. Dempsey Ridge Wind Farm, LLC. Interconnection, L.L.C. Request for Docket Numbers: ER11–3392–000. Filed Date: 04/19/2011. Limited Tariff Waiver and Request for Applicants: PJM Interconnection, Accession Number: 20110419–5169. Fast Track Processing. L.L.C. Comment Date: 5 p.m. Eastern Time Filed Date: 04/19/2011. Description: PJM Interconnection, on Tuesday, May 10, 2011. Accession Number: 20110419–5121. L.L.C. submits tariff filing per Take notice that the Commission Comment Date: 5 p.m. Eastern Time 35.13(a)(2)(iii): Clean Up To Include received the following electric rate on Tuesday, May 10, 2011. ER11–2288–001 Compliance Revisions filings: Docket Numbers: ER11–3387–000. to be effective 4/20/2011.

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Filed Date: 04/19/2011. the applicable criteria to be a qualifying for a preliminary permit, pursuant to Accession Number: 20110419–5134. facility. Intervention and/or protest do section 4(f) of the Federal Power Act Comment Date: 5 p.m. Eastern Time not lie in dockets that are qualifying (FPA), proposing to study the feasibility on Tuesday, May 10, 2011. facility self-certifications or self- of the New Sweden Hydroelectric Docket Numbers: ER11–3393–000. recertifications. Any person seeking to Project to be located on the Snake River, Applicants: Public Service Company challenge such qualifying facility status in Jefferson and Bonneville counties, of New Mexico. may do so by filing a motion pursuant Idaho. The sole purpose of a Description: Public Service Company to 18 CFR 292.207(d)(iii). Intervention preliminary permit, if issued, is to grant of New Mexico submits tariff filing per and protests may be filed in response to the permit holder priority to file a 35: PNM WestConnect Experimental notices of qualifying facility dockets license application during the permit Tariff Compliance Filing to be effective other than self-certifications and self- term. A preliminary permit does not 9/28/2010. recertifications. authorize the permit holder to perform Filed Date: 04/19/2011. The Commission encourages any land-disturbing activities or Accession Number: 20110419–5177. electronic submission of protests and otherwise enter upon lands or waters Comment Date: 5 p.m. Eastern Time interventions in lieu of paper, using the owned by others without the owners’ on Tuesday, May 10, 2011. FERC Online links at http:// express permission. Take notice that the Commission www.ferc.gov. To facilitate electronic The proposed project will consist of received the following qualifying service, persons with Internet access the following: (1) An existing 80-foot- facility filings: who will eFile a document and/or be wide diversion structure with four 13- foot-wide by 5-foot-high steel radial Docket Numbers: QF11–228–000. listed as a contact for an intervenor Applicants: City of New Bern, NC. must create and validate an head gates; (2) a 3.5-mile-long existing Description: Form 556 of eRegistration account using the canal varying from 75 to 100-foot-wide PowerSecure, Inc. for the City of New eRegistration link. Select the eFiling and 10 to 12-foot-deep; (3) a new Bern, NC facility at Food Lion 1368. link to log on and submit the powerhouse equipped with a single 0.9 Filed Date: 04/19/2011. intervention or protests. megawatt Kaplan turbine; (4) a new 500- Accession Number: 20110419–5090. Persons unable to file electronically foot-long, 12.5-kilovolt transmission Comment Date: None Applicable. should submit an original and 14 copies line connecting to the utility of the intervention or protest to the distribution system owned by Rocky Docket Numbers: QF11–229–000. Mountain Power; and (5) appurtenant Applicants: City of New Bern, NC. Federal Energy Regulatory Commission, facilities. The estimated annual Description: Form 556 of 888 First St., NE., Washington, DC generation of the New Sweden Irrigation PowerSecure, Inc. on behalf of the City 20426. The filings in the above proceedings Project would be 5.6 gigawatt-hours. of New Bern, NC at CarolinaEast Applicant Contact: Mr. Nicolas E. are accessible in the Commission’s Medical Center. Josten, GeoSense; 2742 Saint Charles eLibrary system by clicking on the Filed Date: 04/19/2011. Ave., Idaho Falls, ID 83404; phone: appropriate link in the above list. They Accession Number: 20110419–5091. (208) 528–6152. Comment Date: None Applicable. are also available for review in the FERC Contact: Ian Smith; phone: Any person desiring to intervene or to Commission’s Public Reference Room in (202) 502–8943. protest in any of the above proceedings Washington, DC. There is an Deadline for filing comments, motions must file in accordance with Rules 211 eSubscription link on the Web site that to intervene, competing applications and 214 of the Commission’s Rules of enables subscribers to receive e-mail (without notices of intent), or notices of Practice and Procedure (18 CFR 385.211 notification when a document is added intent to file competing applications: 60 and 385.214) on or before 5 p.m. Eastern to a subscribed dockets(s). For days from the issuance of this notice. time on the specified comment date. It assistance with any FERC Online Competing applications and notices of is not necessary to separately intervene service, please e-mail intent must meet the requirements of 18 again in a subdocket related to a [email protected] or call CFR 4.36. Comments, motions to compliance filing if you have previously (866) 208–3676 (toll free). For TTY, call intervene, notices of intent, and intervened in the same docket. Protests (202) 502–8659. competing applications may be filed will be considered by the Commission Dated: April 19, 2011. electronically via the Internet. See 18 in determining the appropriate action to Nathaniel J. Davis, Sr., CFR 385.2001(a)(1)(iii) and the be taken, but will not serve to make Deputy Secretary. instructions on the Commission’s Web protestants parties to the proceeding. [FR Doc. 2011–9978 Filed 4–25–11; 8:45 am] site http://www.ferc.gov/docs-filing/ Anyone filing a motion to intervene or efiling.asp. Commenters can submit BILLING CODE 6717–01–P protest must serve a copy of that brief comments up to 6,000 characters, document on the Applicant. In reference without prior registration, using the to filings initiating a new proceeding, DEPARTMENT OF ENERGY eComment system at http:// interventions or protests submitted on www.ferc.gov/docs-filing/ or before the comment deadline need Federal Energy Regulatory ecomment.asp. You must include your not be served on persons other than the Commission name and contact information at the end Applicant. of your comments. For assistance, As it relates to any qualifying facility [Project No. 14126–000] please contact FERC Online Support at filings, the notices of self-certification New Sweden Irrigation District, ID; [email protected] or toll [or self-recertification] listed above, do Notice of Preliminary Permit free at 1–866–208–3676, or for TTY, not institute a proceeding regarding Application Accepted for Filing and (202) 502–8659. Although the qualifying facility status. A notice of Soliciting Comments, Motions To Commission strongly encourages self-certification [or self-recertification] Intervene, and Competing Applications electronic filing, documents may also be simply provides notification that the paper-filed. To paper-file, mail an entity making the filing has determined On March 29, 2011, New Sweden original and seven copies to: Kimberly the facility named in the notice meets Irrigation District filed an application D. Bose, Secretary, Federal Energy

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Regulatory Commission, 888 First 800-foot-diameter concrete lined tailrace FEDERAL RESERVE SYSTEM Street, NE., Washington, DC 20426. connecting the pump/turbine draft tubes More information about this project, with the lower inlet/outlet; (6) a lower Change in Bank Control Notices; including a copy of the application, can inlet/outlet structure 100-feet below Acquisitions of Shares of a Bank or be viewed or printed on the ‘‘eLibrary’’ msl; (7) a 13-mile-long, 230-kilovolt (kV) Bank Holding Company link of the Commission’s Web site at transmission line extending from the http://www.ferc.gov/docs-filing/ powerhouse to a planned AC–DC The notificants listed below have elibrary.asp. Enter the docket number converter; and (8) appurtenant facilities. applied under the Change in Bank (P–14126–000) in the docket number The estimated annual generation of the Control Act (12 U.S.C. 1817(j)) and field to access the document. For Vandenberg #5 Project would be 3,496 § 225.41 of the Board’s Regulation Y (12 assistance, contact FERC Online gigawatt-hours. CFR 225.41) to acquire shares of a bank Support. Applicant Contact: Mr. James or bank holding company. The factors Dated: April 20, 2011. Petruzzi, Managing Partner, Storage that are considered in acting on the Kimberly D. Bose, Development Partners, LLC., 4900 notices are set forth in paragraph 7 of Secretary. Woodway, Suite 745, Houston, Texas the Act (12 U.S.C. 1817(j)(7)). [FR Doc. 2011–9996 Filed 4–25–11; 8:45 am] 77056; Telephone: 713–840–9994. The notices are available for BILLING CODE 6717–01–P FERC Contact: Kenneth Hogan 202– immediate inspection at the Federal 502–8434. Reserve Bank indicated. The notices also will be available for inspection at DEPARTMENT OF ENERGY Deadline for filing comments, motions the offices of the Board of Governors. to intervene, competing applications Interested persons may express their Federal Energy Regulatory (without notices of intent), or notices of views in writing to the Reserve Bank Commission intent to file competing applications: 60 indicated for that notice or to the offices days from the issuance of this notice. [Project No. 14144–000] of the Board of Governors. Comments Competing applications and notices of must be received not later than May 11, Storage Development Partners, LLC; intent must meet the requirements of 18 2011. Notice of Preliminary Permit CFR 4.36. Comments, motions to Application Accepted for Filing and intervene, notices of intent, and A. Federal Reserve Bank of Dallas (E. Soliciting Comments, Motions To competing applications may be filed Ann Worthy, Vice President) 2200 Intervene, and Competing Applications electronically via the Internet. See 18 North Pearl Street, Dallas, Texas 75201– CFR 385.2001(a)(1)(iii) and the 2272: On April 1, 2011, Storage instructions on the Commission’s Web 1. Jonathan Ross Kasling of Hughes Development Partners, LLC, filed an site http://www.ferc.gov/docs-filing/ Springs, Texas, Individually; Mayo application for a preliminary permit, efiling.asp. Commenters can submit Givens Kasling III of Hughes Springs, pursuant to section 4(f) of the Federal brief comments up to 6,000 characters, Texas, Individually; Jonathan Ross Power Act (FPA), proposing to study the without prior registration, using the Kasling of Hughes Springs, Texas; Mayo feasibility of the Vandenberg #5 Project eComment system at http:// Givens Kasling III of Hughes Springs, (project) to be located on Vandenberg www.ferc.gov/docs-filing/ Texas; Mayo Givens Kasling, Jr. of Air Force Base, in Santa Barbara ecomment.asp. You must include your Hughes Springs, Texas and Mayo County, California. The sole purpose of name and contact information at the end Givens Kasling, Jr. as Trustee for the a preliminary permit, if issued, is to of your comments. For assistance, Mayo G. Kasling III 1996 Trust and as grant the permit holder priority to file please contact FERC Online Support at Trustee for the Jonathan Ross Kasling a license application during the permit [email protected] or toll 1996 Trust; Rebecca Lynn Kasling of term. A preliminary permit does not free at 1–866–208–3676, or for TTY, Hughes Springs, Texas; Mayo Givens authorize the permit holder to perform (202) 502–8659. Although the Kasling, Sr. of Hughes Springs, Texas; any land-disturbing activities or Commission strongly encourages otherwise enter upon lands or waters Catherine Denise Kasling DeWitt of electronic filing, documents may also be owned by others without the owners’ Hughes Springs, Texas; Misty Morgan paper-filed. To paper-file, mail an express permission. Lake of Hughes Springs, Texas; Randall original and seven copies to: Kimberly The proposed project would be a Marc Morgan of Hughes Springs, Texas; D. Bose, Secretary, Federal Energy pumped storage project and consist of Sarah Virginia Kasling Shelton of the following: (1) An upper reservoir Regulatory Commission, 888 First Hughes Springs, Texas and Sarah having a total storage capacity of 5,737 Street, NE., Washington, DC 20426. Virginia Kasling as Trustee for the Ricky acre-feet at a normal maximum More information about this project, Dub Shelton Jr. 1996 Trust and as operating elevation of 1,600 feet mean including a copy of the application, can Trustee for the Shelby Shelton 1996 sea level (msl); (2) five 9,700-foot-long, be viewed or printed on the ‘‘eLibrary’’ Trust and as Trustee for the Trenton 25-foot-diameter steel lined penstocks link of Commission’s Web site at Shelton 1996 Trust; Roy Kemp Kasling extending between the upper reservoir’s http://www.ferc.gov/docs-filing/ of Austin, Texas and Roy Kemp Kasling inlet/outlet and the pump/turbines elibrary.asp. Enter the docket number as Trustee for the Alexandra Kasling below; (3) a breakwater area within the (P–14144) in the docket number field to 1996 Trust and as Trustee for the Pacific Ocean, serving as the lower access the document. For assistance, Natalie Kasling 1996 Trust; all as reservoir; (4) an underground contact FERC Online Support. members of the Kasling Family Group, to retain control of 25 percent or more powerhouse with approximate Dated: April 20, 2011. dimensions of 250-feet-long by 75-feet- of the shares of Chalybeate Springs wide by 100-feet-high and containing Kimberly D. Bose, Corporation, Hughes Springs, Texas and five reversible pump/turbine-motor/ Secretary. thereby indirectly retain control of The generator units with a rated capacity of [FR Doc. 2011–9995 Filed 4–25–11; 8:45 am] First National Bank of Hughes Springs, 239,282 kW each; (5) a 1000-foot-long, BILLING CODE 6717–01–P Hughes Springs, Texas.

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Board of Governors of the Federal Reserve Policy and Review, NIEHS, P.O. Box sponsoring organization (if any) with System, April 21, 2011. 12233, MD K2–03, Research Triangle the document. Time is allotted during Robert deV. Frierson, Park, NC 27709; telephone: 919–541– the meeting for presentation of oral Deputy Secretary of the Board. 9834 or e-mail: [email protected]). comments and each organization is [FR Doc. 2011–10004 Filed 4–25–11; 8:45 am] Courier address: NIEHS, 530 Davis allowed one time slot per public BILLING CODE 6210–01–P Drive, Room 2136, Morrisville, NC comment period. At least 7 minutes will 27560. Persons needing interpreting be allotted for each speaker, and if time services in order to attend should permits, may be extended up to 10 DEPARTMENT OF HEALTH AND contact 301–402–8180 (voice) or 301– minutes at the discretion of the chair. HUMAN SERVICES 435–1908 (TTY). Requests should be Registration for oral comments will also made at least 7 days in advance of the be available on-site, although time Meeting of the Scientific Advisory meeting. allowed for presentation by on-site Committee on Alternative SUPPLEMENTARY INFORMATION: registrants may be less than for pre- Toxicological Methods (SACATM) registered speakers and will be Preliminary Agenda Topics and determined by the number of persons AGENCY: National Toxicology Program Availability of Meeting Materials who register at the meeting. In addition (NTP), National Institute of Preliminary agenda topics include: to in-person oral comments at the Environmental Health Sciences • NICEATM–ICCVAM Update meeting, public comments can be (NIEHS), National Institutes of Health • Regulatory Acceptance of ICCVAM- presented by teleconference line. There (NIH). Recommended Alternative Test will be 50 lines for this call; availability ACTION: Meeting announcement and Methods will be on a first-come, first-served request for comments. • Report on Peer Review Panel basis. The available lines will be open SUMMARY: Pursuant to section 10(a) of Meeting: Evaluation of an In Vitro from 8 a.m. until 5 p.m. on June 16 and the Federal Advisory Committee Act, as Estrogen Receptor Transcriptional 8:30 a.m. to adjournment on June 17, amended (5 U.S.C. Appendix 2), notice Activation Test Method for Endocrine although public comments will be Disruptor Chemical Screening received only during the formal public is hereby given of a meeting of • SACATM on June 16–17, 2011, at the Federal Agency Research, comment periods, which will be Hilton Arlington Hotel, 950 North Development, Translation, and indicated on the preliminary agenda. Stafford Street, Arlington, VA 22203. Validation Activities Relevant to the The access number for the NICEATM–ICCVAM Five-Year Plan teleconference line will be provided to The meeting is open to the public with • attendance limited only by the space Nominations to ICCVAM: registrants by email prior to the meeting. Persons registering to make oral available. The meeting will be videocast Botulinum In Vitro Assays, In Vitro comments are asked to do so through through a link at (http:// Pyrogen Assay Validation • the online registration form (http:// www.niehs.nih.gov/news/video/live). Outcome/Recommendations from ntp.niehs.nih.gov/go/32822) and to send SACATM advises the Interagency the ICCVAM Workshop Series on Best a copy of their statement to Dr. White Coordinating Committee on the Practices for Regulatory Safety Testing • (see ADDRESSES Validation of Alternative Methods Outcomes/Recommendations from above) by June 9, 2011, (ICCVAM), the NTP Interagency Center the International Workshop on to enable review by SACATM, for the Evaluation of Alternative Alternative Methods to Reduce, Refine, NICEATM–ICCVAM, and NIEHS/NTP Toxicological Methods (NICEATM), and and Replace the Use of Animals in staff prior to the meeting. Written the Director of the NIEHS and NTP Vaccine Potency Testing: State of the statements can supplement and may Science and Future Directions expand the oral presentation. If regarding statutorily mandated duties of • ICCVAM and activities of NICEATM. Update from the Korean Center for registering on-site and reading from the Validation of Alternative Methods written text, please bring 40 copies of DATES: The SACATM meeting will be • Update from Health Canada the statement for distribution and to held on June 16 and 17, 2011. The • Update from the Japanese Center for supplement the record. meeting is scheduled from 8:30 a.m. the Validation of Alternative Methods Eastern Daylight Time to 5:30 p.m. on • Update from the European Centre Background Information on ICCVAM, NICEATM, and SACATM June 16 and 8:30 a.m. until adjournment for the Validation of Alternative on June 17. All individuals who plan to Methods ICCVAM is an interagency committee attend are encouraged to register online A copy of the preliminary agenda, composed of representatives from 15 at the NTP Web site (http:// committee roster, and additional Federal regulatory and research agencies ntp.niehs.nih.gov/go/32822) by June 9, information, when available, will be that require, use, generate, or 2011. In order to facilitate planning, posted on the NTP Web site (http:// disseminate toxicological and safety persons wishing to make an oral ntp.niehs.nih.gov/go/32822) or available testing information. ICCVAM conducts presentation are asked to notify Dr. Lori upon request (see ADDRESSES above). technical evaluations of new, revised, White, NTP Designated Federal Officer, Following the SACATM meeting, and alternative safety testing methods via online registration, phone, or email summary minutes will be prepared and with regulatory applicability and by June 9, 2011 (see ADDRESSES below). available on the NTP Web site or upon promotes the scientific validation and Written comments should also be request. regulatory acceptance of toxicological received by June 9, 2011, to enable and safety testing methods that more review by SACATM and NIEHS/NTP Request for Comments accurately assess the safety and hazards staff before the meeting. Both written and oral public input on of chemicals and products and that ADDRESSES: The SACATM meeting will the agenda topics is invited. Written reduce, refine (decrease or eliminate be held at the Hilton Arlington Hotel, comments received in response to this pain and distress), or replace animal 950 North Stafford Street, Arlington, VA notice will be posted on the NTP Web use. The ICCVAM Authorization Act of 22203. Public comments and other site. Persons submitting written 2000 (42 U.S.C. 285l–3) established correspondence should be directed to comments should include their name, ICCVAM as a permanent interagency Dr. Lori White (NTP Office of Liaison, affiliation (if applicable), and committee of the NIEHS under

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NICEATM. NICEATM administers provides advice on priorities and OMB No. 0970–0145. ICCVAM, provides scientific and activities related to the development, Description: The State plan is a operational support for ICCVAM-related validation, scientific review, regulatory mandatory statement submitted to the activities, and conducts independent acceptance, implementation, and Secretary of the Department of Health national and international validation studies to assess the and Human Services by the State. It usefulness and limitations of new, harmonization of new, revised, and consists of an outline specifying how revised, and alternative test methods alternative toxicological test methods. the State’s TANF program will be and strategies. NICEATM and ICCVAM Additional information about SACATM, work collaboratively to evaluate new including the charter, roster, and administered and operated and certain and improved test methods and records of past meetings, can be found required certifications by the State’s strategies applicable to the needs of U.S. at http://ntp.niehs.nih.gov/go/167. Chief Executive Officer. It is used to provide the public with information Federal agencies. NICEATM and Dated: April 18, 2011. about the program. ICCVAM welcome the public John R. Bucher, nomination of new, revised, and Associate Director, National Toxicology Authority to require States to submit alternative test methods and strategies Program. a State TANF plan is contained in for validation studies and technical [FR Doc. 2011–10020 Filed 4–25–11; 8:45 am] section 402 of the Social Security Act, evaluations. Additional information BILLING CODE 4140–01–P as amended by Public Law 104–193, the about ICCVAM and NICEATM can be Personal Responsibility and Work found on the NICEATM–ICCVAM Web Opportunity Reconciliation Act of 1996. site (http://iccvam.niehs.nih.gov). DEPARTMENT OF HEALTH AND States are required to submit new plans SACATM was established in response HUMAN SERVICES periodically (i.e., within a 27-month to the ICCVAM Authorization Act period). Administration for Children and [Section 285l–3(d)] and is composed of We are proposing to continue the scientists from the public and private Families information collection without change. sectors. SACATM advises ICCVAM, Proposed Information Collection Respondents: The 50 States of the NICEATM, and the Director of the Activity; Comment Request NIEHS and NTP regarding statutorily United States, the District of Columbia, mandated duties of ICCVAM and Title: State Plan for the Temporary Guam, Puerto Rico, and the Virgin activities of NICEATM. SACATM Assistance of Needy Families (TANF). Islands.

ANNUAL BURDEN ESTIMATES

Number of Average Instrument Number of responses per burden hours Total respondents respondent per response burden hours

Title Amendments ...... 18 1 3 54 State Plan ...... 18 1 30 540

Estimated Total Annual Burden proposed collection of information; (c) ACTION: Notice. Hours: 594. the quality, utility, and clarity of the In compliance with the requirements information to be collected; and (d) This notice announces a forthcoming of Section 3506(c)(2)(A) of the ways to minimize the burden of the meeting of a public advisory committee Paperwork Reduction Act of 1995, the collection of information on of the Food and Drug Administration Administration for Children and respondents, including through the use (FDA). The meeting will be open to the Families is soliciting public comment of automated collection techniques or public. on the specific aspects of the other forms of information technology. Name of Committee: Endocrinologic information collection described above. Consideration will be given to and Metabolic Drugs Advisory Copies of the proposed collection of comments and suggestions submitted Committee. information can be obtained and within 60 days of this publication. General Function of the Committee: comments may be forwarded by writing To provide advice and to the Administration for Children and Robert Sargis, recommendations to the Agency on Families, Office of Administration, Reports Clearance Officer. FDA’s regulatory issues. Office of Information Services, 370 [FR Doc. 2011–9956 Filed 4–25–11; 8:45 am] Date and Time: The meeting will be L’Enfant Promenade, SW., Washington, BILLING CODE 4184–01–P held on May 19, 2011, from 8 a.m. to 5 DC 20447, Attn: ACF Reports Clearance p.m. Officer. E-mail address: Location: Hilton Washington DC/ [email protected]. All requests DEPARTMENT OF HEALTH AND Silver Spring, The Ballrooms, 8727 should be identified by the title of the HUMAN SERVICES Colesville Rd., Silver Spring, MD 20910. information collection. The hotel telephone number is 301– The Department specifically requests Food and Drug Administration 589–5200. comments on: (a) Whether the proposed Contact Person: Paul Tran, Center for collection of information is necessary [Docket No. FDA–2011–N–0002] Drug Evaluation and Research, Food for the proper performance of the Endocrinologic and Metabolic Drugs and Drug Administration, 10903 New functions of the agency, including Advisory Committee; Notice of Meeting Hampshire Ave., Bldg. 31, rm. 2417, whether the information shall have Silver Spring, MD 20993–0002, 301– practical utility; (b) the accuracy of the AGENCY: Food and Drug Administration, 796–9001, FAX 301–847–8533, e-mail: agency’s estimate of the burden of the HHS. [email protected], or FDA Advisory

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Committee Information Line, 1–800– plus simvastatin, or any other statin, is Notice of this meeting is given under 741–8138 (301–443–0572 in the muscle toxicity. the Federal Advisory Committee Act (5 Washington, DC area), and follow the FDA intends to make background U.S.C. app. 2). prompts to the desired center or product material available to the public no later Dated: April 21, 2011. area. Please call the Information Line for than 2 business days before the meeting. Leslie Kux, up-to-date information on this meeting. If FDA is unable to post the background Acting Assistant Commissioner for Policy. A notice in the Federal Register about material on its Web site prior to the last minute modifications that impact a [FR Doc. 2011–10003 Filed 4–25–11; 8:45 am] meeting, the background material will BILLING CODE 4160–01–P previously announced advisory be made publicly available at the committee meeting cannot always be location of the advisory committee published quickly enough to provide meeting, and the background material DEPARTMENT OF HEALTH AND timely notice. Therefore, you should will be posted on FDA’s Web site after HUMAN SERVICES always check the Agency’s Web site and the meeting. Background material is call the appropriate advisory committee available at http://www.fda.gov/ National Institutes of Health hot line/phone line to learn about AdvisoryCommittees/Calendar/ possible modifications before coming to default.htm. Scroll down to the National Institute of Diabetes and the meeting. appropriate advisory committee link. Digestive and Kidney Diseases; Notice of Closed Meetings Agenda: On May 19, 2011, the Procedure: Interested persons may committee will discuss the findings of present data, information, or views, Pursuant to section 10(d) of the the Action to Control Cardiovascular orally or in writing, on issues pending Federal Advisory Committee Act, as Risk in Diabetes-Lipid (ACCORD Lipid) before the committee. Written amended (5 U.S.C. App.), notice is trial as they relate to the efficacy and submissions may be made to the contact hereby given of the following meetings. safety of the approved new drug person on or before May 12, 2011. Oral The meetings will be closed to the application (NDA) 22224, TRILIPIX presentations from the public will be public in accordance with the (fenofibric acid) delayed release scheduled between approximately 1 provisions set forth in sections capsules, manufactured by Abbott p.m. and 2 p.m. Those individuals 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Laboratories. interested in making formal oral as amended. The grant applications and TRILIPIX (fenofibric acid), an active presentations should notify the contact the discussions could disclose form of fenofibrate, is indicated for use person and submit a brief statement of confidential trade secrets or commercial in combination with a 3-hydroxy-3- the general nature of the evidence or property such as patentable material, methyl-glutaryl-coenzyme A reductase arguments they wish to present, the and personal information concerning inhibitor, commonly referred to as a names and addresses of proposed individuals associated with the grant ‘‘statin’’, to lower high levels of serum participants, and an indication of the applications, the disclosure of which triglycerides and raise low levels of approximate time requested to make would constitute a clearly unwarranted high-density lipoprotein cholesterol in their presentation on or before May 5, invasion of personal privacy. patients with mixed dyslipidemia and 2011. Time allotted for each coronary heart disease (CHD) or CHD Name of Committee: National Institute of presentation may be limited. If the Diabetes and Digestive and Kidney Diseases risk equivalent who are on optimal number of registrants requesting to Special Emphasis Panel; DEM Fellowships. statin therapy to achieve their low- speak is greater than can be reasonably Date: June 15–16, 2011. density lipoprotein cholesterol goal. accommodated during the scheduled Time: 6 p.m. to 5 p.m. The ACCORD Lipid study was a open public hearing session, FDA may Agenda: To review and evaluate grant randomized, double-blind, placebo- applications. conduct a lottery to determine the Place: Crowne Plaza Washington National controlled add-on trial, which is the speakers for the scheduled open public kind of clinical trial designed to provide Airport, 1489 Jefferson Davis Hwy, Arlington, hearing session. The contact person will VA 22202. data with strong measures of accuracy notify interested persons regarding their Contact Person: Michael W. Edwards, PhD, and reliability. The ACCORD Lipid request to speak by May 6, 2011. Scientific Review Officer, Review Branch, study evaluated the efficacy and safety Persons attending FDA’s advisory DEA, NIDDK, National Institutes of Health, of adding fenofibrate therapy to Room 750, 6707 Democracy Boulevard, committee meetings are advised that the treatment with the statin, simvastatin in Bethesda, MD 20892–5452, (301) 594–8886, subjects with type 2 diabetes mellitus. Agency is not responsible for providing [email protected]. The results of the ACCORD Lipid trial access to electrical outlets. Name of Committee: National Institute of indicated that there was no statistically FDA welcomes the attendance of the Diabetes and Digestive and Kidney Diseases significant difference in the proportion public at its advisory committee Special Emphasis Panel; Fellowships in of clinical trial subjects treated with meetings and will make every effort to Digestive Diseases and Nutrition Date: June 22, 2011. simvastatin plus placebo verus accommodate persons with physical disabilities or special needs. If you Time: 8:30 a.m. to 5 p.m. simvastatin plus fenofibrate who Agenda: To review and evaluate grant experienced a major adverse cardiac require special accommodations due to applications. event. In a prespecified subgroup a disability, please contact Paul Tran at Place: Georgetown Suites, 1000 29th Street, analysis from the ACCORD Lipid trial, least 7 days in advance of the meeting. NW., Washington, DC 20007 there was an increase in the proportion FDA is committed to the orderly Contact Person: Thomas A. Tatham, PhD, of female trial subjects treated with conduct of its advisory committee Scientific Review Officer, Review Branch, simvastatin plus fenofibrate versus meetings. Please visit our Web site at DEA, NIDDK, National Institutes of Health, Room 760, 6707 Democracy Boulevard, simvastatin plus placebo who http://www.fda.gov/ Bethesda, MD 20892–5452, (301) 594–3993, experienced a major adverse cardiac AdvisoryCommittees/ [email protected]. event. The clinical significance of this AboutAdvisoryCommittees/ (Catalogue of Federal Domestic Assistance finding is unclear. ucm111462.htm for procedures on Program Nos. 93.847, Diabetes, An additional safety concern public conduct during advisory Endocrinology and Metabolic Research; associated with the use of fenofibrate committee meetings. 93.848, Digestive Diseases and Nutrition

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Research; 93.849, Kidney Diseases, Urology DEPARTMENT OF HOMELAND (3) Enhance the quality, utility, and and Hematology Research, National Institutes SECURITY clarity of the information to be of Health, HHS) collected; and Dated: April 20, 2011. Transportation Security Administration (4) Minimize the burden of the [Docket No. TSA–2006–24191] collection of information on those who Anna P. Snouffer, are to respond, including using Deputy Director, Office of Federal Advisory Intent To Request Renewal From OMB appropriate automated, electronic, Committee Policy. of One Current Public Collection of mechanical, or other technological [FR Doc. 2011–10008 Filed 4–25–11; 8:45 am] Information: Transportation Worker collection techniques or other forms of BILLING CODE 4140–01–P Identification Credential (TWIC) information technology. Program Information Collection Requirement DEPARTMENT OF HEALTH AND AGENCY: Transportation Security OMB Control Number 1652–0047; HUMAN SERVICES Administration, DHS. Transportation Worker Identification ACTION: 60 Day Notice. Credential (TWIC) Program. TSA National Institutes of Health developed the Transportation Worker SUMMARY: The Transportation Security Identification Credential (TWIC) National Institute of Biomedical Administration (TSA) invites public program to mitigate threats and Imaging and Bioengineering; Notice of comment on one currently approved vulnerabilities in the national Closed Meeting information collection requirement, transportation system. TWIC is a Office of Management and Budget common credential for all personnel Pursuant to section 10(d) of the (OMB) control number 1652–0047, requiring unescorted access to secure Federal Advisory Committee Act, as abstracted below that we will submit to areas of facilities and vessels regulated amended (5 U.S.C. App.), notice is OMB for renewal in compliance with under the Maritime Transportation hereby given of the following meeting. the Paperwork Reduction Act (PRA). Security Act (MTSA) and all mariners The ICR describes the nature of the holding U. S. Coast Guard credentials. The meeting will be closed to the information collection and its expected Before issuing an individual a TWIC, public in accordance with the burden. OMB approved the collection of TSA performs a security threat provisions set forth in sections information for six months and TSA assessment, which requires TSA to 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., now seeks the maximum three-year collect certain personal information as amended. The grant applications and approval. The collection involves the such as name, address, and date of birth. the discussions could disclose submission of identifying and other Applicants are also required to provide confidential trade secrets or commercial information by individuals applying for fingerprints and undergo a criminal property such as patentable material, a TWIC and a customer satisfaction history records check. and personal information concerning survey. The program implements authorities individuals associated with the grant DATES: Send your comments by June 27, set forth in the Aviation and applications, the disclosure of which 2011. Transportation Security Act (ATSA) would constitute a clearly unwarranted ADDRESSES: Comments may be e-mailed (Pub. L. 107–71; Nov. 19, 2002; sec. invasion of personal privacy. to [email protected] or delivered to the 106), the Maritime Transportation Security Act of 2002 (MTSA) (Pub. L. Name of Committee: National Institute of TSA PRA Officer, Office of Information Technology (OIT), TSA–11, 107–295; Nov. 25, 2002; sec. 102), and Biomedical Imaging and Bioengineering the Safe, Accountable, Flexible, Special Emphasis Panel; NIBIB K awards Transportation Security Administration, Efficient Transportation Equity Act—A review (1022/10). 601 South 12th Street, Arlington, VA Legacy for Users (SAFETEA–LU) (Pub. Date: June 24, 2011. 20598–6011. L. 109–59; Aug. 10, 2005; sec. 7105), Time: 1 p.m. to 5 p.m. FOR FURTHER INFORMATION CONTACT: codified at 49 U.S.C. 5103a(g). TSA and Agenda: To review and evaluate grant Joanna Johnson at the above address, or applications. by telephone (571) 227–3651. the U. S. Coast Guard (Coast Guard) issued a joint notice of proposed Place: National Institutes of Health, SUPPLEMENTARY INFORMATION: Democracy Two Plaza, 6707 Democracy rulemaking (NPRM) on May 22, 2006, Comments Invited Boulevard, Suite #242, Bethesda, MD 20892 71 FR 29396. After consideration of (Virtual Meeting). In accordance with the Paperwork public comments on the NPRM, TSA Contact Person: Manana Sukhareva, PhD, Reduction Act of 1995 (44 U.S.C. 3501 issued a joint final rule with the Coast Scientific Review Officer, National Institute et seq.), an agency may not conduct or Guard on January 25, 2007 (72 FR 3492), of Biomedical Imaging and Bioengineering, sponsor, and a person is not required to applicable to the maritime National Institutes of Health, 6707 respond to, a collection of information transportation sector that would require Democracy Boulevard, Suite 959, Bethesda, unless it displays a valid OMB control this information collection. MD 20892, 301–451–3397, number. The ICR documentation is TSA collects data from applicants [email protected]. available at http://www.reginfo.gov. during an optional pre-enrollment step or during the enrollment session at an Dated: April 20, 2011. Therefore, in preparation for OMB review and approval of the following enrollment center. TSA will use the Anna P. Snouffer, information collection, TSA is soliciting information collected to conduct a Deputy Director, Office of Federal Advisory comments to— security threat assessment, which Committee Policy. (1) Evaluate whether the proposed includes: (1) A criminal history records [FR Doc. 2011–10009 Filed 4–25–11; 8:45 am] information requirement is necessary for check; (2) a check of intelligence BILLING CODE 4140–01–P the proper performance of the functions databases; and (3) an immigration status of the agency, including whether the check. TSA invites all TWIC applicants information will have practical utility; to complete an optional survey to gather (2) Evaluate the accuracy of the information on the applicants’ overall agency’s estimate of the burden; customer satisfaction with the

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enrollment process. This optional SUPPLEMENTARY INFORMATION: implementation and ensure the survey is administered by a Trusted adequacy of security measures at Comments Invited Agent (representative of the TWIC transportation facilities,5 and carry out enrollment contractor, who performs In accordance with the Paperwork other appropriate duties relating to enrollment functions) during the Reduction Act of 1995 (44 U.S.C. 3501 transportation security.6 process to activate the TWIC. These et seq.), an agency may not conduct or One way TSA carries out its surface surveys are collected at each enrollment sponsor, and a person is not required to transportation responsibilities is by center and compiled to produce reports respond to, a collection of information assessing the current security practices that are reviewed by the contractor and unless it displays a valid OMB control in the trucking, school bus, and motor TSA. The current estimated annualized number. The ICR documentation is coach industries, as well as at State reporting burden is 2,630,719 hours and available at http://www.reginfo.gov. Departments of Transportation (DOTs), the estimated annualized cost burden is Therefore, in preparation for OMB by way of its Corporate Security Review $57,002,236. review and approval of the following (CSR) program. The CSR program information collection, TSA is soliciting Issued in Arlington, Virginia, on April 20, encompasses site visits and interviews, 2011. comments to— and is one piece of a much larger (1) Evaluate whether the proposed Joanna Johnson, domain awareness, prevention, and information requirement is necessary for protection program in support of TSA’s TSA Paperwork Reduction Act Officer, Office the proper performance of the functions of Information Technology. and the Department of Homeland of the agency, including whether the Security’s missions. TSA is seeking to [FR Doc. 2011–9982 Filed 4–25–11; 8:45 am] information will have practical utility; renew its OMB approval for this BILLING CODE 9110–05–P (2) Evaluate the accuracy of the information collection so that TSA can agency’s estimate of the burden; continue to ascertain minimum security (3) Enhance the quality, utility, and standards and identify coverage gaps, DEPARTMENT OF HOMELAND clarity of the information to be SECURITY activities critical to carrying out its collected; and transportation security mission. (4) Minimize the burden of the Transportation Security Administration The CSR is an ‘‘instructive’’ review collection of information on those who that provides TSA with an Intent To Request Renewal From OMB are to respond, including using understanding of certain surface of One Current Public Collection of appropriate automated, electronic, transportation owner/operators’ security Information: Highway Corporate mechanical, or other technological programs, if they have adopted such Security Review collection techniques or other forms of programs. In carrying out CSRs, information technology. Transportation Security Specialists AGENCY: Transportation Security Information Collection Requirement (TSS) from TSA’s Highway and Motor Administration, DHS. Carrier Division (HMC) and OMB Control Number 1652–0036; ACTION: 60-day Notice. Transportation Security Inspectors- Corporate Security Review. Under the Surface (TSI–S) conduct site visits of SUMMARY: The Transportation Security Aviation and Transportation Security trucking (excluding hazardous materials Administration (TSA) invites public Act (ATSA) 1 and delegated authority shippers and carriers), school bus, comment on one currently approved from the Secretary of Homeland motor coach companies and State DOTs information collection requirement Security, TSA has broad responsibility throughout the nation. The TSA (ICR), Office of Management and Budget and authority for ‘‘security in all modes representatives analyze the owner’s/ (OMB) control number 1652–0036, of transportation * * * including operator’s security plan, if the owner/ abstracted below that we will submit to security responsibilities * * * over operator has adopted one, and OMB for renewal in compliance with modes of transportation that are determines if the mitigation measures the Paperwork Reduction Act (PRA). exercised by the Department of included in the plan are being properly The ICR describes the nature of the Transportation.’’ 2 TSA has additional implemented. In addition to examining information collection and its expected authorities as well. TSA is specifically the security plan document, TSA burden. The ICR will assess the current empowered to develop policies, reviews one or more assets of the security practices in the highway and strategies, and plans for dealing with owner/operator or State DOT. motor carrier industry by way of its threats to transportation,3 ensure the During the site visits, TSA completes Highway Corporate Security Review adequacy of security measures for the a CSR form, which contains questions (CSR) Program, which encompasesses transportation of cargo,4 oversee the concerning ten topics: Management and site visits and interviews, and is part of oversight of the security plan, threat the larger domain awareness, 1 Public Law 107–71, 115 Stat. 597 (November 19, assessment, criticality assessment, prevention, and protection program 2001). 2 vulnerability assessment, personnel supporting TSA’s and the Department of See 49 U.S.C. 114(d). The TSA Assistant Secretary’s current authorities under ATSA have security, training, physical security Homeland Security’s missions. been delegated to him by the Secretary of Homeland countermeasures, en route security, DATES: Send your comments by June 27, Security. Section 403(2) of the Homeland Security information technology security, and 2011. Act (HSA) of 2002, Public Law 107–296, 116 Stat. 2315 (2002), transferred all functions of TSA, security exercises and drills. TSA ADDRESSES: Comments may be e-mailed including those of the Secretary of Transportation conducts this collection through to [email protected] or delivered to the and the Under Secretary of Transportation of voluntary face-to-face visits at the TSA PRA Officer, Office of Information Security related to TSA, to the Secretary of Homeland Security. Pursuant to DHS Delegation headquarters of the surface Technology (OIT), TSA–11, Number 7060.2, the Secretary delegated to the transportation owners/operators. Transportation Security Administration, Assistant Secretary (then referred to as the Typically, TSA sends one employee to 601 South 12th Street, Arlington, VA Administrator of TSA), subject to the Secretary’s conduct a two to three hour discussion/ 20598–6011. guidance and control, the authority vested in the Secretary with respect to TSA, including that in sec. interview with representatives from the FOR FURTHER INFORMATION CONTACT: 403(2) of the HSA. Joanna Johnson at the above address, or 3 49 U.S.C. 114(f)(3). 5 49 U.S.C. 114(f)(11). by telephone (571) 227–3651. 4 49 U.S.C. 114(f)(10). 6 49 U.S.C. 114(f)(15).

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owner/operator. TSA plans to collect SUMMARY: The proposed information Title of Proposal: Indian Community information from businesses of all sizes collection requirement described below Development Block Grant Information in the course of conducting these will be submitted to the Office of Collection. surface mode CSRs. Management and Budget (OMB) for OMB Control Number: 2577–0191. TSA conducts these interviews to review as required by the Paperwork Description of the need for the ascertain information on security Reduction Act. The Department is information and proposed use: Title I of measures and to identify security gaps. soliciting public comments on the the Housing and Community The interviews also provide the TSA subject proposal. Development Act of 1974, which with a method to encourage the surface DATES: Comments due date: June 27, authorizes Community Development transportation owners/operators affected 2011. Block Grants, requires that grants for Indian Tribes be awarded on a by the CSRs to be diligent in effecting ADDRESSES: Interested persons are and maintaining security-related competitive basis. The purpose of the invited to submit comments regarding Indian Community Development Block improvements. This program provides this proposal. Comments should refer to TSA with real-time information on Grant (ICDBG) program is to develop the proposal by name/or OMB Control viable Indian and Alaska Native current security practices within the number and should be sent to: Colette trucking, school bus, and motor coach communities by creating decent Pollard, Departmental Reports housing, suitable living environments modes of the surface transportation Management Officer, QDAM, sector. This information allows TSA to and economic opportunities primarily Department of Housing and Urban for low- and moderate-income persons. adapt programs to the changing threat Development, 451 7th Street, SW., dynamically, while incorporating an Consistent with this objective, not less Room 4160, Washington, DC 20410– than 70 percent of the expenditures are understanding of the improvements 5000; telephone (202) 402–3400 (this is owners/operators make in their security to benefit low and moderate-income not a toll-free number) or by e-mail to persons. The law specifies four criteria posture. Without this information, the [email protected]. Persons with ability of the TSA to perform its security or options that are considered to meet hearing or speech impairments may this objective. The four options or mission would be severely hindered. access this number through TTY by Additionally, the relationships these criteria are: Area benefit; limited calling the toll-free Federal Information clientele; housing; job creation/ face-to-face contacts foster are critical to Relay Service at (800) 877–8339. (Other the TSA’s ability to reach out to the retention. Eligible applicants include than the HUD USER information line Federally recognized Tribes, which surface transportation stakeholders and TTY numbers, telephone numbers affected by the CSRs. The relationships include Alaska Native communities, are not toll-free.) and Bureau of Indian Affairs or Indian foster a sense of trust and a willingness FOR FURTHER INFORMATION CONTACT: to share information with the Federal Health Service determined Tribally Arlette Mussington, Office of Policy, authorized Tribal organizations. Government. TSA assures respondents Programs and Legislative Initiatives, The ICDBG program regulations can the portion of their responses deemed PIH, Department of Housing and Urban be found at 24 CFR 1003. The ICDBG Sensitive Security Information (SSI) will Development, 451 7th Street, SW., program for Indian Tribes and Alaska be handled consistent with 49 CFR parts (L’Enfant Plaza, Room 2206), Native villages requires eligible 15 and 1520. Washington, DC 20410; telephone 202– applicants to submit information to The annual hour burden for this 402–4109, (this is not a toll-free enable HUD to select the best projects information collection is estimated to be number). for funding during annual competitions. 1,500 hours. While TSA estimates a SUPPLEMENTARY INFORMATION: The Additionally, the requirements are total of 500 potential respondents, this Department will submit the proposed essential for HUD in monitoring grants estimate is based on TSA conducting information collection to OMB for to ensure that grantees are making 500 visits per year, each visit lasting two review, as required by the Paperwork proper use of Federal dollars. to three hours. TSA estimates no annual Reduction Act of 1995 (44 U.S.C. ICDBG applicants must submit a cost burden to respondents. Chapter 35, as amended). This Notice is complete application package which Issued in Arlington, Virginia, on April 20, soliciting comments from members of includes an Application for Federal 2011. the public and affected agencies Assistance (SF–424), Supplement Joanna Johnson, concerning the proposed collection of Survey on Ensuring Equal Opportunity Paperwork Reduction Act Officer, Office of information to (1) evaluate whether the for Applicants (SF–424 SUPP), Information Technology. proposed collection of information is Applicant/Recipient Disclosure/Update [FR Doc. 2011–9983 Filed 4–25–11; 8:45 am] necessary for the proper performance of Report (HUD–2880), Implementation BILLING CODE 9110–05–P the functions of the agency, including Schedule (HUD–4125), Cost Summary whether the information will have (HUD–4123) and a Program Outcome practical utility; (2) evaluate the Logic Model (HUD–96010). If the DEPARTMENT OF HOUSING AND accuracy of the agency’s estimate of the applicant has a waiver of the electronic URBAN DEVELOPMENT burden of the proposed collection of submission requirement and is information; (3) enhance the quality, submitting a paper application, an [Docket No. FR–5487–N–12] utility, and clarity of the information to Acknowledgement of Application be collected; and (4) minimize the Receipt (HUD–2993) must also be Notice of Proposed Information burden of the collection of information submitted. If the applicant is a Tribal Collection for Public Comment; Indian on those who are to respond, including organization, a resolution from the Tribe Community Development Block Grant through the use of appropriate stating that the Tribal organization is Information Collection automated collection techniques or submitting an application on behalf of AGENCY: Office of the Assistant other forms of information technology, the Tribe must also be included in the Secretary for Public and Indian e.g., permitting electronic submission of application package. Housing, HUD. responses. Section 105 of the 1974 Housing and This Notice also lists the following Community Development Act (42 U.S.C. ACTION: Notice. information: 5305) was amended by section 588 of

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the Quality Housing and Work reports being due to HUD on October 10 soliciting public comments on the Responsibility Act of 1998 creating a of each year (HUD–2516). subject proposal. new subsection (h) entitled, ‘‘Prohibition At the end of each one-year period The information is collected from all on Use of Assistance for Employment and at grant closeout the recipient is localities and states participating in any Relocation Activities.’’ This subsection required to submit a narrative status and one of CPD’s four formula grant prohibits the use of Community evaluation report that describes: (1) programs to determine each Development Block Grant funds to Progress on completing approved jurisdiciton’s compliance with statutory facilitate the relocation of for-profit activities; (2) a breakdown of major and regulatory requirements. businesses from one labor market to project activity or category DATES: Comments Due Date: May 26, another if the relocation is likely to expenditures; and (3) an assessment of 2011. result in significant job loss. HUD’s program effectiveness at grant closeout. ADDRESSES: Interested persons are regulations for the ICDBG program were Recipients are also to report on program invited to submit comments regarding amended to add § 1003.209, Prohibition outputs and outcomes through the this proposal. Comments should refer to on use of assistance from employment Program Outcome Logic Model (HUD– the proposal by name and/or OMB relocation activities, and revise 96010). (Title 24 CFR 1003.506) approval Number (2506–0117) and § 1003.505, Records to be maintained, to The information collected will allow should be sent to: HUD Desk Officer, include the statement, ‘‘This includes HUD to accurately audit the program. Office of Management and Budget, New establishing and maintaining records Agency form number: SF–424, HUD– Executive Office Building, Washington, demonstrating that the recipient has 2880, HUD–2993, SF–424–SUPP, HUD– DC 20503; e-mail OIRA- made the determinations required as a 96010, HUD–2994–A, HUD–4123, condition of eligibility of certain [email protected]; fax: 202– HUD–4125, SF–425, HUD–2516, 395–5806. activities, including as prescribed in narrative status and evaluation report. FOR FURTHER INFORMATION CONTACT: § 1003.209.’’ Members of affected public: Native Colette Pollard, Reports Management The ICDBG regulations at § 1003.209 American Tribes, Alaska Native Officer, QDAM, Department of Housing prohibit certain job relocation activities communities and corporations, and and Urban Development, 451 Seventh that results in disinvestment in low and Tribal organizations. Street, SW., Washington, DC 20410; e- moderate income Tribal communities. Estimation of the total number of mail Colette Pollard at Colette. ICDBG recipients are prohibited from hours needed to prepare the information [email protected]; or telephone (202) using ICDBG funds to facilitate the collection including number of 402–3400. This is not a toll-free number. relocation of for-profit businesses from respondents: The Estimated number of Copies of available documents one ‘‘identified service area’’ as defined respondents is 225 annually with one submitted to OMB may be obtained in § 1003.4, to another if the relocation response per respondent. The average from Ms. Pollard. is likely to result in significant job loss. number for each response is 40 hours, To show compliance with the statute for a total reporting burden of 10,095 SUPPLEMENTARY INFORMATION: This and regulations, ICDBG recipients that hours. notice informs the public that the provide ICDBG assistance to a business Status of the proposed information Department of Housing and Urban must require and obtain, as a condition collection: Revision of currently Development has submitted to OMB a of the assistance, a certification from the approved collection. request for approval of the Information assisted business that it has no plans to collection described below. This notice relocate jobs. If the assistance results in Authority: Section 3506 of the Paperwork is soliciting comments from members of business relocation, the agreement must Reduction Act of 1995, 44 U.S.C. Chapter 35, the public and affecting agencies as amended. provide that the business will reimburse concerning the proposed collection of the ICDBG recipient for any assistance Dated: April 19, 2011. information to: (1) Evaluate whether the provided to, or expended on behalf of Deborah Hernandez, proposed collection of information is the business. General Deputy Assistant Secretary for Public necessary for the proper performance of ICDBG recipients are required to and Indian Housing. the functions of the agency, including submit a quarterly Federal Financial [FR Doc. 2011–10044 Filed 4–25–11; 8:45 am] whether the information will have Report (SF–425) that provides a BILLING CODE 4210–67–P practical utility; (2) Evaluate the snapshot of the grant funds drawn from accuracy of the agency’s estimate of the the recipient’s line of credit. The reports burden of the proposed collection of are used to monitor cash transfers to the DEPARTMENT OF HOUSING AND information; (3) Enhance the quality, recipients and obtain expenditure data URBAN DEVELOPMENT utility, and clarity of the information to from the recipients. (Title 24 CFR [Docket No. FR–5480–N–36] be collected; and (4) Minimize the 1003.501(16)) burden of the collection of information The government-wide administrative Notice of Submission of Proposed on those who are to respond; including requirements for grants and cooperative Information Collection to OMB through the use of appropriate agreements to State, local, and Federally Consolidated Plan and Annual automated collection techniques or recognized Indian Tribal governments Performance Report other forms of information technology, codified by HUD at 24 CFR part 85 e.g., permitting electronic submission of require that grantees and sub-grantees AGENCY: Office of the Chief Information responses. ‘‘take all necessary affirmative steps to Officer, HUD. This notice also lists the following assure that minority firms, women’s ACTION: Notice. information: business enterprises, and labor surplus Title of Proposal: Consolidated Plan area firms are used when possible’’ SUMMARY: The proposed information and Annual Performance Report. (§ 85.36(e)). Consistent with these collection requirement described below OMB Approval Number: 2506–0117. regulations, § 1003.506(b) requires that has been submitted to the Office of Form Numbers: None. ICDBG grantees report on these Management and Budget (OMB) for Description of the Need for the activities on an annual basis, with review, as required by the Paperwork Information and Its Proposed Use: The Contract and Subcontract Activity Reduction Act. The Department is information is collected from all

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localities and states participating in any jurisdiciton’s compliance with statutory one of CPD’s four formula grant and regulatory requirements. programs to determine each Frequency of Submission: Annually.

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

Reporting Burden ...... 1,150 2 245.087 563,700

Total Estimated Burden Hours: numbers, telephone numbers are not housing authorities. After collecting this 563,700. toll-free.) compensation information, HUD plans Status: Extension without change of a FOR FURTHER INFORMATION CONTACT: to make it available on a publicly currently approved collection. Arlette Mussington, Office of Policy, accessible Web site. Authority: Section 3507 of the Paperwork Programs and Legislative Initiatives, Agency form numbers, if applicable: Reduction Act of 1995, 44 U.S.C. 35, as PIH, Department of Housing and Urban None. amended. Development, 451 7th Street, SW., Estimation of the total number of hours needed to prepare the information Dated: April 20, 2011. (L’Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202– collection including number of Colette Pollard, respondents, frequency of response, and Departmental Reports Management Officer, 402–4109, (this is not a toll-free number). hours of response: The number of Office of the Chief Information Officer. burden hours is 1,372. The number of [FR Doc. 2011–10047 Filed 4–25–11; 8:45 am] SUPPLEMENTARY INFORMATION: The respondents is 4,116, the number of BILLING CODE 4210–67–P Department is submitting the proposed responses is 4,116, the frequency of information collection to OMB for response is annually, and the burden review, as required by the Paperwork hour per response is 20 minutes. DEPARTMENT OF HOUSING AND Reduction Act of 1995 (44 U.S.C. Status of the proposed information URBAN DEVELOPMENT Chapter 35, as amended). This Notice is collection: This is a new collection. [Docket No. FR–5487–N–13] soliciting comments from members of Authority: The Paperwork Reduction Act the public and affected agencies of 1995, 44 U.S.C., Chapter 35, as amended. concerning the proposed collection of Notice of Proposed Information for Dated: April 15, 2011. Public Comment; Public Housing information to: (1) Evaluate whether the Deborah Hernandez, Authority Executive Compensation proposed collection is necessary for the Information proper performance of the functions of General Deputy Assistant Secretary for Public the agency, including whether the Indian Housing. AGENCY: Office of the Assistant information will have practical utility; [FR Doc. 2011–10046 Filed 4–25–11; 8:45 am] Secretary for Public and Indian (2) Evaluate the accuracy of the agency’s BILLING CODE 4210–67–P Housing, HUD. estimate of the burden of the proposed ACTION: Notice. collection of information; (3) Enhance DEPARTMENT OF HOUSING AND the quality, utility, and clarity of the SUMMARY: The proposed information URBAN DEVELOPMENT information to be collected; and (4) collection requirement described below Minimize the burden of the collection of [Docket No. FR–5500–N–04] will be submitted to the Office of information on those who are to Management and Budget (OMB) for respond; including the use of Notice of Availability: Notice of review, as required by the Paperwork appropriate automated collection Funding Availability (NOFA) for HUD’s Reduction Act. The Department is techniques or other forms of information Fiscal Year (FY) 2011 Indian soliciting public comments on the technology, e.g., permitting electronic Community Development Block Grant subject proposal. submission of responses. Program DATES: Comments Due Date: June 27, This Notice also lists the following 2011. AGENCY: Office of the Chief of the information: Human Capital Officer, HUD. ADDRESSES: Interested persons are Title of Proposal: Public Housing ACTION: Notice. invited to submit comments regarding Authority Executive Compensation this proposal. Comments should refer to Information. SUMMARY: HUD announces the the proposal by name or OMB Control OMB Control Number, if applicable: availability on its Web site of the number and should be sent to: Colette New (Pending OMB Approval). applicant information, submission Pollard, Departmental Reports Description of the need for the deadlines, funding criteria, and other Management Officer, QDAM, information and proposed use: Under requirements for HUD’s FY 2011 Indian Department of Housing and Urban current law, non-profit organizations Community Development Block Grant Development, 451 7th Street, SW., receiving Federal tax exemptions are (ICDBG) Program NOFA. Specifically, Room 4160, Washington, DC 20410– required to report to the IRS annually this NOFA announces the availability of 5000; telephone 202.402.3400 (this is the names and compensation of their approximately $64,870,000 million not a toll-free number) or e-mail Ms. five current highest compensated made available under the Department of Pollard at [email protected]. employees. Public housing authorities Defense and Full-Year Continuing Persons with hearing or speech receive significant direct Federal funds, Appropriations Act, 2011, Public Law impairments may access this number and to promote similar public 112–10, approved April 15, 2011, Indian through TTY by calling the toll-free transparency and to enhance oversight Community Development Block Grant Federal Information Relay Service at by HUD and by state and local funds, along with any unobligated and (800) 877–8339. (Other than the HUD authorities, the same information unused funds remaining from previous USER information line and TTY should be made available as to public years.

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The purpose of the ICDBG program is DEPARTMENT OF THE INTERIOR On Wednesday, May 18, the the development of viable Indian and Committee will meet in discipline Alaska Native communities, including Bureau of Ocean Energy Management, breakout sessions (i.e., biology/ecology, the creation of decent housing, suitable Regulation and Enforcement physical sciences, and social sciences) living environments, and economic to review the specific studies plans of Outer Continental Shelf (OCS) opportunities primarily for persons with the BOEMRE regional offices for Fiscal Scientific Committee (SC); Years 2012–2014. low- and moderate-incomes as defined Announcement of Plenary Session in 24 CFR 1003.4. The ONAP in HUD’s On Thursday, May 19, the Committee will meet in plenary session for reports Office of Public and Indian Housing AGENCY: Bureau of Ocean Energy administers the program. Management, Regulation and of the individual discipline breakout Enforcement (BOEMRE), Interior. sessions of the previous day and to The notice providing information continue with Committee business. regarding the application process, ACTION: Notice of Meeting. The meetings are open to the public. funding criteria and eligibility Approximately 40 visitors can be SUMMARY: The OCS Scientific requirements, application and accommodated on a first-come-first- Committee will meet at the Holiday Inn instructions can be found using the served basis at the plenary session. Cape Cod in Hyannis, Massachusetts. Department of Housing and Urban Authority: Federal Advisory Committee Development agency link on the DATES: Tuesday, May 17, 2011, from 9 a.m. to 4 p.m.; Wednesday, May 18, Act, Pub. L. 92–463, 5 U.S.C., Appendix I, Grants.gov/Find Web site at http:// and the Office of Management and Budget’s 2011, from 8 a.m. to 4:30 p.m.; and www.grants.gov/search/agency.do. A Circular A–63, Revised. Thursday, May 19, 2011, from 10 a.m. link to the funding opportunity is also to 4 p.m. Dated: April 14, 2011. available on the HUD Web site at http:// Robert P. LaBelle, portal.hud.gov/hudportal/HUD?src=/ ADDRESSES: Holiday Inn Cape Cod, 1127 Iyannough Road, Hyannis, Acting Associate Director for Offshore Energy program_offices/administration/grants/ and Minerals Management. Massachusetts 02601, telephone (508) fundsavail. The link from the funds 775–1153. [FR Doc. 2011–10034 Filed 4–25–11; 8:45 am] available page will take you to the BILLING CODE 4310–MR–P agency link on Grants.gov. FOR FURTHER INFORMATION CONTACT: A copy of the agenda may be requested The Catalogue of Federal Domestic from BOEMRE by emailing Ms. Carolyn DEPARTMENT OF THE INTERIOR Assistance (CFDA) number for this Beamer at [email protected]. program is 14.263. Applications must be Other inquiries concerning the OCS SC Bureau of Indian Affairs submitted electronically through meeting should be addressed to Dr. Grants.gov. Rodney Cluck, Chief, Environmental Native American Business Studies Program, Environmental Development Institute (NABDI) FOR FURTHER INFORMATION CONTACT: Division, Bureau of Ocean Energy Funding Solicitations and Reporting: Questions regarding specific program Management, Regulation and Comment Request requirements should be directed to the Enforcement, 381 Elden Street, Mail AGENCIES: Bureau of Indian Affairs, agency contact identified in the program Stop 4043, Herndon, Virginia 20170– Interior. NOFA. Program staff will not be 4817, or by calling (703) 787–1656 or ACTION: available to provide guidance on how to via e-mail at [email protected]. Notice of Submission to the prepare the application. Questions Office of Management and Budget. SUPPLEMENTARY INFORMATION: The OCS regarding the 2010 General Section SC will provide advice on the SUMMARY: The Division of Economic should be directed to the Office of feasibility, appropriateness, and Development (DED), Office of Indian Grants Management and Oversight at scientific value of the OCS Energy and Economic Development (202) 708–0667 or the NOFA Environmental Studies Program to the (IEED) seeks to spur job growth and Information Center at 800–HUD–8929 Secretary of the Interior through the sustainable economies on American (toll free). Persons with hearing or Director of the BOEMRE. The SC will Indian reservations. The DED created speech impairments may access these review the relevance of the research and the Native American Business numbers via TTY by calling the Federal data being produced to meet BOEMRE Development Institute (NABDI) to Information Relay Service at 800–877– scientific information needs for decision provide tribes and tribal businesses with 8339. making and may recommend changes in expert advice regarding economic Dated: April 20, 2011. scope, direction, and emphasis. development matters. In compliance The Committee will meet in plenary with the Paperwork Reduction Act of Barbara S. Dorf, session on Tuesday, May 17. The 1995, DED is seeking comments on a Director, Office of Departmental Grants Director will address the Committee on proposed information collection related Management and Oversight, Office of the the general status of the BOEMRE and to the NABDI’s funding of economic Chief of the Human Capital Officer. its activities. There will be a development feasibility studies (studies) [FR Doc. 2011–10049 Filed 4–25–11; 8:45 am] presentation on Alternative Energy and long-term strategic, reservation- BILLING CODE 4210–67–P Programs: Current Status and Next wide economic development plans Steps, Updates of Activities Pertaining (plans). Federally recognized Indian to the Priorities of the National Ocean tribes, on their own behalf or on behalf Policy, Atlantic Governance Councils of tribally owned business, may apply (NROC, MARCO), as well as an Update for the funding by providing certain of Ongoing and Future Research information. Applicants receiving Pertaining to the Deepwater Horizon Oil funding must provide a final report Spill. Following these presentations summarizing the progress of and results BOEMRE regional officials will discuss of studies and plans. This notice their most pertinent and current issues. requests comments on the information

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collection associated with the This is an annual program whose e-mail address or other personally application and final report. primary objective is to create jobs and identifiable information, be advised that DATES: Interested persons are invited to foster economic activity within tribal your entire comment—including your submit comments on or before May 26, communities. The DED will administer personally identifiable information— 2011. the program within IEED; and studies may be made public at any time. While ADDRESSES: You may submit comments and plans as described herein will be you may request that we withhold your on the information collection to the the sole discretionary projects DED will personally identifiable information, we Desk Officer for the Department of the consider or fund absent a competitive cannot guarantee that we will be able to Interior at the Office of Management and bidding process. When funding is do so. available, DED will solicit proposals for Budget, by facsimile to (202) 395–5806 III. Data or you may send an e-mail to: studies and plans. To receive these [email protected]. Please funds, tribes may use the contracting OMB Control Number: 1076–0XXX. send a copy of your comments to Mr. mechanism established by Public Law Type of Review: New. Victor Christiansen, Division of 93–638, the Indian Self-Determination Title: Native American Business Economic Development, Office of Act or may obtain adjustments to their Development Institute (NABDI) Funding Indian Energy and Economic funding from the Office of Self- Solicitations and Reporting. Governance. See 25 U.S.C. 450 et seq. Development, U.S. Department of the Brief Description of Collection: Indian Interior, Room 14—South Interior Interested applicants must submit a tribal resolution requesting funding, a tribes that would like to apply for Building, 1951 Constitution Avenue, NABDI funding must submit an NW., Washington, DC 20245, fax (202) statement of work describing the project for which the study is requested or the application that includes certain 208–4564; e-mail: information. A complete application [email protected]. scope of the plan envisioned, the identity of the academic institution or must contain: • FOR FURTHER INFORMATION CONTACT: You other entity the applicant wishes to A duly-enacted, signed resolution may request further information from retain (if known) and a budget of the governing body of the tribe; Mr. Victor Christiansen, Division of indicating the funding amount • A proposal describing the planned Economic Development, Office of requested and how it will be spent. The activities and deliverable products; and Indian Energy and Economic DED expressly retains the authority to • The identity (if known) of the Development, U.S. Department of the reduce or otherwise modify proposed academic institution, private consultant, Interior, Telephone: (202) 219–0739. budgets and funding amounts. non-profit/non-academic entity, or other You may review the ICR online at Applications for funding will be entity the tribe has chosen to perform http://www.reginfo.gov. Follow the juried and evaluated on the basis of a the study or prepare the plan; and instructions to review Department of the proposed project’s potential to generate • A detailed budget estimate, Interior collections under review by jobs and economic activity on the including contracted personnel costs, OMB. reservation. travel estimates, data collection and SUPPLEMENTARY INFORMATION: II. Request for Comments analysis costs, and other expenses, I. Abstract though DED reserves authority to reduce The DED requests that you send your or otherwise modify this budget. The DED established the NABDI to comments on this collection to the The DED requires this information to provide technical assistance funding to location listed in the ADDRESSES section. ensure that it provides funding only to federally recognized American Indian Your comments should address: (a) The those projects that meet the economic tribes seeking to retain universities and necessity of the information collection development and job creation goals for colleges, private consulting firms, non- for the proper performance of the which NABDI was established. academic/non-profit entities, or others agencies, including whether the Applications will be evaluated on the to prepare studies of economic information will have practical utility; basis of the proposed project’s potential development opportunities or plans. (b) the accuracy of our estimate of the to generate jobs and economic activity These studies and plans will empower burden (hours and cost) of the collection on the reservation. Upon completion of American Indian tribes and tribal of information, including the validity of the funded project, a tribe must then businesses to make informed decisions the methodology and assumptions used; submit a final report summarizing regarding their economic futures. (c) ways we could enhance the quality, events, accomplishments, problems Studies may concern the viability of an utility and clarity of the information to and/or results in executing the project. economic development project or be collected; and (d) ways we could The DED estimates that approximately business or the practicality of a minimize the burden of the collection of 20 tribes will apply each year, and that technology a tribe may choose to the information on the respondents, DED will accept approximately all 20 pursue. The DED will specifically such as through the use of automated into the program annually. exclude from consideration proposals collection techniques or other forms of Respondents: Indian tribes with trust for research and development projects, information technology. requests for funding of salaries for tribal Please note that an agency may not or restricted land. government personnel, funding to pay sponsor or conduct, and an individual Number of Respondents: 20 legal fees, and requests for funding for need not respond to, a collection of applicants per year; 20 project the purchase or lease of structures, information unless it has a valid OMB participants each year. machinery, hardware or other capital Control Number. Estimated Time per Response: 40 items. Plans may encompass future It is our policy to make all comments hours per application; 1.5 hours per periods of five years or more and available to the public for review at the report. include one or more economic location listed in the ADDRESSES section Frequency of Response: Once per year development factors including but not during the hours of 9 a.m.–5 p.m., for applications and final report. limited to land and retail use, industrial Eastern Time, Monday through Friday Total Annual Burden to Respondents: development, tourism, energy, resource except for legal holidays. Before 830 hours (800 for applications and 30 development and transportation. including your address, phone number, for final reports).

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Dated: April 11, 2011. The plat constituting the dependent The supplemental plat in sections 10 Alvin Foster, resurvey of a portion of the and 11, T. 2 S., R. 37 E., Boise Meridian, Acting Chief Information Officer—Indian subdivisional lines, and the subdivision Idaho, Group 1268, accepted March 15, Affairs. of sections 13 and 24, T. 1 N., R. 18 E., 2011. [FR Doc. 2011–9672 Filed 4–20–11; 8:45 am] of the Boise Meridian, Idaho, Group Dated: April 15, 2011. BILLING CODE 4310–4J–P Number 1307, was accepted February Stanley G. French, 10, 2011. The plat representing the dependent Chief Cadastral Surveyor for Idaho. DEPARTMENT OF THE INTERIOR resurvey and subdivision of sections 22 [FR Doc. 2011–10001 Filed 4–25–11; 8:45 am] and 24, T. 13 N., R. 38 E., Boise BILLING CODE 4310–GG–P Bureau of Land Management Meridian, Idaho, Group Number 1311, was accepted March 11, 2011. [LLID9570000.LL14200000.BJ0000] The supplemental plat in sections 27, DEPARTMENT OF THE INTERIOR 30, and 34, T. 3 N., R. 16 E., Boise Idaho: Filing of Plats of Survey Bureau of Land Management Meridian, Idaho, Group Number 1340, AGENCY: Bureau of Land Management, accepted March 14, 2011. [LLWY920000 L14300000.ET0000; WYW Interior. The plat constituting the entire survey 115104] record of the dependent resurvey of a ACTION: Notice of Filing of Plats of portion of Mineral Survey Number Notice of Proposed Withdrawal Surveys. 3068A and B, in section 25, T. 4 N., R. Extension and Opportunity for Public Meeting; Wyoming SUMMARY: The Bureau of Land 18 E., Boise Meridian, Idaho, Group Management (BLM) has officially filed Number 1304, was accepted March 29, AGENCY: Bureau of Land Management, the plats of survey of the lands 2011. Interior. described below in the BLM Idaho State The plat representing the dependent ACTION: Notice. Office, Boise, Idaho, effective 9:00 a.m., resurvey of portions of the east on the dates specified. boundary, subdivisional lines, and 1894 SUMMARY: The United States Department meanders of the North Fork of the of Agriculture (USDA), Forest Service FOR FURTHER INFORMATION CONTACT: Payette River in sections 12 and 13, and has filed an application with the Bureau Bureau of Land Management, 1387 the subdivision of sections 12, 13, and of Land Management (BLM) that South Vinnell Way, Boise, Idaho 83709– 24, and the survey of a portion of the proposes to extend the duration of 1657. 1998 and 2007–2009 right bank Public Land Order (PLO) No. 6886 for SUPPLEMENTARY INFORMATION: These meanders of the North Fork of the an additional 20-year term. PLO No. surveys were executed at the request of Payette River, the survey of certain 6886 withdrew approximately 21,636.29 the Bureau of Land Management to meet islands in the North Fork of the Payette acres of National Forest System land their administrative needs. The lands River in sections 12 and 13, the survey from location and entry under the surveyed are: of the 2007–2009 informative traverse of United States mining laws to protect The plat constituting the dependent portions of the right bank of the North unique topographic characteristics and resurvey of a portion of the Fork of the Payette River in sections 12 recreation values of the Snowy Range subdivisional lines and a portion of and 13, and the survey of a 1998 and Area. The withdrawal created by PLO Mineral Survey No. 3412, and the 2007–2009 partition line in section 13, No. 6886 will expire on October 7, 2011, metes-and-bounds survey of lots 2, 7, 9, T. 17 N., R. 2 E., Boise Meridian, Idaho, unless extended. This notice also gives 13 and 20, in section 9, T. 24 N., R. 5 Group Number 1252, was accepted an opportunity for the public to E. of the Boise Meridian, Idaho, Group February 24, 2011. comment on the proposed action and Number 1293, was accepted January 6, SUMMARY: For Group Number 1252: The announces the date, time, and location 2011. Bureau of Land Management (BLM) will of a public meeting. The plat constituting the entire survey file the plat of survey of the lands DATES: Comments must be received by record of the dependent resurvey of described above in the BLM Idaho State July 25, 2011. portions of the Third Standard Parallel Office, Boise, Idaho 30 days from the ADDRESSES: Comments should be sent to North (north boundary) and date of publication in the Federal subdivisional lines, and the subdivision the Forest Supervisor, U.S. Forest Register. Service, Region 2, 2468 Jackson Street, of section 2, T. 12 N., R. 38 E., Boise These surveys were executed at the Meridian, Idaho, Group Number 1303, Laramie, Wyoming 82070 or the request of the Bureau of Indian Affairs Wyoming State Director, Bureau of Land was accepted January 20, 2011. to meet their administrative needs. The The plat constituting the dependent Management, 5353 Yellowstone Road, lands surveyed are: Cheyenne, Wyoming 82009. resurvey of a portion of the west The plat representing the dependent boundary and subdivisional lines, and resurvey of portions of the 7th Standard FOR FURTHER INFORMATION CONTACT: the dependent resurvey of the Gem Mill Parallel North (north boundary), the Mary Sanderson, U.S. Forest Service, Site, Mineral Survey No. 1949 B, located Boise Meridian (west boundary), and Region 2, Supervisors Office, 2468 1 1 Jackson Street, Laramie, Wyoming in the NE ⁄4 NW ⁄4 of section 30, T. 22 subdivisional lines, and the subdivision N., R. 24 E., of the Boise Meridian, of sections 5, 6, 7, 8, 17, 18, 20, 21, 29, 82070, 307–745–2363, or e-mail Idaho, Group Number 1306, was and 32, T. 35 N., R. 1 E., Boise Meridian, [email protected], or Janelle accepted January 27, 2011. Idaho, Group Number 1233, was Wrigley, Bureau Land Management, The plat constituting the dependent accepted February 24, 2011. Wyoming State Office, 5353 resurvey of portions of the south The plat constituting the dependent Yellowstone Road, Cheyenne, Wyoming boundary and subdivisional lines, and resurvey of a portion of the subdivision 82009, 307–775–6257, or e-mail _ the subdivision of sections 32, 33, and in section 27, in T. 35 N., R. 4 W., of Janelle [email protected]. 34, T. 15 S., R. 35 E., of the Boise the Boise Meridian, Idaho, Group SUPPLEMENTARY INFORMATION: The USDA Meridian, Idaho, Group Number 1298, Number 1302, was accepted February Forest Service filed an application was accepted February 3, 2011. 25, 2011. requesting that the Department of the

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Interior’s Assistant Secretary for Land request confidentiality. If you wish to boundary of the withdrawal created by and Minerals Management extend PLO withhold your name or address from Public Land Order No. 3708 is excess to No. 6886 (56 FR 50661 (1991)), which public review or from disclosure under its needs and requested a partial withdrew approximately 21,636.29 the Freedom of Information Act, you revocation of the withdrawal. Upon acres of National Forest System lands must state this prominently at the revocation, the State of Alaska selection located in Albany and Caribou Counties, beginning of your comments. Such applications made under the Alaska Wyoming, from location and entry requests will be honored to the extent Statehood Act and the Alaska National under the United States mining laws (30 allowed by law. All submissions from Interest Lands Conservation Act become U.S.C. ch. 2) for an additional 20-year organizations or businesses, and from effective without further action by the term. PLO No. 6886 is incorporated individuals identifying themselves as State, if such land is otherwise herein by reference. representatives or officials of available. Lands selected by, but not The purpose of the proposed organizations or businesses, will be conveyed to, the State are subject to the withdrawal extension is to continue to made available for public inspection in terms and conditions of Public Land protect the unique topographic their entirety. Order No. 5186 (37 FR 5589 (1972)), as characteristics of the Snowy Range Area Notice is hereby given that a public amended, and any other withdrawal, for recreation purposes. meeting will be held in connection with application, or segregation of record. As extended, the withdrawal would the proposed withdrawal extension. The Any significant restriction on not alter the applicability of those meeting will be held on May 26, 2011, subsistence uses is unavoidable because public land laws governing the use of at the U.S. Forest Service, Supervisors the land is required to be conveyed to the National Forest System land under Office, 2468 Jackson Street, Laramie, the State of Alaska under Section 810(c) lease, license, or permit, or governing Wyoming 82070 from 6 p.m. until of the Alaska National Interest Lands the disposal of their mineral or 9 p.m. Conservation Act. vegetative resources other than under This withdrawal extension the mining laws. application will be processed in Order The use of a right-of-way, interagency, accordance with the applicable By virtue of the authority vested in or cooperative agreement would not regulations set forth in 43 CFR 2310.4. the Secretary of the Interior by Section adequately constrain nondiscretionary Authority: 43 CFR 2310.3–1. 204 of the Federal Land Policy and uses which could result in permanent Management Act of 1976, 43 U.S.C. loss of these recreational values. Donald A. Simpson, 1714, it is ordered as follows: There are no suitable alternative sites Wyoming State Director. 1. Public Land Order No. 3708 (30 FR available. There are no other Federal [FR Doc. 2011–10016 Filed 4–25–11; 8:45 am] 8753 (1965)), as modified by Public lands in the area containing these BILLING CODE 3410–11–P Land Order No. 6709 (54 FR 6919 recreational values. (1989)), partially revoked by Public No water rights would be needed to Land Order No. 7682 (72 FR 71940 fulfill the purpose of the requested DEPARTMENT OF THE INTERIOR (2007)), and extended by Public Land withdrawal extension. Order No. 7710 (73 FR 35708 (2008)), Records relating to the application Bureau of Land Management which withdrew public land from all may be examined by contacting Janelle [LLAK–963000–L1410000–FQ0000; forms of appropriation under the public Wrigley at the above address, by calling F–025943] land laws, including the mining laws, 307–775–6257, or e-mail but not from leasing under the mineral [email protected]. Public Land Order No. 7763; Partial On or before July 25, 2011, all persons leasing laws, is hereby revoked insofar Revocation of Public Land Order No. as it affects the following described who wish to submit comments, 3708; Alaska suggestions, or objections in connection land: with the proposed withdrawal extension AGENCY: Bureau of Land Management, Fairbanks Meridian, Alaska may present their views in writing to Interior. T. 2 N., R. 2 E., the Wyoming State Director, Bureau of ACTION: Public Land Order. Sec. 17, commencing at the Northeast Land Management, at the address noted corner of said NW1⁄4 of sec. 17 marked SUMMARY: above. This order revokes a Public by a Bureau of Land Management brass- Comments, including names and Land Order, as modified and extended, capped monument and being the True street addresses of respondents, will be insofar as it affects approximately 32 Point of Beginning; Thence South 00° 10′ ″ available for public review at the acres of public land withdrawn from all 51 East, along the East line of said 1 Wyoming State Office, Bureau of Land forms of appropriation under the public NW ⁄4 a distance of 1,765.00 feet to a point; Thence North 42° 42′ 29″ West, a Management, 5353 Yellowstone Road, land laws, including the mining laws, for the protection of the Gilmore distance of 1,952.25 feet to a point; Cheyenne, Wyoming 82009, during Thence North 00° 11′ 42″ West, 330.00 regular business hours 8 a.m. to 4:30 Satellite Tracking Station at Gilmore Creek northeast of Fairbanks, Alaska. feet more or less to a point on the north p.m., Monday through Friday, except boundary of said NW1⁄4, sec. 17 to a holidays. Before including your address, The land is no longer needed for the point marked by a Bureau of Land phone number, e-mail address, or other purpose for which it was withdrawn. Management brass capped monument; personal identifying information in your DATES: Effective Date: April 26, 2011. Thence North 89° 58′ 51″ East, along said comment, you should be aware that FOR FURTHER INFORMATION CONTACT: north boundary a distance of 1,319.69 your entire comment—including your Robert L. Lloyd, Bureau of Land feet to the point of beginning. personal identifying information—may Management, Alaska State Office, 222 The area described contains 31.73 acres, be made publicly available at any time. West Seventh Avenue, #13, Anchorage, more or less, near Fairbanks. While you can ask us in your comment Alaska 99513; 907–271–4682. 2. The State of Alaska selection to withhold your personal identifying SUPPLEMENTARY INFORMATION: The applications made under Section 6(a) of information from public review, we National Oceanic and Atmospheric the Alaska Statehood Act of July 7, cannot guarantee that we will be able to Administration has determined that an 1958, 48 U.S.C. note prec. 21, and under do so. Individual respondents may approximately 32-acre parcel on the east Section 906(e) of the Alaska National

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Interest Lands Conservation Act, 43 Order DATES: The effective date of this U.S.C. 1635(e), become effective without By virtue of the authority vested in boundary revision is the date of further action by the State upon the Secretary of the Interior by Section publication in the Federal Register. publication of this Public Land Order in 204 of the Federal Land Policy and SUPPLEMENTARY INFORMATION: Public the Federal Register, if such land is Management Act of 1976, 43 U.S.C. Law 91–664, enacted January 8, 1971, otherwise available. Lands selected by, 1714, it is ordered as follows: authorizes the acquisition of certain but not conveyed to the State will be Public Land Order No. 6849 (56 FR lands for the Chesapeake and Ohio subject to Public Land Order No. 5186 16278 (1991)), as corrected by Public Canal National Historical Park. Section (37 FR 5589), as amended, and any Land Order No. 6907 (56 FR 57806 7(c) of the Land and Water Conservation other withdrawal, application, or (1991)), 56 FR 24119 (1991), Public Fund Act, as amended by Public Law segregation of record. Land Order No. 6862 (56 FR 27692 104–333, authorizes minor boundary Dated: April 15, 2011. (1991)), and 75 FR 74743 (2010), that revisions to areas within the National Wilma A. Lewis, withdrew 457,800 acres of the Sheldon Park System. Such boundary revisions Assistant Secretary—Land and Minerals National Wildlife Refuge from location may be made, when necessary, after Management. under the United States mining laws (30 advising the appropriate congressional [FR Doc. 2011–10014 Filed 4–25–11; 8:45 am] U.S.C. Ch. 2), but not from leasing under committees, and following publication BILLING CODE 4310–JA–P the mineral leasing laws, to protect the of a revised boundary map, drawing or wildlife habitat and unique resource other boundary description in the values, is hereby extended for an Federal Register. In order to properly DEPARTMENT OF THE INTERIOR additional 20-year period until April 21, interpret and preserve the historic 2031. character of the Park, it is necessary to Bureau of Land Management revise the existing boundary to include Authority: 43 CFR 2310.4. one (1) additional tract of land Dated: April 1, 2011. [LLNVW00000.L14300000.ET0000 241A; comprising 3.75 acres of unimproved NEV–051742; 11–08807; MO#4500012855; Wilma A. Lewis, land. TAS: 14X1109] Assistant Secretary—Land and Minerals Notice is hereby given that the Management. exterior boundary of the Park is hereby Public Land Order No. 7761; Extension [FR Doc. 2011–10012 Filed 4–25–11; 8:45 am] revised to include one (1) additional of Public Land Order No. 6849; Nevada BILLING CODE 4310–HC–P tract of land identified as Tract 43–124. The parcel is a portion of the same land AGENCY: Bureau of Land Management, acquired by American Legion Post 202 Interior. DEPARTMENT OF THE INTERIOR by deed dated June 5, 1989, and ACTION: Public Land Order. recorded in Deed Book 01012, Page National Park Service 00216, in the Land Records of SUMMARY: This order extends the Washington County, Maryland, subject duration of the withdrawal created by [NPS–NCR–CHOH–0910–5821; 3101–241A– to existing easements for public roads 726] Public Land Order No. 6849, as and highways, public utilities, railroads corrected, for an additional 20-year Notification of Boundary Revision and pipelines. period. The extension is necessary for This tract of land is depicted on continued protection of the Sheldon AGENCY: National Park Service, Interior. Segment Map 43, identified as Tract 43– National Wildlife Refuge in Washoe and ACTION: Notification of boundary 124, dated June 1971. The map is on file Humboldt Counties, Nevada. revision. and available for inspection in the Land DATES: Effective Date: April 22, 2011. Resources Program Center, National SUMMARY: Notice is hereby given that Capital Region, 1100 Ohio Drive, SW., FOR FURTHER INFORMATION CONTACT: the boundary of the Chesapeake and Washington, DC 20242. Pamela C. Ridley, Bureau of Land Ohio Canal National Historical Park Dated: July 29, 2010. Management, Nevada State Office, P.O. (Park) in Washington County, Maryland, Box 12000, 1340 Financial Blvd., Reno, is modified to include one (1) tract of Peggy O’Dell, Nevada 89502, or 775–861–6530. land adjacent to the park. This revision Regional Director, National Capital Region. SUPPLEMENTARY INFORMATION: To is made to include privately-owned Editorial Note: This document was maintain the purpose for which the property that the National Park Service received at the Office of the Federal Register withdrawal was first made, an extension (NPS) wishes to acquire. The NPS has April 21, 2011. is required for the U.S. Fish and determined that the inclusion of this [FR Doc. 2011–10039 Filed 4–25–11; 8:45 am] Wildlife Service to continue to conserve tract within the Park’s boundary will BILLING CODE 4310–6V–P and protect the sagebrush-steppe make significant contributions to the landscape for optimum populations of purposes for which the Park was native plants and wildlife including established. After the United States’ DEPARTMENT OF THE INTERIOR pronghorn antelope, bighorn sheep, acquisition of the tract, the NPS will pygmy rabbits, and greater sage-grouse. manage the property in accordance with National Park Service The withdrawal extended by this order applicable law. will expire on April 21, 2031, unless, as FOR FURTHER INFORMATION CONTACT: [NPS–PWR–PWRO–01–20–6605; 2310– a result of a review conducted prior to Superintendent, Chesapeake and Ohio 0087–422] the expiration date pursuant to Section Canal National Historical Park, 1850 Wilderness Stewardship Plan/ 204(f) of the Federal Land Policy and Dual Highway, Suite 100, Hagerstown, Environmental Impact Statement, Management Act of 1976, 43 U.S.C. Maryland 21740 or Chief, Land Sequoia and Kings Canyon National 1714(f), the Secretary determines that Resources Program Center, National Parks, Tulare and Fresno Counties, CA the withdrawal shall be further Capital Region, 1100 Ohio Drive, SW., extended. Washington, DC 20242. AGENCY: National Park Service, Interior.

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ACTION: Notice of Intent to Prepare plan would be an implementation level please note in your request whether you Environmental Impact Statement for plan focused on both SEKI wilderness will prefer to receive a printed or Wilderness Stewardship Plan, Sequoia stewardship overall, as well as stock use compact disk copy of the DEIS/WSP and Kings Canyon National Parks. within wilderness. when it is released, or just wish to As an implementation level plan, the receive a notice that the document is SUMMARY: In accordance with WSP will provide detailed guidance on available for review on the Web site (to § 102(2)(C) of the National a variety of issues including, but not assist in reducing costs, the public is Environmental Policy Act of 1969 limited to: Day and overnight use; strongly encouraged to accept compact (PL91–190) Sequoia and Kings Canyon wilderness permitting; use of campfires; disks versus printed copies). National Parks (SEKI) are initiating the wildlife and proper food storage; party In order to ensure that information conservation planning and size; camping and campsites; human you may provide or any concerns environmental impact analysis process waste management; stock use; meadow expressed are fully considered, you may required to inform consideration of management; research activities; use either of two methods to respond alternative strategies for the future wildlife management in wilderness; during this scoping period. To respond management of SEKI wilderness. The cultural resources in wilderness; electronically, you may submit your Sequoia-Kings Canyon and John Krebs maintenance of trails, bridges, or other comments online to the NPS Planning, Wildernesses (an 808,000-acre expanse necessary infrastructure; and the Environment and Public Comment of wild High Sierra lands that were ‘‘minimum requirement’’ for (PEPC) Web site (http:// designated by the California Wilderness administration of the areas as parkplanning.nps.gov/sekiwild). To Act of 1984 and the Omnibus Public Wilderness. Also to be analyzed and submit written comments (e.g., in a Land Management Act of 2009) are determined is the extent to which contained wholly within these two letter), you may send them by U.S. commercial services are necessary to Postal Service or other mail delivery national parks. Through this process, fulfill the recreational and other SEKI will identify and analyze a range service, or hand deliver your comments purposes of SEKI’s Congressionally to the address provided above. Written of alternatives for achieving wilderness designated wilderness areas. This stewardship objectives, which include comments will also be accepted during ‘‘extent necessary’’ determination for public scoping meetings. Comments in providing appropriate types and levels commercial services will be performed of access for visitors and authorized any format (written or electronic) to ensure compliance with § 4(d)(5) of submitted by an individual or users, preserving wilderness character, the Wilderness Act. protecting cultural and natural organization on behalf of another The WSP will reevaluate existing individual or organization will not be resources, and adhering to legally- wilderness-related plans and guidance, mandated management and preservation accepted. It is the practice of the NPS to such as the 1986 Backcountry make all comments available for public requirements. Management Plan and the 1986 Stock review, after the close of the EIS This planning process represents a Use and Meadow Management Plan. process. significant commitment by SEKI to The WSP will also provide for more Before including your address, phone complete a Wilderness Stewardship detailed management direction on number, e-mail address, or other Plan (WSP) for these two national parks. provisions of the California Wilderness personal identifying information in your On April 30, 1997, SEKI published a Act of 1984, the Omnibus Public Land comment, you should be aware that Notice of Intent to prepare an Management Act of 2009, the NPS your entire comment—including your Environmental Impact Statement (EIS) Management Policies (2006), and personal identifying information—may in the Federal Register to notify the current interagency policies regarding be made publicly available at any time. public of the intent to prepare a WSP, the preservation of wilderness character and had previously held seven public as they relate to wilderness within SEKI. While you can ask us in your comment scoping sessions in communities How to Comment: In consideration for to withhold your personal identifying throughout California between May 28 the complexity and scope of wilderness information from public review, we and October 5, 1996. Based on an stewardship issues in SEKI, the period cannot guarantee that we will be able to analysis of the numerous scoping during which comments will be do so. comments received, and with accepted will extend for 90 days. SEKI SUPPLEMENTARY INFORMATION: At this consideration of a variety of other encourages comments regarding the time SEKI anticipates hosting five factors, SEKI determined that the WSP/ range of issues which should be public scoping meetings in the San EIS process should be suspended and addressed, alternative approaches to Francisco Bay Area and Los Angeles that SEKI should instead first prepare a managing SEKI wilderness areas, and Area, and in Fresno, Visalia, and new General Management Plan for the other concerns regarding SEKI Bishop—these are expected to occur parks. wilderness areas or the wilderness during April 25 through April 29, 2011. The General Management Plan (GMP) planning process. All written comments Confirmed details will be posted on the process was initiated in October 1997 must be transmitted, postmarked, or project Web sites. In addition, a scoping and culminated with a Record of hand-delivered no later than July 25, newsletter will be distributed to Decision in September 2007 (the Final 2011. publicize the meeting details, and to EIS/General Management Plan/ The status of the Draft EIS (DEIS) will provide a summary of issues and Comprehensive River Management Plan updated periodically at http:// concerns developed through the and associated Record of Decision are parkplanning.nps.gov/sekiwild. You previous scoping efforts, as well as available at http://www.nps.gov/seki/ may request to be added to the project present additional information about parkmgmt/gmp.htm). The GMP mailing list by mailing or faxing your SEKI wilderness areas and the provides broad, programmatic direction request to: Superintendent Karen F. wilderness planning process. This for wilderness management. Taylor-Goodrich, Sequoia and Kings newsletter will be posted on the park Importantly, however, the GMP Canyon National Parks, Attn: planning Web site (http://www.nps.gov/ commits SEKI to preparing a tiered plan Wilderness Stewardship Plan, 47050 seki/parkmgmt/planning.htm) and the for the management of wilderness Generals Highway, Three Rivers, CA PEPC Web site (noted above), and sent resources, and explains that this tiered 93271. So that we may plan accordingly, to the SEKI mailing list.

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Following due consideration for all SUMMARY: Pursuant to § 102(2)(C) of the DEPARTMENT OF THE INTERIOR comments obtained through this National Environmental Policy Act of scoping effort, SEKI will prepare the 1969 (Pub. L. 91–190, as amended) and National Park Service DEIS/WSP. This document will state the the regulations promulgated by the [5284–TT02–371] purpose and need for Federal action, Council on Environmental Quality (40 describe and analyze a range of ‘‘action’’ CFR 1505.2), the Department of the Record of Decision alternatives (and a ‘‘no action’’ baseline Interior, National Park Service (NPS) AGENCY: alternative), assess potential has prepared and approved a Record of National Park Service, Interior. environmental consequences of each Decision for the Final Environmental ACTION: Notice of Availability of the alternative and provide appropriate Impact Statement for the Warner Valley Record of Decision on the Final impact mitigation strategies, identify the Comprehensive Site Plan (CSP) in Environmental Impact Statement for the ‘‘environmentally preferred’’ course of Lassen Volcanic National Park. The Tamiami Trail Modifications: Next action, and explain the process and Steps Project. rationale for determining the ‘‘agency- requisite no-action ‘‘wait period’’ was preferred’’ alternative. The DEIS/WSP initiated September 24, 2010, with the SUMMARY: Pursuant to 42 U.S.C. will also include an analysis of the Environmental Protection Agency’s 4332(2)(C) of the National extent to which commercial services in Federal Register notification of the Environmental Policy Act of 1969 and wilderness are necessary to realize filing of the Final EIS. National Park Service (NPS) policy in Wilderness Act purposes. The release of Decision: As soon as practical the NPS Director’s Order Number 2 (Park the DEIS/WSP will be formally will begin to implement the first phase Planning) and Director’s Order Number announced by publication of a Notice of of restoration work identified in the 12 (Conservation Planning, Availability in the Federal Register, and CSP, including incrementional lowering Environmental Impact Analysis, and via Web site postings and and removal of Dream Lake Dam, Decision-making), the NPS announces announcements in local and regional rehabilitation of drainage ditches in the availability of the Record of news media. Notifications will also be Drakesbad Meadow, and propagation of Decision (ROD) for the Final Environmental Impact Statement (FEIS) sent to the project mailing list, as well plant materials derived from local as to local, State, Federal, and Tribal for the Tamiami Trail (U.S. Highway 41) native species for use in revegetation. governments. Modifications: Next Steps Project for Other key project elements include Decision Process: Following careful Everglades National Park (ENP), Florida. rehabilitation or repair of compatible analysis of all responses received DATES: facilities in Drakesbad Guest Ranch The 2009 Omnibus concerning the DEIS/WSP, a Final EIS/ Appropriations Act, Public Law 111– historic district, and removal of non- WSP will be prepared and its 008, dated March 11, 2009, directed the conforming structures. Consolidation of availability similarly announced in the U.S. Army Corps of Engineers (USACE) concession housing (tent cabins) and Federal Register. Thereafter, but not to construct modifications to U.S. sooner than 30 days after release of the services outside the core of the historic Highway 41 (Tamiami Trail) that were Final EIS/WSP, a Record of Decision district will occur. approved in the 2008 Limited would be prepared. As a delegated EIS, This approved CSP was identified and Reevaluation Report and Environmental the official responsible for final analyzed as the agency-preferred Assessment. The 2009 Omnibus approval of the SEKI Wilderness Alternative 2 in the Final EIS (and Appropriations Act also directed the Stewardship Plan is the Regional includes no substantive modifications NPS to ‘‘immediately evaluate the Director, Pacific West Region. from the course of action that was feasibility of additional bridge length, Subsequently the official responsible for described in the Draft EIS). The full beyond that to be constructed pursuant implementation of the approved plan ranges of foreseeable environmental to the Modified Water Deliveries to ENP would be the Superintendent, Sequoia consequences were assessed, and Project (16 U.S.C. 410r–8), including a and Kings Canyon National Parks. appropriate mitigation measures are continuous bridge, or additional bridges Dated: January 5, 2011. incorporated in the approved plan. Both or some combination thereof, for the Christine S. Lehnertz, a No Action alternative and an Tamiami Trail to restore more natural Regional Director, Pacific West Region. additional ‘‘action’’ alternative were also water flow to ENP and Florida Bay and [FR Doc. 2011–10042 Filed 4–25–11; 8:45 am] identified and analyzed. As documented for the purpose of restoring habitat within the ENP and the ecological BILLING CODE 4310–X2–P in the Draft and Final EIS, the selected connectivity between the ENP and the alternative was deemed to be the Water Conservation Areas.’’ The FEIS for ‘‘environmentally preferred’’ course of DEPARTMENT OF THE INTERIOR the Tamiami Trail Modifications: Next action. Steps Project provides historical National Park Service Copies: Interested parties desiring to information, existing conditions, [NPS–PWR–PWRO–03–15–6965; 8400– review the Record of Decision may alternatives for infrastructure 0001–M7G] obtain a copy by contacting the modifications, including the preferred Superintendent, Lassen Volcanic alternative, related impacts of the Warner Valley Comprehensive Site National Park, P.O. Box 100, Mineral, alternatives, and public involvement Plan/Environmental Impact Statement, CA 96063–0100 or via telephone request and consultation. The Tamiami Trail Lassen Volcanic National Park, Plumas at (530) 595–4444. Modifications: Next Steps Project would County, CA be implemented in accordance with the Dated: March 11, 2011. preferred alternative should it be AGENCY: National Park Service, Interior. Christine S. Lehnertz, authorized and funded by the Congress. ACTION: Notice of Approval of Record of Regional Director, Pacific West Region. ADDRESSES: The Record of Decision Decision for the Warner Valley [FR Doc. 2011–10041 Filed 4–25–11; 8:45 am] document will be available for public Comprehensive Site Plan, Lassen BILLING CODE 4312–GD–P review online at http:// Volcanic National Park. parkplanning.nps.gov/ever. You may

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request a hard copy by contacting Dated: April 18, 2011. —Minimize the burden of the Everglades National Park, Attn: Bruce Gordon Wissinger, collection of information on those who Boler, 950 N. Krome Avenue, Acting Regional Director, Southeast Region. are to respond, including through the Homestead, FL 33030–6733; telephone [FR Doc. 2011–10040 Filed 4–25–11; 8:45 am] use of appropriate automated, 305–224–4234. BILLING CODE 4310–XH–P electronic, mechanical, or other technological collection techniques or SUPPLEMENTARY INFORMATION: Public other forms of information technology, scoping was initiated in the summer of DEPARTMENT OF JUSTICE e.g., permitting electronic submission of 2009. A newsletter was distributed on responses. May 31, 2009, and a public meeting was [OMB Number 1123–0011] held on June 2, 2009, to keep the public Overview of This Information informed and involved throughout the Agency Information Collection Collection planning process. As the lead agency, Activities: Proposed Collection; Comments Requested (1) Type of Information Collection: the NPS conducted several inter-agency/ Reauthorization of a currently approved Tribal meetings and one workshop to ACTION: 60-Day Notice of Information collection. develop project objectives, identify Collection Under Review: Annual (2) Title of the Form/Collection: alternatives, evaluate the benefits of Certification Report and Equitable Annual Certification Report and alternatives, and identify a preferred Sharing Agreement. Equitable Sharing Agreement. alternative. The selected alternative maximizes bridging by creating The Department of Justice (DOJ), (3) Agency form number, if any, and conveyance openings through Tamiami Criminal Division, Asset Forfeiture and the applicable component of the Money Laundering Section, will be Trail by removing 5.5 miles of the Department of Justice sponsoring the submitting the following information existing highway and embankment. collection: Form Number: N/A. Criminal collection request to the Office of Four bridges will be constructed in the Division, Asset Forfeiture and Money Management and Budget (OMB) for Laundering Section. opening to replace the removed section review and approval in accordance with of road and maintain vehicle traffic. the Paperwork Reduction Act of 1995. (4) Affected public who will be asked Bridge down-ramp (access ramps) The proposed information collection is or required to respond, as well as a brief options were also developed to maintain published to obtain comments from the abstract: Primary: Law Enforcement access to two commercial airboat public and affected agencies. Comments Agencies that participate in the Federal facilities: Everglades Safari Park and are encouraged and will be accepted for Equitable Sharing Program. Other: Coopertown. A ‘‘Modified Parallel Down ‘‘sixty days’’ until June 27, 2011. This None. The form is part of a voluntary Ramp’’ was selected as the preferred process is conducted in accordance with program in which law enforcement option for Everglades Safari and a 5 CFR § 1320.10. agencies receive forfeited assets and proceeds to further law enforcement ‘‘Parallel Down Ramp with Existing Written comments concerning this operations. The participating law Frontage Road’’ was selected as the information collection should be sent to enforcement agencies must account for preferred option for Coopertown. The the Office of Information and Regulatory their use of program funds on an annual selected alternative will increase Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best basis and renew their contract of ecological connectivity by 5.5 miles, participation. DOJ uses this information reduce flow velocities below the 0.10 way to ensure your comments are received is to e-mail them to to ensure that the funds are spent in feet per second (fps) threshold that [email protected] or fax accordance with the requirements of the causes harm to marshes, and them to 202–395–7285. All comments program. substantially restore the flow patterns should reference the 8 digit OMB (5) An estimate of the total number of associated with a healthy ridge and number for the collection or the title of respondents and the amount of time slough landscape in Northeast Shark the collection. If you have questions estimated for an average respondent to River Slough. In addition, the remaining concerning the collection, please call respond: It is estimated that 9,736 highway embankments along stretches Clifford Krieger at 514–0013 or the DOJ respondents will complete a 30 minute of the road that are not bridged will be Desk Officer at 202–395–3176. form. reconstructed to raise the crown Written comments and suggestions (6) An estimate of the total public elevation to 12.3 feet, the minimum from the public and affected agencies burden (in hours) associated with the required based on the design high water concerning the proposed collection of collection: There are an estimated 4,868 of 9.7 feet and the roadway cross section information are encouraged. Your annual total burden hours associated geometry. comments should address one or more with this collection. of the following four points: FOR FURTHER INFORMATION CONTACT: —Evaluate whether the proposed If additional information is required Everglades National Park, Attn: Bruce collection of information is necessary contact: Lynn Murray, Department Boler, 950 N. Krome Avenue, for the proper performance of the Clearance Officer, Policy and Planning Homestead, FL 33030–6733; telephone functions of the agency, including Staff, Justice Management Division, 305–224–4234. whether the information will have Department of Justice, Two Constitution Authority: The authority for publishing practical utility; Square, 145 N Street, NE., Room 2E– this notice is contained in 40 CFR 1506.6. —Evaluate the accuracy of the 808, Washington, DC 20530. agencies estimate of the burden of the Dated: April 20, 2011. The responsible official for this ROD proposed collection of information, is the Regional Director, Southeast including the validity of the Lynn Murray, Region, National Park Service, 100 methodology and assumptions used; Department Clearance Officer, PRA, U.S. Alabama Street, SW., 1924 Building, —Enhance the quality, utility, and Department of Justice. Atlanta, Georgia 30303. clarity of the information to be [FR Doc. 2011–9979 Filed 4–25–11; 8:45 am] collected; and BILLING CODE 4410–14–P

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MARINE MAMMAL COMMISSION recommendations that it may propose to Correction: Date and time of ASAP make or has made, on research programs public meeting is now Tuesday, May 24, Notice of Solicitation conducted or proposed to be conducted 2011, 11 a.m. to 1 p.m. at the Cape under the authority of the Act, and on Canaveral Public Library, Public AGENCY: Marine Mammal Commission. all applications for permits for scientific Meeting Room, 201 Polk Avenue, Cape ACTION: Notice of solicitation for research. Canaveral, FL 32920. nominations for potential members of In selecting individuals to serve on FOR FURTHER INFORMATION CONTACT: Ms. the Committee of Scientific Advisors on the Committee, the Commission seeks to Marine Mammals. Kathy Dakon, ASAP Executive Director, ensure that the Committee membership National Aeronautics and Space SUMMARY: The Marine Mammal as a whole possesses a high level of Administration, Washington, DC 20546, Commission was created under Title II expertise with respect to scientific (202) 358–0732. of the Marine Mammal Protection Act of disciplines, marine mammal species, and geographic areas of importance to Dated: April 21, 2011. 1972, as amended. The Commission is P. Diane Rausch, assisted in its duties by the Committee the Commission’s responsibilities. In particular, the Commission requires a Advisory Committee Management Officer, of Scientific Advisors on Marine National Aeronautics and Space Mammals. The Committee consists of high level of knowledge with respect to the biology and ecology of certain Administration. nine members, appointed by the [FR Doc. 2011–10114 Filed 4–25–11; 8:45 am] Chairman of the Commission. As a marine mammal species that, due to BILLING CODE 7510–13–P general rule, Committee members are their small population levels and/or appointed for three-year terms, which threats they face, require special may be extended as necessary, but attention. These include, but are not vacancies do not occur on a regularly limited to, the West Indian manatee, the NUCLEAR REGULATORY scheduled basis. To assist the right whale and other species of large COMMISSION Commission in identifying qualified whales, the vaquita, sea otters, the Cook candidates for appointment to the Inlet stock of beluga whales, the polar [Docket No. 50–113; NRC–2009–0549] Committee if and when vacancies occur, bear, and the Hawaiian monk seal. In addition, Committee members are Notice of Issuance of License the Commission is soliciting Amendment Regarding Decommission nominations from the public. selected to provide broad familiarity with marine mammal species and issues Plan Approval; University of Arizona DATES: Nominations for this solicitation Research Reactor should be received by May 23, 2011. from a range of geographic regions Nominations also will be accepted at where Commission responsibilities are The U.S. Nuclear Regulatory other times on an on-going basis. especially great. Commission (NRC) has issued the A listing of the current members of approval of the University of Arizona ADDRESSES: Catherine M. Jones, the Committee is available on the Administrative Officer, Marine Mammal decommissioning plan (DP) by Commission’s Web site at http:// amendment to the Facility License R–52 Commission, 4340 East-West Highway, www.mmc.gov. Room 700, Bethesda, Maryland 20814. for the University of Arizona Research Nominations (Word, PDF, in text of e- Dated: April 18, 2011. Reactor (UARR). The UARR is located mail) may be sent via e-mail to Timothy J. Ragen, within the University of Arizona [email protected]. Nominations should Executive Director. Nuclear Reactor Laboratory (NRL) on include a brief statement of the [FR Doc. 2011–9981 Filed 4–25–11; 8:45 am] the 325-acre campus of the University of nominee’s qualifications and should BILLING CODE 6820–31–M Arizona in Pima County, Arizona in the include a copy of the nominee’s city of Tucson. The reactor was licensed curriculum vitae. Self-nominations are for a steady state power of 110 kW acceptable. NATIONAL AERONAUTICS AND (thermal), with a pulsing capability up SPACE ADMINISTRATION to peak powers of approximately 650 FOR FURTHER INFORMATION CONTACT: MW. The reactor ceased operations on Timothy J. Ragen, Ph.D., Executive [Notice (11–043)] May 18, 2010. The UARR is a TRIGA Director, Marine Mammal Commission, pool-type reactor designed and 4340 East-West Highway, Room 700, Aerospace Safety Advisory Panel; constructed by General Atomic Division Bethesda, Maryland 20814; (301) 504– Meeting of General Dynamics Corporation (now 0087. AGENCY: National Aeronautics and GA Technologies of San Diego, SUPPLEMENTARY INFORMATION: Section Space Administration (NASA). California). TRIGA stands for Test, 203 of the Marine Mammal Protection ACTION: Notice of meeting; correction. Research, Isotope production, General Act directs the Commission to establish Atomics. The licensee submitted the a nine-member Committee of Scientific Federal Register Citation of Previous UARR DP to the NRC in a letter dated Advisors on Marine Mammals. The Announcement: 76 FR 19147, Notice May 21, 2009, as supplemented on Committee is to consist of scientists Number 11–030, April 6, 2011. March 26, 2010. knowledgeable in marine ecology and SUMMARY: The National Aeronautics and A document titled, ‘‘Notice and marine mammal affairs. Members are Space Administration published a Solicitation of Comments Pursuant to appointed by the Chairman after document in the Federal Register of Title 10 of the Code of Federal consultation with the Chairman of the April 6, 2011, announcing a meeting of Regulations (10 CFR) Section 20.1405 Council on Environmental Quality, the the Aerospace Safety Advisory Panel and 10 CFR 50.82(b)(5) Concerning Secretary of the Smithsonian Institution, (ASAP) to take place on April 29, 2011, Proposed Action to Decommission the the Director of the National Science at the Kennedy Space Center, FL. Due University of Arizona Research Foundation, and the Chairman of the to the STS–134 Space Shuttle launch Reactor,’’ was published in the Federal National Academy of Sciences. The now set for April 29, 2011 at the Register on December 14, 2009 (74 FR Commission is required to consult with Kennedy Space Center, the ASAP public 66173–66174). No comments were the Committee on all studies and meeting has a new date and location. received following the notice.

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The NRC staff prepared a safety 1:35 p.m.–3 p.m.: Final Safety of the Planning and Procedures evaluation report approving the Evaluation Report Associated with Subcommittee regarding items University of Arizona’s proposed the License Renewal Application for proposed for consideration by the decommissioning plan. Based on the the Hope Creek Generating Station Full Committee during future ACRS NRC staff’s review of the licensee’s (Open)—The Committee will hear Meetings, and matters related to the application for approval of presentations by and hold conduct of ACRS business, decommissioning, the NRC staff finds discussions with representatives of including anticipated workload and that the proposed DP meets the the NRC staff and PSEG Nuclear, member assignments. [Note: A requirements of 10 CFR 50.82(b)(4). LLC regarding the final safety portion of this meeting may be For details with respect to the evaluation report (SER) associated closed pursuant to 5 U.S.C. licensee’s application, see the licensee’s with the license renewal 552b(c)(2) and (6) to discuss letter dated May 21, 2009 application for the Hope Creek organizational and personnel (ML100620926, ML091490076), as Generating Station. matters that relate solely to internal supplemented by letter dated March 26, 3:15 p.m.–5:15 p.m.: Final Safety personnel rules and practices of 2010 (ML100920089). Documents may Evaluation Report Associated with ACRS, and information the release be examined, and/or copied for a fee, at the License Renewal Application for of which would constitute a clearly the NRC’s Public Document Room Salem Nuclear Generating Station, unwarranted invasion of personal (PDR), located at One White Flint North, Units 1 and 2 (Open)—The privacy.] 11555 Rockville Pike (first floor), Committee will hear presentations 12:15 p.m.–12:30 p.m.: Reconciliation of Rockville, Maryland. Publicly available by and hold discussions with ACRS Comments and records will be accessible electronically representatives of the NRC staff and Recommendations (Open)—The from the Agencywide Documents PSEG Nuclear, LLC regarding the Committee will discuss the Access and Management System final SER associated with the responses from the NRC EDO to (ADAMS) Public Electronic Reading license renewal application for comments and recommendations Room on the NRC Web site, http:// Salem Nuclear Generating Station, included in recent ACRS reports www.nrc.gov/reading-rm/adams.html. Units 1 and 2. and letters. Persons who do not have access to 5:30 p.m.–7 p.m.: Preparation of ACRS 2 p.m.–3:30 p.m.: Preparation for ADAMS or who encounter problems in Reports (Open)—The Committee Meeting with the Commission accessing the documents located in will discuss proposed ACRS reports (Open)—The Committee will ADAMS should contact the NRC PDR on matters discussed during this discuss topics for the meeting with Reference staff at 1–800–397–4209 or meeting. The Committee will also the Commission on June 6, 2011. 301–415–4737, or send an e-mail to discuss proposed ACRS reports on 3:45 p.m.–2:15 p.m.: Preparation of [email protected]. a response to the February 5, 2011, ACRS Reports (Open/Closed)—The Executive Director for Operations Committee will continue its Dated at Rockville, Maryland, this 15th day (EDO) letter on the final SER discussion of proposed ACRS of April 2011. associated with the AP1000 Design reports. [Note: A portion of this For the Nuclear Regulatory Commission. Control Document; a response to session may be closed in order to Jessie F. Quichocho, the March 1, 2011, EDO letter on discuss and protect information that Chief, Research and Test Reactors Licensing the draft final rule, ‘‘Enhancements is proprietary pursuant to 5 U.S.C Branch, Division of Policy and Rulemaking, to Emergency Preparedness,’’ and 552b(c)(4).] Office of Nuclear Reactor Regulation. related regulatory guidance Saturday, May 14, 2011, Conference [FR Doc. 2011–10084 Filed 4–25–11; 8:45 am] documents; and human factors Room T2–B1, 11545 Rockville Pike, BILLING CODE 7590–01–P considerations in emerging Rockville, Maryland technologies. 8:30 a.m.–1 p.m.: Preparation of ACRS NUCLEAR REGULATORY Friday, May 13, 2011, Conference Room Reports (Open/Closed)—The COMMISSION T–2B1, 11545 Rockville Pike, Rockville, Committee will continue its MD discussion of proposed ACRS Advisory Committee on Reactor 8:30 a.m.–8:35 a.m.: Opening Remarks reports. [Note: A portion of this Safeguards; Notice of Meeting by the ACRS Chairman (Open)— session may be closed in order to In accordance with the purposes of The ACRS Chairman will make discuss and protect information Sections 29 and 182b of the Atomic opening remarks regarding the designated as proprietary by Energy Act (42 U.S.C. 2039, 2232b), the conduct of the meeting. Westinghouse and its contractors Advisory Committee on Reactor 8:35 a.m.–10:30 a.m.: Advanced Reactor pursuant to 5 U.S.C 552b(c)(4).] Safeguards (ACRS) will hold a meeting Research Plan (Open/Closed)—The 1 p.m.–1:30 p.m.: Miscellaneous on May 12–14, 2011, 11545 Rockville Committee will hear presentations (Open)—The Committee will Pike, Rockville, Maryland. The date of by and hold discussions with continue its discussion related to this meeting was previously published representatives of the NRC staff the conduct of Committee activities in the Federal Register on Thursday, regarding the Advanced Reactor and specific issues that were not October 21, 2010 (75 FR 65038–65039). Research Plan. [Note: A portion of completed during previous this session may be closed in order meetings. Thursday, May 12, 2011, Conference to discuss and protect information Procedures for the conduct of and Room T2–B1, 11545 Rockville Pike, that is proprietary pursuant to 5 participation in ACRS meetings were Rockville, Maryland U.S.C 552b(c)(4)] published in the Federal Register on 1:30 p.m.–1:35 p.m.: Opening Remarks 10:45 a.m.–12:15 p.m.: Future ACRS October 21, 2010, (75 FR 65038–65039). by the ACRS Chairman (Open)— Activities/Report of the Planning In accordance with those procedures, The ACRS Chairman will make and Procedures Subcommittee oral or written views may be presented opening remarks regarding the (Open/Closed)—The Committee by members of the public, including conduct of the meeting. will discuss the recommendations representatives of the nuclear industry.

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Persons desiring to make oral statements availability of video teleconferencing (AARM) (Public Meeting); (Contact: should notify Ms. Ilka Berrios, services is not guaranteed. Rani Franovich, 301–415–1868) Cognizant ACRS Staff (Telephone: 301– If attending this meeting, please This meeting will be webcast live at 415–3179, E-mail: [email protected]), contact Ms. Jessie Delgado (Telephone the Web address—http://www.nrc.gov. five days before the meeting, if possible, 301–415–7360) to be escorted to the so that appropriate arrangements can be meeting room. Week of May 30, 2011—Tentative made to allow necessary time during the Dated: April 20, 2011. Thursday, June 2, 2011 meeting for such statements. In view of Annette L. Vietti-Cook, 9:30 a.m. Briefing on Human Capital the possibility that the schedule for Secretary of the Commission. and Equal Employment ACRS meetings may be adjusted by the [FR Doc. 2011–10086 Filed 4–25–11; 8:45 am] Opportunity (EEO) (Public Chairman as necessary to facilitate the Meeting); (Contact: Susan Salter, conduct of the meeting, persons BILLING CODE 7590–01–P 301–492–2206) planning to attend should check with the Cognizant ACRS staff if such This meeting will be webcast live at NUCLEAR REGULATORY the Web address—http://www.nrc.gov. rescheduling would result in major COMMISSION inconvenience. Week of June 6, 2011—Tentative Thirty-five hard copies of each [NRC–2011–0006] presentation or handout should be Monday, June 6, 2011 provided 30 minutes before the meeting. Sunshine Federal Register Notice 10 a.m. Meeting with the Advisory Committee on Reactor Safeguards In addition, one electronic copy of each AGENCY HOLDING THE MEETINGS: Nuclear presentation should be emailed to the Regulatory Commission. (ACRS) (Public Meeting); (Contact: Cognizant ACRS Staff one day before Tanny Santos, 301–415–7270) DATE: Weeks of April 25, May 2, 9, 16, meeting. If an electronic copy cannot be 23, 30, June 6, 13, 2011. This meeting will be webcast live at provided within this timeframe, the Web address—http://www.nrc.gov. PLACE: presenters should provide the Cognizant Commissioners’ Conference ACRS Staff with a CD containing each Room, 11555 Rockville Pike, Rockville, Week of June 13, 2011—Tentative Maryland. presentation at least 30 minutes before Thursday, June 16, 2011 STATUS: Public and Closed. the meeting. 9:30 a.m. Briefing on the Progress of In accordance with Subsection 10(d) Week of April 25, 2011 the Task Force Review of NRC Public Law 92–463, and 5 U.S.C. Thursday, April 28, 2011 Processes and Regulations 552b(c), certain portions of this meeting Following Events in Japan (Public may be closed, as specifically noted 9:30 a.m. Briefing on the Status of NRC Meeting); (Contact: Nathan above. Use of still, motion picture, and Response to Events in Japan and Sanfilippo, 301–415–3951) television cameras during the meeting Briefing on Station Blackout (Public This meeting will be webcast live at may be limited to selected portions of Meeting); (Contact: George Wilson, the Web address—http://www.nrc.gov. the meeting as determined by the 301–415–1711) Chairman. Electronic recordings will be This meeting will be webcast live at * * * * * permitted only during the open portions the Web address—http://www.nrc.gov. *The schedule for Commission of the meeting. meetings is subject to change on short ACRS meeting agenda, meeting Week of May 2, 2011—Tentative notice. To verify the status of meetings, transcripts, and letter reports are Tuesday, May 3, 2011 call (recording)—(301) 415–1292. available through the NRC Public Contact person for more information: 9 a.m. Information Briefing on Rochelle Bavol, (301) 415–1651. Document Room at Emergency Preparedness (Public [email protected], or by calling the * * * * * Meeting); (Contact: Robert Kahler, The NRC Commission Meeting PDR at 1–800–397–4209, or from the 301–415–7528) Publicly Available Records System Schedule can be found on the Internet This meeting will be webcast live at (PARS) component of NRC’s document at: http://www.nrc.gov/public-involve/ the Web address—http://www.nrc.gov. system (ADAMS) which is accessible public-meetings/schedule.html. from the NRC Web site at http:// Week of May 9, 2011—Tentative * * * * * www.nrc.gov/reading-rm/adams.html or The NRC provides reasonable Thursday, May 12, 2011 http://www.nrc.gov/reading-rm/doc- accommodation to individuals with collections/ACRS/. 9:30 a.m. Briefing on the Progress of disabilities where appropriate. If you Video teleconferencing service is the Task Force Review of NRC need a reasonable accommodation to available for observing open sessions of Processes and Regulations participate in these public meetings, or ACRS meetings. Those wishing to use Following the Events in Japan need this meeting notice or the this service for observing ACRS (Public Meeting); (Contact: Nathan transcript or other information from the meetings should contact Mr. Theron Sanfilippo, 301–415–3951) public meetings in another format (e.g. Brown, ACRS Audio Visual Technician This meeting will be webcast live at braille, large print), please notify Bill (Telephone 301–415–8066), between the Web address—http://www.nrc.gov. Dosch, Chief, Work Life and Benefits Branch, at 301–415–6200, TDD: 301– 7:30 a.m. and 3:45 p.m. (ET), at least 10 Week of May 16, 2011—Tentative days before the meeting to ensure the 415–2100, or by e-mail at availability of this service. There are no meetings scheduled for [email protected]. Determinations Individuals or organizations the week of May 16, 2011. on requests for reasonable requesting this service will be Week of May 23, 2011—Tentative accommodation will be made on a case- responsible for telephone line charges by-case basis. and for providing the equipment and Friday, May 27, 2011 * * * * * facilities that they use to establish the 9 a.m. Briefing on Results of the This notice is distributed video teleconferencing link. The Agency Action Review Meeting electronically to subscribers. If you no

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longer wish to receive it, or would like 15, 2010, March 16, 2011, April 14, advised by RIMCo or an entity to be added to the distribution, please 2011, and April 20, 2011. controlling, controlled by, or under contact the Office of the Secretary, HEARING OR NOTIFICATION OF HEARING: An common control with RIMCo Washington, DC 20555 (301–415–1969), order granting the application will be (‘‘Adviser’’), and (b) comply with the or send an e-mail to issued unless the Commission orders a terms and conditions of the application. [email protected]. hearing. Interested persons may request The Initial Funds and Future Funds, 2 Dated: April 21, 2011. a hearing by writing to the together, are the ‘‘Funds’’. Commission’s Secretary and serving 3. RIMCo is registered as an Rochelle C. Bavol, investment adviser under the Policy Coordinator, Office of the Secretary. applicants with a copy of the request, personally or by mail. Hearing requests Investment Advisers Act of 1940 (the [FR Doc. 2011–10178 Filed 4–22–11; 4:15 pm] should be received by the Commission ‘‘Advisers Act’’), and will serve as BILLING CODE 7590–01–P by 5:30 p.m. on May 13, 2011, and investment adviser to the Initial Funds. should be accompanied by proof of Any investment adviser to Future Funds service on applicants, in the form of an will be registered as an investment SECURITIES AND EXCHANGE affidavit, or for lawyers, a certificate of adviser under the Advisers Act. The COMMISSION service. Hearing requests should state Adviser is a wholly-owned subsidiary of [Investment Company Act Release No. the nature of the writer’s interest, the Frank Russell Company d/b/a Russell 29655; File No. 812–13669] reason for the request, and the issues Investments (‘‘Russell’’ or the ‘‘Index contested. Persons who wish to be Provider’’) who may provide the Russell Investment Management notified of a hearing may request Underlying Indexes for certain Funds. Company, et al.; Notice of Application notification by writing to the The Adviser may enter into sub- Commission’s Secretary. advisory agreements with one or more April 20, 2011. investment advisers each of which will ADDRESSES: Secretary, Securities and AGENCY: Securities and Exchange serve as a sub-adviser to a Fund (each, Exchange Commission, 100 F Street, Commission (‘‘Commission’’). a ‘‘Sub-Adviser’’). Each Sub-Adviser will NE., Washington, DC 20549–1090; ACTION: be registered under the Advisers Act. Notice of an application for an Applicants, 1301 Second Avenue, 18th RFS, a Washington corporation and a order under section 6(c) of the Floor, Seattle, WA 98101. Investment Company Act of 1940 (the wholly-owned subsidiary of the FOR FURTHER INFORMATION CONTACT: ‘‘Act’’) for an exemption from sections Adviser, is a broker-dealer registered 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Laura L. Solomon, Senior Counsel at under the Securities Exchange Act of Act and rule 22c–1 under the Act, under (202) 551–6915, or Jennifer L. Sawin, 1934 (the ‘‘Exchange Act’’). ALPS, a sections 6(c) and 17(b) of the Act for an Branch Chief, at (202) 551–6821 Colorado corporation, is a broker-dealer exemption from sections 17(a)(1) and (Division of Investment Management, registered under the Exchange Act. 17(a)(2) of the Act, and under section Office of Investment Company ALPS is not affiliated with RIMCo or its 12(d)(1)(J) for an exemption from Regulation). affiliates. RFS or ALPS will serve as the sections 12(d)(1)(A) and 12(d)(1)(B) of SUPPLEMENTARY INFORMATION: The principal underwriter and distributor of the Act. following is a summary of the the Funds (the ‘‘Distributor’’). application. The complete application 4. Each Fund will hold certain equity SUMMARY OF APPLICATION: Applicants may be obtained via the Commission’s securities and/or fixed income securities request an order that would permit (a) Web site by searching for the file (‘‘Portfolio Securities’’) selected to series of certain open-end management number, or an applicant using the correspond generally to the performance investment companies to issue shares Company name box, at http:// of a specified equity and/or fixed (‘‘Shares’’) redeemable in large www.sec.gov/search/search.htm or by income Underlying Index. Each Initial aggregations only (‘‘Creation Units’’); (b) calling (202) 551–8090. Fund will track an Underlying Index of secondary market transactions in Shares Applicants’ Representations: selected equity securities. The Funds to occur at negotiated market prices; (c) 1. The Trust is organized as a may invest in equity securities (‘‘Equity certain series to pay redemption Delaware statutory trust and is Funds’’) and/or fixed income securities proceeds, under certain circumstances, registered as an open-end management (‘‘Fixed Income Funds’’) traded in the more than seven days after the tender of investment company under the Act. The U.S. or non-U.S. markets as well as Shares for redemption; (d) certain Trust initially will offer series described futures contracts, options on such affiliated persons of the series to deposit in Exhibit C to the application (‘‘Initial futures contracts, swaps, forward securities into, and receive securities Funds’’) whose performance will contracts or other derivatives, shares of from, the series in connection with the correspond generally to the total return other exchange-traded funds and purchase and redemption of Creation of a specified index consisting solely of investment companies that invest Units; and (e) certain registered equity and/or fixed income securities primarily in short-term fixed income management investment companies and (‘‘Underlying Index’’ or ‘‘Index’’). securities. Certain of the Underlying unit investment trusts outside of the 2. Applicants request that the order Indexes will be comprised solely of same group of investment companies as apply to the Initial Funds and any equity and/or fixed income securities of the series to acquire Shares. additional series of the Trust and any domestic issuers and non-domestic APPLICANTS: Russell Investment other open-end management investment issuers meeting the requirements for Management Company (‘‘RIMCo’’), companies or series thereof, that may be Russell Exchange Traded Funds Trust created in the future and that track a comply with the terms and conditions of the application. A Fund of Funds (as defined below) (‘‘Trust’’, formerly U.S. One Trust), specified equity and/or fixed income ‘‘ may rely on the order only to invest in Funds and Russell Financial Services, Inc. (‘‘RFS’’) securities Underlying Index ( Future Actively-Managed Funds (as defined below) and 1 and ALPS Distributors, Inc. (‘‘ALPS’’). Funds’’). Any Future Fund will be (a) not in any other registered investment company. 2 FILING DATES: Each Fund will comply with the disclosure The application was filed 1 All entities that currently intend to rely on the requirements adopted by the Commission in on July 2, 2009, and amended on August order have been named as applicants. Any other Investment Company Act Release No. 28584 (Jan. 31, 2009, January 22, 2010, November entity that subsequently relies on the order will 13, 2009) before offering Shares.

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trading in U.S. markets (‘‘Domestic adopted policies and procedures in the application do not exist where the Indexes’’). Other Underlying Indexes (‘‘Firewalls’’) that, among other things, index creator is not an affiliated person, will be comprised solely of foreign are designed to prevent the Adviser, or or an affiliated person of an affiliated equity and/or fixed income securities or any affiliated person of the Adviser of person, of an exchange-traded fund or a combination of domestic and foreign a Fund, from having any advantage over its investment adviser or any sub- equity and/or fixed income securities other market participants with respect adviser. Applicants assert that the (‘‘Foreign Indexes’’). Funds that track to prior knowledge of companies that representations and undertakings Domestic Indexes are referred to as may be added to or deleted from the designed to prevent such potential ‘‘Domestic Funds’’ and Funds that track Index or from the portfolios of any conflicts of interest that relate to the Foreign Indexes are referred to as Funds that track the Underlying transparency of the methodology for ‘‘Foreign Funds.’’ The Underlying Indexes. Among other things, the those Underlying Indexes, and the Indexes are based on a proprietary, rules Firewalls prohibit anyone, including the establishment of certain policies and based methodology developed by Index Personnel from disseminating procedures to limit communication Russell (‘‘Index Composition non-public information about the between Index Personnel and Methodology’’). The Index Composition Indexes, including potential changes to employees of the Adviser and any Sub- Methodology, including the rules which the Index Composition Methodology, to, Adviser shall not apply to an govern the inclusion and weighting of among others, the employees of the ‘‘Unaffiliated Index Fund’’.4 securities in the Underlying Indexes, Adviser and any Sub-Adviser 7. The investment objective of each will be publicly available, including on responsible for managing the Funds or Fund will be to provide investment Russell’s website (‘‘Web site’’). All any Client Account (as defined below). results that closely correspond to the components, weightings, additions and A Client Account is any account, total return of its Underlying Index.5 deletions from the Underlying Indexes including any open-end registered The value of the Underlying Index will will not only be publicly available, but investment company, separately be disseminated once each ‘‘Business will also be publicly announced prior to managed account for institutional Day,’’ which is defined as any day that any changes being made. While the investors, privately offered fund that is a Fund is required to be open under Index Provider may modify the Index not deemed to be an investment section 22(e) of the Act, at the end of the Composition Methodology in the future, company in reliance on section 3(c)(1), Business Day. A Fund will utilize either it does not currently intend to do so. 3(c)(7) or 3(c)(11) of the Act, or business a replication or representative sampling Any change to the Index Composition development company that is a client of strategy to track its Underlying Index. A Methodology would not take effect until the Sub-Adviser. The Index Provider, Fund using a replication strategy will the Index Provider had given the public the Adviser and any Sub-Adviser have invest in substantially all of the at least 60 days advance notice of the or will have adopted policies, including Component Securities in its Underlying change and had given reasonable notice Firewalls that prohibit personnel Index in the same approximate of the change to the Calculation Agent. responsible for the management of the proportions as in the Underlying Index. The ‘‘Calculation Agent’’ is the entity Funds and/or any Client Accounts from A Fund using a representative sampling that, pursuant to an agreement with sharing any non-public information strategy will attempt to match the risk Russell, is solely responsible for all about the management of the Funds and and return characteristics of a Fund’s Index maintenance, calculation, any Client Account with the Index 4 An ‘‘Unaffiliated Index Fund’’ refers to an open- dissemination and reconstitution Personnel and Calculation Agent. end management investment company for which 3 activities. The Calculation Agent is not, Further, the Adviser and any Sub- the Adviser serves as investment adviser, which and will not be, an affiliated person, or Adviser have adopted and will operate, function and trade as an exchange- an affiliated person of an affiliated implemented, pursuant to rule 206(4)–7 traded fund in substantially the same manner as the Initial Funds, and where no entity that creates, person, of the Funds, the Adviser, any under the Advisers Act, written policies compiles, sponsors, or maintains an Underlying Sub-Adviser, the Distributor or any and procedures designed to prevent Index is or will be an affiliated person, as defined promoter of the Funds. The Indexes will violations of the Advisers Act and the in section 2(a)(3) of the Act, or an affiliated person be reconstituted on a periodic basis at rules under the Advisers Act. The of an affiliated person, of the Fund, the Adviser, the least annually and no more frequently Distributor, promoter or any Sub-Adviser to a Fund. Adviser, any Sub-Adviser and 5 Applicants represent that each Fund will invest than monthly. Distributor also have adopted or will at least 80% of its assets (exclusive of collateral 5. Applicants state that the Index adopt a Code of Ethics as required under held from securities lending) in the component Personnel will not have any rule 17j–1 under the Act, which securities that comprise its Underlying Index responsibility for the management of the (‘‘Component Securities’’) or, in the case of Fixed contains provisions reasonably Income Funds, in the Component Securities of its Funds. In addition, applicants have necessary to prevent Access Persons (as respective Underlying Index and TBAs (as defined defined in rule 17j–1) from engaging in below) representing Component Securities, and in 3 The Calculation Agent will determine the any conduct prohibited in rule 17j–1. In the case of Foreign Funds, in Component Securities number, type and weight of securities that comprise and Depositary Receipts representing such each Index and will perform or cause to be addition, the Adviser and any Sub- Component Securities. Depositary receipts include performed all other calculations that are necessary Adviser has adopted or will adopt American Depositary Receipts (‘‘ADRs’’) and Global to determine the proper make-up of each Index. The policies and procedures to detect and Depositary Receipts (‘‘GDRs’’). A Fund will not Calculation Agent will not disclose any information prevent insider trading as required invest in any Depositary Receipts that the Adviser concerning the identity of companies that meet the or any Sub-Adviser deems to be illiquid or for selection criteria to the Adviser, any Sub-Adviser, under section 204A of the Advisers Act, which pricing information is not readily available. the Funds or any other affiliated entities prior to the which are reasonably designed taking No affiliated persons of Applicants will serve as the publication of such information on the Web site. into account the nature of their depositary for any Depositary Receipts held by a Certain employees of the Index Provider and its business, to prevent the misuse in Fund. Each Fund also may invest up to 20% of its affiliates who have responsibility for the assets in certain index futures, options, options on Underlying Indexes and Index Composition violation of the Advisers Act, Exchange index futures, swap contracts or other derivatives, Methodology, as well as those employees of the Act, or rules and regulations under the as related to its respective Underlying Index and its Index Provider and its affiliates appointed to assist Advisers Act and Exchange Act, of Component Securities, cash, cash equivalents, other such employees in the performance of their duties material non-public information. investment companies, and securities that are not (‘‘Index Personnel’’) will monitor the results included in its Underlying Index but which the produced by the Calculation Agent on a periodic 6. Applicants assert that certain Adviser believes will help the Fund track its basis. potential conflicts of interest discussed Underlying Index.

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portfolio to the risk and return accept and deliver Creation Units on a redeem, an investor will have to characteristics of its Underlying Index. cash basis. accumulate enough Shares to constitute Applicants state that use of the 9. An investor acquiring or redeeming a Creation Unit. Redemption orders representative sampling strategy may a Creation Unit from a Fund will be must be placed by or through an prevent a Fund from tracking the charged a fee (‘‘Transaction Fee’’) to Authorized Participant. An investor performance of its Underlying Index prevent the dilution of the interests of redeeming a Creation Unit generally with the same degree of accuracy as the remaining shareholders resulting will receive (a) Portfolio Securities would a Fund that invests in every from costs in connection with the designated to be delivered for Component Security of the Underlying purchase or redemption of Creation redemptions (‘‘Redemption Securities’’) Index. Applicants expect that each Fund Units.7 The Distributor also will be on the date that the request for will have a tracking error relative to the responsible for delivering the Fund’s redemption is submitted and (b) a ‘‘Cash performance of its Underlying Index of prospectus to those persons acquiring Redemption Payment,’’ consisting of an less than 5%. Shares in Creation Units and for amount calculated in the same manner 8. Creation Units are expected to maintaining records of both the orders as the Balancing Amount, although the consist of 50,000 Shares and to have an placed with it and the confirmations of actual amount of the Cash Redemption initial price in the range of $1,000,000 acceptance furnished by it. In addition, Payment may differ if the Redemption to $30,000,000. All orders to purchase the Distributor will maintain a record of Securities are not identical to the Creation Units must be placed with the the instructions given to the applicable Deposit Securities on that day. An Distributor by or through a party that Fund to implement the delivery of its investor may receive the cash equivalent has entered into an agreement with the Shares. of a Redemption Security in certain Distributor (‘‘Authorized Participant’’). 10. Purchasers of Shares in Creation circumstances, such as if the investor is The Distributor will be responsible for Units may hold such Shares or may sell restrained from effecting transactions in transmitting the orders to the Funds. An such Shares into the secondary market. the security by regulation or policy.9 A Authorized Participant must be either Shares will be listed and traded on an redeeming investor may pay a (a) a broker-dealer or other participant Exchange. It is expected that one or Transaction Fee, calculated in the same in the continuous net settlement system more member firms of an Exchange will manner as a Transaction Fee payable in of the National Securities Clearing be designated to act as a market maker connection with purchases of Creation Corporation (‘‘NSCC’’), a clearing agency (each, a ‘‘Market Maker’’) and maintain Units. registered with the Commission, or (b) a market for Shares trading on the 13. Applicants state that in accepting a participant in the Depository Trust Exchange. Prices of Shares trading on an Deposit Securities and satisfying Company (‘‘DTC’’, and such participant, Exchange will be based on the current redemptions with Redemption ‘‘DTC Participant’’). Shares of the Fund bid/offer market. Shares sold in the Securities, the relevant Funds will generally will be sold in Creation Units secondary market will be subject to comply with the federal securities laws, in exchange for an in-kind deposit by customary brokerage commissions and including that the Deposit Securities the purchaser of a portfolio of securities charges. and Redemption Securities are sold in designated by the Adviser to correspond 11. Applicants expect that purchasers transactions that would be exempt from generally to the total return of the of Creation Units will include registration under the Securities Act of ‘‘ 10 relevant Underlying Index (the Deposit institutional investors and arbitrageurs 1933 (‘‘Securities Act’’). The specified ’’ Securities ), together with the deposit of (which could include institutional Deposit Securities and Redemption a specified cash payment (‘‘Balancing investors). Exchange specialists also Securities either (a) will correspond pro Amount’’ and collectively with the may purchase Creation Units for use in rata to the Portfolio Securities of a Fund, Deposit Securities, ‘‘Portfolio Deposit’’). market-making activities. Applicants or (b) will not correspond pro rata to the The Balancing Amount is an amount expect that secondary market Portfolio Securities, provided that the equal to the difference between (a) the purchasers of Shares will include both Deposit Securities and Redemption net asset value (‘‘NAV’’) (per Creation institutional investors and retail Securities (i) consist of the same Unit) of a Fund and (b) the total investors.8 Applicants expect that the representative sample of Portfolio aggregate market value (per Creation price at which Shares trade will be Securities designed to generate Unit) of the Deposit Securities.6 Each disciplined by arbitrage opportunities performance that is highly correlated to Fund may permit a purchaser of created by the option to continually the performance of the Portfolio Creation Units to substitute cash in lieu Securities, (ii) consist only of securities of depositing some or all of the Deposit purchase or redeem Creation Units at their NAV, which should ensure that that are already included among the Securities if the method would reduce existing Portfolio Securities, and (iii) are the Fund’s transaction costs or enhance Shares will not trade at a material discount or premium in relation to their the Fund’s operating efficiency. To 9 NAV. Applicants state that a cash-in-lieu amount will preserve maximum efficiency and replace any ‘‘to-be-announced’’ (‘‘TBA’’) transaction flexibility, a Fund reserves the right to 12. Shares will not be individually that is listed as a Deposit Security or Redemption redeemable, and owners of Shares may Security of any Fund. A TBA transaction is a method of trading mortgage-backed securities where 6 Each Fund will sell and redeem Creation Units acquire those Shares from the Fund, or the buyer and seller agree upon general trade only on a Business Day. The Fund will make tender such Shares for redemption to parameters such as agency, settlement date, par available on each Business Day, prior to the the Fund, in Creation Units only. To opening of trading on the listing Exchange, a list of amount and price. The actual pools delivered the names and the required number of shares of generally are determined two days prior to the 7 each Deposit Security to be included in the Where a Fund permits a purchaser to substitute settlement date. The amount of substituted cash in Portfolio Deposit for each Fund. Any national cash in lieu of depositing a portion of the requisite the case of TBA transactions will be equivalent to securities exchange (as defined in section 2(a)(26) Deposit Securities, the purchaser may be assessed the value of the TBA transaction listed as a Deposit of the Act) (‘‘Exchange’’) on which Shares are listed a higher Transaction Fee to cover the cost of Security or a Redemption Security. will disseminate, every 15 seconds during its purchasing such Deposit Securities. 10 In accepting Deposit Securities and satisfying regular trading hours, through the facilities of the 8 Shares will be registered in book-entry form redemptions with Redemption Securities that are Consolidated Tape Association, an amount per only. DTC or its nominee will be the registered restricted securities eligible for resale pursuant to individual Share representing the sum of the owner of all outstanding Shares. DTC or DTC rule 144A under the Securities Act, the relevant estimated Balancing Amount and the current value Participants will maintain records reflecting Funds will comply with the conditions of rule of the Deposit Securities. beneficial owners of Shares. 144A.

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the same for all Authorized Participants transaction is consistent with the pricing Shares. Applicants maintain that on a given Business Day.11 policies of the registered investment while there is little legislative history 14. Neither the Trust nor any company and the general provisions of regarding section 22(d), its provisions, individual Fund will be marketed or the Act. Section 12(d)(1)(J) of the Act as well as those of rule 22c–1, appear to otherwise held out as a traditional open- provides that the Commission may have been designed to (a) prevent end investment company or a mutual exempt any person, security, or dilution caused by certain riskless fund. Instead, each Fund will be transaction, or any class or classes of trading schemes by principal marketed as an ‘‘ETF,’’ an ‘‘investment persons, securities or transactions, from underwriters and contract dealers, (b) company,’’ a ‘‘fund,’’ or a ‘‘trust.’’ All any provisions of section 12(d)(1) if the prevent unjust discrimination or marketing materials that describe the exemption is consistent with the public preferential treatment among buyers, features or method of obtaining, buying interest and the protection of investors. and (c) ensure an orderly distribution of or selling Creation Units or Shares investment company shares by Sections 5(a)(1) and 2(a)(32) of the Act traded on an Exchange, or refer to eliminating price competition from redeemability, will prominently 3. Section 5(a)(1) of the Act defines an dealers offering shares at less than the disclose that Shares are not individually ‘‘open-end company’’ as a management published sales price and repurchasing redeemable and that the owners of investment company that is offering for shares at more than the published Shares may purchase or redeem Shares sale or has outstanding any redeemable redemption price. from the Fund in Creation Units only. security of which it is the issuer. 6. Applicants believe that none of The same approach will be followed in Section 2(a)(32) of the Act defines a these purposes will be thwarted by investor educational materials issued or redeemable security as any security, permitting Shares to trade in the circulated in connection with the other than short-term paper, under the secondary market at negotiated prices. Shares. The Funds will provide copies terms of which the owner, upon its Applicants state that (a) secondary of their annual and semi-annual presentation to the issuer, is entitled to market trading in Shares does not shareholder reports to DTC Participants receive approximately his proportionate involve a Fund as a party and will not for distribution to shareholders. share of the issuer’s current net assets, result in dilution of an investment in Applicants’ Legal Analysis: or the cash equivalent. Because Shares Shares, and (b) to the extent different 1. Applicants request an order under will not be individually redeemable, prices exist during a given trading day, section 6(c) of the Act for an exemption applicants request an order that would or from day to day, such variances occur from sections 2(a)(32), 5(a)(1), 22(d), and permit the Funds to register as open-end as a result of third party market forces, 22(e) of the Act and rule 22c–1 under management investment companies and such as supply and demand. Therefore, the Act, under sections 6(c) and 17(b) of issue Shares that are redeemable in applicants assert that secondary market the Act for an exemption from sections Creation Units only. Applicants state transactions in Shares will not lead to 17(a)(1) and 17(a)(2) of the Act, and that investors may purchase Shares in discrimination or preferential treatment under section 12(d)(1)(J) of the Act for Creation Units and redeem Creation among purchasers. Finally, applicants an exemption from sections 12(d)(1)(A) Units from each Fund. Applicants state contend that the proposed distribution and 12(d)(1)(B) of the Act. that because Creation Units may always system will be orderly because 2. Section 6(c) of the Act provides that be purchased and redeemed at NAV, the competitive forces will ensure that the the Commission may exempt any market price of the Shares should not difference between the market price of person, security or transaction, or any vary substantially from their NAV. Shares and their NAV remains narrow. class of persons, securities or transactions, from any provision of the Section 22(d) of the Act and Rule 22c– Section 22(e) Act, if and to the extent that such 1 Under the Act 7. Section 22(e) of the Act generally exemption is necessary or appropriate 4. Section 22(d) of the Act, among prohibits a registered investment in the public interest and consistent other things, prohibits a dealer from company from suspending the right of with the protection of investors and the selling a redeemable security, which is redemption or postponing the date of purposes fairly intended by the policy currently being offered to the public by payment of redemption proceeds for and provisions of the Act. Section 17(b) or through a principal underwriter, more than seven days after the tender of of the Act authorizes the Commission to except at a current public offering price a security for redemption. Applicants exempt a proposed transaction from described in the prospectus. Rule 22c– observe that the settlement of section 17(a) of the Act if evidence 1 under the Act generally requires that redemptions of Creation Units of the establishes that the terms of the a dealer selling, redeeming or Foreign Funds is contingent not only on transaction, including the consideration repurchasing a redeemable security do the settlement cycle of the U.S. to be paid or received, are reasonable so only at a price based on its NAV. securities markets, but also on the and fair and do not involve Applicants state that secondary market delivery cycles present in local markets overreaching on the part of any person trading in Shares will take place at for the foreign securities in which those concerned, and the proposed negotiated prices, not at a current Funds invest. Applicants have been offering price described in a Fund’s advised that, under certain 11 In either case, a basket of Deposit Securities prospectus, and not at a price based on circumstances, the delivery cycles for and a basket of Redemption Securities (and a true NAV. Thus, purchases and sales of transferring Portfolio Securities to pro rata slice of the Portfolio Securities) may differ solely to the extent necessary (a) because it is Shares in the secondary market will not redeeming investors, coupled with local impossible to break up bonds beyond certain comply with section 22(d) of the Act market holiday schedules, will require a minimum sizes needed for transfer and settlement, and rule 22c–1 under the Act. delivery process of up to 14 calendar (b) because, in the case of equity securities, days. Applicants therefore request relief rounding is necessary to eliminate fractional shares Applicants request an exemption under or lots that are not tradeable round lots, or (c) for section 6(c) from these provisions. from section 22(e) in order to provide temporary periods, to effect changes in the Portfolio 5. Applicants assert that the concerns for payment or satisfaction of Securities as a result of the rebalancing of an sought to be addressed by section 22(d) redemptions within the maximum Underlying Index. A tradeable round lot for an equity security will be the standard unit of trading of the Act and rule 22c–1 under the Act number of calendar days required for in that particular type of security in its primary with respect to pricing are equally such payment or satisfaction in the market. satisfied by the proposed method of principal local markets where

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transactions in the Portfolio Securities owned by investment companies that a Funds of Funds may have over a of each Foreign Fund customarily clear generally. Fund or Actively-Managed Fund, and settle, but in all cases no later than 10. Applicants request an exemption applicants propose a condition 14 calendar days following the tender of to permit management investment prohibiting a Fund of Funds Adviser or a Creation Unit.12 With respect to companies (‘‘Investing Management a Sponsor, any person controlling, Future Funds that are Foreign Funds, Companies’’) and unit investment trusts controlled by, or under common control applicants seek the same relief from (‘‘Investing Trusts’’) registered under the with the Fund of Funds Adviser or section 22(e) only to the extent that Act that are not sponsored or advised by Sponsor, and any investment company circumstances exist similar to those the Adviser or any entity controlling, or issuer that would be an investment described in the application. controlled by, or under common control company but for section 3(c)(1) or with the Adviser and are not part of the 8. Applicants submit that section 3(c)(7) of the Act that is advised or same ‘‘group of investment companies,’’ 22(e) was designed to prevent sponsored by the Fund of Funds as defined in section 12(d)(1)(G)(ii) of unreasonable, undisclosed and Adviser or Sponsor, or any person the Act, as the Funds or Actively- unforeseen delays in the actual payment controlling, controlled by, or under Managed Funds 13 (collectively, ‘‘Fund of redemption proceeds. Applicants common control with the Fund of state that allowing redemption of Funds’’) to acquire Shares or shares of an Actively-Managed Fund beyond the Funds Adviser or Sponsor (‘‘Fund of payments for Creation Units of a Fund Funds’ Advisory Group’’) from to be made within the number of days limits of section 12(d)(1)(A). In addition, applicants seek relief to permit a Fund controlling (individually or in the indicated above up to a maximum of 14 aggregate) a Fund or Actively-Managed calendar days would not be inconsistent or Actively-Managed Fund and any Fund within the meaning of section with the spirit and intent of section principal underwriter for the Fund or 2(a)(9) of the Act. The same prohibition 22(e). Applicants state that the Actively-Managed Fund, and any would apply to any Fund of Funds Sub- Statement of Additional Information broker-dealer that is registered under (‘‘SAI’’) will disclose those local the Exchange Act (‘‘Broker’’) to sell Adviser, any person controlling, holidays (over the period of at least one Shares or shares, respectively, to Fund controlled by or under common control year following the date of the SAI), if of Funds in excess of the limits of with the Fund of Funds Sub-Adviser, any, that are expected to prevent the section 12(d)(1)(B). and any investment company or issuer delivery of redemption proceeds in 11. Each Investing Management that would be an investment company seven calendar days, and the maximum Company will be advised by an but for section 3(c)(1) or 3(c)(7) of the number of days, up to a maximum of 14 investment adviser within the meaning Act (or portion of such investment calendar days, needed to deliver the of section 2(a)(20)(A) of the Act (the company or issuer) advised or proceeds for each affected Foreign ‘‘Fund of Funds Adviser’’) and may be sponsored by the Fund of Funds Sub- Fund. Applicants are not seeking relief sub-advised by one or more investment Adviser or any person controlling, from section 22(e) with respect to advisers within the meaning of section controlled by or under common control Foreign Funds that do not effect 2(a)(20)(B) of the Act (each a ‘‘Fund of with the Fund of Funds Sub-Adviser creations and redemptions of Creation Funds Sub-Adviser’’). Any investment (‘‘Fund of Funds’ Sub-Advisory Group’’). Units in-kind. adviser to a Fund of Funds will be Applicants propose other conditions to registered under the Advisers Act. Each limit the potential for undue influence Section 12(d)(1) Investing Trust will be sponsored by a over the Funds or Actively-Managed 9. Section 12(d)(1)(A) of the Act, in sponsor (‘‘Sponsor’’). Funds, including that no Fund of Funds relevant part, prohibits a registered 12. Applicants submit that the or Fund of Funds Affiliate (except to the investment company from acquiring proposed conditions to the requested extent it is acting in its capacity as an securities of an investment company if relief adequately address the concerns investment adviser to a Fund or such securities represent more than 3% underlying the limits in section Actively-Managed Fund) will cause a of the total outstanding voting stock of 12(d)(1)(A) and (B), which include Fund or Actively-Managed Fund to the acquired company, more than 5% of concerns about undue influence by a purchase a security in an offering of fund of funds over underlying funds, the total assets of the acquiring securities during the existence of an excessive layering of fees and overly company, or, together with the underwriting or selling syndicate of complex fund structures. Applicants securities of any other investment which a principal underwriter is an believe that the requested exemption is companies, more than 10% of the total Underwriting Affiliate (‘‘Affiliated consistent with the public interest and assets of the acquiring company. Section Underwriting’’). An ‘‘Underwriting 12(d)(1)(B) of the Act prohibits a the protection of investors. 13. Applicants believe that neither the Affiliate’’ is a principal underwriter in registered open-end investment Fund of Funds nor a Fund of Funds any underwriting or selling syndicate company, its principal underwriter and Affiliate would be able to exert undue that is an officer, director, member of an any other broker-dealer from selling the influence over the Funds or Actively- advisory board, Fund of Funds Adviser, investment company’s shares to another Managed Funds.14 To limit the control Fund of Funds Sub-Adviser, Sponsor, or investment company if the sale will employee of the Fund of Funds, or a cause the acquiring company to own 13 The term ‘‘Actively-Managed Funds’’ as used in person of which any such officer, more than 3% of the acquired the application refers to exchange-traded funds that director, member of an advisory board, company’s voting stock, or if the sale utilize active management investment strategies, are Fund of Funds Adviser, Fund of Funds will cause more than 10% of the advised by an Adviser and in the same ‘‘group of investment companies’’ within the meaning of Sub-Adviser, Sponsor, or employee is acquired company’s voting stock to be section 12(d)(1)(G)(ii) of the Act, as the Funds. an affiliated person (except that any 14 A ‘‘Fund of Funds Affiliate’’ is any Fund of person whose relationship to the Fund 12 Applicants acknowledge that no relief obtained Funds Adviser, Fund of Funds Sub-Adviser, or Actively-Managed Fund is covered by from the requirements of section 22(e) will affect Sponsor, promoter, or principal underwriter of a any obligations applicants may have under rule Fund of Funds, and any person controlling, 15c6–1 under the Exchange Act. Rule 15c6–1 controlled by, or under common control with any underwriter of a Fund or Actively-Managed Fund requires that most securities transactions be settled of those entities. A ‘‘Fund Affiliate’’ is the and any person controlling, controlled by or under within three business days of the trade. investment adviser, promoter, or principal common control with any of those entities.

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section 10(f) of the Act is not an Fund or Actively-Managed Fund and purchases and redemptions with a Fund Underwriting Affiliate). the Fund of Funds requiring the Fund when they are affiliated persons of the 14. Applicants assert that the of Funds to adhere to the terms and Fund or Second-Tier Affiliates solely by proposed conditions address any conditions of the requested order. The virtue of one or more of the following: concerns regarding excessive layering of FOF Participation Agreement also will (a) Holding 5% or more, or in excess of fees. The board of directors or trustees include an acknowledgement from the 25%, of the outstanding Shares of one of any Investing Management Company, Fund of Funds that it may rely on the or more Funds; (b) having an affiliation including a majority of the directors or requested order only to invest in a Fund with a person with an ownership trustees who are not ‘‘interested or an Actively-Managed Fund and not interest described in (a); or (c) holding persons’’ within the meaning of section in any other investment company. 5% or more, or more than 25%, of the 2(a)(19) of the Act, will find that the 16. Applicants also note that a Fund shares of one or more Affiliated Funds. advisory fees charged to the Investing or an Actively-Managed Fund may 19. Applicants assert that no useful Management Company are based on choose to reject a direct purchase of purpose would be served by prohibiting services provided that will be in Shares in Creation Units by a Fund of these types of affiliated persons from addition to, rather than duplicative of, Funds. To the extent that a Fund of acquiring or redeeming Creation Units services provided under the advisory Funds purchases Shares or shares of an through ‘‘in-kind’’ transactions. The contract(s) of any Fund or Actively- Actively-Managed Fund in the deposit procedures for both in kind Managed Fund in which the Investing secondary market, a Fund or Actively- purchases and in-kind redemptions of Management Company may invest. In Managed Fund would still retain its Creation Units will be the same for all addition, except as provided in ability to reject initial purchases of purchases and redemptions. Deposit condition B.6, a Fund of Funds Adviser Shares or shares, as the case may be, Securities and Redemption Securities or a trustee (‘‘Trustee’’) or Sponsor of an made in reliance on the requested order will be valued in the same manner as Investing Trust will, as applicable, by declining to enter into the FOF Portfolio Securities. Portfolio Securities, waive fees otherwise payable to it by the Participation Agreement prior to any Deposit Securities, Redemption Fund of Funds in an amount at least investment by a Fund of Funds in Securities, and Cash Redemption equal to any compensation (including excess of the limits of section Payments (except for any permitted fees received pursuant to any plan 12(d)(1)(A). cash-in-lieu amounts) will be the same regardless of the identity of the adopted by a Fund or Actively-Managed Sections 17(a)(1) and (2) of the Act Fund under rule 12b–1 under the Act) purchaser or redeemer, except for the received by the Fund of Funds Adviser, 17. Section 17(a) of the Act generally previously mentioned temporary Trustee or Sponsor or an affiliated prohibits an affiliated person of a periods where the Redemption and person of the Fund of Funds Adviser, registered investment company, or an Creation Units differ to reflect changes Trustee or Sponsor, from a Fund or affiliated person of such a person in the Underlying Index. Therefore, Actively-Managed Fund in connection (‘‘Second-Tier Affiliate’’), from selling applicants state that in-kind purchases with the investment by the Fund of any security to or acquiring any security and redemptions will afford no Funds in the Fund or Actively-Managed from the company. Section 2(a)(3) of the opportunity for the specified affiliated Fund. Applicants state that any sales Act defines ‘‘affiliated person’’ to persons, or Second-Tier Affiliates, of a charges or service fees charged with include (a) any person directly or Fund to effect a transaction detrimental respect to shares of a Fund of Funds indirectly owning, controlling or to other holders of Shares. Applicants will not exceed the limits applicable to holding with power to vote 5% or more also believe that in-kind purchases and a fund of funds set forth in NASD of the outstanding voting securities of redemptions will not result in self- Conduct Rule 2830.15 the other person, (b) any person 5% or dealing or overreaching of the Fund. 15. Applicants submit that the more of whose outstanding voting 20. Applicants also seek relief from proposed arrangement will not create an securities are directly or indirectly section 17(a) to permit a Fund or overly complex fund structure. owned, controlled or held with the Actively-Managed Fund that is an Applicants note that no Fund or power to vote by the other person, and affiliated person, or affiliated person of Actively-Managed Fund may acquire (c) any person directly or indirectly an affiliated person of a Fund of Funds securities of any investment company or controlling, controlled by or under to sell its Shares, or shares in the case company relying on section 3(c)(1) or common control with the other person. of an Actively-Managed Fund, to and 3(c)(7) of the Act in excess of the limits Section 2(a)(9) of the Act provides that redeem its Shares, or shares, from a contained in section 12(d)(1)(A) of the a control relationship will be presumed Fund of Funds, and to engage in the Act, except to the extent permitted by where one person owns more than 25% accompanying in-kind transactions with 16 exemptive relief from the Commission of another person’s voting securities. the Fund of Funds. Applicants state permitting the Fund or Actively- The Funds may be deemed to be that the terms of the transactions are fair Managed Fund to purchase shares of controlled by the Adviser or an entity and reasonable and do not involve other investment companies for short- controlling, controlled by or under 16 term cash management purposes. To common control with the Adviser and To the extent that purchases and sales of Shares hence affiliated persons of each other. In of a Fund occur in the secondary market (and not ensure that Funds of Funds comply through principal transactions directly between a with the terms and conditions of the addition, the Funds may be deemed to Fund of Funds and a Fund or Actively-Managed requested relief from section 12(d)(1), be under common control with any Fund), relief from section 17(a) would not be any Fund of Funds that intends to other registered investment company (or necessary. However, the requested relief would series thereof) advised by the Adviser or apply to in-kind transactions directly between invest in a Fund or Actively-Managed Funds or Actively-Managed Funds and Funds of Fund in reliance on the requested order an entity controlling, controlled by or Funds. Applicants are not seeking relief from will enter into an agreement (‘‘FOF under common control with the Adviser section 17(a) for, and the requested relief will not Participation Agreement’’) between the (an ‘‘Affiliated Fund’’). apply to, transactions where a Fund or Actively- 18. Applicants request an exemption Managed Fund could be deemed an affiliated person, or an affiliated person of an affiliated 15 Any references to NASD Conduct Rule 2830 from section 17(a) of the Act pursuant person, of a Fund of Funds because an investment include any successor or replacement rule to NASD to sections 17(b) and 6(c) of the Act to adviser to the Fund or Actively-Managed Fund is Conduct Rule 2830 that may be adopted by FINRA. permit persons to effectuate in-kind also an investment adviser to the Fund of Funds.

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overreaching. Applicants note that any or the midpoint of the bid/ask spread at Fund of Funds Affiliate from a Fund or consideration paid by a Fund of Funds the time of the calculation of such NAV its Fund Affiliate or an Actively- for the purchase or redemption of (‘‘Bid/Ask Price’’), and a calculation of Managed Fund or its Fund Affiliate, as Shares directly from a Fund, or of shares the premium or discount of the market the case may be, in connection with any directly from an Actively-Managed closing price or Bid/Ask Price in services or transactions. Fund, will be based on the NAV of the relation to the NAV, on a per Share 4. No Fund of Funds or Fund of Fund or Actively-Managed Fund.17 basis, for each Fund. Funds Affiliate (except to the extent it Applicants believe that any proposed 4. The requested relief to permit ETF is acting in its capacity as an investment transactions directly between the Funds operations will expire on the effective adviser to a Fund or an Actively- or Actively-Managed Funds and Fund of date of any Commission rule under the Managed Fund) will cause a Fund or an Funds will be consistent with the Act that provides relief permitting the Actively-Managed Fund to purchase a policies of each Fund of Funds. Any operation of index-based exchange security in an Affiliated Underwriting. investment by a Fund of Funds in traded funds. 5. Before investing in a Fund or an Actively-Managed Fund in excess of the Shares of Funds or shares of Actively- B. Section 12(d)(1) Relief Managed Funds will be accomplished in limits in section 12(d)(1)(A), the Fund of accordance with the investment 1. The members of a Fund of Funds’ Funds and the Fund or Actively- restrictions of any such Fund of Funds Advisory Group will not control Managed Fund, as the case may be, will and will be consistent with the (individually or in the aggregate) any execute a FOF Participation Agreement investment policies set forth in the Fund or Actively-Managed Fund within stating, without limitation, that their Fund of Fund’s registration statement. the meaning of section 2(a)(9) of the Act. boards of directors or trustees and their The FOF Participation Agreement will The members of a Fund of Funds’ Sub- investment advisers, or Trustee and require any Fund of Funds that Advisory Group will not control Sponsor, as applicable, understand the purchases Creation Units directly from (individually or in the aggregate) any terms and conditions of the order, and a Fund or Actively-Managed Fund to Fund or Actively-Managed Fund within agree to fulfill their responsibilities the meaning of section 2(a)(9) of the Act. represent that the purchase of Creation under the order. At the time of its If, as a result of a decrease in the Units from a Fund or Actively-Managed investment in Shares of a Fund or outstanding voting securities of a Fund Fund by a Fund of Funds will be shares of an Actively-Managed Fund in or Actively-Managed Fund, a Fund of accomplished in compliance with the excess of the limit in section Funds’ Advisory Group or a Fund of investment restrictions of the Fund of 12(d)(1)(A)(i), a Fund of Funds will Funds’ Sub-Advisory Group, each in the Funds and will be consistent with the notify the Fund or the Actively- aggregate, becomes a holder of more investment policies set forth in the Managed Fund of the investment. At than 25% of the outstanding voting Fund of Fund’s registration statement. such time, the Fund of Funds will also securities of a Fund or Actively- Applicants’ Conditions: transmit to the Fund or the Actively- Applicants agree that any order of the Managed Fund, it will vote its Shares of Managed Fund, as the case may be, a list Commission granting the requested the Fund or Actively-Managed Fund, as of the names of each Fund of Funds relief will be subject to the following the case may be, in the same proportion Affiliate and Underwriting Affiliate. The conditions: as the vote of all other holders of such Fund of Funds will notify the Fund or shares. This condition does not apply to the Actively-Managed Fund of any A. Exchange Traded Fund Relief a Fund of Funds’ Sub-Advisory Group changes to the list of the names as soon 1. As long as a Fund operates in with respect to a Fund or Actively- as reasonably practicable after a change reliance on the requested order, the Managed Fund for which the Fund of occurs. The Fund or the Actively- Shares of such Fund will be listed on an Funds Sub-Adviser or a person Managed Fund and the Fund of Funds Exchange. controlling, controlled by or under will maintain and preserve a copy of the 2. No Fund will be advertised or common control with the Fund of order, the FOF Participation Agreement, marketed as an open-end investment Funds Sub-Adviser acts as the and the list with any updated company or a mutual fund. Any investment adviser within the meaning information for the duration of the advertising material that describes the of section 2(a)(20)(A) of the Act. investment and for a period of not less purchase or sale of Creation Units or 2. No Fund of Funds or Fund of than six years thereafter, the first two refers to redeemability will prominently Funds Affiliate will cause any existing years in an easily accessible place. disclose that Shares are not individually or potential investment by the Fund of 6. The Fund of Funds Adviser, redeemable and that owners of Shares Funds in a Fund or an Actively- Trustee or Sponsor, as applicable, will may acquire those Shares from the Fund Managed Fund to influence the terms of waive fees otherwise payable to it by the and tender those Shares for redemption any services or transactions between the Fund of Funds in an amount at least to the Fund in Creation Units only. Fund of Funds or a Fund of Funds equal to any compensation (including 3. The Web site for each Fund, which Affiliate and the Fund or its Fund fees received pursuant to any plan is and will be publicly accessible at no Affiliate or the Actively-Managed Fund adopted by a Fund or an Actively- charge, will contain the prior Business or its Fund Affiliate, as the case may be. Managed Fund under rule 12b–1 under Day’s NAV and the market closing price 3. The board of directors or trustees of the Act) received from a Fund or an an Investing Management Company, Actively-Managed Fund by the Fund of 17 Applicants acknowledge that receipt of including a majority of the non- Funds Adviser, Trustee or Sponsor, or compensation by (a) an affiliated person of a Fund interested directors or trustees, will an affiliated person of the Fund of of Funds, or an affiliated person of such person, for adopt procedures reasonably designed Funds Adviser, Trustee or Sponsor, the purchase by the Fund of Funds of Shares or shares of an Actively-Managed Fund, or (b) an to ensure that the Fund of Funds other than any advisory fees paid to the affiliated person of a Fund or an Actively-Managed Adviser and any Fund of Funds Sub- Fund of Funds Adviser, Trustee or Fund, or an affiliated person of such person, for the Adviser are conducting the investment Sponsor, or its affiliated person by the sale by the Fund of its Shares, or Actively-Managed program of the Investing Management Fund or the Actively-Managed Fund, in Fund of its shares, to a Fund of Funds may be connection with the investment by the prohibited by section 17(e)(1) of the Act. The FOF Company without taking into account Participation Agreement also will include this any consideration received by the Fund of Funds in the Fund or Actively- acknowledgment. Investing Management Company or a Managed Fund. Any Fund of Funds

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Sub-Adviser will waive fees otherwise once an investment by a Fund of Funds interested directors or trustees, will find payable to the Fund of Funds Sub- in the securities of the Fund or the that the advisory fees charged under Adviser, directly or indirectly, by the Actively-Managed Fund exceeds the such contract are based on services Investing Management Company in an limit of section 12(d)(1)(A)(i) of the Act, provided that will be in addition to, amount at least equal to any including any purchases made directly rather than duplicative of, the services compensation received from a Fund or from an Underwriting Affiliate. The provided under the advisory contract(s) an Actively-Managed Fund by the Fund Board will review these purchases of any Fund or any Actively-Managed of Funds Sub-Adviser, or an affiliated periodically, but no less frequently than Fund in which the Investing person of the Fund of Funds Sub- annually, to determine whether the Management Company may invest. Adviser, other than any advisory fees purchases were influenced by the These findings and their basis will be paid to the Fund of Funds Sub-Adviser investment by the Fund of Funds in the fully recorded in the minute books of or its affiliated person by the Fund or Fund or the Actively-Managed Fund. the Actively-Managed Fund, as the case The Board will consider, among other the appropriate Investing Management may be, in connection with the things: (i) Whether the purchases were Company. investment by the Investing consistent with the investment 12. No Fund or Actively-Managed Management Company in the Fund or objectives and policies of the Fund or Fund will acquire securities of an Actively-Managed Fund, as the case the Actively-Managed Fund, as the case investment company or company may be, made at the direction of the may be; (ii) how the performance of relying on section 3(c)(1) or 3(c)(7) of Fund of Funds Sub-Adviser. In the securities purchased in an Affiliated the Act in excess of the limits contained event that the Fund of Funds Sub- Underwriting compares to the in section 12(d)(1)(A) of the Act, except Adviser waives fees, the benefit of the performance of comparable securities to the extent permitted by exemptive waiver will be passed through to the purchased during a comparable period relief from the Commission permitting Investing Management Company. of time in underwritings other than the Fund or Actively-Managed Fund, as 7. Any sales charges and/or service Affiliated Underwritings or to a the case may be, to purchase shares of fees charged with respect to shares of a benchmark such as a comparable market other investment companies for short- Fund of Funds will not exceed the index; and (iii) whether the amount of term cash management purposes. limits applicable to a fund of funds as securities purchased by the Fund or the set forth in NASD Conduct Rule 2830. Actively-Managed Fund, as the case For the Commission, by the Division of 8. Once an investment by a Fund of may be, in Affiliated Underwritings and Investment Management, under delegated Funds in the securities of a Fund or an the amount purchased directly from an authority. Actively-Managed Fund exceeds the Underwriting Affiliate have changed Cathy H. Ahn, limit in section 12(d)(1)(A)(i) of the Act, significantly from prior years. The Deputy Secretary. the board of trustees of the Fund or Board will take any appropriate actions [FR Doc. 2011–9968 Filed 4–25–11; 8:45 am] Actively-Managed Fund (‘‘Board’’), based on its review, including, if including a majority of directors or appropriate, the institution of BILLING CODE 8011–01–P trustees who are not ‘‘interested procedures designed to ensure that persons’’ within the meaning of section purchases of securities in Affiliated SECURITIES AND EXCHANGE 2(a)(19) of the Act (‘‘non-interested Underwritings are in the best interest of COMMISSION Board members’’), will determine that shareholders. any consideration paid by the Fund or 10. Each Fund and each Actively- the Actively-Managed Fund to the Fund Managed Fund will maintain and [Release No. 34–64311; File No. SR– of Funds or a Fund of Funds Affiliate preserve permanently in an easily NASDAQ–2011–052] in connection with any services or accessible place a written copy of the transactions: (i) Is fair and reasonable in procedures described in the preceding Self-Regulatory Organizations; The relation to the nature and quality of the condition, and any modifications to NASDAQ Stock Market LLC; Notice of services and benefits received by the such procedures, and will maintain and Filing and Immediate Effectiveness of Fund or the Actively-Managed Fund; (ii) preserve for a period of not less than six Proposed Rule Change To Eliminate is within the range of consideration that years from the end of the fiscal year in the Expire Time the Fund or the Actively-Managed Fund which any purchase in an Affiliated would be required to pay to another Underwriting occurred, the first two April 20, 2011. unaffiliated entity in connection with years in an easily accessible place, a Pursuant to Section 19(b)(1) of the the same services or transactions; and written record of each purchase of Securities Exchange Act of 1934 (iii) does not involve overreaching on securities in Affiliated Underwritings (‘‘Act’’),1 and Rule 19b–4 thereunder,2 the part of any person concerned. This once an investment by a Fund of Funds notice is hereby given that on April 14, condition does not apply with respect to in the securities of the Fund or the 2011, The NASDAQ Stock Market LLC any services or transactions between a Actively-Managed Fund, as the case (‘‘NASDAQ’’ or the ‘‘Exchange’’) filed Fund or an Actively-Managed Fund, as may be, exceeds the limit of section with the Securities and Exchange the case may be, and its investment 12(d)(1)(A)(i) of the Act, setting forth Commission (‘‘Commission’’) the adviser(s), or any person controlling, from whom the securities were proposed rule change as described in controlled by or under common control acquired, the identity of the with such investment adviser(s). underwriting syndicate’s members, the Items I, II, and III below, which Items 9. The Board of a Fund and of an terms of the purchase, and the have been prepared by the Exchange. Actively-Managed Fund, including a information or materials upon which The Commission is publishing this majority of the non-interested Board the Board’s determinations were made. notice to solicit comments on the members, will adopt procedures 11. Before approving any advisory proposed rule change from interested reasonably designed to monitor any contract under section 15 of the Act, the persons. purchases of securities by the Fund or board of directors or trustees of each the Actively-Managed Fund, as the case Investing Management Company 1 15 U.S.C. 78s(b)(1). may be, in an Affiliated Underwriting, including a majority of the non- 2 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s site until market close Eastern Time and III. Date of Effectiveness of the Statement of the Terms of the Substance for execution from 9:30 a.m. until Proposed Rule Change and Timing for of the Proposed Rule Change market close. Chapter VI, Section 6, Commission Action NASDAQ is filing with the Acceptance of Quotes and Orders, also Because the foregoing proposed rule Commission a proposal for the currently refers to Expire Time in change does not: (i) Significantly affect NASDAQ Options Market (‘‘NOM’’) to subsection (a)(1), which is also the protection of investors or the public amend Chapter VI, Trading Systems, proposed to be amended to eliminate interest; (ii) impose any significant Section 1, Definitions, and Section 6, the reference to Expire Time. burden on competition; and (iii) become Acceptance of Quotes and Orders, to The Exchange proposes to eliminate operative for 30 days after the date of eliminate the ‘‘Time in Force’’ Expire Time, as part of some the filing, or such shorter time as the designation called ‘‘Expire Time.’’ technological changes to NOM’s trading Commission may designate, it has This change is scheduled to be system intended to enhance the system become effective pursuant to Section implemented on NOM on or about as a whole. The Exchange has 19(b)(3)(A) of the Act 5 and Rule 19b– August 1, 2011; the Exchange will determined not to incorporate this 4(f)(6) 6 thereunder. announce the implementation schedule functionality into its enhanced trading At any time within 60 days of the by Options Trader Alert, once the system, because the same result can be filing of the proposed rule change, the rollout schedule is finalized. achieved by Participants cancelling Commission summarily may The text of the proposed rule change their orders directly. Also, the Exchange temporarily suspend such rule change if is available at believes that this proposed rule change it appears to the Commission that such nasdaq.cchwallstreet.com, at as well as other notification to action is necessary or appropriate in the NASDAQ’s principal office, and at the Participants will serve to notify public interest, for the protection of Commission’s Public Reference Room. Participants of this change. The other investors, or otherwise in furtherance of Time in Force conditions will continue II. Self-Regulatory Organization’s the purposes of the Act. If the to be available. Statement of the Purpose of, and Commission takes such action, the Statutory Basis for, the Proposed Rule 2. Statutory Basis Commission shall institute proceedings Change to determine whether the proposed rule The Exchange believes that its should be approved or disapproved. In its filing with the Commission, proposal is consistent with Section 6(b) NASDAQ included statements of the Act 3 in general, and furthers the IV. Solicitation of Comments concerning the purpose of and basis for objectives of Section 6(b)(5) of the Act 4 Interested persons are invited to the proposed rule change and discussed in particular, in that it is designed to submit written data, views, and any comments it received on the prevent fraudulent and manipulative arguments concerning the foregoing, proposed rule change. The text of these acts and practices, to promote just and including whether the proposed rule statements may be examined at the equitable principles of trade, to foster change is consistent with the Act. places specified in Item IV below. cooperation and coordination with Comments may be submitted by any of NASDAQ has prepared summaries, set persons engaged in facilitating the following methods: forth in Sections A, B, and C below, of transactions in securities, and to remove Electronic Comments the most significant aspects of such impediments to and perfect the • statements. mechanisms of a free and open market Use the Commission’s Internet comment form (http://www.sec.gov/ A. Self-Regulatory Organization’s and a national market system, and, in rules/sro.shtml); or Statement of the Purpose of, and general, to protect investors and the • public interest. The Exchange believes Send an e-mail to rule- Statutory Basis for, the Proposed Rule [email protected]. Please include File Change that the proposal is appropriate and reasonable, because, although it Number SR–NASDAQ–2011–052 on the 1. Purpose eliminates a time in force condition, this subject line. The purpose of the proposed rule functionality is not required under the Paper Comments Act; the Exchange has determined to change is to eliminate the Expire Time. • Send paper comments in triplicate eliminate it and believes that this Currently, Chapter VI, Section 1(g) to Elizabeth M. Murphy, Secretary, ‘‘ ’’ should have no detrimental effect, provides that the term Time in Force Securities and Exchange Commission, because it is not widely used. means the period of time that the 100 F Street, NE., Washington, DC System will hold an order for potential B. Self-Regulatory Organization’s 20549–1090. execution. Time in force conditions, Statement on Burden on Competition which are listed in subsections 1(g)(1)— All submissions should refer to File (5), include Expire Time, Immediate or NASDAQ does not believe that the Number SR–NASDAQ–2011–052. This Cancel, Good-till-Cancelled and WAIT. proposed rule change will result in any file number should be included on the At this time, ‘‘Expire Time’’ (or ‘‘EXPR’’) burden on competition that is not subject line if e-mail is used. To help the is being eliminated. Expire Time means necessary or appropriate in furtherance Commission process and review your that, for orders so designated, that if of the purposes of the Act, as amended. comments more efficiently, please use after entry into the System, the order is only one method. The Commission will C. Self-Regulatory Organization’s not fully executed, the order (or the post all comments on the Commission’s Statement on Comments on the unexecuted portion thereof) shall Proposed Rule Change Received From 5 15 U.S.C. 78s(b)(3)(A). remain available for potential display Members, Participants, or Others 6 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– and/or execution for the amount of time 4(f)(6) requires a self-regulatory organization to give specified by the entering Participant Written comments were neither the Commission written notice of its intent to file unless canceled by the entering party. solicited nor received. the proposed rule change at least five business days prior to the date of filing of the proposed rule EXPR Orders are currently available for change, or such shorter time as designated by the entry from the time prior to market open 3 15 U.S.C. 78f(b). Commission. The Exchange has satisfied this specified by the Exchange on its Web 4 15 U.S.C. 78f(b)(5). requirement.

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Internet Web site (http://www.sec.gov/ notice to solicit comments on the would apply to all options, but would rules/sro.shtml). Copies of the proposed rule change from interested not apply to market orders or submission, all subsequent persons. Intermarket Sweep Orders. OPP would amendments, all written statements be operational each trading day after the I. Self-Regulatory Organization’s with respect to the proposed rule opening until the close of trading, Statement of the Terms of the Substance change that are filed with the except during trading halts. The of the Proposed Rule Change Commission, and all written Exchange would also be able to communications relating to the NASDAQ is filing with the temporarily deactivate OPP from time to proposed rule change between the Commission a proposal for the time on an intraday basis at its Commission and any person, other than NASDAQ Options Market (‘‘NOM’’) to discretion if it determined that volatility those that may be withheld from the amend Chapter VI, Trading Systems, to warranted deactivation. Participants public in accordance with the adopt new Section 18, Order Price would be notified of intraday OPP provisions of 5 U.S.C. 552, will be Protection. deactivation due to volatility and any available for Web site viewing and This change is scheduled to be subsequent intraday reactivation by the printing in the Commission’s Public implemented on NOM on or about Exchange through the issuance of Reference Room, 100 F Street, NE., August 1, 2011; the Exchange will system status messages. Washington, DC 20549, on official announce the implementation schedule The OPP will help Participants business days between the hours of by Options Trader Alert, once the control risk by checking each order, 10 a.m. and 3 p.m. Copies of the filing rollout schedule is finalized. before it is accepted into the System, also will be available for inspection and The text of the proposed rule change against certain parameters established copying at the principal offices of the is available at by new Chapter VI, Section 18. It would Exchange. All comments received will nasdaq.cchwallstreet.com, at compare price instructions on the order be posted without change; the NASDAQ’s principal office, and at the against the current contraside National Commission does not edit personal Commission’s Public Reference Room. Best Bid Offer (‘‘NBBO’’),3 and would identifying information from automatically reject the order if it is submissions. You should submit only II. Self-Regulatory Organization’s priced outside the range established in information that you wish to make Statement of the Purpose of, and Section 18. available publicly. Statutory Basis for, the Proposed Rule All submissions should refer to File Change The range of permissible orders Number SR–NASDAQ–2011–052 and In its filing with the Commission, depends on whether the contra-side of should be submitted on or before May NASDAQ included statements an incoming order is greater than $1.00, 17, 2011. concerning the purpose of and basis for or equal to or less than $1.00. If the For the Commission, by the Division of the proposed rule change and discussed NBBO on the contra-side of an incoming Trading and Markets, pursuant to delegated any comments it received on the order were greater than $1.00, orders authority.7 proposed rule change. The text of these with a limit more than 50% through Cathy H. Ahn, statements may be examined at the such contra-side NBBO would be Deputy Secretary. places specified in Item IV below. rejected by the System upon receipt. For example, if the NBBO on the offer side [FR Doc. 2011–9970 Filed 4–25–11; 8:45 am] NASDAQ has prepared summaries, set were $1.10, an order to buy options for BILLING CODE 8011–01–P forth in Sections A, B, and C below, of the most significant aspects of such more than $1.65 would be rejected. statements. Similarly, if the NBBO on the bid side SECURITIES AND EXCHANGE were $1.10, an order to sell options for A. Self-Regulatory Organization’s COMMISSION less than $0.55 would be rejected. Statement of the Purpose of, and If the NBBO on the contra-side of an [Release No. 34–64312; File No. SR– Statutory Basis for, the Proposed Rule incoming order were less than or equal NASDAQ–2011–053] Change to $1.00, orders with a limit more than Self-Regulatory Organizations; The 1. Purpose 100% through such contra-side NBBO NASDAQ Stock Market LLC; Notice of The purpose of the proposed rule would be rejected by the System upon Filing and Immediate Effectiveness of change is to address risks to market receipt. For example, if the NBBO on Proposed Rule Change To Adopt an participants of human error in entering the offer side were $1.00, an order to Order Price Protection Feature orders at unintended prices. To that buy options for more than $2.00 would end, the Exchange has developed a be rejected. However, if the NBBO of the April 20, 2011. bid side of an incoming order to sell Pursuant to Section 19(b)(1) of the program known as Order Price Protection (‘‘OPP’’), which would were less than or equal to $1.00, the Securities Exchange Act of 1934 OPP limits set forth above would result (‘‘Act’’),1 and Rule 19b–4 thereunder,2 prevent certain orders from executing or being placed on the book at prices in all incoming sell orders being notice is hereby given that on April 14, accepted regardless of their limit. 2011, The NASDAQ Stock Market LLC outside pre-set standard limits. The (‘‘NASDAQ’’ or the ‘‘Exchange’’) filed System would reject such orders rather Like the PHLX’s OPP, NOM’s will be with the Securities and Exchange than executing them automatically. The available for Participants’ orders, but Commission (‘‘Commission’’) the operation of the OPP, which is very not for market making. proposed rule change as described in similar to PHLX Rule 1080.07, would be 2. Statutory Basis Items I, II, and III below, which Items set forth in new Section 18 of Chapter have been prepared by the Exchange. VI. The Exchange believes that its The Commission is publishing this The OPP feature would prevent proposal is consistent with Section 6(b) certain day limit, good til cancelled or of the Act 4 in general, and furthers the 7 17 CFR 200.30–3(a)(12). immediate or cancel orders at prices 1 15 U.S.C. 78s(b)(1). outside of certain pre-set limits from 3 See Chapter I, Section 1(a)(33). 2 17 CFR 240.19b–4. being accepted by the System. OPP 4 15 U.S.C. 78f(b).

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objectives of Section 6(b)(5) of the Act 5 IV. Solicitation of Comments For the Commission, by the Division of in particular, in that it is designed to Trading and Markets, pursuant to delegated 8 prevent fraudulent and manipulative Interested persons are invited to authority. acts and practices, to promote just and submit written data, views, and Cathy H. Ahn, equitable principles of trade, to foster arguments concerning the foregoing, Deputy Secretary. cooperation and coordination with including whether the proposed rule [FR Doc. 2011–9971 Filed 4–25–11; 8:45 am] persons engaged in facilitating change is consistent with the Act. BILLING CODE 8011–01–P transactions in securities, and to remove Comments may be submitted by any of impediments to and perfect the the following methods: mechanisms of a free and open market Electronic Comments DEPARTMENT OF STATE and a national market system, and, in [Public Notice 7400] general, to protect investors and the • Use the Commission’s Internet public interest, by mitigating risks to comment form (http://www.sec.gov/ U.S. Advisory Commission on Public market participants of human error in rules/sro.shtml); or Diplomacy; Notice of Meeting entering orders at clearly unintended • prices. Send an e-mail to rule- The U.S. Advisory Commission on [email protected]. Please include File Public Diplomacy will hold a public B. Self-Regulatory Organization’s Number SR–NASDAQ–2011–053 on the meeting from 9 a.m. to 11 a.m. on May Statement on Burden on Competition subject line. 12, 2011, in Conference Room 1107 of NASDAQ does not believe that the Paper Comments the State Department’s Harry S Truman proposed rule change will result in any building at 2201 C Street, NW. burden on competition that is not • Send paper comments in triplicate The Commission will hear an update necessary or appropriate in furtherance to Elizabeth M. Murphy, Secretary, on the ‘‘strategic framework’’ on public of the purposes of the Act, as amended. Securities and Exchange Commission, diplomacy released in March 2010 and discuss whether U.S. Public diplomacy C. Self-Regulatory Organization’s 100 F Street, NE., Washington, DC 20549–1090. is striking the right balance when Statement on Comments on the engaging youth, elite, online or offline Proposed Rule Change Received From All submissions should refer to File audiences. The Commission welcomes Members, Participants, or Others Number SR–NASDAQ–2011–053. This commentary from the public on these Written comments were neither file number should be included on the and other topics relevant to its mission. solicited nor received. subject line if e-mail is used. To help the This meeting is open to the public, Commission process and review your the State Department, Defense III. Date of Effectiveness of the comments more efficiently, please use Department, Congress, and other Proposed Rule Change and Timing for only one method. The Commission will organizations. Seating is limited. To Commission Action post all comments on the Commission’s attend or request further information, Because the foregoing proposed rule Internet Web site (http://www.sec.gov/ contact the Commission at (202) 203– change does not: (i) Significantly affect rules/sro.shtml). Copies of the 7463 or [email protected] by 5 the protection of investors or the public submission, all subsequent p.m. on May 9, 2011. Please arrive for interest; (ii) impose any significant amendments, all written statements the meeting by 8:45 a.m. As access to the Department of State burden on competition; and (iii) become with respect to the proposed rule is controlled, members of the public operative for 30 days after the date of change that are filed with the the filing, or such shorter time as the wishing to attend the meeting must Commission, and all written notify the Commission, no later than 5 Commission may designate, it has communications relating to the become effective pursuant to Section p.m., May 9, 2011, providing the proposed rule change between the information below. If notified after this 19(b)(3)(A) of the Act 6 and Rule 19b– Commission and any person, other than 4(f)(6) 7 thereunder. date, the Department’s Bureau of those that may be withheld from the Diplomatic Security may not be able to At any time within 60 days of the public in accordance with the filing of the proposed rule change, the complete the necessary processing provisions of 5 U.S.C. 552, will be required to attend the meeting. Any Commission summarily may available for website viewing and temporarily suspend such rule change if person requesting reasonable printing in the Commission’s Public accommodation should notify the it appears to the Commission that such Reference Room, 100 F Street, NE., action is necessary or appropriate in the Commission by the same date. Washington, DC 20549, on official Each member of the public wishing to public interest, for the protection of business days between the hours of 10 attend the meeting should provide: his/ investors, or otherwise in furtherance of a.m. and 3 p.m. Copies of the filing also her name, company or organizational the purposes of the Act. If the will be available for inspection and affiliation; phone number; date of birth; Commission takes such action, the copying at the principal offices of the and identifying data such as driver’s Commission shall institute proceedings Exchange. All comments received will license number, U.S. Government ID, or to determine whether the proposed rule be posted without change; the U.S. Military ID, to the Commission. A should be approved or disapproved. Commission does not edit personal RSVP list will be provided to identifying information from Diplomatic Security. One of the 5 15 U.S.C. 78f(b)(5). submissions. You should submit only following forms of valid photo 6 15 U.S.C. 78s(b)(3)(A). 7 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– information that you wish to make identification will be required for 4(f)(6) requires a self-regulatory organization to give available publicly. admission to the Department of State the Commission written notice of its intent to file building: U.S. driver’s license, passport, the proposed rule change at least five business days All submissions should refer to File U.S. Government ID or other valid photo prior to the date of filing of the proposed rule Number SR–NASDAQ–2011–053 and ID. Personal data is requested pursuant change, or such shorter time as designated by the should be submitted on or before May Commission. The Exchange has satisfied this requirement. 16, 2011. 8 17 CFR 200.30–3(a)(12).

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to Public Law 99–399 (Omnibus DEPARTMENT OF TRANSPORTATION the laws of a foreign country and must Diplomatic Security and Antiterrorism be owned by a citizen of the United Act of 1986), as amended; Public Law Federal Aviation Administration States (See 49 U.S.C. 40102), a foreign 107–56 (USA PATRIOT Act); and citizen lawfully admitted for permanent Public Meeting: U.S. Registration of Executive Order 13356. The purpose of residence in the United States, or a Aircraft in the Name of Owner Trustees the collection is to validate the identity foreign corporation that is organized of individuals who enter Department AGENCY: Federal Aviation and doing business under the laws of facilities. The data will be entered into Administration. the United States or a State and the aircraft is based and primarily used in the Visitor Access Control System ACTION: Notice of public meeting. the United States. In addition, 14 CFR (VACS–D) database. Please see the 47.7 makes special provision for trustees Privacy Impact Assessment for VACS–D SUMMARY: The FAA will be holding a to register aircraft and, when any at http://www.state.gov/documents/ public meeting on Wednesday, June 1, 2011, on the U.S. registration of aircraft beneficiary of the trust is not a U.S. organization/100305.pdf for additional citizen or a resident alien, imposes information. in the name of owner trustees. The FAA is seeking the views from the public additional requirements and limitations The U.S. Advisory Commission on with respect to the use of owner trusts with respect to the power of such Public Diplomacy is charged with to register aircraft for the benefit of beneficiaries to influence or limit the appraising U.S. Government activities beneficiaries that are neither U.S. exercise of the trustee’s authority or to intended to understand, inform, and citizens nor resident aliens. direct or remove a trustee. In addition, the Federal Aviation Regulations influence foreign publics and DATES: The meeting will be held on impose particular obligations on the submitting reports on the same to the Wednesday, June 1, 2011, beginning at owners (and not just the pilots in President, the Secretary of State, and the 9 a.m. Central Time and ending no later command and operators) of aircraft (See Congress. The Commission may conduct than 5 p.m. Central Time. studies, inquiries, and meetings, as it 14 CFR 91.403(a)). ADDRESSES: The meeting will be held at The FAA has issued several deems necessary. It may assemble and the Marriott Renaissance Convention interpretations of its regulations as they disseminate information and issue Center Hotel, 10 North Broadway apply to the relationship and reports and other publications, subject Avenue, Oklahoma City, OK 73102, permissible interactions between a to the approval of the Chairperson, in Phone 405–228–8000 or 1–800–468– trustee and beneficiaries that are not consultation with the Executive 3571. U.S. citizens or resident aliens, two of Director. FOR FURTHER INFORMATION CONTACT: which have held that ‘‘there can be no The members of the Commission are: LaDeana Peden at 405–954–3296, Office other relationship between the trustee William Hybl of Colorado, Chairman; of Aeronautical Center Counsel, Federal and beneficiaries other than that created Ambassador Lyndon Olson of Texas, Aviation Administration. [Assistance for by the trust. For example, there cannot Vice Chairman; Jay Snyder of New York; the hearing impaired is available be a lessor/lessee or bailor/bailee Ambassador Penne Korth-Peacock of through the Sign Language Resource relationship.’’ (Interpretation 1981–56; Texas; John Osborn of Pennsylvania; Service (SLRS), Inc. at: 1–888–842–9460 similarly: Interpretation 1982–6). In order to clarify the appropriate and Lezlee Westine of Virginia. The or 405–721–0800 or http:// interpretation and application of the seventh seat on the Commission is www.SLRSinc.com.] statutes and FAA regulations in currently vacant. SUPPLEMENTARY INFORMATION: During the connection with the U.S. registration of The following individuals are first part of the meeting, FAA will aircraft to owner trusts with nominated to the Commission but await review the provisions of 49 U.S.C. beneficiaries that are neither U.S. Senate confirmation as of this writing: 44102 and 14 CFR 47.7(c) and identify citizens nor resident aliens, the FAA Ambassador Ryan Crocker of Texas, Sim the issues that are relevant to seeks a discussion with interested Farar of California, and Anne Wedner of compliance with those statutory and members of the public. In order to have Illinois. regulatory requirements in the context a robust and productive discussion with of trusts with foreign beneficiaries. The members of the public, the FAA The Commission is a bipartisan panel second part of the meeting will provide presents the following questions and established under Section 604 of the an opportunity for attendees to provide scenarios in order to highlight some of United States Information and their views to the FAA regarding the the salient issues around which it Educational Exchange Act of 1948, appropriate application of the statute desires discussion. commonly known as the Smith-Mundt and regulations in this context and, in Trust Registration Questions: At this Act, as amended (22 U.S.C. 1469) and particular, to answer the specific meeting, the FAA is seeking the views Section 8 of Reorganization Plan questions set forth below. At some later from the public on the appropriate Numbered 2 of 1977. The U.S. Advisory time, after considering comments made structures for using a trust to register an Commission on Public Diplomacy is during the meeting, FAA will notify the aircraft for the benefit of a beneficiary authorized by Public Law 101–246 public about any further action it that is not a U.S. citizen or resident (2009), 22 U.S.C. 6553, and has been contemplates taking. alien. The FAA would like to hear from further authorized through September Background: The Federal Aviation members of the public on how a trust 20, 2011. Administration has a history of can be structured and implemented for registering U.S. civil aircraft to trustees, purposes of aircraft registrations that Dated: April 18, 2011. some of which have beneficiaries that satisfy statutory and regulatory Matthew C. Armstrong, are neither U.S. citizens nor resident requirements regarding ownership and Executive Director, Department of State. aliens. Title 49 U.S.C. 44102 describes U.S. citizenship. Simply expressed, [FR Doc. 2011–10074 Filed 4–25–11; 8:45 am] the conditions under which an aircraft which practices and contractual BILLING CODE 4710–11–P may be registered on the U.S. Civil provisions must exist, and which Aircraft Registry under 49 U.S.C. 44103: practices and contractual provisions the aircraft may not be registered under must be prohibited, in order to satisfy

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the statutory and regulatory DEPARTMENT OF TRANSPORTATION without change, to http:// requirements. www.regulations.gov. You may review Federal Transit Administration In order to clarify the appropriate DOT’s complete Privacy Act Statement in the Federal Register published April interpretation and application of [FTA Docket No. FTA–2011–0026] statutory provisions, FAA regulations 11, 2000, (65 FR 19477), or you may visit http://www.regulations.gov. and FAA policy in connection with U.S. Notice of Request for the Extension of Docket: For access to the docket to registration of aircraft to owner trustees, Currently Approved Information Collection read background documents and the FAA seeks a discussion with comments received, go to http:// interested members of the public about AGENCY: Federal Transit Administration www.regulations.gov at any time. the factors that would weigh in favor of (FTA), DOT. Background documents and comments or against a finding that a trustee is an ACTION: Notice of Request for received may also be viewed at the U.S. ‘‘owner’’ of an aircraft. Comments. Department of Transportation, 1200 The following questions are intended New Jersey Avenue, SE., Docket to elicit robust discussion: SUMMARY: In accordance with the Operations, M–30, West Building, Paperwork Reduction Act of 1995, this 1. What are the appropriate Ground Floor, Room W12–140, notice announces the intention of the Washington, DC 20590–0001 between 9 obligations to impose on a trustee of a Federal Transit Administration (FTA) to a.m. and 5 p.m., Monday through trust with beneficiaries that are neither request the Office of Management and Friday, except federal holidays. U.S. citizens nor resident aliens in order Budget (OMB) to approve the following FOR FURTHER INFORMATION CONTACT: to satisfy the statute and regulations? Ms. information collection: 49 U.S.C. Joyce Larkins, FTA Office of Program 2. In the case of a trust with Sections 5309 and 5307 Capital Management, (202) 366–1728, or e-mail: beneficiaries that are neither U.S. Assistance Programs [email protected]. citizens nor resident aliens, which DATES: Comments must be submitted SUPPLEMENTARY INFORMATION: Interested rights and actions must be prohibited on before June 27, 2011. parties are invited to send comments the part of the beneficiaries in order to ADDRESSES: To ensure that your regarding any aspect of this information satisfy the statute and regulations? comments are not entered more than collection, including: (1) The necessity 3. Which forms of granting once into the docket, submit comments and utility of the information collection possession, use or operational control of identified by the docket number by only for the proper performance of the an aircraft by a trustee to its one of the following methods: functions of the FTA; (2) the accuracy beneficiaries that are not U.S. citizens or 1. Web site: http:// of the estimated burden; (3) ways to resident aliens are permitted and which www.regulations.gov. Follow the enhance the quality, utility, and clarity are prohibited under the statute and instructions for submitting comments of the collected information; and (4) regulations? on the U.S. Government electronic ways to minimize the collection burden docket site. (Note: –The U.S. without reducing the quality of the 4. What are the specific elements of Department of Transportation’s (DOT’s) collected information. Comments ‘‘the trustee’s authority’’ (14 CFR electronic docket is no longer accepting submitted in response to this notice will 47.7(c)(iii)) about which the FAA electronic comments.) All electronic be summarized and/or included in the should be concerned, and what are the submissions must be made to the U.S. request for OMB approval of this forms of influence or limitation that the Government electronic docket site at information collection. FAA should proscribe? http://www.regulations.gov. Title: 49 U.S.C. 5309 Capital 5. How may a beneficiary that is not Commenters should follow the Assistance Programs. a U.S. citizen or resident alien directions below for mailed and hand- (OMB Number: 2132–0502). participate in the decision to remove a delivered comments. Background: 49 U.S.C. 5309 Capital trustee in accordance with the statute 2. Fax: 202–366–7951. Program and section 5307 Urbanized 3. Mail: U.S. Department of and regulations? Area Formula Program authorize the Transportation, 1200 New Jersey Secretary of Transportation to make 6. To what extent, if any, are the FAA Avenue, SE., Docket Operations, M–30, grants to State and local governments interpretations cited above in need of West Building, Ground Floor, Room and public transportation authorities for amendment? W12–140, Washington, DC 20590–0001. financing mass transportation projects. 7. Which, if any, knowledge and 4. Hand Delivery: U.S. Department of Grant recipients are required to make information requirements (e.g., address Transportation, 1200 New Jersey information available to the public and of operator, location of maintenance Avenue, SE., Docket Operations, M–30, to publish a program of projects for records, principal hangar location) are West Building, Ground Floor, Room affected citizens to comment on the appropriate for the FAA to impose on W12–140, Washington, DC 20590–0001 proposed program and performance of trustees of trusts beneficiaries that are between 9 a.m. and 5 p.m., Monday the grant recipients at public hearings. not U.S. citizens or resident aliens? through Friday, except federal holidays. Notices of hearings must include a brief Instructions: You must include the description of the proposed project and Issued in Washington, DC on April 20, agency name and docket number for this be published in a newspaper circulated 2011. notice at the beginning of your in the affected area. FTA also uses the Marc L. Warren, comments. Submit two copies of your information to determine eligibility for Acting Chief Counsel, Federal Aviation comments if you submit them by mail. funding and to monitor the grantees’ Administration. For confirmation that FTA has received progress in implementing and [FR Doc. 2011–10013 Filed 4–25–11; 8:45 am] your comments, include a self- completing project activities. The BILLING CODE 4910–13–P addressed stamped postcard. Note that information submitted ensures FTA’s all comments received, including any compliance with applicable federal personal information, will be posted laws, OMB Circular A–102, and 49 CFR and will be available to Internet users, part 18, ‘‘Uniform Administrative

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Requirements for Grants and Estimated Annual Burden on Issued: April 20, 2011. Cooperative Agreements with State and Respondents: 54 hours for each of the Ann M. Linnertz, Local Governments.’’ 3,675 respondents. Associate Administrator for Administration. Respondents: State and local Estimated Total Annual Burden: [FR Doc. 2011–9972 Filed 4–25–11; 8:45 am] government, business or other for-profit 198,450 hours. BILLING CODE P institutions, and non-profit institutions. Frequency: Annual.

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Part II

Department of Labor

Office of Federal Contract Compliance Programs

41 CFR Parts 60–250 and 60–300 Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans; Proposed Rule

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DEPARTMENT OF LABOR Washington, DC 20210, or via the payments up to and including Internet at http://www.regulations.gov. termination of contracts and debarment Office of Federal Contract Compliance Upon request, individuals who require from receiving future contracts. Programs assistance to review comments will be The framework articulating a provided with appropriate aids such as contractor’s responsibilities with respect 41 CFR Parts 60–250 and 60–300 readers or print magnifiers. Copies of to affirmative action, recruitment, and this Notice of Proposed Rulemaking placement has remained unchanged RIN 1250–AA00 (NPRM) will be made available in the since the Section 4212 implementing Affirmative Action and following formats: Large print, rules were first published in 1976. Nondiscrimination Obligations of electronic file on computer disk, and Meanwhile, increasing numbers of Contractors and Subcontractors audiotape. To schedule an appointment veterans are returning from tours of duty Regarding Protected Veterans to review the comments and/or to obtain in Iraq, Afghanistan, and other places this NPRM in an alternate format, please around the world, and many are faced AGENCY: Office of Federal Contract contact OFCCP at the telephone with substantial obstacles in finding Compliance Programs, Labor. numbers or address listed above. employment upon leaving the service. A ACTION: Notice of proposed rulemaking. FOR FURTHER INFORMATION CONTACT: March 2010 report from the Bureau of Debra A. Carr, Director, Division of Labor Statistics found that the 2009 SUMMARY: The Office of Federal Contract Policy, Planning and Program annual average unemployment rate for Compliance Programs (OFCCP) is Development, Office of Federal Contract veterans 18 to 24 years old was 21.1%, proposing to revise regulations Compliance Programs, 200 Constitution compared with 16.6% for non-veterans in that age group. The unemployment implementing the affirmative action Avenue, NW., Room C–3325, rate for veterans 25 to 34 years old was provisions of the Vietnam Era Veterans’ Washington, DC 20210. 11.1%, compared with 9.8% for non- Readjustment Assistance Act of 1974, as Telephone: (202) 693–0102 (voice) or veterans in that age group. Addressing amended, which requires covered (202) 693–1337 (TTY). Federal contractors and subcontractors the barriers our veterans face in SUPPLEMENTARY INFORMATION: to take affirmative action in returning to civilian life, particularly employment on behalf of specified Background with regard to employment, is the focus of a number of Federal efforts, such as categories of protected veterans. The Enacted in 1974, the purpose of the proposed regulations would strengthen the Work Opportunity Tax Credit Vietnam Era Veterans’ Readjustment established for employers who hire these affirmative action provisions, Assistance Act of 1974, as amended, 38 detailing specific actions a contractor unemployed disabled veterans as part of U.S.C. 4212 (Section 4212), is twofold. the American Recovery and must take to satisfy its obligations. They First, Section 4212 prohibits would also increase the contractor’s Reinvestment Act signed into law by employment discrimination against President Obama in February 2009. data collection obligations, and require specified categories of veterans by the contractor to establish hiring Strengthening the implementing Federal government contractors and regulations of Section 4212, whose benchmarks to assist in measuring the subcontractors. Second, it requires each effectiveness of its affirmative action stated purpose is ‘‘to require covered Federal government contractor Government contractors to take efforts. Rescission of 41 CFR part 60– and subcontractor to take affirmative 250 as obsolete is also proposed. affirmative action to employ and action to employ and advance in advance in employment qualified DATES: To be assured of consideration, employment these veterans. covered veterans,’’ will be another comments must be received on or before The nondiscrimination requirements important means by which the June 27, 2011. and general affirmative action government can address the issue of ADDRESSES: You may submit comments, requirements of Section 4212 apply to veterans’ employment. identified by RIN number 1250–AA00, all covered contractors. See 41 CFR 60– Prior to issuing this NPRM, OFCCP by any of the following methods: 250.5, 60–300.5. The requirement to conducted multiple town hall meetings, • Federal eRulemaking Portal: prepare and maintain an affirmative webinars, and listening sessions with www.regulations.gov. Follow the action program, the specific obligations individuals from the contractor instructions for submitting comments. of which are detailed at 41 CFR 60– community, state employment services, • Fax: (202) 693–1304 (for comments 250.44 and 60–300.44, apply to those veterans’ organizations, and other of six pages or less). contractors that meet the contract interested parties to understand those • Mail: Debra A. Carr, Director, amount threshold and have 50 or more features of Section 4212’s regulations Division of Policy, Planning, and employees. In the Section 4212 context, that work well, those that can be Program Development, Office of Federal with the awarding of a Federal contract improved, and possible new Contract Compliance Programs, Room comes a number of responsibilities, requirements that could help to C–3325, 200 Constitution Avenue, NW., including compliance with the Section effectuate the overall goal of increasing Washington, DC 20210. 4212 anti-discrimination and anti- the employment opportunities for Receipt of submissions will not be retaliation provisions, meaningful and qualified protected veterans with acknowledged; however, the sender may effective efforts to recruit and employ Federal contractors. request confirmation that a submission veterans protected under Section 4212, Accordingly, this NPRM proposes has been received by telephoning creation and enforcement of personnel several major changes to parts 60–250 OFCCP at (202) 693–0102 (voice) or policies that support its affirmative and 60–300. The VEVRAA regulations (202) 693–1337 (TTY) (these are not toll- action obligations, maintenance of found at 41 CFR part 60–250 generally free numbers). accurate records documenting its apply to Government contracts of All comments received, including any affirmative action efforts, and providing $25,000 or more entered into before personal information provided, will be OFCCP access to these records upon December 1, 2003. The threshold available for public inspection during request. Failure to abide by these amount for coverage is a single contract normal business hours at Room C–3325, responsibilities may result in various of $25,000 or more; contracts are not 200 Constitution Avenue, NW., sanctions, from withholding progress aggregated to reach the coverage

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threshold. If a Federal contractor exclusively by part 60–250 would have veterans,’’ for the reasons detailed in the received a government contract of at expired by December 1, 2008. Section-by-Section Analysis of § 60– least $50,000 prior to December 1, 2003, It is for these reasons that we propose 250.2. Second, all references to ‘‘covered an AAP must be developed in rescission of part 60–250. However, to veterans’’ is amended to read ‘‘protected accordance with the 41 CFR part 60–250 ensure that we do not inadvertently veterans,’’ due to the inclusion of a VEVRAA regulations. As explained deprive protected veterans of their definition for ‘‘protected veteran’’ in the below, some contracts that were entered Section 4212 rights, we seek comment proposed § 60–250.2. from the public as to whether any into before December 1, 2003 will be Section 60–250.2 Definitions subject to the regulations found at 41 contracts that are covered by part 60– CFR part 60–300. 250 still exist. The proposed rule incorporates the The regulations found at 41 CFR part In the event that contracts are vast majority of the existing definitions 60–300 apply to Government contracts discovered that do fall under part 60– contained in existing § 60–250.2 entered into on or after December 1, 250’s coverage, we will not seek to without change. However, OFCCP 2003. The threshold amount for rescind part 60–250; rather, we propose proposes some changes to the substance coverage and AAP threshold coverage is a second approach: A revised part 60– and structure of this section, as set forth a single contract of $100,000 or more, 250 that mirrors the changes that we below. entered into on or after December 1, have proposed to part 60–300. A With regard to the structure of this 2003; contracts are not aggregated to Section-by-Section Analysis of this section, the current rule lists the reach the coverage threshold. The alternative follows below. definitions in order of subject matter. regulations found at 41 CFR part 60–300 However, for those who are unfamiliar Subpart A—Preliminary Matters, Equal also apply to modifications of otherwise with the regulations, this organizational Opportunity Clause covered Government contracts made on structure makes it difficult to locate or after December 1, 2003. Section 60–250.1 Purpose, specific terms within this section. The Consequently, a contract that was Applicability and Construction proposed rule reorders the defined terms in alphabetical order, and then entered into before December 1, 2003, Paragraph (a) of the current rule sets will be subject only to the part 60–300 assigns each term a lettered forth the scope of Section 4212 and the subparagraph heading. This modified regulations if it is modified on or after purpose of its implementing regulations. structure is proposed for ease of December 1, 2003 and meets the We propose a few minor changes to this reference, and to facilitate citation to contract dollar threshold of $100,000 or section. First, we propose deleting the specific definitions. However, because more. reference to the ‘‘Vietnam Era Veterans’ The detailed Section-by-Section of this reordering, the citation to Readjustment Assistance Act of 1974’’ or specific terms may be different in the Analysis below identifies and discusses ‘‘VEVRAA,’’ and replacing it, in this proposed rule than it is currently. For all proposed changes in each section. section and throughout the regulation, instance, the term ‘‘contract,’’ which is Due to the extensive proposed revisions with ‘‘Section 4212.’’ Referring to the § 60–250.2(h) in the current regulations, to the Section 4212 regulations, part 60– operative law as ‘‘VEVRAA’’ is not is § 60–250.2(d) in the proposed 300 and the alternate part 60–250 (in the entirely accurate, as Section 4212, regulation. event part 60–250 is not rescinded, as where VEVRAA was initially codified, With regard to substantive changes, discussed in the Summary section above has been amended several times since the proposed rule first clarifies the and detailed in the part 60–250 Section- VEVRAA was passed—most recently by definitions pertaining to the by-Section Analysis below) will be the Jobs for Veterans Act of 2002 (JVA), classifications of veterans who are republished in their entirety in this which amended the categories of protected under part 60–250. The NPRM for ease of reference. However, protected veterans and the dollar classifications of protected veterans in the Department is only accepting amount for contract coverage that part 60–250 are those described in comments on the proposed revisions of subsequently led to the promulgation of Section 4212 prior to the enactment of the regulations detailed herein. the regulations found at part 60–300. the JVA and are as follows: (1) Special Section-by-Section Analysis Referring to the law as ‘‘Section 4212’’ disabled veterans; (2) veterans of the clarifies that we are referring to the law Vietnam era; (3) veterans who served on 41 CFR Part 60–250 as amended. This is more accurate than active duty in the Armed Forces during OFCCP is proposing two alternative ‘‘VEVRAA’’ and should alleviate any a war or in a campaign or expedition for approaches to part 60–250. further confusion. which a campaign badge has been The first approach is to rescind part Second, paragraph (a) discusses the authorized; and (4) recently separated 60–250 in its entirety. As stated above, contractor’s affirmative action veterans. Currently, § 60–250.2 includes part 60–250 only covers those contracts obligations, but does not discuss specific definitions for ‘‘special disabled of $25,000 or more entered into prior to another primary element of the veterans,’’ ‘‘veterans of the Vietnam era,’’ December 1, 2003—over seven years regulations: The prohibition of and ‘‘recently separated veterans,’’ See before the publication of this NPRM— discrimination against veterans 41 CFR 60–250.2(n), (p), (r). It does not that have been unmodified since that protected under Section 4212. contain a specific definition for time, or have been modified while Accordingly, the proposed regulation ‘‘veterans who served on active duty in maintaining a total contract value adds language to the first sentence of the Armed Forces during a war or in a between $25,000 and $100,000. Federal paragraph (a) to include this important campaign or expedition for which a Acquisition Regulation 17.204 states element. campaign badge has been authorized.’’ that, in general, government contract Additionally, the proposed rule Instead, this classification is included duration should not exceed five (5) makes two minor language changes in within the current ‘‘other protected years. Further, all contracts under order to comport with some of the veteran’’ definition. See 41 CFR 60– $100,000 are subject to the simplified newly proposed definitions in § 60– 250.2(q). This anomaly has caused acquisition threshold and cannot be 250.2. First, the term ‘‘other protected significant confusion, as many renewed. Thus, unless special excepted veterans’’ is amended to read ‘‘active individuals who are unfamiliar with the contracts exist, contracts covered duty wartime or campaign badge regulations believe that the ‘‘other

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protected veteran’’ category is a ‘‘catch- found currently at § 60–250.2(d), with listing requirement discussed in all’’ that includes all veterans. To ‘‘Director.’’ The current § 60–250.2(d) paragraphs 2 and 3 of the EO clause address this issue, the proposed rule defines ‘‘Deputy Assistant Secretary’’ as mandates that the contractor list all replaces the ‘‘other protected veteran’’ ‘‘the Deputy Assistant Secretary for employment openings for the duration definition that is contained in the Federal Contract Compliance of the of the contract with an ‘‘appropriate current regulation with the more precise United States Department of Labor, or employment service delivery system,’’ classification language ‘‘active duty his or her designee.’’ Following the (hereinafter ‘‘employment service’’). This wartime or campaign badge veteran’’ elimination of the Employment listing not only provides a source for that appears in the statute. This Standards Administration in November veterans to access job listings, but also replacement will not change the scope 2009, the head of OFCCP now has the allows the employment service to of coverage. Instead, individuals title of Director. Accordingly, the provide priority referrals of veterans for currently covered under the ‘‘other proposed rule reflects this change, the Federal contractor jobs listed with protected veteran’’ classification as which will be made throughout part 60– the employment service. Following the defined in the current rule will still be 250. publication of the most recent revisions covered, but will fall under the more The proposed rule also adds a to part 60–250 regulations, questions accurate ‘‘active duty wartime or definition of employment service were raised as to the manner in which campaign badge veteran’’ classification. delivery system, defined in current a contractor must provide information It should be noted that this proposed § 60–300.2(y). Because the term to an employment service in order to rule does not revise the VETS–100 form, ‘‘employment service delivery system’’ is satisfy the requirement. There have been which is administered by the mentioned in part 60–250, for example, many instances in which a contractor Department’s Veterans’ Employment in paragraph 2 of the equal opportunity provided job listings to an employment and Training Service (VETS) and clause found in § 60–250.5(a), we have service in a manner or format that was requires the contractor to tabulate the added the definition for clarity. unusable to that employment service. In number of employees and new hires in The proposed rule also adds a order to satisfy the listing requirement, each of the component categories of definition of ‘‘linkage agreement,’’ now the contractor must provide job vacancy protected veterans under Section 4212. described in the OFCCP Federal information to the appropriate The VETS–100 form currently maintains Contract Compliance Manual. We employment service in the manner that the use of ‘‘other protected veteran’’ propose adding a definition of ‘‘linkage the employment service requires in classification. After the final rule agreement’’ to the regulations for clarity. order to include the job in their database pertaining to these regulations is The proposed regulation defines so that they may provide priority published, OFCCP will work with VETS ‘‘linkage agreement’’ to mean an referral of veterans. OFCCP has long to conform the VETS–100 forms to the agreement between the contractor and interpreted the listing responsibilities of new Section 4212 regulations. DOL will appropriate recruitment and/or training a contractor in this manner. This change provide the public with an opportunity sources. A linkage agreement is to be clarifies OFCCP’s policy. to comment on these changes, which used by the contractor as a source of The proposed regulation also adds a will not become effective until approved potential applicants to the covered sentence to the end of paragraph 2 by the Office of Management and groups in which the contractor is clarifying that, for any contractor who Budget in accordance with the interested. The contractor’s utilizes a privately-run job service or Paperwork Reduction Act of 1995. representative that signs the linkage exchange to comply with its mandatory The current rule also lacks a clear, listing obligation, the information must agreement should be the company overarching definition of ‘‘protected be provided to the appropriate official responsible for the contractor’s veteran,’’ under part 60–250. Although it employment service in the manner that affirmative action program and/or has discusses the responsibilities of a the employment service requires. This hiring authority. contractor to all categories of protected clarification is proposed for two veterans collectively, it also enumerates Section 60–250.3 [Reserved] reasons. First, contractors’ use of private each classification of protected veteran Section 60–250.4 Coverage and job listing services has increased several times throughout the regulation. Waivers following the elimination of the Accordingly, the proposed rule includes Department’s America’s Job Bank listing a new definition of ‘‘protected veteran,’’ The proposed regulation replaces the service. Second, we have received which includes all four classifications of term ‘‘Deputy Assistant Secretary,’’ feedback from officials in state protected veterans separately identified found in paragraphs (b)(1), (b)(2), and employment services that some and defined in 60–250.2. This new term (b)(3) of this section, with the term contractors provide job listing would replace the phrase ‘‘special ‘‘Director,’’ for the reasons set forth in information to these private job listing disabled veteran(s), veterans of the the discussion of § 60–250.2. services assuming that they have then Vietnam era, recently separated Section 60–250.5 Equal Opportunity fulfilled their listing obligations, but ’’ veteran(s), or other protected veteran(s) Clause that the private job listing services do used throughout the current rule to refer not always provide the information in to these protected veterans in the Paragraph (a) contains the equal the requisite manner in order to list the aggregate. The individual categories of opportunity (EO) clause that must be job opening in its database and provide protected veterans continue to be included in all covered Government priority referral of protected veterans. separately identified in the first contracts and subcontracts. The The proposed regulations also add paragraph of the equal opportunity proposed regulation includes numerous further detail to paragraph 4 of the EO clause in § 60–250.5 to permit the substantive changes. clause with respect to the specific identification of protected veterans in First, the proposed regulation adds information the contractor must provide the context of the contract (see Section- additional language to subparagraph 2 to state employment services in each by-Section Analysis of § 60–250.5, infra, of the EO clause in this section state where the contractor has for further explanation). clarifying the contractor’s responsibility establishments. The current regulations The proposed rule also replaces the to ‘‘list’’ jobs in the context of mandatory require that the contractor provide the term ‘‘Deputy Assistant Secretary,’’ listing requirements. The mandatory job appropriate state employment service

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with the name and location of each of requirements set forth in this NPRM that computers that can access the electronic the contractor’s hiring locations. The are proposed in order to give the posting to such employees, or the proposed regulations require that the contractor (as well as OFCCP, in the contractor has actual knowledge that contractor provide the state employment course of compliance evaluations) a such employees are otherwise able to service with the following additional quantifiable measure of the availability access the electronically posted notices. information: (1) Its status as a Federal of protected veterans in the workforce. Electronic notices for employees must contractor; (2) the contact information The contractor would be required to be posted in a conspicuous location and for the contractor hiring official at each maintain these records on the number of format on the company’s intranet or sent location in the state; and (3) its request referrals for five (5) years. We propose by electronic mail to employees. An for priority referrals of protected a five year record retention requirement electronic posting must be used by the veterans for job openings at all its for multiple reasons. First, because the contractor to notify job applicants of locations within the state. This proposed rule anticipates that the their rights if the contractor utilizes an information shall be updated on an contractor will use the referral data in electronic application process. Such annual basis. These three additional setting annual hiring benchmarks (see electronic applicant notice must be items are proposed in light of feedback Section-by-Section discussion in 250.45, conspicuously stored with, or as part of, received from state employment infra) we wanted to ensure that the the electronic application.’’ The addition services that there is no centralized list contractor has sufficient historical data of these sentences is in response to the of Federal contractors that they can on the number of referrals it has increased use of telecommuting and consult in order to determine if a listing received in years past to meaningfully other work arrangements that do not employer is a Federal contractor. If the inform the benchmarks it sets going include a physical office setting, as well Federal contractor does not specifically forward. Further, because the proposed as Internet-based application processes identify itself as such to the state rule anticipates that the contractor will in which applicants never enter a employment service and further identify review its outreach efforts and adjust contractor’s physical office. These the hiring official, the state employment them to maximize recruitment of revisions therefore would permit service often will not know if it should protected veterans (see Section-by- equivalent access to the required notices be providing priority referrals of Section discussion in 250.44(f)(3), for these employees and applicants. protected veterans as required by § 60– infra), we wanted to ensure that the For paragraph 11, which refers to the 250.84 or who to contact. Requiring the contractor has sufficient historical data contractor’s obligation to notify labor Federal contractor to provide this to recognize meaningful trends in organizations or other worker additional information will facilitate the recruitment and, subsequently, to representatives about its obligations priority referral process. The proposed identify effective recruitment efforts that under Section 4212, we propose adding regulation also adds a sentence corresponded with time periods of language clarifying that these clarifying that, if the contractor uses any increased recruitment of protected obligations include non-discrimination, outside job search companies (such as a veterans. If the contractor had fewer in addition to affirmative action. The temporary employment agency) to assist years of referral data on hand, it is less current paragraph 11 does not in its hiring, the contractor must also likely that the data would provide specifically mention the contractor’s provide the state employment service meaningful assistance to the contractor non-discrimination obligations. The proposed regulations add a new with the contact information for these in these respects. We solicit public paragraph 13 to the EO clause which outside job search companies. Due to comment on the burden and practical would require the contractor to state utility of this requirement. the widespread use of these outside job and thereby affirm in solicitations and search companies, this proposed In paragraph 10 of the EO clause advertisements that it is an equal language is included to ensure that the (currently paragraph 9; renumbered due employment opportunity employer of state employment service has the ability to the newly proposed paragraph 5, veterans protected under Section 4212. to contact all individuals responsible for above), we propose two revisions. The A comparable clause exists in the equal a contractor’s hiring in order to third sentence of this paragraph is opportunity clause of the Executive effectively carry out its obligations revised to clarify the contractor’s duty to Order 11246 regulations, see 41 CFR 60– under § 60–250.84. Finally, the provide notices of employee rights and 1.4(a)(2), describing the protected proposed regulation replaces the terms contractor obligations in a manner that classes under that Order. This proposed ‘‘state employment security agency,’’ is accessible and understandable to addition ensures consistency between ‘‘state agency,’’ and ‘‘workforce agency’’ persons with disabilities. It also revises the regulations and aids in found in a few instances in this the parenthetical at the end of the communicating the contractor’s EEO paragraph, with the term ‘‘employment sentence, replacing the outdated responsibilities to job seekers. service delivery system.’’ The terms are suggestion of ‘‘hav[ing] the notice read The proposed regulations amend interchangeable as used in this to a visually disabled individual’’ as an paragraphs (d) and (e) of this section to paragraph, and as we propose to add accommodation with the suggestion to require that the entire equal opportunity ‘‘employment service delivery system’’ provide Braille, large print, or other clause be included verbatim in Federal to the definitions in § 60–250.2, we use versions that allow persons with contracts. This is to ensure that the it instead. disabilities to read the notice contractor and subcontractor read and The proposed regulation adds a new themselves. The proposed regulations understand the language in this clause. paragraph 5 to the EO clause which would also add the following sentences Feedback from town hall meetings and requires the contractor to maintain to the end of proposed paragraph 10 webinars conducted by OFCCP prior to records, on an annual basis, of the total (current paragraph 9) of the EO clause: the publication of this proposed rule number of referrals it receives from state ‘‘With respect to employees who do not indicated that some contractors, and employment services, the number of work at a physical location of the especially subcontractors, are not aware priority referrals of protected veterans it contractor, a contractor will satisfy its of their EO Clause responsibilities. In receives, and the ratio of protected posting obligations by posting such the case of subcontractors, they often veteran referrals to total referrals. This notices in an electronic format, rely on the prime contractors to inform is one of a few new data collection provided that the contractor provides them of their nondiscrimination and

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affirmative action program obligations. veteran knows that a certain piece of Section 60–250.41 Availability of If the EO Clause is not written in full, equipment that he or she already owns Affirmative Action Program subcontractors are disadvantaged and will allow him or her to perform the This section sets forth the manner by often unaware of their statutory functions of the job, and that equipment which the contractor must make its obligations until audited by OFCCP. would represent an undue burden for affirmative action programs available to Particularly given the emphasis the the contractor to provide, the veteran employees for inspection, which administration and Congress have would be able to provide his or her own includes that the location and hours placed on veterans’ employment issues, equipment and still be considered a during which the program may be we believe it is important to take qualified disabled veteran. We propose obtained. The proposed regulation adds whatever steps will inform contractors inserting this language to ensure a sentence at the end of this section and subcontractors of the obligations consistency with the requirement in requiring that, in instances where the under the EO Clause. OFCCP solicits paragraph 4 of Appendix A to the contractor has employees who do not public comment on this proposal and proposed rule, which requires that work at the contractor’s physical any other steps that would increase the individuals be allowed to pay for or establishment, the contractor shall contractor community’s awareness of its provide their own accommodation if inform these employees about the obligations. providing the accommodation for the availability of the affirmative action The proposed regulation also replaces employee would represent an undue program by means other than a posting the term ‘‘Deputy Assistant Secretary,’’ burden to the contractor. at its establishment. This addition is found in paragraph (f) of this section proposed in light of the increased use of The proposed revisions also include and in paragraphs 9 and 11 of the EO telecommuting and other flexible ‘‘ ’’ minor language changes, replacing the clause, with the term Director, for the workplace arrangements. reasons set forth in the discussion of phrase ‘‘special disabled veteran(s), § 60–250.2. It also replaces the phrase veteran(s) of the Vietnam era, recently Section 60–250.42 Invitation to Self- ‘‘special disabled veteran(s), veteran(s) separated veteran(s), or other protected identify of the Vietnam era, recently separated veteran(s)’’ found in paragraphs (a), (b), The proposed revisions of this section veteran(s), or other protected veteran(s)’’ (c)(1), (d)(1), (e), (g)(1), and (i) with the make significant, substantive changes to found in the second sentence of term ‘‘protected veteran,’’ for the reasons the contractor’s responsibilities and the Paragraph 1 and in Paragraph 9 of the set forth in the discussion of § 60–250.2, process through which applicants are EO clause, with the term ‘‘protected above. invited to self-identify as a veteran veteran,’’ for the reasons set forth in the Section 60–250.22 Direct Threat protected under the part 60–250 discussion of § 60–250.2. This phrase regulations, particularly those set forth Defense remains in the first sentence of in paragraphs (a) and (b). As described Paragraph 1 (with ‘‘active duty wartime The proposed revisions change ‘‘§ 60– more fully below, these changes are or campaign badge veteran’’ replacing 250.2(w)’’ in the parenthetical at the end proposed in order to collect enhanced ‘‘other protected veteran,’’ as discussed ‘‘ ’’ data pertaining to protected veterans, in § 60–250.2, supra) of the EO clause so of this section to § 60–250.2(f), in light of restructuring the Definitions section which will allow the contractor and it is clear to those reading the clause OFCCP to identify and monitor the independently from the rest of the in alphabetical order, as discussed in § 60–250.2, above. contractor’s employment practices with regulation precisely which respect to protected veterans. classifications of veterans are protected Section 60–250.24 Drugs and alcohol The current regulation requires the by this part of the Section 4212 contractor to invite applicants, who are regulations. Additionally, to ensure that We propose a correction to paragraph special disabled veterans as defined in the contractor is aware of the (b)(3) of this section, to refer to § 60– 60–250.2, to self-identify only after appropriate definitions, we propose 250.23(d)(2) instead of (c). making an offer of employment, subject adding a footnote to the title of the EO to two exceptions. See § 60–250.42(a). Clause stating explicitly that the Subpart C—Affirmative Action Program For all other veterans protected by part definitions set forth in 41 CFR 60–250.2 60–250, the current regulation requires apply to the EO Clause and are Section 60–250.40 Applicability of the the contractor to invite such applicants incorporated by reference. Finally, all Affirmative Action Program to self-identify ‘‘before they begin [their] references to ‘‘VEVRAA’’ are replaced Requirement employment duties.’’ See § 60– with the term ‘‘Section 4212,’’ for the 250.42(b). reasons set forth in the discussion of This section sets forth which The two exceptions to the prohibition § 60–250.1. contractors are required to maintain an on inviting special disabled veterans to affirmative action program, and the Subpart B—Discrimination Prohibited self-identify pre-offer contained in 41 general timing requirements for its CFR 250.42(a) are not proposed to Section 60–250.21 Prohibitions creation and submission to OFCCP. We change. The exceptions permit a This section of the rule defines and propose a minor clarification to contractor to invite special disabled addresses prohibited discriminatory paragraph (c) of this section, specifying veterans to self-identify prior to making conduct under Section 4212. The that the affirmative action program shall a job offer when: (1) The invitation is proposed rule includes an additional be reviewed and updated annually ‘‘by made while the contractor actually is clause at the end of paragraph (f)(3), the official designated by the contractor undertaking affirmative action for qualifying that an individual who pursuant to § 60–250.44(i).’’ While this special disabled veterans at the pre-offer rejects a reasonable accommodation is the intent of the existing language, the stage; or (2) the invitation is made made by the contractor may still be proposal clarifies this intention d pursuant to a Federal, state or local law considered a qualified disabled veteran ensures that company officials who are requiring affirmative action for special if the individual subsequently provides knowledgeable of the contractor’s disabled veterans. These two exceptions and/or pays for a reasonable affirmative action activities and are identical to the exceptions to the accommodation. For instance, if a obligations are reviewing the program. prohibition on pre-offer disability-

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related inquiries contained in the protected veteran would violate the of the new self-identification procedures implementing regulations for Section general prohibition against pre-offer proposed herein. For the same reasons, 503 of the Rehabilitation Act of 1973, as disability-related inquiries because we propose revising paragraph (d) of amended, 29 U.S.C. 793 (Section 503). some protected veterans will be special this section to reflect the newly See 41 CFR 60–741.42. Consequently, disabled veterans. This concern is proposed self-identification process in under existing Section 4212 regulations, misplaced, as the ADA and Section 503 which applicants will only identify the contractor is permitted, although not regulations permit the contractor to themselves as special disabled veterans required, to create employment conduct a pre-offer inquiry into specifically after an offer of employment programs targeting special disabled disability status if it is ‘made pursuant is made. Further, we propose revising veterans and inviting applicants to to a Federal, state or local law requiring paragraph (d) to require, rather than identify whether they are eligible for the affirmative action for individuals with suggest, that the contractor seek the program pre-offer. OFCCP is not disabilities,’ such as Section 4212 or advice of the applicant regarding proposing a change in this provision. Section 503. Id. accommodation. Requiring this of the The proposed change requires the However, while it would be legally contractor will help initiate a robust contractor to invite all applicants to self- permissible to do so, OFCCP is not interactive and collaborative process identify as a ‘‘protected veteran’’ prior to proposing that the pre-offer self- between the contractor and the the offer of employment. This proposed identification identify the specific employee or applicant to identify change would invite applicants to self- category of protected veteran for three effective accommodations that will identify as a ‘‘protected veteran’’ at the primary reasons. First, given that the facilitate a special disabled veteran’s pre-offer stage; it would not seek the overall population of protected veterans ability to perform the job. While the specific protected classification of is already relatively small, dividing the purpose of this requirement is to protected veteran (special disabled pool of protected veterans into smaller promote agreement between the veteran, veteran of the Vietnam era, component classifications would tend to contractor and employee or applicant recently separated veteran, or active reduce the ability of the contractor to regarding accommodations to be used, duty wartime or campaign badge engage in meaningful data analysis of this proposed change would not require veteran). The pre-offer invitation would applicants, such as that proposed in that, in the event that multiple not require protected veteran applicants § 60–250.44(h) and (k). Second, a reasonable accommodations exist, the to disclose their status as a protected protected veteran may fall into several contractor must utilize the reasonable veteran if they chose not to (see the protected categories, which could create accommodation preferred by the proposed Sample Invitation to Self- unnecessary complexity to data employee or applicant. Identify in Appendix B, infra). This new analysis. For example, the same We also propose replacing the term pre-offer self-identification step also individual could be a protected veteran ‘‘appropriate accommodation’’ in would include the requirement, because he or she is a special disabled paragraph (d) with ‘‘reasonable currently stated in paragraph (e) of this veteran and a veteran of the Vietnam accommodation.’’ We have always section, that the contractor maintain the era. Finally, at the pre-offer stage under interpreted ‘‘appropriate pre-offer self-identification data and the proposed rule the contractor’s accommodation’’ in this paragraph as supply it to OFCCP upon request. obligations would be the same with substantively identical to the term Incorporating self-identification into the respect to each category of protected ‘‘reasonable accommodation.’’ However, application process would allow the veteran, thus there is no apparent ‘‘ ’’ contractor, and subsequently OFCCP, to benefit to knowing the specific category reasonable accommodation is already collect valuable, targeted data on the of protected veteran to which an defined in these regulations and has a number of protected veterans who apply applicant belongs. more broadly used and accepted legal for Federal contractor positions. This In addition to the pre-employment definition, we propose using it here to data would enable the contractor and self-identification provisions in § 60– avoid any confusion. This language OFCCP to measure the effectiveness of 250.42(a) of the proposed rule, § 60– change does not alter the contractor’s the contractor’s recruitment and 250.42(b) of the proposed rule also existing obligations. affirmative action efforts over time. requires the contractor to invite Section 60–250.43 Affirmative Action Moreover, the contractor and OFCCP individuals, after the offer of Policy will be better equipped to improve and employment is extended, to self-identify refine successful and effective recruiting as a member of one or more of the four This section outlines the contractor’s mechanisms, thereby increasing the classifications of protected veterans non-discrimination and affirmative number of applications from protected under part 60–250. Thus, post-offer action obligations under Section 4212. veterans. Additionally, this data will identification will enable the contractor We propose two minor revisions to this enable OFCCP to identify and promote to capture refined data pertaining to section. successful recruitment and affirmative each classification of protected veterans, First, we propose replacing the phrase efforts taken by the contractor as set forth in the VETS–100 form, ‘‘because of status as a’’ in this section community. which the contractor is required to to ‘‘against,’’ in order to clarify that the Through the various outreach efforts maintain and submit. As is currently the non-discrimination requirements of to stakeholders OFCCP has conducted case, the post-offer self-identification as Section 4212 are limited to protected in advance of this NPRM, an issue has a special disabled veteran would not veterans and that reverse discrimination been raised regarding the implementing require applicants to disclose the claims may not be brought by regulations of Title I of the ADA and specific nature of their disability. individuals who do not fall under one Section 503, which limit the extent to We propose to revise paragraph (c) of of the categories of veterans protected which employers may inquire about this section by deleting the second by part 60–250. Second, we propose disabilities prior to an offer of sentence of the parenthetical at the end replacing the phrase ‘‘special disabled employment. See 29 CFR 1630.13, of the paragraph. This sentence veteran(s), veteran(s) of the Vietnam era, 1630.14; 41 CFR 60–741.42. The described the format of and rationale recently separated veteran(s), or other concern is that requiring the contractor behind the current Appendix B, which protected veteran(s),’’ used twice in this to invite applicants to self-identify as a has been substantially amended in light section, with the term ‘‘protected

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veteran,’’ for the reasons set forth in the annual basis to ensure that its currently in Appendix C (which are discussion of § 60–250.2. obligations are being met. The current incorporated into paragraph (b) in the rule requires that the contractor review proposed rule), and encourage the Section 60–250.44 Required Contents these processes ‘‘periodically.’’ This contractor to undertake any additional of Affirmative Action Programs standard is vague and subject to appropriate procedures to satisfy its This section details the elements that confusion. Indeed, OFCCP’s efforts to affirmative action obligations. the contractor’s affirmative action enforce this requirement in recent years The proposed paragraph (c) clarifies programs must contain. These existing have been complicated by contractors’ that all physical and mental job elements include: (1) An equal various, subjective interpretations of qualification standards must be employment opportunity policy what constitutes ‘‘periodic’’ review. This reviewed and updated, as necessary, on statement; (2) a comprehensive annual proposal sets forth a clear, measurable, an annual basis. As with paragraph (b), review of personnel processes; (3) a and uniform standard that will be easily the current rule’s requirement that the review of physical and mental job understood by the contractor and more contractor review these standards qualifications; (4) a statement that the easily enforced by OFCCP. ‘‘periodically’’ is vague and subject to contractor is committed to making Further, the proposed revisions confusion. OFCCP has concluded that reasonable accommodations for persons mandate certain specific steps that the contractors inconsistently interpreted with physical and mental disabilities; ‘‘ ’’ contractor must take, at a minimum, in what constitutes periodic review. The (5) a statement that the contractor is the review of its personnel processes. proposed change provides a clear, committed to ensuring a harassment- measurable, and uniform standard. These specific steps are those currently free workplace for protected veterans; The proposed paragraph (c)(1) adds set forth in Appendix C to the (6) external dissemination of the language requiring the contractor to contractor’s affirmative action policy, as regulation. Appendix C currently document the results of its annual well as outreach and recruitment efforts; suggests that the contractor: (1) Identify review of physical and mental job (7) the internal dissemination of the the vacancies and training programs for qualification standards. The regulation contractor’s affirmative action policy to which protected veteran applicants and has long required this review to ensure all of its employees; (8) the development employees were considered; (2), provide that job qualification standards which and maintenance of an audit and a statement of reasons explaining the tend to screen out disabled veterans are reporting system designed to evaluate circumstances for rejecting protected job-related and consistent with business affirmative action programs; and (9) veterans for vacancies and training necessity. The proposed change would training for all employees regarding the programs and a description of merely require that the contractor implementation of the affirmative action considered accommodations; and (3) document the review it has already been program. describe the nature and type of required to perform. It is anticipated The first substantive proposed accommodations for special disabled that this documentation would list the revisions to this section focus on the veterans who were selected for hire, physical and mental job qualifications contractor’s policy statement as set forth promotion, or training programs. for the job openings during a given AAP in paragraph (a). The proposed Previously, these steps were year—which should already be available regulation revises the second sentence recommended as an appropriate set of from the contractor’s job postings—and to clarify the contractor’s duty to procedures. OFCCP’s enforcement provide an explanation as to why each provide notices of employee rights and efforts have found that many contractors requirement is related to the job to contractor obligations in a manner that do not follow these recommended steps, which it corresponds. Documenting this is accessible and understandable to and that the documentation contractors review will ensure that the contractor persons with disabilities. It also revises maintain of the steps that they do take critically analyzes its job requirements the parenthetical at the end of the are often not conducive to a meaningful and proactively eliminates those that are sentence, replacing the outdated review by the contractor or OFCCP, not job-related. It will also allow OFCCP suggestion of ‘‘hav[ing] the notice read particularly in the event of employee/ to conduct audits and investigations in to a visually disabled individual’’ as an applicant complaints. Such a a more thorough and efficient manner. accommodation with the suggestion to meaningful review has always been the Paragraph (c)(3) currently provides provide Braille, large print, or other goal of the requirements in paragraph that, as a defense to a claim by an versions that allow persons with (b), as it ensures that the contractor individual that certain mental or disabilities to read the notice remains aware of and actively engages physical qualifications are not job- themselves. The proposed regulation in its overall affirmative action related and consistent with business also revises the third sentence of obligations toward protected veterans. necessity, the contractor may assert that paragraph (a) regarding the content of The proactive approach set forth in the the individual poses a ‘‘direct threat’’ to the policy statement, replacing the current Appendix C would provide the health or safety of the individual or inclusion of the ‘‘chief executive greater transparency between the others in the workplace. The definition officer’s attitude on the subject matter’’ contractor, its applicants/employees, of ‘‘direct threat’’ in these regulations with ‘‘chief executive officer’s support and OFCCP as to the reasons for the spells out the criteria that the contractor for the affirmative action program.’’ This contractor’s personnel actions. must consider in determining whether a proposed change is made to clarify the Requiring that the contractor record the ‘‘direct threat’’ exists. The proposed intent of including a statement from the specific reasons for their personnel paragraph (c)(3) would require the contractor’s CEO in the affirmative actions, and making them available to contractor to contemporaneously create action policy statement, which is to the employee or applicant upon request, a written statement of reasons signal to the contractor’s employees that would also aid them in clearly supporting its belief that a direct threat support for the affirmative action explaining their personnel actions to exists, tracking the criteria set forth in program goes to the very top of the applicants and employees, which could the ‘‘direct threat’’ definition in these contractor’s organization. subsequently reduce the number of regulations, and maintain the written In paragraph (b), the proposed rule complaints filed against contractors. statement as set forth in the requires that the contractor must review Thus, we propose requiring the recordkeeping requirement in § 60– its personnel processes on at least an contractor to take the steps outlined 250.80. Once again, this is to ensure that

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the contractor’s ‘‘direct threat’’ for veterans to help them find resources at the national, state and local analysis—which is already required employment. levels. The NPRM gives contractors and under these regulations, as well as Second, the contractor would be subcontractors the flexibility to select regulations to Section 503 of the required to enter into a linkage any organization on the National Rehabilitation Act and the Americans agreement with at least one of several Resource Directory for outreach and with Disabilities Act—is well-reasoned other listed organizations and agencies recruit purposes. Since this Web site is and available for review by OFCCP. for purposes of recruitment and a great nationwide resource, any Finally, for both the proposed developing training opportunities. The contractor would likely find it useful in documenting requirements in listed organizations and agencies are fulfilling its affirmative action paragraphs (c)(1) and (c)(3), the those that are listed in the current obligations, such as recruiting veterans. proposed regulation would require that paragraph (f)(1), with one addition: The The contractor would be required to the contractor treat the created Department of Defense Transition establish a linkage agreement with at documents as confidential medical Assistance Program (TAP), or any least one of the many veterans’ service records in accordance with § 60– subsequent program that replaces TAP. organizations listed on the site 250.23(d). This program is administered in part by (excluding organizations described in Perhaps the most significant the Department of Labor’s Veterans’ the previous paragraph) to facilitate substantive changes in the proposed Employment and Training Service referral of qualified protected veterans, rule address the scope of the (VETS) in Family Services Offices or as well as other related advice and contractor’s recruitment efforts and the similar offices at military bases. (See technical assistance. We believe that dissemination of its affirmative action http://www.dol.gov/vets/programs/tap/ these first two efforts that the proposed policies described in paragraphs (f) and tap_fs.htm) According to the rule requires would assist the contractor (g) of this section. While these two Department of Defense, there are 249 in establishing a baseline level of paragraphs generally require that the TAP offices in installations around the contact with veteran and employment- contractor engage in recruitment and United States, and another 16 TAP related organizations, while providing disseminate its policies, the current rule offices located in installations abroad. the contractor with the flexibility to recommends rather than requires the The TAP was designed to ‘‘smooth the establish linkage agreements with specific methods for carrying out these transition of military personnel and organizations that are most tailored to obligations. family members leaving active duty.’’ the contractor’s hiring needs. Finally, The current paragraph (f) suggests a The TAP includes employment the proposed paragraph (f)(1) would number of outreach and recruitment workshops with the Department of also require that the contractor send efforts that the contractor can undertake Labor, and offers individualized written notification of company policy in order to increase the employment employment assistance and training. It related to affirmative action efforts to its opportunities for protected veterans. See is currently required for all those subcontractors, including 41 CFR 60–250.44(f)(1). The proposed serving in the Marine Corps, and is subcontracting vendors and suppliers, paragraph (f) requires that the contractor generally encouraged and supported by in order to request appropriate action on engage in a minimum number of the other branches of the military. their parts and to publicize the outreach and recruitment efforts as Accordingly, it provides an excellent contractor’s commitment to affirmative described in proposed paragraph (f)(1). existing source for identifying qualified action on behalf of protected veterans. The proposed paragraph (f) also protected veterans. TAP is a validated While the proposed regulations would includes a list of additional outreach multi-government agency program that not require that the contractor send and recruitment efforts that are assists separating veterans in finding written notification to vendors and suggested (proposed paragraph (f)(2)), a employment, from resume writing to suppliers who are not subcontractors as new requirement that the contractor interview techniques to dressing for defined by these regulations, such conduct self-assessments of their success. OFCCP is aware, however, that disclosure remains an encouraged outreach and recruitment efforts not all contractors are located near a activity, just as it is under the current (proposed paragraph (f)(3)), and a military base or similar facility which regulation. See 41 CFR 60–250.44(f)(6). clarification of the contractor’s provides TAP; therefore, a contractor We believe that the required linkage recordkeeping obligation with regard to may select another organization or agreements we propose in paragraph its outreach and recruitment efforts agency from the list that is more (f)(1) will greatly facilitate the (proposed paragraph (f)(4)). conducive to its recruiting efforts. contractor’s efforts to attract qualified In the proposed paragraph (f)(1), the Third, paragraph (f)(1) would also protected veteran applicants. We contractor would be required to engage require that the contractor consult the encourage comments from stakeholders in three outreach and recruitment Employer Resources section of the regarding this proposal, particularly if efforts. First, the contractor would be National Resource Directory, a stakeholders have information on required to enter into linkage partnership with an online collaboration recruitment sources not included in this agreements and establish ongoing (http://www.nationalresource proposal that might increase relationships with the Local Veterans’ directory.gov/employment/job_services_ employment of protected veterans. Employment Representative in the local and_employment_resources) among the In paragraph (f)(2) of the proposed employment service office nearest the Departments of Labor, Defense, and rule, we list a number of outreach and contractor’s establishment. The statute Veterans Affairs. New contractors and recruitment efforts that are suggested already requires contractors and subcontractors often inquire about how measures for increasing employment subcontractors to send their job listings they can find qualified protected opportunities for protected veterans. to the Local Veterans’ Employment veterans to comply with their AAP The efforts listed in paragraph (f)(2) are Representative in the local or state obligations. The National Resource largely identical to the efforts that are employment service office for listing Directory is a leading government Web suggested in paragraphs (f)(2) through and priority referral of protected site that provides prospective employers (f)(5) and (f)(7) through (f)(8) of the veterans. The Local Veterans’ of veterans access to veterans’ service current rule. This includes: (1) Holding Employment Representative is an organizations, existing job banks of briefing sessions with representatives existing government resource provided veterans seeking employment, and other from recruiting resources; (2)

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incorporating recruitment efforts for veterans have been hired. Further, As for the requirement to inform all protected veterans at educational should the contractor determine that its applicants and employees of its institutions; (3) considering applicants efforts were not effective, the proposed affirmative action obligations (item (2) who are known protected veterans for rule requires the contractor to identify in the preceding paragraph), the all available positions when the position and implement one or more of the proposed regulation would require that applied for is unavailable; and (4) any alternative efforts listed in proposed the contractor hold meetings with its other positive steps the contractor paragraphs (f)(1) and (f)(2) in order to employees at least once per year to believes are necessary to attract fulfill its obligations. The general discuss the contractor’s affirmative qualified protected veterans, including purpose of this self-assessment is to action policies and to explain contractor contacts with any local veteran-related ensure that the contractor think and individual employee organizations. critically about its recruitment and responsibilities under these policies. Paragraph (f)(3) of the proposed rule outreach efforts, identify and ascertain These could be traditional in-person would require the contractor, on an successful recruiting efforts, and modify meetings, or meetings facilitated by annual basis, to review the outreach and its efforts to ensure that its obligations technology such as webinars or recruitment efforts it has undertaken are being met. videoconferencing. It would also require over the previous twelve months and Paragraph (f)(4) of the proposed rule that the contractor describe individual evaluate their effectiveness in would require that the contractor employee opportunities for identifying and recruiting qualified document its linkage agreements and advancement in furtherance of the protected veterans, and document its the activities it undertakes in order to contractor’s affirmative action plan. review. Contractors that do not comply with paragraph (f), and retain Frequent establishment-wide training proactively monitor their outreach and these documents for a period of five (5) on affirmative action issues will recruitment efforts often lose years. This requirement will enable the facilitate a greater understanding of the opportunities to consider and hire contractor and OFCCP to more purpose of the affirmative action plan qualified protected veterans for effectively review recruitment and among employees. This training will employment. This requirement will outreach efforts undertaken to ensure also enhance the visibility and allow the contractor to look at its that the affirmative action obligations of importance of affirmative action to the measurable accomplishments and paragraph (f) are satisfied. recruitment, hiring, and advancement of reconsider unproductive methods. We protected veterans. Finally, a newly Paragraph (g) of this section requires believe requiring this on an annual basis proposed paragraph (g)(4) would require that the contractor develop internal strikes the proper balance between the contractor to document its activities procedures to communicate to its ensuring that adjustments to in order to comply with paragraph (g), employees its obligation to engage in recruitment efforts are made on a timely and retain these documents as records affirmative action efforts. The current basis if needed, while also ensuring that subject to the recordkeeping paragraph (g)(2) contains several the contractor has enough data on requirements of § 60–250.80. This will suggested methods by which the existing recruitment efforts to be able to allow for a more effective review by the determine if adjustments need to be contractor may accomplish this. The contractor and OFCCP to ensure that the made. proposed rule would mandate the affirmative action obligations of We recognize that the ‘‘effectiveness’’ following practices: (1) Include its paragraph (g) are being met. of an outreach or recruitment effort is affirmative action policy in its policy Paragraph (h) of this section details not easily defined, and may include a manual; (2) inform all applicants and the contractor’s responsibilities in number of factors that are unique to a employees of its affirmative action designing and implementing an audit particular contractor establishment. obligations; (3) conduct meetings with and reporting system for its affirmative Generally speaking, a review of the executive, management, and action program, including the specific efficacy of a contractor’s efforts should supervisory personnel to explain the computations and comparisons that are include the number of protected veteran intent of the policy and responsibility part of the audit. The proposed candidates each effort identifies. for its implementation; and (4) discuss regulations add a new paragraph Recognizing that other unique and the policy in orientation and (h)(1)(vi) requiring the contractor to intangible characteristics may management training programs. In document the actions taken to comply contribute to the assessment of the addition, if the contractor is party to a with paragraphs (h)(1)(i)–(v), and ‘‘effectiveness’’ of a given effort, the collective bargaining agreement, then maintain such documents as records proposed regulation allows the the proposed rule would require the subject to the recordkeeping contractor some flexibility in making contractor to meet with union officials requirements of § 60–250.80. Again, this this assessment. However, the proposed and representatives to inform them will allow for a more effective review by regulation requires that the contractor about the policy and seek their the contractor and OFCCP to ensure the consider the numbers of protected cooperation. Other suggested elements affirmative action obligations of this veteran referrals, applicants, and hires in the current paragraph (g)(2) remain in paragraph are being met. for the current years and two previous the proposed rule at newly created The only substantive proposed change years as criteria in evaluating its efforts, paragraph (g)(3) as suggested additional in paragraph (i), requires that the and document all other criteria that it dissemination efforts the contractor can identity of the officials responsible for a uses to assess the effectiveness of its make. This includes suggesting that the contractor’s affirmative action activities efforts, so that OFCCP compliance contractor use company newspapers, must appear on all internal and external officers are able to understand clearly magazines, annual reports, handbooks, communications regarding the the rationale behind the contractor’s or other media to publicize its contractor’s affirmative action program. self-assessment. The contractor’s affirmative action obligations and In the current regulation, this disclosure conclusion as to the effectiveness of its feature protected veterans and their is only suggested. Requiring this outreach must be reasonable as accomplishments. See current disclosure will increase transparency, determined by OFCCP in light of these regulation at 41 CFR 60– making it clear to applicants, regulations. The primary indicator of 250.44(g)(2)(iii), 60–250.44(g)(2)(vii); employees, OFCCP, and other interested effectiveness is whether qualified 60–250.44(g)(2)(viii). parties which individual(s) are

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responsible for the implementation of 250.5, paragraph 5 of the EO clause), as established by the contractor using the contractor’s affirmative action well as applicant data (see § 60– existing data on veteran availability, program. 250.42(a)). Hiring data is already while also allowing the contractor to Paragraph (j) requires that the maintained by the contractor in its take into account other factors unique to contractor train those individuals who VETS–100 forms, a requirement which its establishment that would tend to implement the personnel decisions is carried over into this proposal. affect the availability determination. pursuant to its affirmative action Accordingly, paragraph (k) requires that While the Bureau of Labor Statistics program. The proposed regulation the contractor document and maintain (BLS) and Census Bureau (Census) do specifies the topics that shall be the following information: (1) For not tabulate data pertaining to the included in the contractor’s training: referral data, the total number of specific classifications of protected The benefits of employing protected referrals, the number of priority referrals veterans under part 60–250, there are veterans; appropriate sensitivity toward of protected veterans, and the ‘‘referral other existing data sources that are protected veteran recruits, applicants ratio’’ of referred protected veterans to instructive. For instance, BLS tabulates and employees; and the legal total referrals; (2) for applicant data, the statewide data on the number of responsibilities of the contractor and its total number of applicants for veterans in the civilian labor force and agents regarding protected veterans employment, the number of applicants the unemployment rate of veterans in generally and special disabled veterans who are known protected veterans, and the labor force, and national data on the specifically, such as reasonable the ‘‘applicant ratio’’ of protected number of veterans with a service- accommodation for qualified disabled veteran applicants to total applicants; related disability. The Department’s veterans and the related rights and (3) for hiring data, the total number of Veterans Employment and Training responsibilities of the contractor and people hired, the number of protected Service collects statewide data over a protected veterans. Training on these veterans hired, and the ‘‘hiring ratio’’ of rolling, four quarter period of issues will facilitate a greater protected veteran hires to total hires; individuals who ‘‘participated’’ in the understanding of the purpose of the and (4) the total number of job openings, state employment services. The affirmative action plan among decision the number of jobs that are filled, and breakdown of this data includes the makers for the contractor, and will the ‘‘job fill ratio’’ of job openings to job number of overall veterans, the number enhance the visibility and importance of openings filled. The proposed of overall veterans who are identified as affirmative action to the recruitment, regulation requires that the contractor being unemployed, and the number of hiring, and advancement of protected must document these measurements on veterans in some, although not all, of veterans. The proposed regulation an annual basis, and maintain records of the specific categories of veterans would also require that the contractor them for five (5) years. These basic protected by part 60–250. record which of its personnel receive measurements will provide the Accordingly, the proposed rule would this training, when they receive it, and contractor and OFCCP with important require that the contractor consult a the person(s) who administer(s) the information that does not currently number of different sources of training, and maintain these records, exist. This will aid the contractor in information, which will be made easily along with all written or electronic evaluating and tailoring its recruitment available to the contractor, in training materials used, in accordance and outreach efforts and in establishing establishing hiring benchmarks. As set with the recordkeeping requirements of hiring benchmarks as set forth in the forth in the proposed paragraph (b), § 60–250.80. Again, this will allow for a discussion of the proposed § 60–250.45, these sources would include: (1) The more effective review by the contractor infra. percentage of veterans in the civilian and OFCCP to ensure the affirmative Finally, the proposed regulation labor force, tabulated by BLS and which action obligations of this paragraph are replaces the phrase ‘‘special disabled will be published on OFCCP’s Web site; being met. veteran(s), veteran(s) of the Vietnam era, (2) the raw number of veterans who The proposed regulation adds a new recently separated veteran(s), or other were participants in the state paragraph (k) requiring that the protected veteran(s),’’ with the term employment service in the State where contractor maintain several quantitative ‘‘protected veteran’’ in paragraphs (a), the contractor’s establishment is measurements and comparisons (a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), located, which will also be published on regarding protected veterans who have (f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), OFCCP’s Web site; (3) the referral ratio, been referred by state employment (g)(2)(vii), and (h)(1)(iv), for the reasons applicant ratio, and hiring ratios as services, have applied for positions with stated in the discussion of § 60–250.2. expressed in the proposed § 60– the contractor, and/or have been hired The proposed regulation also replaces 250.44(k); (4) the contractor’s recent by the contractor. The impetus behind the terms ‘‘Vietnam Era Veterans’ assessments of the effectiveness of its this new section is that, as stated in the Readjustment Assistance Act of 1974’’ or external outreach and recruitment discussion of § 60–250.44(a), no ‘‘VEVRAA’’ with the term ‘‘Section 4212’’ efforts, as expressed in the proposed structured data regarding the number of throughout this section, for the reasons § 60–250.44(f)(3); and (5) any other protected veterans who are referred for stated in the discussion of § 60–250.1. factors, including but not limited to the or apply for jobs with Federal nature of the contractor’s job openings contractors is currently maintained. Section 60–250.45 Contractor- and/or its location, which would tend to This absence of data makes it nearly Established Benchmarks for Hiring affect the availability of qualified impossible for the contractor and The proposed regulation would protected veterans. The contractor OFCCP to perform even rudimentary require for the first time that the would be required to consider and evaluations of the availability of contractor establish annual hiring document each of these factors, see protected veterans in the workforce, or benchmarks, expressed as the proposed paragraph (c) of this section, to make any quantitative assessments of percentage of total hires who are but would be given discretion to weigh how effective contractor outreach and protected veterans that the contractor the various factors in a manner that is recruitment efforts have been in seeks to hire in the following year. As reasonable in light of the contractor’s attracting protected veteran candidates. stated in paragraph (a) of the proposed unique circumstances. We believe that The proposed regulations provide for rule and set forth more fully below, this proposal creates a practical and the collection of referral data (see § 60– these hiring benchmarks would be workable mechanism for establishing

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benchmarks that will allow the of business. The increased use of finds a violation of Section 4212 or its contractor to measure its success in electronic records that are easily regulations that has not been corrected. recruiting and employing protected accessible from multiple locations The proposed rule replaces the term veterans. However, we seek input from affords compliance officers greater ‘‘Deputy Assistant Secretary’’ in stakeholders on this proposal and any flexibility in conducting focused paragraph (a)(2) of this section with the additional measures that would make reviews. Therefore, we propose to delete term ‘‘Director,’’ for the reasons set forth these benchmarks more meaningful, as the word ‘‘on-site’’ from this section, in the discussion of § 60–250.2. well as any other measures that would which will allow compliance officers to Section 60–250.66 Sanctions and otherwise increase employment conduct reviews of relevant materials at Penalties opportunities for veterans. any appropriate location. Fifth, the proposed rule contains a This section discusses the types of Subpart D—General Enforcement and new paragraph (d) which details a new sanctions and penalties that may be Complaint Procedures procedure for pre-award compliance assessed against a contractor if it is Section 60–250.60 Compliance evaluation under Section 4212. This found to have violated Section 4212 or Evaluations proposed rule is based on the pre-award its regulations. The proposed rule replaces the term ‘‘Deputy Assistant This section details the form and compliance procedure contained in the Executive Order regulations (see 41 CFR Secretary’’ in paragraph (a) of this scope of the compliance evaluations of section with the term ‘‘Director,’’ for the the contractor’s affirmative action 60–1.20(d)). Finally, the proposed regulation reasons set forth in the discussion of programs conducted by OFCCP. The replaces the phrase ‘‘special disabled § 60–250.2. proposed rule contains several changes veteran(s), veteran(s) of the Vietnam era, to this section. Section 60–250.67 Notification of recently separated veteran(s), or other First, the proposal adds a sentence to Agencies protected veteran(s),’’ with the term paragraph (a)(1)(i) regarding the ‘‘protected veteran’’ in paragraph (a) for This section provides that agency temporal scope of desk audits the reasons stated in the discussion of heads will be notified if any contractors performed by OFCCP. This language § 60–250.2. are debarred. The proposed rule merely clarifies OFCCP’s long-standing replaces the term ‘‘Deputy Assistant policy that, in order to fully investigate Section 60–250.61 Complaint Secretary’’ with the term ‘‘Director,’’ for and analyze the scope of potential Procedures the reasons set forth in the discussion of violations, OFCCP may need to examine This section outlines the manner in § 60–250.2. information after the date of the which applicants or employees who are Section 60–250.68 Reinstatement of scheduling letter in order to determine, protected veterans may file complaints Ineligible Contractors for instance, if violations are continuing alleging violations of Section 4212 or its This section outlines the process by or have been remedied. The language regulations. does not represent a change in policy or The proposed rule replaces the term which a contractor that has been new contractor obligations. ‘‘Deputy Assistant Secretary’’ with the debarred may apply for reinstatement. Second, the current paragraph (a)(2) term ‘‘Director’’ in paragraphs (e)(1), The proposed rule replaces the term ‘‘ ’’ relating to the off-site review of records (e)(2), and (e)(3), for the reasons set forth Deputy Assistant Secretary in incorrectly refers to the ‘‘requirements of in the discussion of § 60–250.2. The paragraphs (a) and (b) of this section ‘‘ ’’ the Executive Order and its regulations;’’ proposed regulation also replaces the with the term Director, for the reasons the proposed rule corrects this to read term ‘‘state employment security set forth in the discussion of § 60–250.2. the ‘‘requirements of Section 4212 and agency’’ in paragraph (a) with the term Section 60–250.69 Intimidation and its regulations.’’ ‘‘employment service delivery system,’’ Interference Third, the proposed rule contains a for the reasons set forth in the change to the nature of document This section forbids the contractor discussion of § 60–250.5. Finally, the from retaliating against individuals who production under paragraph (a)(3). This proposed regulation replaces the phrase paragraph, which specifies a have engaged in or may engage in ‘‘special disabled veteran(s), veteran of certain specified protected activities, ‘‘compliance check’’ as an investigative the Vietnam era, recently separated procedure OFCCP can use to monitor a and describes the contractor’s veteran(s), or other protected veteran(s)’’ affirmative obligations in preventing contractor’s recordkeeping, currently with the term ‘‘protected veteran’’ in states that the contractor may provide retaliation. The proposed rule replaces paragraph (b)(iii), for the reasons stated the term ‘‘Deputy Assistant Secretary’’ in relevant documents either on-site or off- in the discussion of § 60–250.2. site ‘‘at the contractor’s option.’’ The paragraph (b) of this section with the proposed regulation eliminates this Section 60–250.64 Show Cause Notice term ‘‘Director,’’ for the reasons set forth in the discussion of § 60–250.2. The quoted clause and provides that OFCCP This section describes the manner in proposed rule also replaces the phrase may request that the documents to be which OFCCP notifies a contractor ‘‘special disabled veteran(s), veterans of provided either on-site or off-site. when it believes the contractor has the Vietnam era, recently separated Fourth, the proposed rule contains a violated Section 4212 or its regulations. veteran(s), or other protected minor change to the scope of ‘‘focused The proposed rule replaces the term veteran(s),’’ with the term ‘‘protected reviews’’ as set forth in paragraph (a)(4). ‘‘Deputy Assistant Secretary’’ in this veteran’’ in paragraphs (a)(2) and (a)(3) Focused reviews allow OFCCP to target section with the term ‘‘Director,’’ for the for the reasons stated in the discussion one or more components of a reasons set forth in the discussion of of § 60–250.2. contractor’s organization or employment § 60–250.2. practices, rather than conducting a more Subpart E—Ancillary Matters comprehensive compliance review of an Section 60–250.65 Enforcement entire organization. Currently, the Proceedings Section 60–250.80 Recordkeeping regulations provide that these focused This section describes the procedures This section describes the reviews are ‘‘on-site,’’ meaning they for formal enforcement proceedings recordkeeping requirements that apply must take place at the contractor’s place against a contractor in the event OFCCP to the contractor under Section 4212,

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and the consequences for the failure to Section 60–250.84 Responsibilities of Appendix B to Part 60–250—Sample preserve records in accordance with Local Employment Service Offices Invitation to Self-Identify these requirements. The proposed This section outlines the The proposed rule amends Appendix regulation adds a sentence at the end of responsibilities of local employment B consistent with the proposed changes paragraph (a) of this section clarifying service offices, including the obligation to the self-identification regulation that the newly proposed recordkeeping to give priority referral to protected found at § 60–250.42. The first requirements set forth in §§ 250.44(f)(4) veterans for jobs listed by a Federal paragraph is amended simply to include (linkage agreements and other outreach contractor. The proposed rule replaces detailed definitions of the four types of and recruiting efforts), 250.44(k) the phrase ‘‘special disabled veteran(s), classifications of protected veterans. (collection of referral, applicant and hire veteran(s) of the Vietnam era, recently These definitions are to be included in data), 250.45(c) (criteria and separated veteran(s), or other protected a contractor’s invitation to self-identify conclusions regarding contractor veteran(s),’’ with the term ‘‘protected either at the pre-offer (proposed § 60– established hiring benchmarks), and veteran’’ for the reasons stated in the 250.42(a)) or post-offer (proposed § 60– Paragraph 5 of the equal opportunity discussion of § 60–250.2. 250.42(b)). We propose this change to clause in § 60–250.5(a) (referral data) clarify for the contractor and for must be maintained for five (5) years, for Appendix A to Part 60–250—Guidelines applicants exactly which categories of the reasons set forth in the discussion of on a Contractor’s Duty To Provide veterans are protected by part 60–250. those sections, supra. Reasonable Accommodation The second paragraph of the Appendix contains the suggested model The proposed rule includes four Section 60–250.81 Access to Records language for the self-identification of changes to Appendix A which would protected veterans. The current mandate activities that previously were This section describes a contractor’s language has models to be used if they only suggested. These changes primarily obligations to permit access to OFCCP are being distributed to non-special reflect proposed revisions to §§ 60– when conducting compliance disabled protected veterans exclusively, 250.2 and 60–250.42(d), supra, that evaluations and complaint special disabled veterans exclusively, or would alter the contractor’s investigations. The proposed rule adds to all protected veterans. In keeping responsibilities. some language clarifying the with the proposed changes in § 60– contractor’s obligations, particularly in First, in the third sentence of 250.42, we propose amending the light of the increased use of paragraph 2, we propose changing the second paragraph to include two electronically stored records. First, the language to reflect the change to § 60– models: one that will be given to all proposed rule adds a sentence requiring 250.42(d) requiring a contractor to seek applicants at the pre-offer stage, and one the contractor to provide off-site access the advice of special disabled veterans that will be given at the post-offer stage to materials if requested by OFCCP in providing reasonable to all individuals who have been offered investigators or officials as part of an accommodation. Second, in the last employment by the contractor. For the evaluation or investigation. This change sentence of Paragraph 4, the proposed pre-offer stage, the invitation refers to reflects the increased use of electronic rule is changed to require that special the definitions for each of the records from multiple locations, and disabled veterans, in the event an classifications of protected veterans and accordingly gives OFCCP greater accommodation would constitute an invites applicants to identify if they flexibility in conducting its evaluations undue hardship for the contractor, be belong to any one (or more) of them and investigations. Second, the given the option of providing the generally. It does not provide for proposed rule requires that the accommodation or paying the portion of individuals to self-identify as a contractor specify all formats (including the cost that constitutes the undue particular type of protected veteran (e.g., hardship for the contractor. Third, in specific electronic formats) in which its a qualified special disabled veteran). For the fourth sentence of paragraph 5, we records are available, and produce the post-offer stage, the invitation again propose changing the language to records to OFCCP in the format selected refers to the definitions for each of the require a contractor to seek the advice by OFCCP. This change is proposed in classifications of protected veteran and of special disabled veterans in providing then invites applicants to indicate to light of numerous instances in which reasonable accommodation. Finally, in OFCCP has conducted extensive review which specific classifications of the last sentence of paragraph 9, the protected veteran they belong. and analysis of a contractor’s records proposed rule is changed to require that only to find subsequently that the For both the pre-offer and post-offer a contractor must consider the totality of invitations, we have proposed new records were available in more readily the circumstances when determining language explaining to applicants that accessible formats. Specifying the what constitutes a ‘‘reasonable amount the information is being requested in variety of available formats upon of time’’ in the context of available order to measure the contractor’s request, and providing records to vacant positions. outreach and recruitment efforts OFCCP in the format it selects, will Additionally, the proposed rule required under part 60–250. This facilitate a more efficient investigation changes the reference to ‘‘§ 60–250.2(o)’’ replaces the current language which process. in paragraph 1 of Appendix A to ‘‘§ 60– only inquires whether individuals Section 60–250.83 Rulings and 250.2(r),’’ and changes the references to would like to be included under the Interpretations ‘‘§ 60–250.2(t)’’ in paragraphs 5 and 8 of contractor’s affirmative action program. Appendix A to ‘‘§ 60–250.2(s).’’ This is The post-offer invitation in Paragraph 2 This section establishes that rulings to reflect the revised alphabetical also incorporates the language in the and interpretations of Section 4212 will structure of the definitions section in current paragraph 7 of the Appendix, be made by the Director of OFCCP. The the proposed rule, as discussed in § 60– which requests that special disabled proposed rule replaces the term ‘‘Deputy 250.2, above. The proposed regulation veterans describe possible workplace Assistant Secretary’’ with the term also replaces the term ‘‘VEVRAA’’ with accommodations, with the exception of ‘‘Director,’’ for the reasons set forth in ‘‘Section 4212’’ for the reasons set forth replacing ‘‘elimination of certain duties the discussion of § 60–250.2. in the discussion of § 60–250.1. relating to the job’’ with ‘‘changes in the

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way the job is customarily performed.’’ ‘‘VEVRAA’’ and should alleviate any veterans who served on active duty in We propose this change merely to further confusion. the Armed Forces during a war or in a clarify the nature of the interactive Second, paragraph (a) discusses the campaign or expedition for which a process, and to eliminate any confusion contractor’s affirmative action campaign badge has been authorized; (3) that might exist regarding the existing obligations, but does not discuss veterans who, while serving on active language that ‘‘elimination of certain another primary element of the duty in the Armed Forces, participated duties’’ could be read to include regulations: The prohibition of in a United States military operation for eliminating essential functions of the discrimination against veterans which an Armed Forces service medal job. It is a change in verbiage only, and protected under Section 4212. was awarded pursuant to Executive does not alter the substantive Accordingly, the proposed regulation Order No. 12985 (known generally as obligations of the contractor or adds language to the first sentence of ‘‘Armed Forces service medal veteran’’); applicant in the interactive process. paragraph (a) to include this important and (4) recently separated veterans. element. Currently, § 60–300.2 includes specific Finally, the proposed regulation also Additionally, the proposed rule definitions for ‘‘disabled veterans,’’ replaces the term ‘‘VEVRAA’’ with makes two minor language changes in ‘‘ ’’ ‘‘Section 4212’’ for the reasons set forth order to comport with some of the recently separated veterans, and ‘‘ ’’ in the discussion of § 60–250.1. newly proposed definitions in § 60– Armed Forces service medal veterans. See 41 CFR 60–300.2(n), (q), (r). It does Appendix C to Part 60–250—Review of 300.2. First, the term ‘‘other protected not contain a specific definition for Personnel Processes veterans’’ is amended to read ‘‘active duty wartime or campaign badge ‘‘veterans who served on active duty in The proposed rule deletes Appendix veterans,’’ for the reasons detailed in the the Armed Forces during a war or in a C and moves its content, with some Section-by-Section Analysis of § 60– campaign or expedition for which a edits, to § 60–250.44(b). See the Section- 300.2. Second, all references to ‘‘covered campaign badge has been authorized.’’ by-Section Analysis of § 60–250.44, veterans’’ is amended to read ‘‘protected Instead, this classification is included supra, for further discussion. veterans,’’ due to the inclusion of a within the current ‘‘other protected definition for ‘‘protected veteran’’ in the veteran’’ definition. See 41 CFR 60– 41 CFR Part 60–300 proposed § 60–300.2. 300.2(p). This anomaly has caused Subpart A—Preliminary Matters, Equal significant confusion, as many Opportunity Clause Section 60–300.2 Definitions individuals who are unfamiliar with the The proposed rule incorporates the ‘‘ Section 60–300.1 Purpose, regulations believe that the other vast majority of the existing definitions ’’ ‘‘ Applicability and Construction protected veteran category is a catch- contained in existing § 60–300.2 all’’ that includes all veterans. To Paragraph (a) of the current rule sets without change. However, OFCCP address this issue, the proposed rule forth the scope of Section 4212 and the proposes some changes to the substance replaces the ‘‘other protected veteran’’ purpose of its implementing regulations. and structure of this section, as set forth definition that is contained in the We propose a few minor changes to this below. current regulation with the more precise section. First, we propose deleting the With regard to the structure of this classification language ‘‘active duty reference to the ‘‘Vietnam Era Veterans’ section, the current rule lists the wartime or campaign badge veteran’’ Readjustment Assistance Act of 1974’’ or definitions in order of subject matter. that appears in the statute. This However, for those who are unfamiliar ‘‘VEVRAA,’’ and replacing it, in this replacement will not change the scope with the regulations, this organizational section and throughout the regulation, of coverage. Instead, individuals structure makes it difficult to locate with ‘‘Section 4212’’. Referring to the currently covered under the ‘‘other specific terms within this section. The operative law as ‘‘VEVRAA’’ is not protected veteran’’ classification as proposed rule reorders the defined entirely accurate, as Section 4212, defined in the current rule will still be where VEVRAA was initially codified, terms in alphabetical order, and then assigns each term a lettered covered, but will fall under the more has been amended several times since accurate ‘‘active duty wartime or VEVRAA was passed—most recently by subparagraph heading. This modified structure is proposed for ease of campaign badge veteran’’ classification. the Jobs for Veterans Act of 2002 (JVA), It should be noted that this proposed which amended the dollar amount for reference, and to facilitate citation to specific definitions. However, because rule does not revise the VETS–100A contract coverage and the categories of form, which is administered by the protected veterans, and subsequently of this reordering, the citation to specific terms may be different in the Department’s Veterans’ Employment led to the promulgation of the and Training Service (VETS) and regulations found at part 60–300. One of proposed rule than it is currently. For instance, the term ‘‘contract,’’ which is requires the contractor to tabulate the the specific amendments made by the number of employees and new hires in JVA was that ‘‘Vietnam Era veterans’’ § 60–300.2(h) in the current regulations, is § 60–300.2(e) in the proposed each of the component categories of was no longer a distinct protected protected veterans under Section 4212. category.1 Therefore, there is concern regulation. With regard to substantive changes, The VETS–100A form currently that continued use of the term the proposed rule first clarifies the maintains the use of the ‘‘other protected ‘‘VEVRAA’’ perpetuates confusion about definitions pertaining to the veteran’’ classification. After the final which classifications of veterans are classifications of veterans who are rule is published, OFCCP will work covered under the existing law. protected under part 60–300. The Jobs with VETS to conform the VETS–100 Referring to the law as ‘‘Section 4212’’ for Veterans Act (JVA), which amended form to the new Section 4212 clarifies that we are referring to the law Section 4212 in 2002, defined the regulations. The public will be given an as amended. This is more accurate than classes of veterans protected by part 60– opportunity to comment on these 300. The current classifications of revisions, which must be approved by 1 However, the vast majority of individuals who the Office of Management and Budget fell under the ‘‘Vietnam Era veteran’’ category of part protected veterans under the JVA, 60–250 would fall under one of the categories of reflected in the part 60–300 regulation, under the Paperwork Reduction Act protected veterans in part 60–300. are as follows: (1) Disabled veterans; (2) prior to becoming effective.

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The current rule also lacks a clear, Section 60–300.3 [Reserved] for two reasons. First, contractors’ use of overarching definition of ‘‘protected Section 60–300.4 Coverage and private job listing services has increased veteran,’’ under part 60–300. Although it Waivers following the elimination of the discusses the responsibilities of a Department’s America’s Job Bank listing contractor to all categories of protected The proposed regulation replaces the service. Second, we have received term ‘‘Deputy Assistant Secretary,’’ veterans collectively, it also enumerates feedback from officials in state found in paragraphs (b)(1), (b)(2), and employment services that some each classification of protected veteran (b)(3) of this section, with the term several times throughout the regulation. contractors provide job listing ‘‘Director,’’ for the reasons set forth in information to these private job listing Accordingly, the proposed rule includes the discussion of § 60–300.2. a new definition of ‘‘protected veteran,’’ services assuming that they have then which includes all four classifications of Section 60–300.5 Equal Opportunity fulfilled their listing obligations, but protected veterans separately identified Clause that the private job listing services do not always provide the information in and defined in 60–300.2. This new term Paragraph (a) contains the equal the requisite in order to list the job would replace the phrase ‘‘disabled opportunity (EO) clause that must be included in all covered Government opening in its database and provide veteran(s), recently separated veteran(s), priority referral of protected veterans. other protected veteran(s), or Armed contracts and subcontracts. The Forces service medal veteran(s)’’ used proposed regulation includes numerous The proposed regulations also add further detail to paragraph 4 of the EO throughout the current rule to refer to substantive changes. clause with respect to the specific these protected veterans in the First, the proposed regulation adds additional language to subparagraph 2 information the contractor must provide aggregate. The individual categories of of the EO clause in this section to state employment services in each protected veterans continue to be clarifying the contractor’s responsibility state where the contractor has separately identified in the first to ‘‘list’’ jobs in the context of mandatory establishments. The current regulations paragraph of the equal opportunity listing requirements. The mandatory job require that the contractor provide the clause in § 60–300.5 to permit the listing requirement discussed in appropriate state employment service identification of protected veterans in paragraphs 2 and 3 of the EO clause with the name and location of each of the context of the contract (see Section- mandates that the contractor list all the contractor’s hiring locations. The by-Section Analysis of § 60–300.5, infra, employment openings for the duration proposed regulations require that the for further explanation). of the contract with an ‘‘appropriate contractor provide the state employment The proposed rule also replaces the employment service delivery system,’’ service with the following additional term ‘‘Deputy Assistant Secretary,’’ (hereinafter ‘‘employment service’’). This information: (1) Its status as a Federal found currently at § 60–300.2(d), with listing not only provides a source for contractor; (2) the contact information ‘‘Director.’’ The current § 60–300.2(d) veterans to access job listings, but also for the contractor hiring official at each defines ‘‘Deputy Assistant Secretary’’ as allows the employment service to location in the state; and (3) its request ‘‘the Deputy Assistant Secretary for provide priority referrals of veterans for for priority referrals of protected Federal Contract Compliance of the the Federal contractor jobs listed with veterans for job openings at all its locations within the state. This United States Department of Labor, or the employment service. Following the information shall be updated on an his or her designee.’’ Following the publication of the most recent revisions to part 60–300 regulations, questions annual basis. These three additional elimination of the Employment were raised as to the manner in which items are proposed in light of feedback Standards Administration in November a contractor must provide information received from state employment 2009, the head of OFCCP now has the to an employment service in order to services that there is no centralized list title of Director. Accordingly, the satisfy the requirement. There have been of Federal contractors that they can proposed rule reflects this change, many instances in which a contractor consult in order to determine if a listing which will be made throughout part 60– provided job listings to an employment employer is a Federal contractor. If the 300. service in a manner or format that was Federal contractor does not specifically The proposed rule also adds a unusable to that employment service. In identify itself as such to the state definition of ‘‘linkage agreement,’’ now order to satisfy the listing requirement, employment service and further identify described in the OFCCP Federal the contractor must provide job vacancy the hiring official, the state employment Contract Compliance Manual. We information to the appropriate service often will not know if it should propose adding a definition of ‘‘linkage employment service in the manner that be providing priority referrals of agreement’’ to the regulations for clarity. the employment service requires in protected veterans as required by § 60– The proposed regulation defines order to include the job in their database 300.84 or who to contact. Requiring the ‘‘linkage agreement’’ to mean an so that they may provide priority Federal contractor to provide this additional information will facilitate the agreement describing the connection referral of veterans. OFCCP has long priority referral process. The proposed between the contractor and appropriate interpreted the listing responsibilities of regulation also adds a sentence recruitment and/or training sources. A a contractor in this manner. This change clarifies OFCCP’s policy. clarifying that, if the contractor uses any linkage agreement is to be used by the The proposed regulation also adds a outside job search companies (such as a contractor as a source of potential sentence to the end of paragraph 2 temporary employment agency) to assist applicants to the covered groups in clarifying that, for any contractor who in its hiring, the contractor must also which the contractor is interested. The utilizes a privately-run job service or provide the state employment service contractor’s representative that signs the exchange to comply with its mandatory with the contact information for these linkage agreement should be the listing obligation, the information is outside job search companies. Due to company official responsible for the subsequently must be provided to the the widespread use of these outside job contractor’s affirmative action program appropriate employment service in the search companies, this proposed and/or has hiring authority. manner that the employment service language is included to ensure that the requires. This clarification is proposed state employment service has the ability

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to contact any and all individuals in any is accessible and understandable to addition ensures consistency between way responsible for a contractor’s hiring persons with disabilities. It also revises the regulations and aids in in order to effectively carry out its the parenthetical at the end of the communicating the contractor’s EEO obligations under § 60–300.84. Finally, sentence, replacing the outdated responsibilities to job seekers. the proposed regulation replaces the suggestion of ‘‘hav[ing] the notice read Finally, the proposed regulations terms ‘‘state workforce agency’’ and to a visually disabled individual’’ as an amend paragraphs (d) and (e) of this ‘‘state agency,’’ found in a few instances accommodation with the suggestion to section to require that the entire equal in this paragraph, with the term provide Braille, large print, or other opportunity clause be included ‘‘employment service delivery system.’’ versions that allow persons with verbatim in Federal contracts. This is to The terms are interchangeable as used disabilities to read the notice ensure that the contractor and in this paragraph, but the latter term is themselves. The proposed regulations subcontractor read and understand the already specifically defined in § 60– would also add the following sentences language in this clause. Feedback from 300.2, so we use it instead. to the end of proposed paragraph 10 town hall meetings and webinars The proposed regulation adds a new (current paragraph 9) of the EO clause: conducted by OFCCP prior to the paragraph 5 to the EO clause which ‘‘With respect to employees who do not publication of this proposed rule requires the contractor to maintain work at a physical location of the indicated that some contractors, and records, on an annual basis, of the total contractor, a contractor will satisfy its especially subcontractors, are not aware number of referrals it receives from state posting obligations by posting such of their EO Clause responsibilities. In employment services, the number of notices in an electronic format, the case of subcontractors, they often priority referrals of protected veterans it provided that the contractor provides rely on the prime contractors to inform receives, and the ratio of protected computers that can access the electronic them of their nondiscrimination and veteran referrals to total referrals. This posting to such employees, or the affirmative action program obligations. is one of a few new data collection contractor has actual knowledge that If the EO Clause is not written in full, requirements set forth in this NPRM that such employees are otherwise able to subcontractors are disadvantaged and are proposed in order to give the access the electronically posted notices. often unaware of their statutory contractor (as well as OFCCP, in the Electronic notices for employees must obligations until audited by OFCCP. course of compliance evaluations) a be posted in a conspicuous location and Particularly given the emphasis the quantifiable measure of the availability format on the company’s intranet or sent administration and Congress have of protected veterans in the workforce. by electronic mail to employees. An placed on veterans’ employment issues, The contractor would be required to electronic posting must be used by the we believe it is important to take maintain these records on the number of contractor to notify job applicants of whatever steps will inform contractors referrals for five (5) years. We propose their rights if the contractor utilizes an and subcontractors of the obligations a five year record retention requirement electronic application process. Such under the EO Clause. OFCCP solicits for multiple reasons. First, because the electronic applicant notice must be public comment on this proposal and proposed rule anticipates that the conspicuously stored with, or as part of, any other steps that would increase the contractor will use the referral data in the electronic application.’’ The addition contractor community’s awareness of its setting annual hiring benchmarks (see of these sentences is in response to the obligations. Section-by-Section discussion in 300.45, increased use of telecommuting and The proposed regulation also replaces infra) we wanted to ensure that the other work arrangements that do not the term ‘‘Deputy Assistant Secretary,’’ contractor has sufficient historical data include a physical office setting, as well found in paragraph (f) of this section on the number of referrals it has as Internet-based application processes and in paragraphs 9 and 11 of the EO received in years past to meaningfully in which applicants never enter a clause, with the term ‘‘Director,’’ for the inform the benchmarks it sets going contractor’s physical office. These reasons set forth in the discussion of forward. Further, because the proposed revisions therefore would permit § 60–300.2. It also replaces the phrase rule anticipates that the contractor will equivalent access to the required notices ‘‘disabled veteran(s), recently separated review its outreach efforts and adjust for these employees and applicants. veteran(s), other protected veteran(s), or them to maximize recruitment of For paragraph 11, which refers to the Armed Forces service medal veteran(s)’’ protected veterans (see Section-by- contractor’s obligation to notify labor found in the second sentence of Section discussion in 300.44(f)(3), organizations or other workers’ Paragraph 1 and in Paragraph 9 of the infra), we wanted to ensure that the representatives about its obligations EO clause, with the term ‘‘protected contractor has sufficient historical data under Section 4212, we propose adding veteran,’’ for the reasons set forth in the to recognize meaningful trends in language clarifying that these discussion of § 60–300.2. This phrase recruitment and, subsequently, to obligations include non-discrimination, remains in the first sentence of identify effective recruitment efforts that in addition to affirmative action. The Paragraph 1 (with ‘‘active duty wartime corresponded with time periods of current paragraph 11 does not or campaign badge veteran’’ replacing increased recruitment of protected specifically mention the contractor’s ‘‘other protected veteran,’’ as discussed veterans. If the contractor had fewer non-discrimination obligations. in § 60–300.2, supra) of the EO clause so years of referral data on hand, it is less The proposed regulations add a new it is clear to those reading the clause likely that the data would provide paragraph 13 to the EO clause which independently from the rest of the meaningful assistance to the contractor would require the contractor to state regulation precisely which in these respects. and thereby affirm in solicitations and classifications of veterans are protected In paragraph 10 of the EO clause advertisements that it is an equal by this part of the Section 4212 (currently paragraph 9; renumbered due employment opportunity employer of regulations. Additionally, to ensure that to the newly proposed paragraph 5, veterans protected under Section 4212. the contractor is aware of the above), we propose two revisions. The A comparable clause exists in the equal appropriate definitions, we propose third sentence of this paragraph is opportunity clause of the Executive adding a footnote to the title of the EO revised to clarify the contractor’s duty to Order 11246 regulations, see 41 CFR 60– Clause stating explicitly that the provide notices of employee rights and 1.4(a)(2), describing the protected definitions set forth in 41 CFR 60–300.2 contractor obligations in a manner that classes under that Order. This proposed apply to the EO Clause and are

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incorporated by reference. Finally, all propose a minor clarification to disabled veterans to self-identify prior references to ‘‘VEVRAA’’ are replaced paragraph (c) of this section, specifying to making a job offer when: (1) The with the term ‘‘Section 4212,’’ for the that the affirmative action program shall invitation is made while the contractor reasons set forth in the discussion of be reviewed and updated annually ‘‘by actually is undertaking affirmative § 60–300.1. the official designated by the contractor action for disabled veterans at the pre- pursuant to § 60–300.44(i).’’ While this offer stage; or (2) the invitation is made Subpart B—Discrimination Prohibited is the intent of the existing language, the pursuant to a Federal, state or local law Section 60–300.21 Prohibitions proposal clarifies this intention and requiring affirmative action for disabled This section of the rule defines and ensures that company officials who are veterans. These two exceptions are addresses prohibited discriminatory knowledgeable of the contractor’s identical to the exceptions to the conduct under Section 4212. The affirmative action activities and prohibition on pre-offer disability- proposed rule includes an additional obligations are reviewing the program. related inquiries contained in the implementing regulations for Section clause at the end of paragraph (f)(3), Section 60–300.41 Availability of 503 of the Rehabilitation Act of 1973, as qualifying that an individual who Affirmative Action Program rejects a reasonable accommodation amended, 29 U.S.C. 793 (Section 503). This section sets forth the manner by made by the contractor may still be See 41 CFR 60–741.42. Consequently, which the contractor must make its considered a qualified disabled veteran under existing Section 4212 regulations, affirmative action programs available to if the individual subsequently provides the contractor is permitted, although not employees for inspection, which required, to create employment and/or pays for a reasonable includes the location and hours during accommodation. For instance, if a programs targeting disabled veterans which the program may be obtained. and inviting applicants to identify veteran knows that a certain piece of The proposed regulation adds a equipment that he or she already owns whether they are eligible for the sentence at the end of this section program pre-offer. OFCCP is not will allow him or her to perform the requiring that, in instances where the functions of the job, and that equipment proposing a change in this provision. contractor has employees who do not The proposed change requires the would represent an undue burden for work at the contractor’s physical contractor to invite all applicants to self- the contractor to provide, the veteran establishment, the contractor shall identify as a ‘‘protected veteran’’ prior to would be able to provide his or her own inform these employees about the the offer of employment. This proposed equipment and still be considered a availability of the affirmative action change would not seek the specific qualified disabled veteran. We propose program by means other than a posting protected classification of protected inserting this language to ensure at its establishment. This addition is veteran (disabled veteran, recently consistency with the requirement in proposed in light of the increased use of separated veteran, active duty wartime paragraph 4 of Appendix A to the telecommuting and other flexible or campaign badge veteran, or Armed proposed rule, which requires that workplace arrangements. Forces service medal veteran). The pre- individuals be allowed to pay for or offer invitation would not require Section 60–300.42 Invitation to Self- provide their own accommodation if protected veteran applicants to disclose Identify providing the accommodation for the their status as a protected veteran if they employee would represent an undue The proposed revisions of this section chose not to (see the proposed Sample burden to the contractor. make significant, substantive changes to Invitation to Self-Identify in Appendix The proposed revisions also include the contractor’s responsibilities and the B, infra). This new pre-offer self- minor language changes, replacing the process through which applicants are identification step also would include phrase ‘‘disabled veteran(s), recently invited to self-identify as a veteran the requirement, currently stated in separated veteran(s), other protected protected under the part 60–300 paragraph (e) of this section, that the veteran(s), or Armed Forces service regulations, particularly those set forth contractor maintain the pre-offer self- medal veteran(s)’’ found in paragraphs in paragraphs (a) and (b). As described identification data and supply it to (a), (b), (c)(1), (d)(1), (e), (g)(1), and (i) more fully below, these changes are OFCCP upon request. Incorporating self- with the term ‘‘protected veteran,’’ for proposed in order to collect enhanced identification into the application the reasons set forth in the discussion of data pertaining to protected veterans, process would allow the contractor, and § 60–300.2, above. which will allow the contractor and subsequently OFCCP, to collect Section 60–300.22 Direct Threat OFCCP to identify and monitor the valuable, targeted data on the number of Defense contractor’s employment practices with protected veterans who apply for respect to protected veterans. Federal contractor positions. This data The proposed revisions change The current regulation requires the would enable the contractor and OFCCP ‘‘§ 60–300.2(w)’’ in the parenthetical at contractor to invite applicants who are to measure the effectiveness of the the end of this section to ‘‘§ 60– disabled veterans as defined in 60– contractor’s recruitment and affirmative 300.2(g),’’ in light of restructuring the 300.2, to self-identify only after making action efforts over time. Moreover, the Definitions section in alphabetical an offer of employment, subject to two contractor and OFCCP will be better order, as discussed in § 60–300.2, above. exceptions. See § 60–300.42(a). For all equipped to improve and refine Subpart C—Affirmative Action other veterans protected by part 60–300, successful and effective recruiting Program the current regulation requires the mechanisms, thereby increasing the contractor to invite such applicants to number of applications from protected Section 60–300.40 Applicability of the self-identify ‘‘before they begin [their] veterans. Additionally, this data will Affirmative Action Program employment duties.’’ enable OFCCP to identify and promote Requirement See § 60–300.42(b). successful recruitment and affirmative This section sets forth which The two exceptions to the prohibition efforts taken by the contractor contractors are required to maintain an on inviting disabled veterans to self- community. affirmative action program, and the identify pre-offer contained in 41 CFR Through the various outreach efforts general timing requirements for its 300.42(a) would not change. The to stakeholders OFCCP has conducted creation and submission to OFCCP. We exceptions permit a contractor to invite in advance of this NPRM, an issue has

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been raised regarding the implementing would not require applicants to disclose individuals who do not fall under one regulations of Title I of the ADA and the specific nature of their disability. of the categories of veterans protected Section 503, which limit the extent to We propose to revise paragraph (c) of by part 60–300. Second, we propose which employers may inquire about this section by deleting the second replacing the phrase ‘‘disabled disabilities prior to an offer of sentence of the parenthetical at the end veteran(s), recently separated veteran(s), employment. See 29 CFR 1630.13, of the paragraph. This sentence other protected veteran(s), or Armed 1630.14; 41 CFR 60–741.42. The described the format of and rationale Forces service medal veteran(s),’’ used concern is that requiring the contractor behind the current Appendix B, which twice in this section, with the term to invite applicants to self-identify as a has been substantially amended in light ‘‘protected veteran,’’ for the reasons set protected veteran would violate the of the new self-identification procedures forth in the discussion of § 60–300.2. general prohibition against pre-offer proposed herein. For the same reasons, we propose revising paragraph (d) of Section 60–300.44 Required Contents disability-related inquiries because of Affirmative Action Programs some protected veterans will be this section to reflect the newly disabled veterans. This concern is proposed self-identification process in This section details the elements that misplaced, as the ADA and Section 503 which applicants will only identify the contractor’s affirmative action regulations permit the contractor to themselves as disabled veterans programs must contain. These existing conduct a pre-offer inquiry into specifically after an offer of employment elements include: (1) An equal disability status if it is ‘‘made pursuant is made. Further, we propose revising employment opportunity policy to a Federal, state or local law requiring paragraph (d) to require, rather than statement; (2) a comprehensive annual affirmative action for individuals with suggest, that the contractor seek the review of personnel processes; (3) a disabilities,’’ such as Section 4212 or advice of the applicant regarding review of physical and mental job Section 503. Id. accommodation. Requiring this of the qualifications; (4) a statement that the contractor is committed to making However, while it would be legally contractor will help initiate a robust reasonable accommodations for persons permissible to do so, OFCCP is not interactive and collaborative process with physical and mental disabilities; proposing that the pre-offer self- between the contractor and the (5) a statement that the contractor is identification identify the specific employee or applicant to identify committed to ensuring a harassment- category of protected veteran for three effective accommodations that will free workplace for protected veterans; primary reasons. First, given that the facilitate a disabled veteran’s ability to perform the job. While the purpose of (6) external dissemination of the overall population of protected veterans this requirement is to promote contractor’s affirmative action policy, as is already relatively small, dividing the agreement between the contractor and well as outreach and recruitment efforts; pool of protected veterans into smaller employee or applicant regarding (7) internal dissemination of the component classifications would tend to accommodations to be used, this contractor’s affirmative action policy to reduce the ability of the contractor to proposed change would not require that, all of its employees; (8) development engage in meaningful data analysis of in the event that multiple reasonable and maintenance of an audit and applicants, such as that proposed in accommodations exist, the contractor reporting system designed to evaluate § 60–300.44(h) and (k). Second, a must utilize the reasonable affirmative action programs; and (9) protected veteran may fall into several accommodation preferred by the training for all employees regarding the categories of protected categories, which employee or applicant. implementation of the affirmative action could create unnecessary complexity to We also propose replacing the term program. data analysis. For example, the same ‘‘appropriate accommodation’’ in The first substantive proposed individual could be a protected veteran paragraph (d) with ‘‘reasonable revisions to this section focus on the because he or she is a disabled veteran, accommodation.’’ We have always contractor’s policy statement as set forth a recently separated veteran and an interpreted ‘‘appropriate in paragraph (a). The proposed Armed Service medal veteran. Finally, accommodation’’ in this paragraph as regulation revises the second sentence at the pre-offer stage under the proposed substantively identical to the term to clarify the contractor’s duty to rule the contractor’s obligations would ‘‘reasonable accommodation.’’ However, provide notices of employee rights and be the same with respect to each because ‘‘reasonable accommodation’’ is contractor obligations in a manner that category of protected veteran, thus there already defined in these regulations and is accessible and understandable to is no apparent benefit to knowing the has a more broadly used and accepted persons with disabilities. It also revises specific category of protected veteran to legal definition, we propose using it the parenthetical at the end of the which an applicant belongs. here to avoid any confusion. This sentence, replacing the outdated In addition to the pre-employment language change does not alter the suggestion of ‘‘hav[ing] the notice read self-identification provisions in § 60– contractor’s existing obligations. to a visually disabled individual’’ as an 300.42(a) of the proposed rule, § 60– accommodation with the suggestion to 300.42(b) of the proposed rule requires Section 60–300.43 Affirmative Action provide Braille, large print, or other the contractor to invite individuals, after Policy versions that allow persons with the offer of employment is extended, to This section outlines the contractor’s disabilities to read the notice self-identify as a member of one or more non-discrimination and affirmative themselves. The proposed regulation of the four classifications of protected action obligations under Section 4212. also revises the third sentence of veterans under part 60–300. Thus, post- We propose two minor revisions to this paragraph (a) regarding the content of offer identification will enable the section. the policy statement, replacing the contractor to capture refined data First, we propose replacing the phrase inclusion of the ‘‘chief executive pertaining to each classification of ‘‘because of status as a’’ in this section officer’s attitude on the subject matter’’ protected veterans, as set forth in the to ‘‘against,’’ in order to clarify that the with ‘‘chief executive officer’s support VETS–100A form, which the contractor non-discrimination requirements of for the affirmative action program.’’ This is required to maintain and submit. As Section 4212 are limited to protected proposed change is made to clarify the is currently the case, the post-offer self- veterans and that reverse discrimination intent of including a statement from the identification as a disabled veteran claims may not be brought by contractor’s CEO in the affirmative

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action policy statement, which is to would also aid them in clearly supporting its belief that a direct threat signal to the contractor’s employees that explaining their personnel actions to exists, tracking the criteria set forth in support for the affirmative action applicants and employees, which could the ‘‘direct threat’’ definition in these program goes to the very top of the subsequently reduce the number of regulations, and maintain the written contractor’s organization. complaints filed against contractors. statement as set forth in the In paragraph (b), the proposed rule Thus we propose requiring the recordkeeping requirement in § 60– requires that the contractor must review contractor to take these steps outlined 300.80. Once again, this is to ensure that its personnel processes on at least an currently in Appendix C (which are the contractor’s ‘‘direct threat’’ annual basis to ensure that its incorporated into paragraph (b) in the analysis—which is already required obligations are being met. The current proposed rule), and encourage the under these regulations, as well as rule requires that the contractor review contractor to undertake any additional regulations to Section 503 of the these processes ‘‘periodically’’. This appropriate procedures to satisfy its Rehabilitation Act and the Americans standard is vague and subject to affirmative action obligations. with Disabilities Act—is well-reasoned confusion. Indeed, OFCCP’s efforts to The proposed paragraph (c) clarifies and available for review by OFCCP. enforce this requirement in recent years that all physical and mental job Finally, for both the proposed have been complicated by contractors’ qualification standards must be documenting requirements in various, subjective interpretations of reviewed and updated, as necessary, on paragraphs (c)(1) and (c)(3), the what constitutes ‘‘periodic’’ review. This an annual basis. As with paragraph (b), proposed regulation would require that proposal sets forth a clear, measurable the current rule’s requirement that the the contractor treat the created and uniform standard that will be easily contractor review these standards documents as confidential medical understood by the contractor and more ‘‘periodically’’ is vague and subject to records in accordance with § 60– easily enforced by OFCCP. confusion. OFCCP has concluded that 300.23(d). Further, the proposed revisions contractors inconsistently interpreted Perhaps the most significant mandate certain specific steps that the what constitutes ‘‘periodic’’ review. The substantive changes in the proposed contractor must take, at a minimum, in proposed change provides a clear, rule address the scope of the the review of its personnel processes. measurable, and uniform standard. contractor’s recruitment efforts and the These specific steps are those currently The proposed paragraph (c)(1) adds dissemination of its affirmative action set forth in Appendix C to the language requiring the contractor to policies described in paragraphs (f) and regulation. Appendix C currently document the results of its annual (g) of this section. While these two suggests that the contractor: (1) Identify review of physical and mental job paragraphs generally require that the the vacancies and training programs for qualification standards. The regulation contractor engage in recruitment and which protected veteran applicants and has long required this review to ensure disseminate its policies, the current rule employees were considered; (2), provide that job qualification standards which recommends rather than requires the a statement of reasons explaining the tend to screen out disabled veterans are specific methods for carrying out these circumstances for rejecting protected job-related and consistent with business obligations. veterans for vacancies and training necessity. The proposed change would The current paragraph (f) suggests a programs and a description of merely require that the contractor number of outreach and recruitment considered accommodations; and (3) document the review it has already been efforts that the contractor can undertake describe the nature and type of required to perform. It is anticipated in order to increase the employment accommodations for special disabled that this documentation would list the opportunities for protected veterans. See veterans who were selected for hire, physical and mental job qualifications 41 CFR 60–300.44(f)(1). The proposed promotion, or training programs. for the job openings during a given AAP paragraph (f) requires that the contractor Previously, these steps were year—which should already be available engage in a minimum number of recommended as an appropriate set of from the contractor’s job postings—and outreach and recruitment efforts as procedures. OFCCP’s enforcement provide an explanation as to why each described in proposed paragraph (f)(1). efforts have found that many contractors requirement is related to the job to The proposed paragraph (f) also do not follow these recommended steps, which it corresponds. Documenting this includes a list of additional outreach and that the documentation contractors review will ensure that the contractor and recruitment efforts that are maintain of the steps they do take are critically analyzes its job requirements suggested (proposed paragraph (f)(2)), a often not conducive to a meaningful and proactively eliminates those that are new requirement that the contractor review by the contractor or OFCCP, not job-related. It will also allow OFCCP conduct self-assessments of their particularly in the event of employee/ to conduct audits and investigations in outreach and recruitment efforts applicant complaints. Such a a more thorough and efficient manner. (proposed paragraph (f)(3)), and a meaningful review has always been the Paragraph (c)(3) currently provides clarification of the contractor’s goal of the requirements in paragraph that, as a defense to a claim by an recordkeeping obligation with regard to (b), as it ensures that the contractor individual that certain mental or its outreach and recruitment efforts remains aware of and actively engages physical qualifications are not job- (proposed paragraph (f)(4)). in its overall affirmative action related and consistent with business In the proposed paragraph (f)(1), the obligations toward protected veterans. necessity, the contractor may assert that contractor would be required to engage The proactive approach set forth in the the individual poses a ‘‘direct threat’’ to in three outreach and recruitment current Appendix C would provide the health or safety of the individual or efforts. First, the contractor would be greater transparency between the others in the workplace. The definition required to enter into linkage contractor, its applicants/employees, of ‘‘direct threat’’ in these regulations agreements and establish ongoing and OFCCP as to the reasons for the spells out the criteria that the contractor relationships with the Local Veterans’ contractor’s personnel actions. must consider in determining whether a Employment Representative in the local Requiring that the contractor record the ‘‘direct threat’’ exists. The proposed employment service office nearest the specific reasons for their personnel paragraph (c)(3) would require the contractor’s establishment. The statute actions, and making them available to contractor to contemporaneously create already requires contractors and the employee or applicant upon request, a written statement of reasons subcontractors to send their job listings

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to the Local Veterans’ Employment qualified protected veterans to comply opportunities for protected veterans. Representative in the local or state with their AAP obligations. The The efforts listed in paragraph (f)(2) are employment service office for listing National Resource Directory is a leading largely identical to the efforts that are and priority referral of protected government Web site that provides suggested in paragraphs (f)(2) through veterans. The Local Veterans’ prospective employers of veterans (f)(5) and (f)(7) through (f)(8) of the Employment Representative is an access to veterans’ service organizations, current rule. This includes: (1) Holding existing government resource provided existing job banks of veterans seeking briefing sessions with representatives for veterans to help them find employment, and other resources at the from recruiting resources; (2) employment. national, state and local levels. The incorporating recruitment efforts for Second, the contractor would be NPRM gives contractors and protected veterans at educational required to enter into a linkage subcontractors the flexibility to select institutions; (3) considering applicants agreement with at least one of several any organization on the National who are known protected veterans for other listed organizations and agencies Resource Directory for outreach and all available positions when the position for purposes of recruitment and recruit purposes. Since this Web site is applied for is unavailable; and (4) any developing training opportunities. The a great nationwide resource, any other positive steps the contractor listed organizations and agencies are contractor would likely find it useful in believes are necessary to attract those that are listed in the current fulfilling its affirmative action qualified protected veterans, including paragraph (f)(1), with one addition: the obligations, such as recruiting veterans. contacts with any local veteran-related Department of Defense Transition The contractor would be required to organizations. Assistance Program (TAP), or any establish a linkage agreement with at Paragraph (f)(3) of the proposed rule subsequent program that replaces TAP. least one of the many veterans’ service would require the contractor, on an This program is administered in part by organizations listed on the site annual basis, to review the outreach and the Department of Labor’s Veterans’ (excluding organizations described in recruitment efforts it has undertaken Employment and Training Service the previous paragraph) to facilitate over the previous twelve months and (VETS) in Family Services Offices or referral of qualified protected veterans, evaluate their effectiveness in similar offices at military bases. (See as well as other related advice and identifying and recruiting qualified http://www.dol.gov/vets/programs/tap/ technical assistance. We believe that protected veterans, and document its tap_fs.htm) According to the these first two efforts that the proposed review. Contractors that do not Department of Defense, there are 249 rule requires would assist the contractor proactively monitor their outreach and TAP offices in installations around the in establishing a baseline level of recruitment efforts often lose United States, and another 16 TAP contact with veteran and employment- opportunities to consider and hire offices located in installations abroad. related organizations, while providing qualified protected veterans for The TAP was designed to ‘‘smooth the the contractor with flexibility to employment. This requirement will transition of military personnel and establish linkage agreements with allow the contractor to look at its family members leaving active duty.’’ organizations that are most tailored to measurable accomplishments and The TAP includes employment the contractor’s hiring needs. Finally, reconsider unproductive methods. We workshops with the Department of the proposed paragraph (f)(1) would believe requiring this on an annual basis Labor, and offers individualized also require that the contractor send strikes the proper balance between employment assistance and training. It written notification of company policy ensuring that adjustments to is currently required for all those related to affirmative action efforts to its recruitment efforts are made on a timely serving in the Marine Corps, and is subcontractors, including basis if needed, while also ensuring that generally encouraged and supported by subcontracting vendors and suppliers, the contractor has enough data on the other branches of the military. in order to request appropriate action on existing recruitment efforts to be able to Accordingly, it provides an excellent their parts and to publicize the determine if adjustments need to be existing source for identifying qualified contractor’s commitment to affirmative made. protected veterans TAP is a validated action on behalf of protected veterans. We recognize that the ‘‘effectiveness’’ multi-government agency program that While the proposed regulations would of an outreach or recruitment effort is assists separating veterans in finding not require that the contractor send not easily defined, and may include a employment, from resume writing to written notification to vendors and number of factors that are unique to a interview techniques to dressing for suppliers who are not subcontractors as particular contractor establishment. success. OFCCP is aware, however, that defined by these regulations, such Generally speaking, a review of the not all contractors are located near a disclosure remains an encouraged efficacy of a contractor’s efforts should military base or similar facility which activity, just as it is under the current include the number of protected veteran provides TAP; therefore, a contractor regulation. See 41 CFR 60–300.44(f)(6)). candidates each effort identifies. may select another organization or We believe that the required linkage Recognizing that other unique and agency from the list that is more agreements we propose in paragraph intangible characteristics may conducive to its recruiting efforts. (f)(1) will greatly facilitate the contribute to the assessment of the Third, paragraph (f)(1) would also contractor’s efforts to attract qualified ‘‘effectiveness’’ of a given effort, the require that the contractor consult the protected veteran applicants. We proposed regulation allows the Employer Resources section of the encourage comments from stakeholders contractor some flexibility in making National Resource Directory, a regarding this proposal, particularly if this assessment. However, the proposed partnership with an online collaboration stakeholders have information on regulation requires that the contractor (http://www.national recruitment sources not included in this consider the numbers of protected resourcedirectory.gov/employment/job_ proposal that might increase veteran referrals, applicants, and hires services_and_employment_resources) employment of protected veterans. for the current years and two previous among the Departments of Labor, In paragraph (f)(2) of the proposed years as criteria in evaluating its efforts, Defense, and Veterans Affairs. New rule, we list a number of outreach and and document all other criteria that it contractors and subcontractors often recruitment efforts that are suggested uses to assess the effectiveness of its inquire about how they can find measures for increasing employment efforts, so that OFCCP compliance

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officers are able to understand clearly or other media to publicize its contractor’s affirmative action program. the rationale behind the contractor’s affirmative action obligations and In the current regulation, this disclosure self-assessment. The contractor’s feature protected veterans and their is only suggested. Requiring this conclusion as to the effectiveness of its accomplishments. See current disclosure will increase transparency, outreach must be reasonable as regulation at 41 CFR 60– making it clear to applicants, determined by OFCCP in light of these 300.44(g)(2)(iii), 60–300.44(g)(2)(vii); employees, OFCCP, and other interested regulations. The primary indicator of 60–300.44(g)(2)(viii). parties which individual(s) are effectiveness is whether qualified As for the requirement to inform all responsible for the implementation of veterans have been hired. Further, applicants and employees of its the contractor’s affirmative action should the contractor determine that its affirmative action obligations (item (2) program. efforts were not effective, the proposed in the preceding paragraph), the Paragraph (j) requires that the rule requires the contractor to identify proposed regulation would require that contractor train those individuals who and implement one or more of the the contractor hold meetings with its implement the personnel decisions alternative efforts listed in proposed employees at least once per year to pursuant to its affirmative action paragraphs (f)(1) and (f)(2) in order to discuss the contractor’s affirmative program. The proposed regulation fulfill its obligations. The general action policies and to explain contractor specifies the specific topics that shall be purpose of this self-assessment is to and individual employee included in the contractor’s training: the ensure that the contractor think responsibilities under these policies. benefits of employing protected critically about its recruitment and These could be traditional in-person veterans; appropriate sensitivity toward outreach efforts, identify and ascertain meetings, or meetings facilitated by protected veteran recruits, applicants successful recruiting efforts, and modify technology such as webinars or and employees; and the legal its efforts to ensure that its obligations videoconferencing. It would also require responsibilities of the contractor and its are being met. that the contractor describe individual agents regarding protected veterans Paragraph (f)(4) of the proposed rule employee opportunities for generally and disabled veterans would require that the contractor advancement in furtherance of the specifically, such as reasonable document its linkage agreements and contractor’s affirmative action plan. accommodation for qualified disabled the activities it undertakes in order to Frequent establishment-wide training veterans and the related rights and comply with paragraph (f), and retain on affirmative action issues will responsibilities of the contractor and these documents for a period of five (5) facilitate a greater understanding of the protected veterans. Training on these years. This requirement will enable the purpose of the affirmative action plan issues will facilitate a greater contractor and OFCCP to more among employees. This training will understanding of the purpose of the effectively review recruitment and also enhance the visibility and affirmative action plan among decision outreach efforts undertaken to ensure importance of affirmative action to the makers for the contractor, and will that the affirmative action obligations of recruitment, hiring, and advancement of enhance the visibility and importance of paragraph (f) are satisfied. protected veterans. Finally, a newly affirmative action to the recruitment, Paragraph (g) of this section requires proposed paragraph (g)(4) would require hiring, and advancement of protected that the contractor develop internal the contractor to document its activities veterans. The proposed regulation procedures to communicate to its in order to comply with paragraph (g), would also require that the contractor employees its obligation to engage in and retain these documents as records record which of its personnel receive affirmative action efforts. The current subject to the recordkeeping this training, when they receive it, and paragraph (g)(2) contains several requirements of § 60–300.80. This will the person(s) who administer(s) the suggested methods by which the allow for a more effective review by the training, and maintain these records, contractor may accomplish this. The contractor and OFCCP to ensure that the along with all written or electronic proposed rule would mandate the affirmative action obligations of training materials used, in accordance following practices: (1) Include its paragraph (g) are being met. with the recordkeeping requirements of affirmative action policy in its policy Paragraph (h) of this section details § 60–300.80. Again, this will allow for a manual; (2) inform all applicants and the contractor’s responsibilities in more effective review by the contractor employees of its affirmative action designing and implementing an audit and OFCCP to ensure the affirmative obligations; (3) conduct meetings with and reporting system for its affirmative action obligations of this paragraph are executive, management, and action program, including the specific being met. supervisory personnel to explain the computations and comparisons that are The proposed regulation adds a new intent of the policy and responsibility part of the audit. The proposed paragraph (k) requiring that the for its implementation; and (4) discuss regulations add a new paragraph contractor maintain several quantitative the policy in orientation and (h)(1)(vi) requiring the contractor to measurements and comparisons management training programs. In document the actions taken to comply regarding protected veterans who have addition, if the contractor is party to a with paragraphs (h)(1)(i)–(v), and been referred by state employment collective bargaining agreement, then maintain such documents as records services, have applied for positions with the proposed rule would require the subject to the recordkeeping the contractor, and/or have been hired contractor to meet with union officials requirements of § 60–300.80. Again, this by the contractor. The impetus behind and representatives to inform them will allow for a more effective review by this new section is that, as stated in the about the policy and seek their the contractor and OFCCP to ensure the discussion of § 60–300.44(a), no cooperation. Other suggested elements affirmative action obligations of this structured data regarding the number of in the current paragraph (g)(2) remain in paragraph are being met. protected veterans who are referred for the proposed rule at newly created The only substantive proposed change or apply for jobs with Federal paragraph (g)(3) as suggested additional in paragraph (i) requires that the contractors is currently maintained. dissemination efforts the contractor can identity of the officials responsible for a This absence of data makes it nearly make. This includes suggesting that the contractor’s affirmative action activities impossible for the contractor and contractor use company newspapers, must appear on all internal and external OFCCP to perform even rudimentary magazines, annual reports, handbooks, communications regarding the evaluations of the availability of

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protected veterans in the workforce, or contractor establish annual hiring factors, see proposed paragraph (c) of to make any quantitative assessments of benchmarks, expressed as the this section, but would be given how effective contractor outreach and percentage of total hires who are discretion to weigh the various factors recruitment efforts have been in protected veterans that the contractor in a manner that is reasonable in light attracting protected veteran candidates. seeks to hire in the following year. As of the contractor’s unique The proposed regulations provide for stated in paragraph (a) of the proposed circumstances. We believe that this the collection of referral data (see § 60– rule and set forth more fully below, proposal creates a practical and 300.5, paragraph 5 of the EO clause), as these hiring benchmarks would be workable mechanism for establishing well as applicant data (see § 60– established by the contractor using benchmarks that will allow the 300.42(a)). Hiring data is already existing data on veteran availability, contractor to measure its success in maintained by the contractor in its while also allowing the contractor to recruiting and employing protected VETS–100A forms, a requirement which take into account other factors unique to veterans. However, we seek input from is carried over into this proposal. its establishment that would tend to stakeholders on this proposal and any Accordingly, paragraph (k) requires that affect the availability determination. additional measures that would make the contractor document and update While the Bureau of Labor Statistics these benchmarks more meaningful, as annually the following information: (1) (BLS) and Census Bureau (Census) do well as any other measures that would For referral data, the total number of not tabulate data pertaining to the otherwise increase employment referrals, the number of priority referrals specific classifications of protected opportunities for veterans. of protected veterans, and the ‘‘referral veterans under part 60–300, there are ratio’’ of referred protected veterans to other existing data sources that are Subpart D—General Enforcement and total referrals; (2) for applicant data, the instructive. For instance, BLS tabulates Complaint Procedures total number of applicants for statewide data on the number of Section 60–300.60 Compliance employment, the number of applicants veterans in the civilian labor force and Evaluations who are known protected veterans, and the unemployment rate of veterans in the ‘‘applicant ratio’’ of known protected the labor force, and national data on the This section details the form and veteran applicants to total applicants; number of veterans with a service- scope of the compliance evaluations of (3) for hiring data, the total number of related disability. The Department’s the contractor’s affirmative action job openings, the number of jobs filled, Veterans’ Employment and Training programs conducted by OFCCP. The the number of known protected veterans Service collects statewide data over a proposed rule contains several changes hired, and the ‘‘hiring ratio’’ of known rolling, four quarter period of to this section. protected veteran hires to total hires; individuals who ‘‘participated’’ in the First, the proposal adds a sentence to and (4) the total number of job openings, state employment services. The paragraph (a)(1)(i) regarding the the number of jobs that are filled, and breakdown of this data includes the temporal scope of desk audits the ‘‘job fill ratio’’ of job openings to job number of overall veterans, the number performed by OFCCP. This language openings filled. The proposed of overall veterans who are identified as merely clarifies OFCCP’s long-standing regulation requires that the contractor being unemployed, and the number of policy that, in order to fully investigate must document these measurements on veterans in some, although not all, of and understand the scope of potential an annual basis, and maintain records of the specific categories of veterans violations, OFCCP may need to examine them for five (5) years. These basic protected by part 60–300. information after the date of the measurements will provide the Accordingly, the proposed rule would scheduling letter in order to determine, contractor and OFCCP with important require that the contractor consult a for instance, if violations are continuing information that does not currently number of different sources of or have been remedied. The language exist. This will aid the contractor in information, which will be made easily does not represent a change in policy or evaluating and tailoring its recruitment available to the contractor, in new contractor obligations. and outreach efforts and in establishing establishing hiring benchmarks. As set Second, the current paragraph (a)(2) hiring benchmarks as set forth in the forth in the proposed paragraph (b), relating to the off-site review of records discussion of the proposed § 60–300.45, these sources would include: (1) The incorrectly refers to the ‘‘requirements of infra. percentage of veterans in the civilian the Executive Order and its regulations;’’ Finally, the proposed regulation labor force, tabulated by BLS and which the proposed rule corrects this to read replaces the phrase ‘‘disabled veteran(s), will be published on OFCCP’s Web site; the ‘‘requirements of Section 4212 and recently separated veteran(s), other (2) the number of veterans who were its regulations.’’ protected veteran(s), or Armed Forces participants in the state employment Third, the proposed rule contains a service medal veteran(s),’’ with the term service in the State where the change to the nature of document ‘‘protected veteran’’ in paragraphs (a), contractor’s establishment is, which will production under paragraph (a)(3). This (a)(2), (a)(3), (b), (e), (f), (f)(1), (f)(3), also be published on OFCCP’s Web site; paragraph, which specifies a (f)(4), (f)(5), (f)(7), (f)(8), (g), (g)(2)(ii), (3) the referral ratio, applicant ratio, and ‘‘compliance check’’ as an investigative (g)(2)(vii), and (h)(1)(iv), for the reasons hiring ratios as expressed in the procedure OFCCP can use to monitor a stated in the discussion of § 60–300.2. proposed § 60–300.44(k); (4) the contractor’s recordkeeping, currently The proposed regulation also replaces contractor’s recent assessments of the states that the contractor may provide the terms ‘‘Vietnam Era Veterans’ effectiveness of its external outreach relevant documents either on-site or off- Readjustment Assistance Act of 1974’’ or and recruitment efforts, as expressed in site ‘‘at the contractor’s option.’’ The ‘‘VEVRAA’’ with the term ‘‘Section 4212’’ the proposed § 60–300(f)(3); and (5) any proposed regulation eliminates this throughout this section, for the reasons other factors, including but not limited quoted clause and provides that OFCCP stated in the discussion of § 60–300.1. to the nature of the contractor’s job may request that the documents to be openings and/or its location, which provided either on-site or off-site. Section 60–300.45 Contractor- would tend to affect the availability of Fourth, the proposed rule contains a Established Benchmarks for Hiring qualified protected veterans. The minor change to the scope of ‘‘focused The proposed regulation would contractor would be required to reviews’’ as set forth in paragraph (a)(4). require for the first time that the consider and document each of these Focused reviews allow OFCCP to target

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one or more components of a reasons set forth in the discussion of reasons stated in the discussion of § 60– contractor’s organization or employment § 60–300.2. 300.2. practices, rather than conducting a more Section 60–300.65 Enforcement comprehensive compliance review of an Subpart E—Ancillary Matters Proceedings entire organization. Currently, the Section 60–300.80 Recordkeeping regulations provide that these focused This section describes the procedures reviews are ‘‘on-site,’’ meaning they for formal enforcement proceedings This section describes the must take place at the contractor’s place against a contractor in the event OFCCP recordkeeping requirements that applies of business. The increased use of finds a violation of Section 4212 or its to the contractor under Section 4212, electronic records that are easily regulations that has not been corrected. and the consequences for the failure to accessible from multiple locations The proposed rule replaces the term preserve records in accordance with affords compliance officers greater ‘‘Deputy Assistant Secretary’’ in these requirements. The proposed flexibility in conducting focused paragraph (a)(2) of this section with the regulation adds a sentence at the end of reviews. Therefore, we propose to delete term ‘‘Director,’’ for the reasons set forth paragraph (a) of this section clarifying the word ‘‘on-site’’ from this section, in the discussion of § 60–300.2. that the newly proposed recordkeeping which will allow compliance officers to Section 60–300.66 Sanctions and requirements set forth in §§ 300.44(f)(4) conduct reviews of relevant materials at Penalties (linkage agreements and other outreach any appropriate location. Fifth, the proposed rule contains a This section discusses the types of and recruiting efforts), 300.44(k) new paragraph (d) which details a new sanctions and penalties that may be (collection of referral, applicant and hire procedure for pre-award compliance assessed against a contractor if it is data), 300.45(c) (criteria and evaluation under Section 4212. This found to have violated Section 4212 or conclusions regarding contractor proposed rule is based on the pre-award its regulations. The proposed rule established hiring benchmarks), and compliance procedure contained in the replaces the term ‘‘Deputy Assistant Paragraph 5 of the equal opportunity Executive Order regulations (see 41 CFR Secretary’’ in paragraph (a) of this clause in § 60–300.5(a) (referral data) 60–1.20(d)). section with the term ‘‘Director,’’ for the must be maintained for five (5) years, for Finally, the proposed regulation reasons set forth in the discussion of the reasons set forth in the discussion of replaces the phrase ‘‘disabled veteran(s), § 60–300.2. those sections, supra. recently separated veteran(s), other Section 60–300.67 Notification of protected veteran(s), or Armed Forces Section 60–300.81 Access to Records Agencies service medal veteran(s),’’ with the term This section describes a contractor’s This section provides that agency ‘‘protected veteran’’ in paragraph (a) for obligations to permit access to OFCCP heads will be notified if any contractors the reasons stated in the discussion of when conducting compliance § 60–300.2. are debarred. The proposed rule replaces the term ‘‘Deputy Assistant evaluations and complaint Section 60–300.61 Complaint Secretary’’ with the term ‘‘Director,’’ for investigations. The proposed rule adds Procedures the reasons set forth in the discussion of some language clarifying the This section outlines the manner in § 60–300.2. contractor’s obligations, particularly in which applicants or employees who are light of the increased use of Section 60–300.68 Reinstatement of protected veterans may file complaints electronically stored records. First, the Ineligible Contractors alleging violations of Section 4212 or its proposed rule adds a sentence requiring regulations. This section outlines the process by the contractor to provide off-site access The proposed rule replaces the term which a contractor that has been to materials if requested by OFCCP ‘‘Deputy Assistant Secretary’’ with the debarred may apply for reinstatement. investigators or officials as part of an term ‘‘Director’’ in paragraphs (e)(1), The proposed rule replaces the term evaluation or investigation. This change (e)(2), and (e)(3), for the reasons set forth ‘‘Deputy Assistant Secretary’’ in reflects the increased use of electronic in the discussion of § 60–300.2. The paragraphs (a) and (b) of this section records from multiple locations, and proposed regulation also replaces the with the term ‘‘Director,’’ for the reasons accordingly gives OFCCP greater term ‘‘state workforce agency’’ in set forth in the discussion of § 60–300.2. flexibility in conducting its evaluations paragraph (a) with the term Section 60–300.69 Intimidation and and investigations. Second, the ‘‘employment service delivery system,’’ Interference proposed rule requires that the for the reasons set forth in the contractor specify to OFCCP all formats discussion of § 60–300.5. Finally, the This section forbids the contractor (including specific electronic formats) proposed regulation replaces the phrase from retaliating against individuals who in which its records are available, and ‘‘disabled veteran(s), recently separated have engaged in or may engage in veteran(s), other protected veteran(s), or certain specified protected activities, produce records to OFCCP in the format Armed Forces service medal veteran(s),’’ and describes the contractor’s selected by OFCCP. This change is with the term ‘‘protected veteran’’ in affirmative obligations in preventing proposed in light of numerous instances paragraph (b)(iii), for the reasons stated retaliation. The proposed rule replaces in which OFCCP has conducted in the discussion of § 60–300.2. the term ‘‘Deputy Assistant Secretary’’ in extensive review and analysis of a paragraph (b) of this section with the contractor’s records only to find Section 60–300.64 Show Cause Notice term ‘‘Director,’’ for the reasons set forth subsequently that the records were This section describes the manner in in the discussion of § 60–300.2. The available in more readily accessible which OFCCP notifies a contractor proposed rule also replaces the phrase formats. Specifying the variety of when it believes the contractor has ‘‘disabled veteran(s), recently separated available formats upon request, and violated Section 4212 or its regulations. veteran(s), other protected veteran(s), or providing records to OFCCP in the The proposed rule replaces the term Armed Forces service medal veteran(s),’’ format it selects, will facilitate a more ‘‘Deputy Assistant Secretary’’ in this with the term ‘‘protected veteran’’ in efficient investigation process. section with the term ‘‘Director,’’ for the paragraphs (a)(2) and (a)(3) for the

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Section 60–300.83 Rulings and in paragraph 1 of Appendix A to ‘‘§ 60– would like to be included under the Interpretations 300.2(t),’’ and changes the references to contractor’s affirmative action program. ‘‘ ’’ This section establishes that rulings § 60–300.2(t) in paragraphs 5 and 8 of The post-offer invitation in Paragraph 2 ‘‘ ’’ and interpretations of Section 4212 will Appendix A to § 60–300.2(u). This is also incorporates the language in the be made by the Director of OFCCP. The to reflect the revised alphabetical current paragraph 7 of the Appendix, structure of the definitions section in which requests that disabled veterans proposed revisions make minor the proposed rule, as discussed in § 60– describe possible workplace changes, replacing the term ‘‘Deputy 300.2, above. The proposed regulation accommodations, with the exception of Assistant Secretary’’ with the term also replaces the term ‘‘VEVRAA’’ with replacing ‘‘elimination of certain duties ‘‘Director,’’ for the reasons set forth in ‘‘Section 4212’’ for the reasons set forth relating to the job’’ with ‘‘changes in the the discussion of § 60–300.2. in the discussion of § 60–300.1. way the job is customarily performed.’’ Section 60–300.84 Responsibilities of We propose this change merely to Appendix B to Part 60–300—Sample Appropriate Employment Service clarify the nature of the interactive Invitation to Self-Identify Delivery Systems process, and to eliminate any confusion The proposed rule amends Appendix This section outlines the that might exist regarding the existing B consistent with the proposed changes language that ‘‘elimination of certain responsibilities of employment service to the self-identification regulation duties’’ could be read to include delivery systems, including the found at § 60–300.42. The first eliminating essential functions of the obligation to give priority referral to paragraph is amended simply to include job. It is a change in verbiage only, and protected veterans for jobs listed by a detailed definitions of the four types of does not alter the substantive Federal contractor. The proposed rule classifications of protected veterans. obligations of the contractor or replaces the phrase ‘‘disabled veteran(s), These definitions are to be included in applicant in the interactive process. recently separated veteran(s), other a contractor’s invitation to self-identify Finally, the proposed regulation also protected veteran(s), or Armed Forces either at the pre-offer (proposed § 60– replaces the term ‘‘VEVRAA’’ with service medal veteran(s),’’ with the term 300.42(a)) or post-offer (proposed § 60– ‘‘Section 4212’’ for the reasons set forth ‘‘protected veteran’’ for the reasons 300.42(b)). We propose this change to in the discussion of § 60–300.1. stated in the discussion of § 60–300.2. clarify for the contractor and for applicants exactly which categories of Appendix C to Part 60–300—Review of Appendix A to Part 60–300—Guidelines Personnel Processes on a Contractor’s Duty to Provide veterans are protected by part 60–300. Reasonable Accommodation The second paragraph of the The proposed rule deletes Appendix Appendix contains the suggested model C and moves the its content, with some The proposed rule includes four language for the self-identification of edits, to § 60–300.44(b). See the Section- changes to Appendix A which would protected veterans. The current by-Section Analysis of § 60–300.44, mandate activities that previously were language has models to be used if they supra, for further discussion. only suggested. These changes primarily are being distributed to non-disabled Regulatory Procedures reflect proposed revisions to §§ 60– protected veterans exclusively, disabled 300.2 and 60–300.42(d), supra, that veterans exclusively, or to all protected Executive Order 12866 and Executive would alter the contractor’s veterans. In keeping with the proposed Order 13563 (Regulatory Planning and responsibilities. changes in § 60–300.42, we propose Review) First, in the third sentence of amending the second paragraph to Executive Orders 13563 and 12866 paragraph 2, we propose changing the include two models: One that will be direct agencies to assess all costs and language to reflect the change to § 60– given to all applicants at the pre-offer benefits of available regulatory 300.42(d) requiring a contractor to seek stage, and one that will be given at the alternatives and, if regulation is the advice of disabled veterans in post-offer stage to all individuals who necessary, to select regulatory providing reasonable accommodation. have been offered employment by the approaches that maximize net benefits Second, in the last sentence of contractor. For the pre-offer stage, the (including potential economic, Paragraph 4, the proposed rule is invitation refers to the definitions for environmental, public health and safety changed to require that disabled each of the classifications of protected effects, distributive impacts, and veterans, in the event an veterans and invites applicants to equity). Executive Order 13563 accommodation would constitute an identify if they belong to any one (or emphasizes the importance of undue hardship for the contractor, be more) of them generally. It does not quantifying both costs and benefits, of given the option of providing the provide for individuals to self-identify reducing costs, of harmonizing rules, accommodation or paying the portion of as a particular type of protected veteran and of promoting flexibility. This rule the cost that constitutes the undue (e.g., a qualified disabled veteran). For has been designated a ‘‘significant hardship for the contractor. Third, in the post-offer stage, the invitation again regulatory action’’ although not the fourth sentence of paragraph 5, we refers to the definitions for each of the economically significant, under section propose changing the language to classifications of protected veteran and 3(f) of Executive Order 12866. require a contractor to seek the advice then invites applicants to indicate to Accordingly, the rule has been reviewed of disabled veterans in providing which specific classifications of by the Office of Management and reasonable accommodation. Finally, in protected veteran they belong. Budget. the last sentence of paragraph 9, the For both the pre-offer and post-offer proposed rule is changed to require that invitations, we have proposed new The Need for the Regulation a contractor must consider the totality of language explaining to applicants that The guiding principle and overall the circumstances when determining the information is being requested in benefit of this proposed regulation is what constitutes a ‘‘reasonable amount order to measure the contractor’s plain: To facilitate the process of of time’’ in the context of available outreach and recruitment efforts connecting veteran job-seekers with vacant positions. required under part 60–300. This contractor employers who are seeking to Additionally, the proposed rule replaces the current language which hire protected veterans and helping changes the reference to ‘‘§ 60–300.2(o)’’ only inquires whether individuals these veterans succeed once they are

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employed. As we have stated previously Second, many of the proposed that end, the proposed rule requires the in this NPRM, the framework changes ensure that the contractor contractor to collect data—and OFCCP articulating a contractor’s understands and effectively to provide some additional data—by responsibilities with respect to communicates its affirmative action which the contractor may more affirmative action, recruitment, and obligations to its workforce and the accurately assess its efforts. This placement have remained largely other entities with which it does includes collecting data on referrals and unchanged since the Section 4212 business. While bringing job-seeking applicants so the contractor knows how implementing rules were first published veterans and employers together is an many protected veterans it is reaching. in 1976. Meanwhile, increasing important first step, it is equally The contractor will be able to use this numbers of veterans are returning from important that the contractor, its information, as well as other veteran tours of duty in Iraq, Afghanistan, and employees, and veteran applicants employment data provided by OFCCP, other places around the world. These understand the protections and benefits to set benchmarks by which the veterans possess valuable skills that are of Section 4212. Accordingly, the contractor can objectively measure its highly sought after in the job market. proposed rule seeks to promote this recruitment efforts and determine which However, veterans face substantial clear communication in several ways, ones are most fruitful in attracting obstacles in finding employment upon including: qualified protected veteran candidates. leaving the service and returning home. • Holding annual meetings (whether Finally, the proposed rule’s changes Addressing the barriers our veterans in-person, or via webinar or to the manner in which OFCCP face upon returning to civilian life, videoconferencing) with all employees conducts its compliance reviews will particularly with regard to employment, to discuss the AAP, contractor/ benefit both protected veterans and the is a high priority of the current individual responsibilities, and contractor. These changes include a Administration and, as discussed in the individual employee opportunities for greater emphasis on identifying background section, has been the focus advancement; electronic data that OFCCP can review, of a number of Federal efforts. • Holding meetings with executive, greater flexibility in where reviews take To ascertain how OFCCP could assist management, and supervisory personnel place, and a new procedure for a pre- veterans in their search for employment, to explain the intent of the AAP and award compliance review. The and facilitate the contractor’s responsibilities in implementing it; and emphasis on using electronic data and satisfaction of affirmative action discussing the policy at employee flexibility will allow OFCCP to obligations designed to employ more orientation and training programs. complete reviews far more efficiently. veterans, OFCCP conducted multiple These steps will facilitate a greater Discussion of Impacts town hall meetings, webinars, and understanding of the purpose of the listening sessions with the public to affirmative action policies among the OFCCP has separately determined the determine how we could increase the contractor’s employees, and will costs of compliance with those employment opportunities for qualified enhance the visibility and importance of requirements of Section 4212 falling protected veterans with Federal affirmative action to the recruitment, under the scope of the Paperwork contractors. Based upon the information hiring, and advancement of protected Reduction Act. See Analysis of OFCCP received, we identified specific veterans. The proposed rule will also Paperwork Reduction Act burden, infra. changes that could be made to the promote clearer communication of Additional costs outside the scope of implementing regulations of Section Section 4212 obligations by: the PRA, which are new obligations in 4212 that would help increase • Providing notices of rights under the proposed rule, are as follows: employment opportunities for veterans. Section 4212 in accessible formats for 60–250.44(f)(3)/60–300.44(f)(3): As The changes set forth in this proposal those working offsite (i.e., discussed in the Section-by-Section create four broad categories of benefits. electronically-accessible postings) as Analysis of this paragraph, the proposed First and foremost, the proposed well as those with visual impairments, rule would require the contractor to changes will connect job-seeking so that all parties understand their review the effectiveness of its outreach veterans with contractors looking to respective rights and obligations under and recruitment efforts on an annual hire. Currently, there is much confusion the law; basis. The general purpose of this self- regarding exactly how and with whom • Requiring the contractor to review assessment is to ensure that the the contractor must list its jobs. its personnel processes on an annual contractor think critically about its Therefore, as an initial matter, the basis, and to document personnel recruitment and outreach efforts, and proposal clarifies the mandatory job actions taken with regard to protected requiring it will allow the contractor to listing requirements and requires the veterans to provide greater transparency look at its measurable accomplishments, contractor to provide additional, between the contractor, its applicants/ maintain methods that are successful in regularly updated information to employees, and OFCCP as to the reasons recruiting protected veterans, and employment service delivery systems to for the contractor’s personnel actions; reconsider unproductive methods. ensure its job openings are listed and OFCCP estimates that this annual accurately. This will help to ensure that • Requiring the contractor to meet review will take approximately 20 veterans can easily learn about all with and/or otherwise send notification minutes. OFCCP further estimates that available jobs with Federal contractors of its AAP obligations to third parties 1% of the 108,288 Federal contractor in their state. The proposal also helps to with which it does business, such as establishments are first-time contractors ensure that the contractor can find union officials and subcontractors. during an abbreviated AAP year, and veterans, by requiring the contractor to Third, the proposed rule provides therefore would be unable to complete engage in recruitment efforts and enter increased mechanisms by which the an annual outreach and recruitment into linkage agreements with several contractor can assess its affirmative effort. veterans’ employment sources (many of action efforts. Until now, the contractor 60–250.44(g)/60–300.44(g): As which are specifically listed by OFCCP had few objective measures by which it discussed in the Section-by-Section in the proposed rule), while allowing could measure the extent to which the Analysis of this paragraph, the proposed the contractor the flexibility to resources spent on AAP were effective rule would require holding annual determine the sources that work best. or could be used most effectively. To meetings (either in person, or in

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technology-adapted formats such as Department, as well as a subjective contractor and OFCCP spend on webinars or videoconferencing) with all component to allow the contractor to compliance and enforcement. employees to discuss the AAP, take into account any unique aspects of In short, OFCCP believes that the contractor/individual responsibilities, the nature of the contractor’s job myriad benefits discussed in the and individual employee opportunities openings and/or its location. This Section-by-Section analysis and in this for advancement; meetings with requirement benefits the contractor by section—bringing veterans and executive, management, and providing a marker by which they can contractors together, ensuring that those supervisory personnel; and discussing quantitatively measure the success of in the workplace understand the the policy at employee orientation and their outreach and recruitment efforts. respective obligations under Section training programs. Frequent OFCCP estimates (for the portion of this 4212, providing the contractor a tool to establishment-wide training on requirement not covered by the PRA measure its affirmative action efforts affirmative action issues is a benefit to analysis, infra) a total of 1 hour per through increased data collection, and both the contractor and protected contractor establishment for compliance more efficient compliance reviews— veterans, as it will enhance the visibility with this requirement. more than makes up for the cost we and facilitate a greater understanding of The estimated annualized cost to have calculated. OFCCP invites the importance of affirmative action to respondent contractors is based on comments from stakeholders on the the recruitment, hiring, and Bureau of Labor Statistics data in the cost/benefit analysis included in this advancement of protected veterans, publication ‘‘Employer Costs for section. creating a culture of compliance. It will Employee Compensation’’ (June 2010), Regulatory Flexibility Act and also help to ensure that protected which lists total compensation for Executive Order 13272 (Consideration veterans themselves are aware of, and management, professional, and related of Small Entities) better able to avail themselves of, their occupations as $48.74 per hour and rights. To decrease contractor burden, The Regulatory Flexibility Act of administrative support as $23.25 per 1980, 5 U.S.C. 601 et seq., (RFA) OFCCP will provide a sample training hour. OFCCP estimates that 52% module. OFCCP estimates that 90% of requires agencies promulgating percent of the burden hours will be proposed rules to prepare an initial contractors, or 97,459, will use this management, professional, and related sample training, and that 10% of regulatory flexibility analysis and to occupations and 48% percent will be develop alternatives wherever possible contractors, or 10,829, will create their administrative support. We have own training. OFCCP further estimates when drafting regulations that will have calculated the total estimated a significant impact on a substantial that downloading the sample training annualized cost for the obligations will take 15 minutes and that creating number of small entities. The focus of described above (i.e., those that do not the RFA is to ensure that agencies training will take 10 hours. The average fall under the scope of the Paperwork burden per contractor establishment ‘‘review rules to assess and take Reduction Act) as follows: would be the following: 97,459 × 15/60/ appropriate account of the potential 108,288 = .2 hours; 10,829 × 10/108,288 Mgmt. Prof.: 108,288 contractors × 4.5 impact on small businesses, small = 1 hour. OFCCP estimates an average hours × .52 × $48.74/hr = $12,350,420 governmental jurisdictions, and small of 1.2 hours per contractor Adm. Supp.: 108,288 contractors × 4.5 organizations, as provided by the establishment for compliance with this hours × .48 × $23.25/hr = $ 5,438,223 [RFA].’’ requirement. Total annualized cost estimate = Based on the analysis below, in which 60–250.44(j)/60–300.44(j): As $17,788,643 OFCCP has estimated the burdens to covered small contractors and discussed in the Section-by-Section Estimated annual average cost per Analysis of this paragraph, the proposed subcontractors in complying with the establishment is: $17,788,643/108,288 requirements contained in this proposed rule would also require specific training = $164 for those involved in personnel rule, OFCCP believes that this rule will decisions to ensure that they are making OFCCP has calculated the annual not have a significant economic impact such decisions in compliance with average cost per establishment for on a substantial number of small Section 4212, detailing specific topics complying with those provisions that Federal contractors and subcontractors that must be addressed. Once again, fall under the Paperwork Reduction Act but invites comments on its analysis, training on these issues will benefit the as $396 per contractor establishment. and requests that commenters provide contractor and veterans by facilitating a See Paperwork Reduction Act any additional data they may have on greater understanding of the purpose of discussion, infra. This means the total costs and benefits. the affirmative action plan among estimated annual cost per establishment The FY 2009 Equal Employment Data decision makers for the contractor, and of the proposed rule is approximately System Report (EEDS), which compiles will enhance the visibility and $560. However, additional elements of information on Federal contractors for importance of affirmative action to the the proposed rule should reduce the OFCCP, showed that there were 108,031 recruitment, hiring, and advancement of cost of compliance for the contractor. Federal contractor and subcontractor protected veterans. Furthermore, For instance, OFCCP estimates that establishments under OFCCP proactive training on these issues holds proposed provisions allowing for jurisdiction. EEDS information the real promise of reducing the number electronic posting of employee rights concerning the number of contractor of Section 4212 violations. OFCCP under Section 4212 could save the establishments is derived from the EEO– estimates a total of 2 hours per contractor 10 minutes of administrative 1 Report, which the Equal Employment contractor establishment for compliance compliance time per year (0.17 hours × Opportunity Commission submits to with this requirement. $23.25/hr = $4 annual savings per year). OFCCP annually. OFCCP also includes 60–250.45/60–300.45: As discussed in Proposals for streamlined compliance 257 post-secondary institutions under the Section-by-Section Analysis of this review mechanisms and greater focus on its jurisdiction, for a total of 108,288 paragraph, the proposed rule would reviewing electronic records, rather than contractor establishments. Based on require the contractor to establish paper (see Section-by-Section Analysis data analyzed in the Federal benchmarks, based on a mix of data of 60–250.60/300.60, 60–250.81/300.81), Procurement Data System (fpds.gov), collected by the contractor and the are also designed to reduce the time the which compiles data about types of

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contractors, of these 108,288 contractor veterans who might not have known Operations & Maintenance Cost (for establishments, approximately 35% about job openings or might not have 35% of contractors) $146,345 would be ‘‘small entities’’ as defined by been hired or promoted. As there were Total annualized cost estimate = the Small Business Administration almost a million veterans unemployed $14,996,060 2 (SBA) size standards. It should be in 2009 and many others not in the Estimated average cost per noted that this number of labor force who would likely want to be establishment is: $14,996,060/37,901 ‘‘establishments’’ would likely be much employed, increased efforts to employ = $396 larger than the number of ‘‘entities’’ or veterans could help a significant ‘‘contractors.’’ Entities generally equate number of veterans. The contractor also Non-PRA Costs to businesses, many of which may in will benefit from access to a well- Mgmt. Prof.: 170,554 hours 4 × .52 × fact have multiple establishments. trained, job-ready employment pool. However, given lack of any other data $48.74/hr = $4,322,657 This goal of increased employment of × × on the number of small Federal protected veterans is achieved through Adm. Supp.: 170,554 hours .48 contractors, for the purposes of the RFA the changes to Part 60–300 outlined $23.25/hr = $1,903,383 analysis OFCCP estimates that this rule below. Conforming changes are also Total annualized cost estimate = will affect 37,901 small Federal proposed to 41 Part 60–250 in the event $6,226,040 contractors. that OFCCP learns of Federal contracts Estimated annual average cost per The primary goal of this NPRM is that are currently in effect that were establishment is: $6,226,040/37,901 = increased affirmative action to employ entered into before December 1, 2003 $164 and advance in employment protected and not modified since. For purposes of Therefore, the total estimated annual veterans, including proactive this analysis, even if there are a few recruitment of protected veterans for cost to small contractors nationwide is such contracts still in effect, the number $21,222,100, or approximately $560 per jobs with Federal contractors and of contractors affected would be so increased awareness by Federal small contractor. small that any costs and benefits The same obligations bind prime contractors’ employees (including resulting from changes to Part 60–250 veterans) and managers of the non- contractors and subcontractors under would be de minimis. OFCCP jurisdiction. Therefore, for the discrimination and affirmative action The significant benefits to protected protections afforded protected veterans. purpose of determining time spent on veterans, as well as the contractor, have compliance, OFCCP will not The benefits from this proposal been discussed extensively in the (discussed in more detail throughout the differentiate between the obligations of Section-by-Section Analysis section of Section-by-Section Analysis and in the prime contractors and subsequent tiers this NPRM and in the discussion of this discussion of Executive Order 12866, of subcontractors; OFCCP assumes that proposal’s conformity with Executive supra), particularly would accrue to all contractors, whether prime Order 12866. Generally, the proposed contractor or subcontractor, will spend rule will benefit veterans and the 2 The Federal Procurement Data System compiles equivalent amounts of time engaging in data regarding small business ‘‘actions’’ and small contractor by: Providing effective this compliance activity. business ‘‘dollars’’ using the criteria employed by mechanisms, such as refined mandatory SBA to define ‘‘small entities.’’ In FY 2008, small job listing requirements and linkage When considering the potential business actions accounted for 50% of all Federal agreements with veteran-related economic impact of a proposed procurement action. However, deriving a organizations, so that qualified veterans regulation, one important indicator is percentage of contractors that are small using the the cost of compliance in relation to ‘‘action’’ data would overstate the number of small and contractors find each other to their contactors because contract actions reflect more mutual benefit; ensuring that those in revenue of the entity or the percentage than just contracts; they include modifications, the workplace understand the respective of profits affected. Id. The universe of blanket purchase agreement calls, task orders, and affected entities is all Federal Federal supply schedule orders. As a result, there obligations under Section 4212; are many more contract actions than there are providing the contractor with tools, contractors and the universe of affected contracts or contractors. Accordingly, a single small through increased data collection, to small entities is all small entity contractor might have hundreds of actions, e.g., quantifiably measure their affirmative contractors with 50 or more employees delivery or task orders, placed against its contract. (37,901). The cost of this rule per entity These contract actions would be counted action efforts and adjust them for individually in the FPDS, but represent only one maximum effect; and more efficient ($560) is not likely to have a significant small business. compliance reviews. The estimated economic impact for any (or a Also reflected in FPDS, in FY 2008, small substantial number) of these small business ‘‘dollars’’ accounted for 19% of all Federal costs associated with this proposal have been detailed in the sections discussing contractors. Although the number of dollars spent. However, deriving a percentage of small Federal contractors, at 37,901, contractors that are small using the ‘‘dollars’’ data Executive Order 12866 and the would understate the number of small contractors. Paperwork Reduction Act, herein. may represent a substantial number of Major acquisitions account for a disproportionate Federal contractors and subcontractors, share of the dollar amounts and are almost Below is a summary of those costs that will affect small Federal contractors, as OFCCP concludes that this economic exclusively awarded to large businesses. The top impact on individual contractors is not five Federal contractors, all large businesses, defined in this section. accounted for over 20% of contract dollars in FY significant. Further, the 2004 U.S. 2008. As a result, because the largest Federal PRA Costs Census Bureau Statistics about Business contractors disproportionately represent ‘‘dollars’’ Mgmt. Prof. 406,788 hours 3 × .52 × Size (including Small Business), spent by the Federal government, the FPDB’s data Employment Size of Firms, Table on small ‘‘dollars’’ spent understates the number of $48.74 = $10,309,961 small entities with which the Federal government Adm. Supp. 406,788 hours × .48 × does business. $23.25 = $4,539,754 4 This figure comes from taking the total burden The Department concludes that the percentage of for all contractors in the EO 12866 section (4.5 all Federal contractors that are ‘‘small’’ is likely annual hours per contractor establishment, between 19% and 50%. The upper and lower 3 This figure comes from taking the total burden multiplied by 108,288 total Federal contractor bounds are derived from the FPDS figures on small for all contractors in the PRA section (1,162,251 establishments, for a total burden for all contractors ‘‘actions’’ and small ‘‘dollars.’’ The mean of these hours) and multiplying it by 35%, which is our nationwide of 487,296 hours), and multiplying it by two percentages is 35%, and the Department has calculation of the number of contractors which can 35%, which is our calculation of the number of used this figure to estimate how many of all Federal be classified as ‘‘small Federal contractors’’ as contractors which can be classified as ‘‘small contractors are ‘‘small entities’’ in SBA’s terms. detailed in this section. Federal contractors’’ as detailed in this section.

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2a, 5 indicate there are 526,355 Employer under OMB Control No. 1250–0003 that will be filled from within the Firms with 20–99 employees compared (Recordkeeping and Reporting contractor’s organization, and (3) positions lasting three days or less. to 5,255,844 firms with 0 to 19 Requirements-Supply and Service) and • employees. Employer firms with 20 to OMB Control No. 1250–0001 The contractor must provide state or local employment service delivery system 500 or more employees equal 629,940 (Construction Recordkeeping and information that is sufficient to carry out its employers firms. Therefore, U.S. Reporting). The information collection responsibilities under VEVRAA to give employer firms with 20 to 500 requirements contained in the existing protected veterans priority referrals to federal employees represents 11.9% of the total complaint procedures regulation are contractor employment openings. This has employer firms. As stated earlier, the currently approved under OMB Control always been a requirement under Section threshold for the affirmative action No. 1250–0002. 4212 and its regulations. OFCCP estimates provisions of this NPRM is 50 or more The proposed rule contains that the required gathering of records, employees, which will affect information collections that are subject reporting the job listing, and recordkeeping approximately 11.9% of the employer to review by the Office of Management would take 15 minutes per job listing. The FY 2009 Equal Employment Data System firms. and Budget (OMB) under the Paperwork Report (EEDS), which compiles information Therefore, under 5 U.S.C. 605, OFCCP Reduction Act of 1995. This proposal on Federal contractors for OFCCP, showed believes that the proposed rule will not includes several new requirements that there were 108,031 Federal contractor have a significant economic impact on shown below with their respective and subcontractor establishments under a substantial number of small entity burden estimates. OFCCP jurisdiction. EEDS information contractors but invites comments on its The information collections discussed concerning the number of contractor analysis. below relate to Federal contractor and establishments is derived from the EEO–1 subcontractor responsibilities under 38 Report, which the Equal Employment Paperwork Reduction Act U.S.C. 4212 as amended and its Opportunity Commission submits to OFCCP annually. OFCCP also includes 257 post- As part of its continuing effort to implementing regulations at 41 CFR 60– reduce paperwork and respondent secondary institutions under its jurisdiction, 250 and 41 CFR 60–300. OFCCP invites for a total of 108,288 contractor burden, the Department of Labor the public to comment on whether the establishments. The number of listings conducts a preclearance consultation proposed collections of information: provided by contractors may vary from year program to provide the general public (1) Is necessary to the proper to year, from a low of zero to a high of one and Federal agencies with an performance of the agency, including per month. OFCCP estimates that on average opportunity to comment on proposed whether the information will have a contractor will provide 2 listings annually, and continuing collections of practical utility; or 30 minutes. Therefore, OFCCP estimates × information in accordance with the (2) Estimates the projected burden, 108,288 30/60 = 54,144 total Federal Paperwork Reduction Act of 1995 (PRA) including the methodology and contractor hours for gathering of records, (44 U.S.C. 3506(c)(2)(A)). This helps to reporting the job listing, and recordkeeping. assumptions used, accurately; and Æ Contractor must provide ESDS ensure that the public understands the (3) Is structured to minimize the additional information, updated on an Department’s collection instructions; burden of the collection of information annual basis (¶4 of EO Clause) The current respondents can provide the requested on those who are to respond, including regulations require that the contractor data in the desired format, reporting through the use or appropriate provide the appropriate state employment burden (time and financial resources) is automated, electronic, mechanical, or service with the name and location of each minimized, collection instruments are other technological collection of the contractor’s hiring locations. The clearly understood, and the Department techniques or other forms of information proposed regulations require that the can properly assess the impact of technology (e.g. permitting electronic contractor provide the state employment collection requirements on respondents. submission of responses.) service with the following additional The Department notes that a Federal Where estimates are provided or information: (1) Its status as a Federal contractor; (2) contact information for the agency cannot conduct or sponsor a assumptions are described, contractors contractor hiring official at each location in collection of information unless it is and other members of the public are the state; and (3) its request for priority approved by OMB under the PRA, and encouraged to provide data they have referrals by the state of protected veterans for displays a currently valid OMB control that could help OFCCP refine the job openings at all locations within the state. number, and the public is not required estimates of amount of time needed to This information shall be updated on an to respond to a collection of information fulfill specific requirements. annual basis. These three additional items are proposed in light of feedback received unless it displays a currently valid OMB • 60–250.5/300.5 from state employment services and control number. Also, notwithstanding Æ any other provisions of law, no person Contractor must provide job vacancy congressional testimony citing concerns information to appropriate employment about appropriate interface between federal shall be subject to penalty for failing to service delivery system (ESDS) in usable contractors and state and local employment comply with a collection of information format (¶ 2 of EO Clause). service delivery system staff. Using some if the collection of information does not • The contractor’s mandatory job listing form of electronic means (email, fax, etc), display a currently valid OMB control obligations, which is required by 38 U.S.C. OFCCP estimates a total of 15 minutes to give number. Until any final regulations 4212(a)(2)(A) and promulgated in OFCCP’s the ESDS the information newly required by become effective and OFCCP publishes regulations at FR, Vol. 43, No. 204—Friday, this regulation (status as a federal contractor, a notice announcing OMB’s approval of October 20, 1978, requires federal contractors contact information for the contractor hiring these proposed information collections, and subcontractors to list their job opening official, and the request for priority referrals). they will not take effect. with the state or local employment service The proposed regulation also adds a sentence The information collection delivery system. To reduce the burden on the clarifying that, if the contractor uses any contractor, it has the flexibility to list its job outside job search organizations (such as a requirements contained in the existing openings at the state or local employment temporary employment agency) to assist in Section 4212 regulations, with the service delivery system concurrently with the its hiring, the contractor must provide the exception of those related to complaint contractor’s use of any other recruitment state employment service with the contact procedures, are currently approved source or effort. Further, to reduce the information for these outside job search burden, the mandatory job listing organizations. OFCCP further estimates 25% 5 See http://www.census.gov/epcd/www/ requirement need not include .(1) executive of contractors, or 27,072, will use outside job smallbus.html. and top management positions, (2) positions search organizations, and 5 additional

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minutes for the contractor to notify state since the notice is already required. OFCCP applicants. At 1 minute per applicant, the employment agencies concerning its outside estimates 5 minutes for each contractor to total applicant burden would be 75,657 × 1/ job search organizations. The burden to give post the notice on its Web site. Therefore, 60 = 1261 total hours for documenting status ESDS additional information is 108,288 × 15/ 10,829 × 5 minutes/60 = 902 total Federal as a protected veteran. Of course, veterans 60 = 27,072 hours. The burden to notify the contractor hours. stand to benefit from this minimal time state employment service about outside job Æ Contractor must state in all solicitations spent, as it will notify contractors of their search organizations is 27,072 × 5/60 = 2,256 and advertisements that it is an EEO status and the possibility that that may hours. The sum of 27,072 + 2,256 = 29,328 employer of veterans (¶13 of EO Clause). benefit from the protections of Section 4212. total Federal contractor hours. (This is a third party disclosure burden.) The Further, the self-identification process is Æ Contractor must maintain records, for contractor already must state that it is an EEO entirely voluntary, and veteran applicants five years, of the total number of priority employer due to many state and federal may opt not to participate, and thus take on referral of veterans, and ratio of veteran requirements, including the Executive Order zero burden. referrals to total referrals (¶ 5 of EO Clause). EEO requirements. This revision would b Contractor is required to seek advice of The contractors is already required to keep simply require the contractor to add applicants regarding reasonable applicant data for either one or two years, protected veterans to the list of categories of accommodations, when applicable (.42(d)). depending on their size, see 41 CFR 60– protected EEO groups. OFCCP estimates 1 We estimate 1 minute for the contractor to 300.80, thus the only changes proposed are minute additional burden per contractor, or note those applicants that have identified as that the contractor calculate the ratio of 108,288 × 1 minute/60 = 1,805 total Federal a disabled veteran and to make the initial preferred veteran referrals and to maintain contractor hours. inquiry with the applicant about proper these records for an additional period of placement and reasonable accommodation. • time. According to the ETA 9002 B Quarterly 60–250.41/300.41 The FY 2008 VETS–100 report identified Report from July 1, 2008 to June 30, 2009, b Contractor must inform employees who 62,000 Special Disabled Veterans (SDVs). State employment office staff referred 75,657 do not work at contractor’s physical Thus, there will be a total of 62,000 minutes, protected veterans (campaign, special establishment regarding the availability of or 1,033 total Federal contractor hours disabled, and recently separated veterans) to AAP for review. OFCCP estimates one or making this initial inquiry. OFCCP is aware Federal contractor job vacancies. However, more offsite location at 10% of contractors, that the contractor will undertake time to some contractors may receive no referrals or 10,829, and posting a notice on the process these requests and keep records of (and have few or no job postings) while company’s Web site so that offsite employees these requests. However, processing these others will receive multiple referrals. It is can access the notice to find out about the requests is covered by the ADA and expected that computing the ratio for availably of the AAP to review. OFCCP recordkeeping is covered by Section 503 multiple referrals is not significantly more estimates 5 minutes to create this notice. regulations, at 41 CFR 60–741.69. time consuming than doing a ratio for a small (Posting time is accounted for in above ¶10 OFCCP estimates that disabled veteran number of referrals. OFCCP estimates that the of EO Clause, ‘‘Posting of notice for applicants will have a small amount of contractor will take 30 minutes to analyze the employees working at a site other than the burden providing documentation concerning ratio of veteran referrals. Therefore, the contractor’s physical location’’). Therefore, reasonable accommodation. The FY 2008 estimated maximum burden hours associated 10,829 × 5 minutes/60 = 902 total Federal VETS–100 report identified 62,000 Special with calculating the ratio of veteran referrals contractor hours. Disabled Veterans (SDVs). Not all SDVs will × would be 30 75,657/60 = 37,829 total • normally request and accommodation. Federal contractor hours. 60–250.42/300.42 OFCCP estimates 10% of referrals will be Contractor must include the entire clause b The proposed regulation would require associated with an accommodation request verbatim in Federal contracts (.5(d), .5(e)) that the contractor invite all applicants to and that the affected disabled veterans will (This is a third party disclosure burden.) A self-identify as a protected veteran generally have on hand the needed documentation. contractor may copy/paste the EO Clause prior to the offer of employment, and invite Thus the only burden will be in providing from the OFCCP regulations into its individuals who receive job offers to indicate the documentation to the contractor which is contracts. Assuming each of the federal the particular category or categories of estimated to take 1 minute. We therefore contractor establishments has a single protected veteran to which they belong estimate 62,000 × 10% = 6,200 × 1 minute/ contract would equal 108,288 times 1 minute (.42(a)). In Appendix B of the proposed 60 = 103 total hours of burden on certain of copy/paste time would equal 108,288 regulation, OFCCP provides sample applicants for providing documentation of minutes divided by 60 minutes equals 1,805 invitations to self-identify so that the reasonable accommodation. Again, however, total Federal contractor hours. contractor will not have the burden of disabled veterans stand to benefit from this Æ Contractor must provide Braille, large creating these invitations. We estimate it will disclosure requirement if they choose to print, or other versions of notice so that take 1 minute for the contractor to copy and participate, as it is intended to help the visually impaired may read the notice paste the sample invitations to self-identify veteran secure an accommodation that will themselves (¶ 10 of EO Clause). from the regulations into a separate allow him or her to perform the job. • The FY 2008 VETS–100 report identified document that it can store electronically and b Contractor must maintain self- 62,000 Special Disabled Veterans (SDVs). Not include in electronic applications or print identification data (.42(e)). The contractor all SDVs will normally request and out in paper applications as needed. was required to maintain self-identification accommodation, therefore the estimate is Multiplying 1 minute by the 108,288 data prior to this proposed regulation. 10% of the SDVs may request an establishments equals 108,288 minutes/60 = Reviewing the entire data collection process accommodation due to visual impairment. 1,805 total Federal contractor hours adapting outlined in the first paragraph of this section, OFCCP estimates that it takes 5 minutes for the self-identification forms in Appendix B we estimate that simply maintaining the the contractor to receive the accommodation for contractor use. completed self-identification forms will take request and 5 minutes for recordkeeping and OFCCP estimates that protected veteran 1 minute per contractor, or 108,288 minutes/ providing the notice in an alternative format, applicants will have a minimal burden 60 = 1,805 total Federal contractor hours. for a total of 10 minutes per request. complying with this proposal in the course • Therefore, 10 minutes times 6,200 SDVs of completing their application for 60–250.44/300.44 equals 62,000 minutes divided by 60 minutes employment with a contractor—specifically, b Contractor must provide Braille, large equals 1,033 total Federal contractor hours. providing their separation form, the DD–214, print, or other versions of AA policy Æ Posting of notice for employees working and checking the appropriate boxes in the statement so that visually impaired may read at a site other than the contractor’s physical self-identification forms. To calculate the the notice themselves (.44(a)). The FY 2008 location. (¶ 10 of EO Clause). OFCCP total number of protected veteran applicants, VETS–100 report identified 62,000 Special estimates one or more offsite locations at OFCCP reviewed DOL/ETA’s 9002 B Disabled Veterans (SDVs). Not all SDVs will 10% of contractors, or 10,829, and posting a Quarterly Reports for the period July 1, 2008 normally request and accommodation, notice on the company’s Web site so that to June 30, 2009, which shows 75,657 total therefore the estimate is 10% of the SDVs offsite employees can access the notice. No priority referrals to federal contractors may request an accommodation due to visual additional hours for creation of the notice nationwide. We therefore estimate 75,657 impairment. OFCCP estimates that it takes 5

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minutes for the contractor to receive the OFCCP estimates that 1% of federal means an agreement describing the accommodation request and 5 minutes for contractors are first-time contractors required connection between the contractor and recordkeeping and providing this document to develop initial standards for the employee appropriate recruitment and/or training in an alternative format, for a total of 10 workforce. Therefore, 108,288 total federal sources. minutes. Therefore, 10 minutes times 6,200 contractors times 1% equals 1,083 The contractor has a variety of ways to SDVs equals 62,000 minutes divided by 60 contractors. According to the Bureau of Labor establish VEVRAA linkage agreements. The minutes equals 1,033 total Federal contractor Statistics (BLS), the 2010 Standard contractor can receive nationwide assistance hours complying with this paragraph. Occupational Classification (SOC) system is from OFCCP Compliance Officers (COs) to b Contractor must review personnel used by Federal statistical agencies to classify help it establish the 3 linkage agreements. processes annually, and is required to go workers into occupational categories for the Secondly, during the normal course of an through a specific analysis for doing so purpose of collecting, calculating, or OFCCP compliance review, the CO will which would include: (1) Identifying the disseminating data. All workers are classified contact all appropriate linkage resources to vacancies and training programs for which into one of 840 detailed occupations obtain specific information on availability of protected veteran applicants and employees according to their occupational definition. To applicants and potential trainees for were considered; (2) providing a statement of facilitate classification, detailed occupations positions in the contractor’s labor force. If reasons explaining the circumstances for are combined to form 461 broad occupations, possible, the CO will arrange a meeting rejecting protected veterans for vacancies and 97 minor groups, and 23 major groups. between the recruitment/referral resources training programs and a description of Detailed occupations in the SOC with similar and the contractor. considered accommodations; and (3) job duties, and in some cases skills, Where a resource indicates that it can describing the nature and type of education, and/or training, are grouped provide applicants or trainees, the CO will accommodations for special disabled together. OFCCP estimates that the average include the contractor’s commitment to veterans who were selected for hire, federal contractor will only have 20% of the utilize the linkage source along with other promotion, or training programs (.44(b)). 461 broad occupations in their workforce, actions in the Letter of Commitment or in the • The contractors needs to identify therefore, on average, the contractor will Conciliation Agreement. vacancies as part of the review. According to have 92 occupations for which to conduct an OFCCP estimates that 30% of the the ETA 9002 B Quarterly Report from July annual review. OFCCP estimates that the contractors, or 32,486, will accept OFCCP 1, 2008 to June 30, 2009, State employment contractor will take 10 minutes to review assistance to help set up their linkage office staff referred 75,657 protected veterans mental and physical job qualifications for agreements and it will take these contractors (campaign, special disabled and recently each of the average 92 occupations. on average 1.5 hours to establish one new separated veterans) to Federal contractor job Therefore, 92 occupations times 10 minutes linkage agreement. For the remaining 75,802 vacancies. Therefore, OFCCP estimates equals 920 minutes, multiplied by the contractors, OFCCP estimates that estimated 1,083 first time contractors/60 Federal contractors and subcontractors will establishing a new linkage agreement will minutes per hour equals a total of 16,606 need to identify approximately 75,657 job take an average of 5.5 hours. Beyond the first Federal contractor hours for first-time vacancy listings during the above time period year after this rule becomes effective, it is contractors spent complying with this times 15 minutes per listing equals 75,657 × estimated the contractor will set up one new paragraph. agreement a year. It is estimated that 15 minutes = 1,134,855 minutes/60 minutes OFCCP estimates that 90% of contractors, maintaining a single, ongoing linkage = 18,914 total Federal contractor hours for or 97,459, will have no changes to their job gathering of records and recordkeeping. agreement will take an average of 15 minutes • descriptions in a given year. Therefore, for OFCCP estimates 15 minutes per contractors that have already performed the for all 108,288 contractors. contractor per year to identify training required review as set forth in the current For those contractors setting up linkage programs for veteran applicants and agreements on their own, OFCCP estimates × regulations, and have not changed the job employees, which means 15 108,288/60 = descriptions or physical/mental job that on average, a contractor will establish 27,072 total Federal contractor hours. qualifications, OFCCP estimates that the time one new agreement and maintain two • For providing a statement of reasons ongoing agreements in a given year, which × required to update the reviews is 0.5 minutes e plaining the circumstances for rejecting per job title × 92 occupations = 46 × 97,459/ would be 5.5 hours + .25 hours + .25 hours protected veterans for vacancies and training 60 = 74,719 total Federal contractor hours. = 6 hours. If the contractor establishes programs and a description of considered OFCCP estimates that the remaining 9% of linkage agreements with OFCCP’s assistance, accommodations, OFCCP estimates 30 contractors, or 9,746, will have some changes we estimate an annual average of 1.5 hours × minutes per contractor per year, or 30 to their job descriptions in a given year. We per contractor to establish a new linkage 108,288/60 = 54,144 total Federal contractor estimate this 9% of contractors will have agreement and .25 hours to maintain each of hours. changes to an average of 20% of their job the two ongoing linkage agreements, which • For describing the nature and type of titles, and that it will take 10 minutes on would be 1.5 hours + .25 hours + .25 hours accommodations for disabled veterans who average to review the mental and physical job = 2 hours. Therefore, 6 hours times 75,802 were selected for hire, promotion, or training qualifications for each. Therefore, 10 minutes contractors equals 454,812 hours, and 32,486 programs. The FY 2008 VETS–100 report × (20% of 92 job titles) × 9,746 contractors/ times 2 hours equals 64,972 hours, for a total identified 62,000 Special Disabled Veterans 60 minutes per hour = 29,888 total Federal of 519,784 Federal contractor hours to (SDVs). Thus, there will be a total of 62,000 contractor hours. establish and maintain three linkage inquiries. OFCCP estimates 10% of referrals b Contractor must document the results of agreements under the proposed NPRM. leading to an accommodation request, and 30 its annual review of physical and mental job b Contractor must send written minutes per accommodation request. qualifications, and document any notification of company AAP policies to Therefore, the hours would be 30 × 62,000 × employment action taken on the basis of a subcontractors, vendors, and suppliers 10%/60 = 3,100 total Federal contractor believed ‘‘direct threat.’’ (.44(c)). (.44(f)(1)). hours. OFCCP estimates that it will take the OFCCP estimates that it would take the b Contractor must review physical and contractor 1 minute per job qualification to contractor 5 minutes to prepare the mental job qualifications annually to ensure save the information for recordkeeping notification and notify its subcontractors via that they are job-related and consistent with purposes. Therefore, 1 minute × 92 the Internet in a group e-mail, and 1 minute business necessity (.44(c)(1)). This provision occupations equals 92 minutes × 108,288 to add or subtract any additions or deletions exists in the current VEVRAA regulations (as contractors/60 minutes equals 166,042 total to the group. Therefore, 6 minutes per well as the Section 503 regulations); the only Federal contractor hours. contractor times 108,288 equals 649,728 difference is that the proposed regulations b Contractor must enter into linkage minutes, divided by 60 minutes equals call for the review to occur ‘‘annually,’’ rather agreement with nearest LVER, one of the 10,829 total Federal contractor hours. than ‘‘periodically.’’ Therefore, all existing or organizations listed in (f)(1), and an b Contractor must document its review previous contractors should have experience organization listed in the National Resource outreach and recruitment efforts (.44(f)(3)). in performing the required review. Directory (.44(f)(1)). OFCCP estimates that documenting this For those contractors who have not Therefore, each contractor must enter into review of outreach and recruitment will take previously performed the required review, 3 linkage agreements. Linkage Agreement 5 minutes annually. OFCCP further estimates

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that 1% of federal contractors are first-time contractor, or 1,083 × 5 minutes = 5,415 documenting the benchmark calculations, contractors during an abbreviated AAP year, minutes/60 = 90 total Federal contractor which means 30 minutes × 108,288/60 = therefore would not be able to complete an hours 54,144 total Federal contractor hours. annual outreach and recruitment effort. b Contractor must document its training • Therefore, reducing the 108,288 by 1% (1,083 efforts as set forth by the regulation, and 60–250.60/300.60 contractors) equals 107,205 contractors, at 5 maintain these documents as required by 60– b Contractor must provide documents to minutes each equals 536,025 minutes, or 250.80/60–300.80 (.44(j)). OFCCP on-site or off-site at OFCCP’s request, 8,934 total Federal contractor hours. The OFCCP estimates that much of the not at the contractor’s option (.60(a)(3)) burden and cost of actually conducting the documentation will be included in the These hours not included in burden as review does not fall under the PRA, and is training preparation time. OFCCP estimates they are excepted under 5 CFR 1320.4(a)(2) instead set forth in the Sections on Executive an additional 5 minutes recordkeeping time (‘‘an administrative action, investigation, or Order 12866 and the Regulatory Flexibility per contractor, which means 5 minutes × audit involving an agency against specific Act. 108,288 = 541,440 minutes/60 = 9,024 total individuals or entities’’). b Contractor must document (f)(1) linkage Federal contractor hours. The burden and b agreements and maintain these documents cost of the actual training preparation and New procedure for pre-award compliance for 5 years (.44(f)(4)). conducting the training does not fall under evaluations (.60(d)) Since establishing a linkage agreement the PRA, and is instead set forth in the These hours not included in burden as includes its documentation, there is no Sections on Executive Order 12866 and the they are excepted under 5 CFR 1320.4(a)(2) additional burden for this paragraph beyond Regulatory Flexibility Act. (‘‘an administrative action, investigation, or that already set forth in the burden b Contractor must make several audit involving an agency against specific calculation for .44(f)(1). quantitative tabulations and comparisons individuals or entities’’). b Contractor is required to undertake using referral data, applicant data, hiring • 60–250.80/300.80 several efforts to internally disseminate its data, and the number of job openings; must EEO policy, including, if the contractor is a maintain these records for 5 years (.44(k)) b See new 5 year recordkeeping party to a collective bargaining agreement, (1) The number of priority referrals of requirements in previous sections. meeting with union officials to inform them veterans protected by this part that the No additional burden hours as they are of the policy. (This is a third party disclosure contractor received from applicable included in the individuals calculations burden). (.44(g)): employment service delivery system(s); above. (2) The number of total referrals that the The January 22, 2010 Bureau of Labor • 60–250.81/300.81 Statistics News Release states that in 2009, contractor received from applicable union membership was 12.3%. In its most employment service delivery system(s); b Contractor must provide off-site access (3) The ratio of priority referrals of veterans recent Supply and Service (S&S) PRA to documents if requested by OFCCP. Such to total referrals (referral ratio); Justification, OFCCP estimated 30 minutes records are never requested except during the (4) The number of applicants who self- composition time for union notification. For course of a specific investigation of a identified as protected veterans pursuant to this NPRM, we estimate 15 minutes particular contractor. § 60–300.42(a), or who are otherwise known Consequently, these hours not included in preparation for this new notification as protected veterans; requirement, as contractors party to a burden as they are excepted under 5 CFR (5) The total number of job openings and 1320.4(a)(2) (‘‘an administrative action, collective bargaining agreement already have total number of jobs filled; a notification template in place. We also investigation, or audit involving an agency (6) The ratio of jobs filled to job openings; against specific individuals or entities’’). estimate 15 additional minutes to meet with (7) The total number of applicants for all union officials as they already do so in S&S. b Contractor must specify to OFCCP all jobs; formats in which its records are available. The total third party disclosure burden hours (8) The ratio of protected veteran × × These hours not included in burden as would be 108,288 12.3% 30 minutes/60 applicants to all applicants (applicant ratio); they are excepted under 5 CFR 1320.4(a)(2) = 6,660 total Federal contractor hours. (9) The number of protected veteran (‘‘an administrative action, investigation, or The burden and cost of other requirements applicants hired; audit involving an agency against specific of .44(g) does not fall under the PRA, and is (10) The total number of applicants hired; ’’ instead set forth in the Sections on Executive and individuals or entities ). Order 12866 and the Regulatory Flexibility (11) The ratio of protected veterans hired The Department has submitted a copy Act. to all hires (hiring ratio). of the information collections associated b Contractor must document internal The calculations for #5, 6, 7, and 10 are with this proposed rule to the Office of dissemination efforts in (g), retain these already included in the Executive Order Management and Budget (OMB) in documents for 1–2 years (.44(g)(3)) AAP. The calculations for #9 are included in Since much of the documentation will the VETS–100/100A report. Therefore, there accordance with 44 U.S.C. 3507(d) for occur during the preparation time, OFCCP is no additional burden for #5, 6, 7, 9, and review and approval. In addition to estimates an additional 5 minutes of 10. filing comments with OFCCP, interested recordkeeping per contractor, which means 5 The remaining calculations, for #1, 2, 3, 4, persons may submit comments about minutes × 108,288 = 541,440 minutes/60 = 8, and 11, OFCCP estimates at 1 minute each the information collections, including 9,024 total Federal contractor hours. per contractor, or 6 minutes recordkeeping suggestions for reducing their burden, to b Contractor must document the actions time per contractor, which means 6 minutes the Office of Information and Regulatory × 108,288 = 649,728 minutes/60 = 10,829 taken to comply with audit and reporting Affairs, OMB, New Executive Office system, retain these documents for 1–2 years total Federal contractor hours. Building, 725 17th Street NW., Room (.44(h)) • 60–250.45/300.45 Since much of the documentation will 10235, Washington, DC 20503. occur during the annual audit and reporting, b Contractor must set benchmarks for hiring Attention: Desk Officer for DOL/OFCCP. OFCCP estimates an additional 5 minutes annually, which would include reviewing To ensure proper consideration recordkeeping burden per contractor, which numerous data sources. Contractor must comments to OMB should reference ICR means 5 minutes × 108,288 = 541,440 document the benchmarks it sets and the reference number: [insert the number minutes/60 = 9,024 total Federal contractor specific criteria it uses, and maintain these from ROCIS when OFCCP creates the hours. records for 5 years. The non-documenting burden and cost associated with the actual package]. Upon receiving OMB approval b Contractor must identify responsible of the new information, the Department official for AAP on all internal and external setting of the benchmark does not fall under communications regarding the AAP (.44(i)) the PRA, and is instead set forth in the will submit non-substantive change That official should already be in place for Sections on Executive Order 12866 and the request to OMB Control Numbers ll current contractors. For 1% first time Regulatory Flexibility Act. in order to remove regulatory citations contractors, 108,288 × 1% = 1,083 OFCCP estimates 30 minutes for any information collected purely contractors, OFCCP estimates 5 minutes per recordkeeping time per contractor under the new collection.

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TABLE 1—REPORTING, RECORDKEEPING, AND THIRD PARTY DISCLOSURE BURDEN

Section of proposed One-time burden hours per Recurring burden hours per Recurring burden hours per Burden description regulation contractor contractor element

Contractor must provide job 60–250.5/300.5 ...... 30 minute per contractor. vacancy information to ap- Total Hours 54,144. propriate employment serv- ice delivery system (ESDS) in usable format (¶ 2 of EO Clause). Contractor must provide 60–250.5/300.5 ...... 15 minutes reporting bur- ESDS additional informa- den per contractor for tion, updated on an annual ESDS. Subtotal Hours basis (¶ 4 of EO Clause). 27,072. 5 minutes reporting burden per contractor for outside job search. Subtotal Hours 2,256. Total Hours 29,328. Contractor must maintain 60–250.5/300.5 ...... 30 minutes per referral. records, for five years, of Total Hours 37,829. the total number of, priority referral of veterans (al- ready must keep applicant data), and ratio of veteran referrals to total referrals (¶ 5 of EO Clause). Contractor must include the 60–250.5/300.5 ...... 1 minute third party disclo- entire clause verbatim in sure burden per con- Federal contracts (.5(d), tractor. Total Hours 1,805. .5(e)). Contractor must provide 60–250.5/300.5 ...... 10 minutes per accommo- Braille, large print, or other dation request. Total versions of notice so that Hours 1,033. visually impaired may read the notice themselves (¶ 10 of EO Clause).. Contractor must provide no- 60–250.5/300.5 5 minutes per contractor. tice to offsite employees Total Hours 902. (¶ 10 of EO Clause). Contractor must state in all 60–250.5/300.5 1 minute third party disclo- solicitations and advertise- sure burden per con- ments that it is an EEO tractor. Total Hours 1,805. employer of veterans (¶ 13 of EO Clause). Contractor must inform em- 60–250.41/300.41 5 minutes per contractor. ployees who do not work Total Hours 902. at contractor’s physical es- tablishment regarding the availability of AAP for re- view (.41). Contractor must invite all ap- 60–250.42/300.42 ...... 1 minute per application. plicants to self-identify as Total Hours 1,805. protected veteran prior to offer of employment (.42(a)). Contractor is required to 60–250.42/300.42 ...... 1 minute per accommoda- seek advice of applicants tion. Total Hours 1,033. regarding appropriate ac- commodations, when appli- cable (.42(d)). Contractor must maintain 60–250.42/300.42 ...... 1 minute per contractor. self-identification data Total Hours 1,805. (.42(e)). Contractor must provide 60–250.44/300.44 ...... 10 minutes per accommo- Braille, large print, or other dation request. Total versions of AA policy state- Hours 1,033. ment so that visually im- paired may read the notice themselves (.44(a)).

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TABLE 1—REPORTING, RECORDKEEPING, AND THIRD PARTY DISCLOSURE BURDEN—Continued

Section of proposed One-time burden hours per Recurring burden hours per Recurring burden hours per Burden description regulation contractor contractor element

Contractor must review per- 60–250.44/300.44 ...... 15 minutes per contractor 15 minutes per job listing sonnel processes annually, (training) Subtotal Hours (vacancies). Subtotal and is required to go 27,072. Hours 18,914. through a specific analysis 30 minutes per contractor 30 minutes per accommo- for doing so which would (statement of reasons) dation request Subtotal include: (1) identifying va- Subtotal Hours 54,144. Hours 3,100. cancies and training pro- Total Hours 103,230. grams; (2) providing a .5 minutes per occupation statement of reasons for (no changes). Subtotal rejecting protected vet- Hours 74,719. erans; and (3) describing 10 minutes per occupation, the nature and type of ac- 20% of occupations. Sub- commodations for (special) total Hours 29,888. disabled veterans (.44(b)). Total Hours 121,213. 1 minute per occupation. Total Hours 166,042. Contractor must review phys- 60–250.44/300.44 10 minutes per occupation ...... ical and mental job quali- for first time contractors. fications annually (.44(c)).. Subtotal Hours 16,606. Contractor must document 60–250.44/300.44 ...... the results of its annual re- view of physical and men- tal job qualifications, and document any employment action taken on the basis of a believed ‘‘direct threat.’’ (.44(c)). Contractor must enter into 60–250.44/300.44 ...... 2 hours per contractor with linkage agreement with OFCCP assistance. Sub- nearest LVER, one of the total Hours 64,972. organizations listed in (f)(1), and an organization listed in the National Re- source Directory (.44(f)(1)). 6 hours per contractor with- out OFCCP assistance. Subtotal Hours 454,812. Total Hours 519,784. Contractor must send written 60–250.44/300.44 ...... 6 minutes per contractor. notification of company Total Hours 10,829. AAP policies to sub- contractors, vendors, and suppliers (.44(f)(1)). Contractor must review out- 60–250.44/300.44 ...... 5 minutes per contractor reach and recruitment ef- (non first time contrac- forts on an annual basis tors). Total Hours 8,934. and evaluate their effec- tiveness; contractor must identify and implement fur- ther outreach efforts if ex- isting efforts are found in- effective (.44(f)(3)). If the contractor is a party to 60–250.44/300.44 ...... 30 minutes per unionized a collective bargaining contractor. Total third agreement it must meet party disclosure burden with union officials to in- hours 6,660. form them of the policy (.44(g)). Contractor must document 60–250.44/300.44 ...... 5 minutes per contractor. internal dissemination ef- Total Hours 9,024. forts in (g), retain these documents for 1–2 years (.44(g)(3)). Contractor must document 60–250.44/300.44 ...... 5 minutes per contractor. the actions taken to com- Total Hours 9,024. ply with audit and reporting system, retain these docu- ments for 1–2 years (.44(h)).

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TABLE 1—REPORTING, RECORDKEEPING, AND THIRD PARTY DISCLOSURE BURDEN—Continued

Section of proposed One-time burden hours per Recurring burden hours per Recurring burden hours per Burden description regulation contractor contractor element

Contractor must identify re- 60–250.44/300.44 5 minutes per first time sponsible official for AAP contractor. Total Hours on all internal and external 90. communications regarding the AAP (.44(i)). Contractor must document its 60–250.44/300.44 ...... 5 minutes per contractor. training efforts as set forth Total Hours 9,024. by the reg, and maintain these documents for 1–2 years (.44(j)). Contractor must make sev- 60–250.44/300.44 ...... 6 minutes per contractor. eral quantitative tabulations Total Hours 10,829. and comparisons using re- ferral data, applicant data, hiring data, and the num- ber of job openings; must maintain these records for 5 years (.44(k)). Contractor must document 60–250.45/300.45 ...... 30 minutes per contractor. the benchmarks it sets and Total Hours 54,144. the specific criteria it uses, and maintain these records for 5 years (.45). Total Recordkeeping 1,122,653 burden hours. Total Reporting burden 29,328 hours. Total Third Party burden 10,270 hours. Total all hours ...... 1,162,251

TABLE 2—BURDEN FOR PROTECTED VETERANS

Section of proposed Burden description regulation Burden hours per protected veteran

Protected veteran must provide DD–214 to contractor to 60–250.42/300.42 1 minute per individual. Total hours 1,261. document status as a protected veteran. Disabled veteran must provide documentation for reason- 60–250.42/300.42 1 minute per individual. Total hours 103. able accommodation. Total Burden Hours ...... 1,364.

The estimated annualized cost to Total annualized cost estimate = posting the EO Clause. We estimate an respondent contractors is based on $42,845,869 average copying cost of 10 cents per Bureau of Labor Statistics data in the Estimated average cost per page. We estimate the average size of the publication ‘‘Employer Costs for establishment is: $42,845,869/108,288 EO Clause to be 3 pages. The estimated Employee Compensation’’ (June 2010), = $396 total cost to contractors will be: 3 pages × $.10 × 108,288 Federal contractor which lists total compensation for Operations and Maintenance Costs management, professional, and related establishments = $32,486. occupations as $48.74 per hour and OFCCP estimates that the contractor OFCCP estimates that the contractor administrative support as $23.25 per will have some operations and will have some operations and maintenance costs in addition to the hour. OFCCP estimates that 52% maintenance costs associated with time burden calculated above associated percent of the burden hours will be providing the EO Clause in an with this collection. alternative format. We estimate that the management, professional, and related cost of an alternative format, such as occupations and 48% percent will be 60–250.5/300.5 Braille or audio, to be $1.00 per administrative support. We have Contractor must provide EO Clause contractor. The estimated total cost to calculated the total estimated notices to employees and applicants, contractors will be: $1.00 × 108,288 annualized cost as follows: including alternative formats such as Federal contractor establishments = Mgmt. Prof. 1,162,251 hours × .52 × copy of Braille, large print, or other $108,288. versions of notice so that visually $48.74 = $29,457,019 60–250.42/300.42 × × impaired protected veterans may read Adm. Supp. 1,162,251 hours .48 the notice themselves (¶ 10 of EO OFCCP estimates that the contractor $23.25 = $12,970,721 Clause). OFCCP estimates that the will have some operations and Operations & Maintenance Cost (see contractor will have some operations maintenance cost associated with the discussion below) $ 418,129 and maintenance cost associated with invitation to self-identify. The

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contractors must invite all applicants offer—108,288 × 2 × 2 × $10 = $43,315; 60–250.44/300.44 with the pre-offer invitation, and must total cost $108,288 + $43,315 = also invite those individuals who were $151,603. Contractor must provide its AAP to OFCCP during a desk audit. For Supply offered positions and declared 60–250.44/300.44 themselves protected veterans with the & Service compliance evaluations, the post-offer invitation. Given the Contractor must provide Braille, large contractor copies its AAPs and mails the print, or other versions of AA policy increasingly widespread use of AAPs to OFCCP. We estimate an average statement so that visually impaired may electronic applications, any contractor copying cost of $.07 per page. We read the notice themselves (.44(a)). estimate the average size of an AAP to that uses such applications would not OFCCP estimates that the contractor incur copy costs. Therefore, we estimate be 7 pages. The estimated total copying will have some operations and × 1 page for the pre-offer invitation cost to contractors will be: 7 pages maintenance costs associated with $.07 × 5,004 (FY 2009 Compliance printed for 10 applicants per year, and providing the AA policy statement. We 2 pages for the post-offer invitation Evaluations) = $2,452. In addition, we estimate that the cost of an alternative estimate an average mailing cost of printed for 2 applicants per year. We format, such as Braille or audio, to be $3.00 per contractor. The total mailing also estimate an average copying cost of $1.00 per contractor. The estimated total cost for contractors will be $3.00 × 5,004 10 cents per page. The estimated total cost to contractors will be: $1.00 × = $15,012. The total estimated costs cost to contractors will be: pre-offer— 108,288 Federal contractor 108,288 × 1 × 10 × $.10 = $108,288; post- establishments = $108,288. would be $2,452 + $15,012 = $17,464.

TABLE 3—OPERATIONS AND MAINTENANCE COSTS

Contractor must provide EO Clause to employees and applicants (¶ 10 of EO Clause)...... 60–250.5/300.5 $32,486 Contractor must provide Braille, large print, or other versions of EO Clause so that visually impaired may read the notice themselves (¶ 10 of EO Clause)...... 60–250.5/300.5 108,288 Contractor must invite all applicants to self-identify as protected veteran prior to offer of employment (.42(a))...... 60–250.42/300.42 151,603 Contractor must provide Braille, large print, or other versions of AA policy statement so that visually im- paired may read the notice themselves (.44(a))...... 60–250.44/300.44 108,288 Copying and mailing costs of AAPs (.44) ...... 60–250.44/300.44 17,464

Total O&M Costs ...... 418,129

These paperwork burden estimates Fairness Act of 1996. This rule will not Executive Order 13084 (Consultation are summarized as follows: result in an annual effect on the and Coordination With Indian Tribal Type of Review: New collection economy of $100 million or more; a Governments) (Request for new OMB Control major increase in costs or prices; or This NPRM does not have Tribal Number). significant adverse effects on implications under Executive Order Agency: Office of Federal Contract competition, employment, investment, 13175 that would require a Tribal Compliance Programs, Department of productivity, innovation, or on the summary impact statement. The NPRM Labor. ability of the United States-based would not have substantial direct effects Title: Disclosures and Recordkeeping companies to compete with foreign- on one or more Indian Tribes, on the Under Affirmative Action and based companies in domestic and relationship between the Federal Nondiscrimination Obligations of export markets. Contractors and Subcontractors government and Indian Tribes or on the Regarding Special Disabled Veterans, Unfunded Mandates Reform Act of distribution of power and Veterans of the Vietnam Era, Disabled 1995 responsibilities between the Federal government and Indian Tribes. Veterans, Recently Separated Veterans, For purposes of the Unfunded Active Duty Wartime or Campaign Mandates Reform Act of 1995, 2 U.S.C. Effects on Families Badge Veterans, and Armed Forces 1532, this NPRM does not include any The undersigned hereby certifies that Service Medal Veterans. Federal mandate that may result in OMB ICR Reference Number: [Provide the NPRM would not adversely affect excess of $100 million in expenditures the well-being of families, as discussed from ROCIS]. by state, local, and Tribal governments Affected Public: Business or other for- under section 654 of the Treasury and in the aggregate or by the private sector. profit; individuals. General Government Appropriations Estimated Number of Annual Executive Order 13132 (Federalism) Act, 1999. Responses: [Provide total from ROCIS]. OFCCP has reviewed this proposed Executive Order 13045 (Protection of Frequency of Response: On occasion. Children) Estimated Total Annual Burden rule in accordance with Executive Order Hours: 1,163,615. 13132 regarding federalism, and has This NPRM would have no Estimated Total Annual Burden Cost determined that it does not have environmental health risk or safety risk (Start-up, capital, operations, and ‘‘federalism implications.’’ This that may disproportionately affect maintenance): $418,129. proposed rule will not ‘‘have substantial children. direct effects on the States, on the Environmental Impact Assessment Small Business Regulatory Enforcement relationship between the national Fairness Act of 1996 government and the States, or on the A review of this NPRM in accordance This rule is not a major rule as distribution of power and with the requirements of the National defined by Section 804 of the Small responsibilities among the various Environmental Policy Act of 1969 Business Regulatory Enforcement levels of government.’’ (NEPA), 42 U.S.C. 4321 et seq.; the

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regulations of the Council on PART 60–250—AFFIRMATIVE ACTION Appendix A to Part 60–250—Guidelines on Environmental Quality, 40 CFR 1500 et AND NONDISCRIMINATION a Contractor’s Duty To Provide Reasonable seq.; and DOL NEPA procedures, 29 OBLIGATIONS OF FEDERAL Accommodation CFR part 11, indicates the NPRM would CONTRACTORS AND Appendix B to Part 60–250—Sample not have a significant impact on the SUBCONTRACTORS REGARDING Invitation To Self-Identify quality of the human environment. SPECIAL DISABLED VETERANS, There is, thus, no corresponding VETERANS OF THE VIETNAM ERA, Authority: 29 U.S.C. 793; 38 U.S.C. 4211 environmental assessment or an RECENTLY SEPARATED VETERANS, (2001) (amended 2002); 38 U.S.C. 4212 (2001) (amended 2002); E.O. 11758 (3 CFR, environmental impact statement. AND ACTIVE DUTY WARTIME OR 1971–1975 Comp., p. 841). CAMPAIGN BADGE VETERANS Executive Order 13211 (Energy Supply) Subpart A—Preliminary Matters, Equal This NPRM is not subject to Executive Subpart A—Preliminary Matters, Equal Opportunity Clause Opportunity Clause Order 13211. It will not have a § 60–250.1 Purpose, applicability and significant adverse effect on the supply, Sec. construction. distribution, or use of energy. 60–250.1 Purpose, applicability and (a) Purpose. The purpose of the construction. regulations in this part is to set forth the Executive Order 12630 60–250.2 Definitions. standards for compliance with 38 U.S.C. (Constitutionally Protected Property 60–250.3 [Reserved]. 4212 (Section 4212), which prohibits Rights) 60–250.4 Coverage and waivers. discrimination against protected 60–250.5 Equal opportunity clause. This NPRM is not subject to Executive veterans and requires Government Order 12630 because it does not involve Subpart B—Discrimination Prohibited contractors and subcontractors to take implementation of a policy that has 60–250.20 Covered employment activities. affirmative action to employ and takings implications or that could 60–250.21 Prohibitions. advance in employment qualified impose limitations on private property 60–250.22 Direct threat defense. protected veterans. Special disabled use. 60–250.23 Medical examinations and veterans, veterans of the Vietnam era, inquiries. recently separated veterans, and active Executive Order 12988 (Civil Justice 60–250.24 Drugs and alcohol. duty wartime or campaign badge Reform Analysis) 60–250.25 Health insurance, life insurance veterans are protected veterans under Section 4212. This NPRM was drafted and reviewed and other benefit plans. (b) Applicability. This part applies to in accordance with Executive Order Subpart C—Affirmative Action Program any Government contract or subcontract 12988 and will not unduly burden the 60–250.40 Applicability of the affirmative of $25,000 or more, entered into before Federal court system. The NPRM was: action program requirement. December 1, 2003, for the purchase, sale (1) Reviewed to eliminate drafting errors 60–250.41 Availability of affirmative action or use of personal property or and ambiguities; (2) written to minimize program. nonpersonal services (including litigation; and (3) written to provide a 60–250.42 Invitation to self-identify. construction), except that the clear legal standard for affected conduct 60–250.43 Affirmative action policy. regulations in 41 CFR 60–300, and not and to promote burden reduction. 60–250.44 Required contents of affirmative this part, apply to such a contract or action programs. subcontract that is modified on or after List of Subjects in 41 CFR Parts 60–250 60–250.45 Contractor established and 60–300 December 1, 2003 and the contract or benchmarks for hiring. subcontract as modified is in the Administrative practice and Subpart D—General Enforcement and amount of $100,000 or more: Provided, procedure, Civil rights, Employment, Complaint Procedures that subpart C of this part applies only Equal employment opportunity, 60–250.60 Compliance evaluations. as described in Sec. 60–250.40(a). Government contracts, Government 60–250.61 Complaint procedures. Compliance by the contractor with the procurement, Individuals with 60–250.62 Conciliation agreements. provisions of this part will not disabilities, Investigations, Reporting 60–250.63 Violation of conciliation necessarily determine its compliance and recordkeeping requirements, and agreements. with other statutes, and compliance Veterans. 60–250.64 Show cause notices. with other statutes will not necessarily 60–250.65 Enforcement proceedings. determine its compliance with this part. Patricia Shiu, 60–250.66 Sanctions and penalties. (c) Construction—(1) In general. The Director, Office of Federal Contract 60–250.67 Notification of agencies. Interpretive Guidance on Title I of the Compliance Programs. 60–250.68 Reinstatement of ineligible Americans with Disabilities Act (ADA) contractors. (42 U.S.C. 12101, et seq.) set out as an Accordingly, under authority of 38 60–250.69 Intimidation and interference. appendix to 29 CFR part 1630 issued U.S.C. 4212, Title 41 of the Code of 60–250.70 Disputed matters related to pursuant to Title I may be relied upon Federal Regulations, Chapter 60, the compliance with the Act. for guidance in interpreting the parallel second alternative proposed part 60–250 provisions of this part. (as discussed in the Summary section) Subpart E—Ancillary Matters (2) Relationship to other laws. This and part 60–300, is proposed to read as 60–250.80 Recordkeeping. part does not invalidate or limit the follows: 60–250.81 Access to records. remedies, rights, and procedures under 60–250.82 Labor organizations and any Federal law or the law of any state recruiting and training agencies. or political subdivision that provides 60–250.83 Rulings and interpretations. greater or equal protection for the rights 60–250.84 Responsibilities of local of special disabled veterans, veterans of employment service offices. the Vietnam era, recently separated veterans, or active duty wartime or

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campaign badge veterans as compared at which or through which labor conversion, extension, demolition, or to the protection afforded by this part. exchange services, including repair of buildings, highways, or other It may be a defense to a charge of employment, training, and placement changes or improvements to real violation of this part that a challenged services, are offered in accordance with property, including facilities providing action is required or necessitated by the Wagner-Peyser Act. utility services. The term also includes another Federal law or regulation, or (j) Equal opportunity clause means the supervision, inspection, and other that another Federal law or regulation the contract provisions set forth in § 60– on-site functions incidental to the actual prohibits an action (including the 250.5, ‘‘Equal opportunity clause.’’ construction. provision of a particular reasonable (k) Essential functions—(1) In general. (2) Contracting agency means any accommodation) that would otherwise The term essential functions means department, agency, establishment or be required by this part. fundamental job duties of the instrumentality of the United States, employment position the special including any wholly owned § 60–250.2 Definitions. disabled veteran holds or desires. The Government corporation, which enters For the purpose of this part: term essential functions does not into contracts. (a) Act means the Vietnam Era include the marginal functions of the (3) Modification means any alteration Veterans’ Readjustment Assistance Act position. in the terms and conditions of a of 1974, as amended, 38 U.S.C. 4212 (2) A job function may be considered contract, including supplemental (2001). essential for any of several reasons, agreements, amendments and (b) Active duty wartime or campaign including, but not limited to, the extensions. badge veteran means a person who following: (4) Nonpersonal services, as used in served on active duty during a war or (i) The function may be essential the definition of Government contract in a campaign or expedition for which because the reason the position exists is and subcontract of this section, a campaign badge has been authorized, to perform that function; includes, but is not limited to, the under the laws administered by the (ii) The function may be essential following: Utility, construction, Department of Defense. because of the limited number of transportation, research, insurance, and (c) Compliance evaluation means any employees available among whom the fund depository. one or combination of actions OFCCP performance of that job function can be (5) Person, as used in the definition of may take to examine a Federal distributed; and/or Government contract and subcontract of contractor’s or subcontractor’s (iii) The function may be highly this section, means any natural person, compliance with one or more of the specialized so that the incumbent in the corporation, partnership or joint requirements of the Vietnam Era position is hired for his or her expertise venture, unincorporated association, Veterans’ Readjustment Assistance Act. state or local government, and any (d) Contract means any Government or ability to perform the particular function. agency, instrumentality, or subdivision contract or subcontract. of such a government. (e) Contractor means, unless (3) Evidence of whether a particular function is essential includes, but is not (6) Personal property, as used in the otherwise indicated, a prime contractor definition of Government contract and or subcontractor holding a contract of limited to: (i) The contractor’s judgment as to subcontract of this section, includes $25,000 or more. supplies and contracts for the use of real (f) Direct threat means a significant which functions are essential; property (such as lease arrangements), risk of substantial harm to the health or (ii) Written job descriptions prepared unless the contract for the use of real safety of the individual or others that before advertising or interviewing property itself constitutes real property cannot be eliminated or reduced by applicants for the job; (such as easements). reasonable accommodation. The (iii) The amount of time spent on the (n) Linkage Agreement means an determination that an individual poses job performing the function; agreement describing the connection a direct threat shall be based on an (iv) The consequences of not requiring between contractors and appropriate individualized assessment of the the incumbent to perform the function; (v) The terms of a collective recruitment and/or training sources. A individual’s present ability to perform linkage agreement is to be used by safely the essential functions of the job. bargaining agreement; (vi) The work experience of past contractors as a source of potential This assessment shall be based on a incumbents in the job; and/or applicants for the covered groups the reasonable medical judgment that relies (vii) The current work experience of contractor is interested in, as required on the most current medical knowledge incumbents in similar jobs. and/or on the best available objective by § 60–250.44(f). The contractor’s (l) Government means the evidence. In determining whether an representative that signs the linkage Government of the United States of individual would pose a direct threat, agreement should be the company America. the factors to be considered include: official responsible for the contractor’s (m) Government contract means any (1) The duration of the risk; affirmative action program and/or has (2) The nature and severity of the agreement or modification thereof hiring authority. potential harm; between any contracting agency and any (o) Prime contractor means any (3) The likelihood that the potential person for the purchase, sale or use of person holding a contract of $25,000 or harm will occur; and personal property or nonpersonal more, and, for the purposes of subpart (4) The imminence of the potential services (including construction). The D of this part, ‘‘General Enforcement and harm. term ‘‘Government contract’’ does not Complaint Procedures,’’ includes any (g) Director means the Director, Office include agreements in which the parties person who has held a contract subject of Federal Contract Compliance stand in the relationship of employer to the Act. Programs of the United States and employee, and Federally assisted (p) Protected veteran means a veteran Department of Labor, or his or her contracts. who is protected under the non- designee. (1) Construction, as used in the discrimination and affirmative action (h) [Reserved]. definition of Government contract and provisions of the Act; specifically, a (i) Employment service delivery subcontract of this section, means the veteran who may be classified as a system means a service delivery system construction, rehabilitation, alteration, ‘‘special disabled veteran,’’ ‘‘veteran of

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the Vietnam era,’’ ‘‘recently separated necessary for the contractor to initiate more contracts is performed, veteran,’’ and/or an ‘‘active duty wartime an informal, interactive process with the undertaken, or assumed. or campaign badge veteran,’’ as defined qualified special disabled veteran in (y) Subcontractor means any person by this section. need of the accommodation.7 This holding a subcontract of $25,000 or (q) Qualification standards means the process should identify the precise more and, for the purposes of subpart D personal and professional attributes limitations resulting from the disability of this part, ‘‘General Enforcement and including the skill, experience, and potential reasonable Complaint Procedures,’’ any person who education, physical, medical, safety and accommodations that could overcome has held a subcontract subject to the other requirements established by the those limitations. (Appendix A of this Act. contractor as requirements which an part provides guidance on a contractor’s (z) TAP means the Department of individual must meet in order to be duty to provide reasonable Defense’s Transition Assistance eligible for the position held or desired. accommodation.) Program, or any successor programs (r) Qualified special disabled veteran (t) Recently separated veteran means thereto. The TAP was designed to means a special disabled veteran who any veteran during the one-year period smooth the transition of military satisfies the requisite skill, experience, beginning on the date of such veteran’s personnel and family members leaving education and other job-related discharge or release from active duty. active duty via employment workshops requirements of the employment (u) Recruiting and training agency and individualized employment position such veteran holds or desires, means any person who refers workers to assistance and training. and who, with or without reasonable any contractor, or who provides or (aa) Undue hardship—(1) In general. accommodation, can perform the supervises apprenticeship or training for Undue hardship means, with respect to essential functions of such position. employment by any contractor. the provision of an accommodation, (s) Reasonable accommodation—(1) (v) Secretary means the Secretary of significant difficulty or expense The term reasonable accommodation Labor, United States Department of incurred by the contractor, when means: Labor, or his or her designee. considered in light of the factors set (i) Modifications or adjustments to a (w)(1) Special disabled veteran forth in paragraph (2) of this section. job application process that enable a means: (2) Factors to be considered. In qualified applicant who is a special (i) A veteran who is entitled to determining whether an accommodation disabled veteran to be considered for the compensation (or who but for the 6 would impose an undue hardship on position such applicant desires; receipt of military retired pay would be (ii) Modifications or adjustments to the contractor, factors to be considered entitled to compensation) under laws the work environment, or to the manner include: administered by the Department of or circumstances under which the (i) The nature and net cost of the Veterans Affairs for a disability: position held or desired is customarily accommodation needed, taking into (A) Rated at 30 percent or more; or consideration the availability of tax performed, that enable a qualified (B) Rated at 10 or 20 percent in the special disabled veteran to perform the credits and deductions, and/or outside case of a veteran who has been funding; essential functions of that position; or determined under 38 U.S.C. 3106 to (iii) Modifications or adjustments that (ii) The overall financial resources of have a serious employment handicap; or enable the contractor’s employee who is the facility or facilities involved in the (ii) A person who was discharged or a special disabled veteran to enjoy equal provision of the reasonable released from active duty because of a benefits and privileges of employment accommodation, the number of persons service-connected disability. as are enjoyed by the contractor’s other employed at such facility, and the effect (2) Serious employment handicap, as similarly situated employees who are on expenses and resources; used in paragraph (w)(1)(B)) of this not special disabled veterans. (iii) The overall financial resources of (2) Reasonable accommodation may section, means a significant impairment the contractor, the overall size of the include but is not limited to: of a veteran’s ability to prepare for, business of the contractor with respect (i) Making existing facilities used by obtain, or retain employment consistent to the number of its employees, and the employees readily accessible to and with such veteran’s abilities, aptitudes number, type and location of its usable by special disabled veterans; and and interests. facilities; (ii) Job restructuring; part-time or (x) Subcontract means any agreement (iv) The type of operation or modified work schedules; reassignment or arrangement between a contractor operations of the contractor, including to a vacant position; acquisition or and any person (in which the parties do the composition, structure and modifications of equipment or devices; not stand in the relationship of an functions of the work force of such appropriate adjustment or modifications employer and an employee): contractor, and the geographic of examinations, training materials, or (1) For the purchase, sale or use of separateness and administrative or fiscal policies; the provision of qualified personal property or nonpersonal relationship of the facility or facilities in readers or interpreters; and other similar services (including construction) which, question to the contractor; and accommodations for special disabled in whole or in part, is necessary to the (v) The impact of the accommodation veterans. performance of any one or more upon the operation of the facility, (3) To determine the appropriate contracts; or including the impact on the ability of reasonable accommodation it may be (2) Under which any portion of the other employees to perform their duties contractor’s obligation under any one or and the impact on the facility’s ability 6 A contractor’s duty to provide a reasonable to conduct business. 7 accommodation with respect to applicants who are Contractors must engage in such an interactive (bb) United States, as used in this special disabled veterans is not limited to those process with a special disabled veteran, whether or who ultimately demonstrate that they are qualified not a reasonable accommodation ultimately is part, shall include the several States, the to perform the job in issue. Special disabled veteran identified that will make the person a qualified District of Columbia, the Virgin Islands, applicants must be provided a reasonable individual. Contractors must engage in the the Commonwealth of Puerto Rico, accommodation with respect to the application interactive process because, until they have done Guam, American Samoa, the process if they are qualified with respect to that so, they may be unable to determine whether a process (e.g., if they present themselves at the reasonable accommodation exists that will result in Commonwealth of the Northern Mariana correct location and time to fill out an application). the person being qualified. Islands, and Wake Island.

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(cc) Veteran means a person who United States and not to employment (3) Facilities not connected with served in the active military, naval, or activities abroad. The term contracts. The Director may waive the air service of the United States, and who ‘‘employment activities within the requirements of the equal opportunity was discharged or released therefrom United States’’ includes actual clause with respect to any of a under conditions other than employment within the United States, contractor’s facilities which he or she dishonorable. and decisions of the contractor made finds to be in all respects separate and (dd) Veteran of the Vietnam era within the United States pertaining to distinct from activities of the contractor means a person who: the contractor’s applicants and related to the performance of the (1) Served on active duty for a period employees who are within the United contract, provided that he or she also of more than 180 days, and was States, regarding employment finds that such a waiver will not discharged or released therefrom with opportunities abroad (such as recruiting interfere with or impede the effectuation other than a dishonorable discharge, if and hiring within the United States for of the Act. Such waivers shall be any part of such active duty occurred: employment abroad, or transfer of considered only upon the request of the (i) In the Republic of Vietnam persons employed in the United States contractor. between February 28, 1961, and May 7, to contractor establishments abroad). § 60–250.5 Equal opportunity clause. 1975; or (4) Contracts with state or local (ii) Between August 5, 1964, and May governments. The requirements of the (a) Government contracts. Each 7, 1975, in all other cases; or equal opportunity clause in any contract contracting agency and each contractor (2) Was discharged or released from or subcontract with a state or local shall include the following equal active duty for a service-connected government (or any agency, opportunity clause in each of its disability if any part of such active duty instrumentality or subdivision thereof) covered Government contracts or was performed: shall not be applicable to any agency, subcontracts (and modifications, (i) In the Republic of Vietnam instrumentality or subdivision of such renewals, or extensions thereof if not between February 28, 1961, and May 7, government which does not participate included in the original contract): 1975; or in work on or under the contract or Equal Opportunity for Section 4212 (ii) Between August 5, 1964, and May subcontract. Protected Veterans 8 7, 1975, in all other cases. (b) Waivers—(1) Specific contracts 1. The contractor will not discriminate § 60–250.3 [Reserved] and classes of contracts. The Director against any employee or applicant for may waive the application to any employment because he or she is a special § 60–250.4 Coverage and waivers. contract of the equal opportunity clause disabled veteran, veteran of the Vietnam era, (a) General—(1) Contracts and in whole or part when he or she deems recently separated veteran, or active duty subcontracts of $25,000 or more. that special circumstances in the wartime or campaign badge veteran Contracts and subcontracts of $25,000 or national interest so require. The Director (hereinafter collectively referred to as may also grant such waivers to groups ‘‘protected veteran(s)’’) in regard to any more are covered by this part. No position for which the employee or applicant contracting agency or contractor shall or categories of contracts: where it is in for employment is qualified. The contractor procure supplies or services in less than the national interest; where it is found agrees to take affirmative action to employ, usual quantities to avoid the impracticable to act upon each request advance in employment and otherwise treat applicability of the equal opportunity individually; and where such waiver qualified individuals without discrimination clause. will substantially contribute to based on their status as a protected veteran (2) Contracts for indefinite quantities. convenience in administration of the in all employment practices, including the Act. When a waiver has been granted for following: With respect to indefinite delivery-type i. Recruitment, advertising, and job contracts (including, but not limited to, any class of contracts, the Director may application procedures. open end contracts, requirement-type withdraw the waiver for a specific ii. Hiring, upgrading, promotion, award of contracts, Federal Supply Schedule contract or group of contracts to be tenure, demotion, transfer, layoff, contracts, ‘‘call-type’’ contracts, and awarded, when in his or her judgment termination, right of return from layoff and purchase notice agreements), the equal such action is necessary or appropriate rehiring. opportunity clause shall be included to achieve the purposes of the Act. The iii. Rates of pay or any other form of unless the contracting agency has reason withdrawal shall not apply to contracts compensation and changes in compensation. awarded prior to the withdrawal, except iv. Job assignments, job classifications, to believe that the amount to be ordered organizational structures, position in any year under such contract will be that in procurements entered into by descriptions, lines of progression, and less than $25,000. The applicability of formal advertising, or the various forms seniority lists. the equal opportunity clause shall be of restricted formal advertising, such v. Leaves of absence, sick leave, or any determined at the time of award for the withdrawal shall not apply unless the other leave. first year, and annually thereafter for withdrawal is made more than 10 vi. Fringe benefits available by virtue of succeeding years, if any. calendar days before the date set for the employment, whether or not administered by opening of the bids. the contractor. Notwithstanding the above, the equal vii. Selection and financial support for opportunity clause shall be applied to (2) National security. Any training, including apprenticeship, and on- such contract whenever the amount of requirement set forth in the regulations the-job training under 38 U.S.C. 3687, a single order is $25,000 or more. Once of this part shall not apply to any professional meetings, conferences, and other the equal opportunity clause is contract whenever the head of the related activities, and selection for leaves of determined to be applicable, the contracting agency determines that such absence to pursue training. contract shall continue to be subject to contract is essential to the national viii. Activities sponsored by the contractor such clause for its duration, regardless security and that its award without including social or recreational programs. of the amounts ordered, or reasonably complying with such requirements is ix. Any other term, condition, or privilege of employment. expected to be ordered in any year. necessary to the national security. Upon making such a determination, the head (3) Employment activities within the 8 The definitions set forth in 41 CFR 60–250.2 United States. This part applies only to of the contracting agency will notify the apply to the terms used throughout this Clause, and employment activities within the Director in writing within 30 days. they are incorporated herein by reference.

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2. The contractor agrees to immediately list basis. As long as the contractor is consider applicants outside of his or her own all employment openings which exist at the contractually bound to these provisions and organization. time of the execution of this contract and has so advised the employment service 8. The contractor agrees to comply with the those which occur during the performance of delivery system, there is no need to advise rules, regulations, and relevant orders of the this contract, including those not generated the employment service delivery system of Secretary of Labor issued pursuant to the Act. by this contract and including those subsequent contracts. The contractor may 9. In the event of the contractor’s occurring at an establishment of the advise the employment service delivery noncompliance with the requirements of this contractor other than the one wherein the system when it is no longer bound by this clause, actions for noncompliance may be contract is being performed, but excluding contract clause. taken in accordance with the rules, those of independently operated corporate 5. The contractor shall maintain records on regulations, and relevant orders of the affiliates, at an appropriate local employment an annual basis of the number of priority Secretary of Labor issued pursuant to the Act. service office of the state employment referrals of veterans protected by Section 10. The contractor agrees to post in security agency wherein the opening occurs. 4212 that it receives from each employment conspicuous places, available to employees Further, listing employment openings with service delivery system, the total number of and applicants for employment, notices in a the state workforce agency job bank where referrals it receives from each employment form to be prescribed by the Director, Office the opening occurs or with the local service delivery system, and the ratio of of Federal Contract Compliance Programs, employment service delivery system where priority referrals to total referrals. The provided by or through the contracting the opening occurs will satisfy the contractor shall maintain these records for a officer. Such notices shall state the rights of requirements to list jobs with the appropriate period of five (5) years. applicants and employees as well as the employment service office. In order to satisfy 6. The provisions of paragraphs 2 and 3 of contractor’s obligation under the law to take the listing requirement described herein, this clause do not apply to the listing of affirmative action to employ and advance in contractors must provide information about employment openings which occur and are employment qualified employees and the job vacancy in the manner and format filled outside of the 50 states, the District of applicants who are protected veterans. The required by the appropriate employment Columbia, the Commonwealth of Puerto contractor must ensure that applicants or service delivery system to permit that system Rico, Guam, and the Virgin Islands. employees who are special disabled veterans to provide priority referral of veterans 7. As used in this clause: i. All employment are provided the notice in a form that is protected by Section 4212 for that job openings includes all positions except accessible and understandable to the special vacancy. Providing information on executive and top management, those disabled veteran (e.g., providing Braille or employment openings to a privately run job positions that will be filled from within the large print versions of the notice, or posting service or exchange will satisfy the contractor’s organization, and positions the notice for visual accessibility to persons contractor’s listing obligation only if the lasting three days or less. This term includes in wheelchairs). With respect to employees privately run job service or exchange full-time employment, temporary who do not work at a physical location of the provides the information to the appropriate employment of more than three days’ contractor, a contractor will satisfy its employment service delivery system in that duration, and part-time employment. posting obligations by posting such notices in manner and format in which the employment ii. Executive and top management means an electronic format, provided that the service delivery system requires. any employee: (a) Whose primary duty contractor provides computers that can 3. Listing of employment openings with consists of the management of the enterprise access the electronic posting to such the local employment service office pursuant in which he or she is employed or of a employees, or the contractor has actual to this clause shall be made at least customarily recognized department or knowledge that such employees otherwise concurrently with the use of any other subdivision thereof; and (b) who customarily are able to access the electronically posted recruitment source or effort and shall involve and regularly directs the work of two or more notices. Electronic notices for employees the normal obligations which attach to the other employees therein; and (c) who has the must be posted in a conspicuous location and placing of a bona fide job order, including authority to hire or fire other employees or format on the company’s intranet or sent by the acceptance of referrals of veterans and whose suggestions and recommendations as electronic mail to employees. An electronic nonveterans. The listing of employment to the hiring or firing and as to the posting must be used by the contractor to openings does not require the hiring of any advancement and promotion or any other notify job applicants of their rights if the particular job applicants or from any change of status of other employees will be contractor utilizes an electronic application particular group of job applicants, and given particular weight; and (d) who process. Such electronic applicant notice nothing herein is intended to relieve the customarily and regularly exercises must be conspicuously stored with, or as part contractor from any requirements in discretionary powers; and (e) who does not of, the electronic application. Executive orders or regulations regarding devote more than 20 percent, or, in the case 11. The contractor will notify each labor nondiscrimination in employment. of an employee of a retail or service organization or representative of workers 4. Whenever a contractor becomes establishment who does not devote as much with which it has a collective bargaining contractually bound to the listing provisions as 40 percent, of his or her hours of work in agreement or other contract understanding, in paragraphs 2 and 3 of this clause, it shall the work week to activities which are not that the contractor is bound by the terms of advise the employment service delivery directly and closely related to the Section 4212 and is committed to take system in each state where it has performance of the work described in (a) affirmative action to employ and advance in establishments that: (a) It is a Federal through (d) of this paragraph 7.ii; Provided, employment, and shall not discriminate contractor, so that the employment service that (e) of this paragraph 7.ii shall not apply against, protected veterans. delivery systems are able to identify them as in the case of an employee who is in sole 12. The contractor will include the such; and (b) it desires priority referrals from charge of an independent establishment or a provisions of this clause in every subcontract the state of protected veterans for job physically separated branch establishment, or purchase order of $25,000 or more, unless openings at all locations within the state. The or who owns at least a 20-percent interest in exempted by the rules, regulations, or orders contractor shall also provide to the the enterprise in which he or she is of the Secretary issued pursuant to Section employment service delivery system the employed. 4212, so that such provisions will be binding name and location of each hiring location iii. Positions that will be filled from within upon each subcontractor or vendor. The within the state and the contact information the contractor’s organization means contractor will take such action with respect for the contractor official responsible for employment openings for which no to any subcontract or purchase order as the hiring at each location. In the event that the consideration will be given to persons Director, Office of Federal Contract contractor uses any external job search outside the contractor’s organization Compliance Programs may direct to enforce organizations to assist in its hiring, the (including any affiliates, subsidiaries, and such provisions, including action for contractor shall also provide to the parent companies) and includes any noncompliance. employment service delivery system the openings which the contractor proposes to 13. The contractor must, in all solicitations contact information for the job search fill from regularly established ‘‘recall’’ lists. or advertisements for employees placed by or organization(s). The disclosures required by The exception does not apply to a particular on behalf of the contractor, state that all this paragraph shall be updated on an annual opening once an employer decides to qualified applicants will receive

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consideration for employment without regard (f) Fringe benefits available by virtue the contract which only affect that other to their status as a protected veteran. of employment, whether or not party’s employees or applicants. administered by the contractor; (d) Standards, criteria or methods of [End of Clause] (g) Selection and financial support for administration. It is unlawful for the (b) Subcontracts. Each contractor training, including, apprenticeships, contractor to use standards, criteria, or shall include the equal opportunity professional meetings, conferences and methods of administration, that are not clause in each of its subcontracts subject other related activities, and selection for job-related and consistent with business to this part. leaves of absence to pursue training; necessity, and that: (c) Adaption of language. Such (h) Activities sponsored by the (1) Have the effect of discriminating necessary changes in language may be contractor including social and on the basis of status as a protected made to the equal opportunity clause as recreational programs; and veteran; or (2) Perpetuate the discrimination of must be appropriate to identify properly (i) Any other term, condition, or others who are subject to common the parties and their undertakings. privilege of employment. (d) Inclusion of the equal opportunity administrative control. clause in the contract. It shall be § 60–250.21 Prohibitions. (e) Relationship or association with a necessary to include the equal The term ‘‘discrimination’’ includes, protected veteran. It is unlawful for the opportunity clause verbatim in the but is not limited to, the acts described contractor to exclude or deny equal jobs or benefits to, or otherwise discriminate contract. in this section and § 60–250.23. against, a qualified individual because (e) Incorporation by operation of the (a) Disparate treatment. It is unlawful of the known protected veteran status of for the contractor to deny an Act. By operation of the Act, the equal an individual with whom the qualified employment opportunity or benefit or opportunity clause shall be considered individual is known to have a family, otherwise to discriminate against a to be a part of every contract and business, social or other relationship or qualified individual because of that subcontract required by the Act and the association. regulations in this part to include such individual’s status as a protected (f) Not making reasonable a clause. veteran. accommodation. (1) It is unlawful for (f) Duties of contracting agencies. (b) Limiting, segregating and the contractor to fail to make reasonable Each contracting agency shall cooperate classifying. Unless otherwise permitted accommodation to the known physical with the Director and the Secretary in by this part, it is unlawful for the or mental limitations of an applicant or the performance of their responsibilities contractor to limit, segregate, or classify employee who is a qualified special under the Act. Such cooperation shall a job applicant or employee in a way disabled veteran, unless such contractor include insuring that the equal that adversely affects his or her can demonstrate that the opportunity clause is included in all employment opportunities or status on accommodation would impose an covered Government contracts and that the basis of that individual’s status as a undue hardship on the operation of its contractors are fully informed of their protected veteran. For example, the business. obligations under the Act and this part, contractor may not segregate protected (2) It is unlawful for the contractor to providing the Director with any veterans as a whole, or any deny employment opportunities to an information which comes to the classification of protected veterans, into applicant or employee who is a agency’s attention that a contractor is separate work areas or into separate qualified special disabled veteran based not in compliance with the Act or this lines of advancement. on the need of such contractor to make part, responding to requests for (c) Contractual or other reasonable accommodation to such an information from the Director, and arrangements—(1) In general. It is individual’s physical or mental taking such actions for noncompliance unlawful for the contractor to impairments. as are set forth in Sec. 60–250.66 as may participate in a contractual or other (3) A qualified special disabled be ordered by the Secretary or the arrangement or relationship that has the veteran is not required to accept an Director. effect of subjecting the contractor’s own accommodation, aid, service, qualified applicant or employee who is opportunity or benefit which such Subpart B—Discrimination Prohibited a protected veteran to the qualified individual chooses not to § 60–250.20 Covered employment discrimination prohibited by this part. accept. However, if such individual activities. (2) Contractual or other arrangement rejects a reasonable accommodation, defined. The phrase ‘‘contractual or aid, service, opportunity or benefit that The prohibition against other arrangement or relationship’’ is necessary to enable the individual to discrimination in this part applies to the includes, but is not limited to, a perform the essential functions of the following employment activities: relationship with: An employment or position held or desired, and cannot, as (a) Recruitment, advertising, and job referral agency; a labor organization, a result of that rejection, perform the application procedures; including a collective bargaining essential functions of the position, the (b) Hiring, upgrading, promotion, agreement; an organization providing individual will not be considered a award of tenure, demotion, transfer, fringe benefits to an employee of the qualified special disabled veteran, layoff, termination, right of return from contractor; or an organization providing unless the individual subsequently layoff, and rehiring; training and apprenticeship programs. provides and/or pays for a reasonable (c) Rates of pay or any other form of (3) Application. This paragraph (c) accommodation as described in compensation and changes in applies to the contractor, with respect to paragraph 4 of Appendix A of this part. compensation; its own applicants or employees, (g) Qualification standards, tests and (d) Job assignments, job whether the contractor offered the other selection criteria—(1) In general. It classifications, organizational contract or initiated the relationship, or is unlawful for the contractor to use structures, position descriptions, lines whether the contractor accepted the qualification standards, employment of progression, and seniority lists; contract or acceded to the relationship. tests or other selection criteria that (e) Leaves of absence, sick leave, or The contractor is not liable for the screen out or tend to screen out any other leave; actions of the other party or parties to individuals on the basis of their status

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as protected veterans unless the or desired without posing a direct threat consistent with business necessity, and standard, test or other selection to the health or safety of the individual that performance of the essential job criterion, as used by the contractor, is or others in the workplace. (See § 60– functions cannot be accomplished with shown to be job-related for the position 250.2(f) defining direct threat.). reasonable accommodations as required in question and is consistent with in this part. business necessity. Selection criteria § 60–250.23 Medical examinations and inquiries. (c) Invitation to self-identify. The that concern an essential function may contractor shall invite applicants to self- not be used to exclude a special (a) Prohibited medical examinations identify as being covered by the Act, as disabled veteran if that individual could or inquiries. Except as stated in specified in § 60–250.42. paragraphs (b) and (c) of this section, it satisfy the criteria with provision of a (d) Confidentiality and use of medical is unlawful for the contractor to require reasonable accommodation. Selection information. (1) Information obtained a medical examination of an applicant criteria that exclude or tend to exclude under this section regarding the medical or employee or to make inquiries as to individuals on the basis of their status condition or history of any applicant or whether an applicant or employee is a as protected veterans but concern only employee shall be collected and special disabled veteran or as to the marginal functions of the job would not maintained on separate forms and in nature or severity of such a veteran’s be consistent with business necessity. separate medical files and treated as a The contractor may not refuse to hire an disability. (b) Permitted medical examinations confidential medical record, except that: applicant who is a special disabled (i) Supervisors and managers may be veteran because the applicant’s and inquiries—(1) Acceptable pre- employment inquiry. The contractor informed regarding necessary disability prevents him or her from restrictions on the work or duties of the performing marginal functions. When may make pre-employment inquiries into the ability of an applicant to applicant or employee and necessary considering a protected veteran for an accommodations; employment opportunity, the contractor perform job-related functions, and/or may ask an applicant to describe or to (ii) First aid and safety personnel may may not rely on portions of such be informed, when appropriate, if the veteran’s military record, including his demonstrate how, with or without reasonable accommodation, the disability might require emergency or her discharge papers, which are not treatment; and relevant to the qualification applicant will be able to perform job- (iii) Government officials engaged in requirements of the opportunity in related functions. enforcing the laws administered by issue. (2) Employment entrance OFCCP, including this part, or enforcing (2) The Uniform Guidelines on examination. The contractor may the Americans with Disabilities Act, Employee Selection Procedures, 41 CFR require a medical examination (and/or shall be provided relevant information part 60–3, do not apply to 38 U.S.C. inquiry) after making an offer of on request. 4212 and are similarly inapplicable to employment to a job applicant and this part. before the applicant begins his or her (2) Information obtained under this (h) Administration of tests. It is employment duties, and may condition section regarding the medical condition unlawful for the contractor to fail to an offer of employment on the results of or history of any applicant or employee select and administer tests concerning such examination (and/or inquiry), if all shall not be used for any purpose employment in the most effective entering employees in the same job inconsistent with this part. manner to ensure that, when a test is category are subjected to such an § 60–250.24 Drugs and alcohol. administered to a job applicant or examination (and/or inquiry) regardless (a) Specific activities permitted. The employee who is a special disabled of their status as a special disabled contractor: (1) May prohibit the illegal veteran with a disability that impairs veteran. use of drugs and the use of alcohol at sensory, manual, or speaking skills, the (3) Examination of employees. The the workplace by all employees; test results accurately reflect the skills, contractor may require a medical (2) May require that employees not be aptitude, or whatever other factor of the examination (and/or inquiry) of an under the influence of alcohol or be applicant or employee that the test employee that is job-related and engaging in the illegal use of drugs at purports to measure, rather than consistent with business necessity. The the workplace; reflecting the impaired sensory, manual, contractor may make inquiries into the or speaking skills of such employee or ability of an employee to perform job- (3) May require that all employees applicant, except where such skills are related functions. behave in conformance with the the factors that the test purports to (4) Other acceptable examinations requirements established under the measure. and inquiries. The contractor may Drug-Free Workplace Act of 1988 (41 (i) Compensation. In offering conduct voluntary medical U.S.C. 701 et seq.); employment or promotions to protected examinations and activities, including (4) May hold an employee who veterans, it is unlawful for the voluntary medical histories, which are engages in the illegal use of drugs or contractor to reduce the amount of part of an employee health program who is an alcoholic to the same compensation offered because of any available to employees at the work site. qualification standards for employment income based upon a disability-related (5) Medical examinations conducted or job performance and behavior to and/or military-service-related pension in accordance with paragraphs (b)(2) which the contractor holds its other or other disability-related and/or and (b)(4) of this section do not have to employees, even if any unsatisfactory military-service-related benefit the be job-related and consistent with performance or behavior is related to the applicant or employee receives from business necessity. However, if certain employee’s drug use or alcoholism; another source. criteria are used to screen out an (5) May require that its employees applicant or applicants or an employee employed in an industry subject to such § 60–250.22 Direct threat defense. or employees who are special disabled regulations comply with the standards The contractor may use as a veterans as a result of such established in the regulations (if any) of qualification standard the requirement examinations or inquiries, the the Departments of Defense and that an individual be able to perform the contractor must demonstrate that the Transportation, and of the Nuclear essential functions of the position held exclusionary criteria are job-related and Regulatory Commission, and other

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Federal agencies regarding alcohol and terms of a bona fide benefit plan that is This invitation may be included in the the illegal use of drugs; and not subject to state laws that regulate application materials for the position, (6) May require that employees insurance. but in any circumstance shall be employed in sensitive positions comply (d) The contractor shall not deny a provided to applicants prior to making with the regulations (if any) of the qualified special disabled veteran equal an offer of employment to a job Departments of Defense and access to insurance or subject a applicant. Additionally, the contractor Transportation, and of the Nuclear qualified special disabled veteran to may invite special disabled veterans to Regulatory Commission, and other different terms or conditions of self-identify as such prior to making a Federal agencies that apply to insurance based on disability alone, if job offer when: employment in sensitive positions the disability does not pose increased (1) The invitation is made when the subject to such regulations. risks. contractor actually is undertaking (b) Drug testing—(1) General policy. (e) The activities described in affirmative action for special disabled For purposes of this part, a test to paragraphs (a), (b) and (c) of this section veterans at the pre-offer stage; or determine the illegal use of drugs is not are permitted unless these activities are (2) The invitation is made pursuant to considered a medical examination. used as a subterfuge to evade the a Federal, State, or local law requiring Thus, the administration of such drug purposes of this part. affirmative action for special disabled tests by the contractor to its job veterans. applicants or employees is not a Subpart C—Affirmative Action (b) Post-offer. At any time after the violation of Sec. 60–250.23. Nothing in Program offer of employment but before the applicant begins his or her job duties, this part shall be construed to § 60–250.40 Applicability of the affirmative encourage, prohibit, or authorize the action program requirement. the contractor shall invite applicants to inform the contractor whether the contractor to conduct drug tests of job (a) The requirements of this subpart applicants or employees to determine applicant believes that he or she is a apply to every Government contractor special disabled veteran, veteran of the the illegal use of drugs or to make that has 50 or more employees and a employment decisions based on such Vietnam era, recently separated veteran, contract of $50,000 or more. or active duty wartime or campaign test results. (b) Contractors described in paragraph badge veteran who may be covered by (2) Transportation employees. (a) of this section shall, within 120 days Nothing in this part shall be construed the Act. of the commencement of a contract, (c) The invitations referenced in to encourage, prohibit, or authorize the prepare and maintain an affirmative otherwise lawful exercise by contractors paragraphs (a) and (b) of this section action program at each establishment. shall state that a request to benefit under subject to the jurisdiction of the The affirmative action program shall set Department of Transportation of the affirmative action program may be forth the contractor’s policies and made immediately and/or at any time in authority to test employees in, and procedures in accordance with this part. applicants for, positions involving the future. The invitations also shall This program may be integrated into or summarize the relevant portions of the safety-sensitive duties for the illegal use kept separate from other affirmative of drugs or for on-duty impairment by Act and the contractor’s affirmative action programs. action program. Furthermore, the alcohol; and remove from safety- (c) The affirmative action program sensitive positions persons who test invitations shall state that the shall be reviewed and updated annually information is being requested on a positive for illegal use of drugs or on- by the official designated by the duty impairment by alcohol pursuant to voluntary basis, that it will be kept contractor pursuant to § 60–250.44(i). confidential, that refusal to provide it paragraph (b)(1) of this section. (d) The contractor shall submit the will not subject the applicant to any (3) Any information regarding the affirmative action program within 30 adverse treatment, and that it will not be medical condition or history of any days of a request from OFCCP, unless used in a manner inconsistent with the employee or applicant obtained from a the request provides for a different time. Act. (An acceptable form for such an test to determine the illegal use of drugs, The contractor also shall make the invitation is set forth in Appendix B of except information regarding the illegal affirmative action program promptly this part.) use of drugs, is subject to the available on-site upon OFCCP’s request. requirements of §§ 60–250.23(b)(5) and (d) If an applicant identifies himself 60–250.23(d)(2). § 60–250.41 Availability of affirmative or herself as a special disabled veteran action program. in the post-offer self-identification § 60–250.25 Health insurance, life The full affirmative action program detailed in paragraph (b) of this section, insurance and other benefit plans. shall be available to any employee or the contractor must inquire with the (a) An insurer, hospital, or medical applicant for employment for inspection applicant whether an accommodation is service company, health maintenance upon request. The location and hours necessary, and if so, must engage in an organization, or any agent or entity that during which the program may be interactive process with applicant administers benefit plans, or similar obtained shall be posted at each regarding reasonable accommodation. organizations may underwrite risks, establishment. In the event that the The contractor may make such inquiries classify risks, or administer such risks contractor has employees who do not to the extent they are consistent with that are based on or not inconsistent work at a physical establishment, the the Americans with Disabilities Act of with state law. contractor shall inform such employees 1990 (ADA), 42 U.S.C. 12101, (e.g., in (b) The contractor may establish, about the availability of the affirmative the context of asking applicants to sponsor, observe or administer the terms action program by other means. describe or demonstrate how they of a bona fide benefit plan that are based would perform the job). The contractor on underwriting risks, classifying risks, § 60–250.42 Invitation to self-identify. shall maintain a separate file in or administering such risks that are (a) Pre-offer. The contractor shall accordance with § 60–250.23(d) on based on or not inconsistent with state invite applicants to inform the persons who have self-identified as law. contractor whether the applicant special disabled veterans. (c) The contractor may establish, believes that he or she is a protected (e) The contractor shall keep all sponsor, observe, or administer the veteran who may be covered by the Act. information on self-identification

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confidential. The contractor shall have engaged in or may engage in any (ii) each training program for which provide the information to OFCCP upon of the following activities: the protected veteran was considered. request. This information may be used (1) Filing a complaint; (3) In each case where an employee or only in accordance with this part. (2) Assisting or participating in an applicant who is a protected veteran is (f) Nothing in this section relieves the investigation, compliance evaluation, rejected for employment, promotion, or contractor of its obligation to take hearing, or any other activity related to training, the contractor shall prepare a affirmative action with respect to those the administration of the affirmative statement of the reason as well as a applicants or employees who are known action provisions of Section 4212 or any description of the accommodations to the contractor to be protected other Federal, state or local law considered (for a rejected special veterans. requiring equal opportunity for disabled veteran). The statement of the (g) Nothing in this section relieves the protected veterans; reason for rejection (if the reason is contractor from liability for (3) Opposing any act or practice made medically related), and the description discrimination under the Act. unlawful by Section 4212 or its of the accommodations considered, implementing regulations in this part or shall be treated as confidential medical § 60–250.43 Affirmative action policy. any other Federal, state or local law records in accordance with § 60– Under the affirmative action requiring equal opportunity for 250.23(d). These materials shall be obligations imposed by the Act, protected veterans; or available to the applicant or employee contractors shall not discriminate (4) Exercising any other right concerned upon request. against protected veterans, and shall protected by Section 4212 or its (4) Where applicants or employees are take affirmative action to employ and implementing regulations in this part. selected for hire, promotion, or training advance in employment qualified (b) Review of personnel processes. and the contractor undertakes any protected veterans at all levels of The contractor shall ensure that its accommodation which makes it possible employment, including the executive personnel processes provide for careful, to place a special disabled veteran on level. Such action shall apply to all thorough, and systematic consideration the job, the contractor shall make a employment activities set forth in § 60– of the job qualifications of applicants record containing a description of the 250.20. and employees who are known accommodation. The record shall be protected veterans for job vacancies treated as a confidential medical record § 60–250.44 Required contents of filled either by hiring or promotion, and in accordance with § 60–250.23(d). affirmative action programs. for all training opportunities offered or (c) Physical and mental Acceptable affirmative action available. The contractor shall ensure qualifications. (1) The contractor shall programs shall contain, but not that when a protected veteran is provide in its affirmative action necessarily be limited to, the following considered for employment program, and shall adhere to, a schedule elements: opportunities, the contractor relies only for the annual review of all physical and (a) Policy statement. The contractor on that portion of the individual’s mental job qualification standards to shall include an equal opportunity military record, including his or her ensure that, to the extent qualification policy statement in its affirmative action discharge papers, that is relevant to the standards tend to screen out qualified program, and shall post the policy requirements of the opportunity in special disabled veterans, they are job- statement on company bulletin boards. issue. The contractor shall ensure that related for the position in question and The contractor must ensure that its personnel processes do not are consistent with business necessity. applicants and employees who are stereotype protected veterans in a The contractor shall document the special disabled veterans are provided manner which limits their access to all methods used to complete the annual the notice in a form that is accessible jobs for which they are qualified. The review, the results of the annual review, and understandable to the special contractor shall review such processes and any actions taken in response. disabled veteran (e.g., providing Braille on at least an annual basis and make These documents shall be retained as or large print versions of the notice, or any necessary modifications to ensure employment records subject to the posting the notice for visual that these obligations are carried out. A recordkeeping requirements of § 60– accessibility to persons in wheelchairs). description of the review and any 250.80. The policy statement shall indicate the necessary modifications to personnel (2) Whenever the contractor applies chief executive officer’s support for the processes or development of new physical or mental qualification contractor’s affirmative action program, processes shall be included in any standards in the selection of applicants provide for an audit and reporting affirmative action programs required or employees for employment or other system (see paragraph (h) of this under this part. The contractor must change in employment status such as section) and assign overall design procedures that facilitate a promotion, demotion or training, to the responsibility for the implementation of review of the implementation of this extent that qualification standards tend affirmative action activities required requirement by the contractor and the to screen out qualified special disabled under this part (see paragraph (i) of this Government. These procedures shall, at veterans, the standards shall be related section). Additionally, the policy shall a minimum, include the following steps: to the specific job or jobs for which the state, among other things, that the (1) For each applicant who is a individual is being considered and contractor will: Recruit, hire, train and protected veteran, the contractor shall consistent with business necessity. The promote persons in all job titles, and be able to identify: contractor has the burden to ensure that all other personnel actions (i) each vacancy for which the demonstrate that it has complied with are administered, without regard to applicant was considered; and the requirements of this paragraph protected veteran status; and ensure that (ii) each training program for which (c)(2). all employment decisions are based the applicant was considered. (3) The contractor may use as a only on valid job requirements. The (2) For each employee who is a defense to an allegation of a violation of policy shall state that employees and protected veteran, the contractor shall paragraph (c)(2) of this section that an applicants shall not be subjected to be able to identify: individual poses a direct threat to the harassment, intimidation, threats, (i) each promotion for which the health or safety of the individual or coercion or discrimination because they protected veteran was considered; and others in the workplace. (See § 60–

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250.2(f) defining direct threat.) Once the (C) The service officers of the national (iii) An effort should be made to contractor believes that a direct threat veterans’ groups active in the area of the participate in work-study programs with exists, the contractor shall create a contractor’s establishment; Department of Veterans Affairs statement of reasons supporting its (D) Local veterans’ groups and rehabilitation facilities which specialize belief, addressing each the criteria for veterans’ service centers near the in training or educating special disabled ‘‘direct threat’’ listed in § 60–250.2(f). contractor’s establishment; and veterans. This statement shall be treated as a (E) The Department of Defense (iv) Protected veterans should be confidential medical record in Transition Assistance Program (TAP), or made available for participation in accordance with § 60–250.23, and shall any subsequent program that, in whole career days, youth motivation programs, be retained as an employment record or in part, might replace TAP. and related activities in their subject to the recordkeeping (ii) The contractor shall also consult communities. requirements of § 60–250.80. the Employer Resources section of the (v) The contractor should take any (d) Reasonable accommodation to National Resource Directory (http:// other positive steps it deems necessary www.nationalresourcedirectory.gov/ to attract qualified protected veterans physical and mental limitations. As is _ provided in § 60–250.21(f), as a matter employment/employer resources), or not currently in the work force who of nondiscrimination the contractor any future service that replaces or have requisite skills and can be must make reasonable accommodation complements it, and establish a linkage recruited through affirmative action to the known physical or mental agreement with one or more of the measures. These persons may be located limitations of an otherwise qualified veterans’ service organizations listed on through the local chapters of special disabled veteran unless it can the directory, other than the agencies organizations of and for any of the demonstrate that the accommodation listed in (A) through (E) above, for such classifications of protected veterans. purposes as advice, technical assistance, (vi) The contractor, in making hiring would impose an undue hardship on and referral of potential employees. decisions, shall consider applicants who the operation of its business. As a matter Technical assistance from the resources are known protected veterans for all of affirmative action, if an employee described in this paragraph may consist available positions for which they may who is known to be a special disabled of advice on proper placement, be qualified when the position(s) veteran is having significant difficulty recruitment, training and applied for is unavailable. performing his or her job and it is accommodations contractors may (3) Assessment of External Outreach reasonable to conclude that the undertake, but no such resource and Recruitment Efforts. The contractor performance problem may be related to providing technical assistance shall shall, on an annual basis, review the the known disability, the contractor have authority to approve or disapprove outreach and recruitment efforts it has shall confidentially notify the employee the acceptability of affirmative action taken over the previous twelve months of the performance problem and inquire programs. to evaluate their effectiveness in whether the problem is related to the (iii) The contractor must send written identifying and recruiting qualified employee’s disability; if the employee notification of company policy related protected veterans. The contractor shall responds affirmatively, the contractor to its affirmative action efforts to all document each evaluation, including at shall confidentially inquire whether the subcontractors, including a minimum the criteria it used to employee is in need of a reasonable subcontracting vendors and suppliers, evaluate the effectiveness of each effort accommodation. requesting appropriate action on their and the contractor’s conclusion as to (e) Harassment. The contractor must part. whether each effort was effective. develop and implement procedures to (2) Suggested outreach efforts. The Among these criteria shall be the data ensure that its employees are not contractor should consider taking the collected pursuant to paragraph (k) of harassed because of their status as a actions listed below to fulfill its this section for the current year and the protected veteran. commitment to provide meaningful two most recent previous years. The (f) External dissemination of policy, employment opportunities to protected contractor’s conclusion as to the outreach and positive recruitment. veterans: effectiveness of its outreach efforts shall (1) Required outreach efforts. The (i) Formal briefing sessions should be be reasonable as determined by OFCCP contractor shall undertake the outreach held, preferably on company premises, in light of these regulations. If the and positive recruitment activities listed with representatives from recruiting contractor concludes the totality of its below: sources. Contractor facility tours, clear efforts were not effective in identifying (i) The contractor shall establish and concise explanations of current and and recruiting qualified protected linkage agreements enlisting the future job openings, position veterans, it shall identify and assistance and support of the Local descriptions, worker specifications, implement alternative efforts listed in Veterans’ Employment Representative explanations of the company’s selection paragraphs (f)(1) or (f)(2) of this section in the local employment service office process, and recruiting literature should in order to fulfill its obligations. nearest the contractor’s establishment; be an integral part of the briefing. At any (4) Recordkeeping Obligation. The and at least one of the following persons such briefing sessions, the company contractor shall document all linkage and organizations in recruiting and official in charge of the contractor’s agreements and all other activities it developing training opportunities for affirmative action program should be in undertakes to comply with the protected veterans to fulfill its attendance when possible. Formal obligations of this paragraph, and retain commitment to provide meaningful arrangements should be made for these documents for a period of five (5) employment opportunities to such referral of applicants, follow up with years. veterans: sources, and feedback on disposition of (g) Internal dissemination of policy. (A) The Department of Veterans applicants. (1) A strong outreach program will be Affairs Regional Office nearest the (ii) The contractor’s recruitment ineffective without adequate internal contractor’s establishment; efforts at all educational institutions support from supervisory and (B) The veterans’ counselors and should incorporate special efforts to management personnel and other coordinators (Vet-Reps) on college reach students who are protected employees. In order to assure greater campuses; veterans. employee cooperation and participation

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in the contractor’s efforts, the contractor recordkeeping requirements of § 60– documenting the specific subject shall develop the internal procedures 250.80. matter(s) covered in the training, who listed in paragraph (g)(2) of this section (h) Audit and reporting system. (1) conducted the training, who received for communication of its obligation to The contractor shall design and the training, and when the training took engage in affirmative action efforts to implement an audit and reporting place. The contractor shall retain these employ and advance in employment system that will: documents, and any written or qualified protected veterans. It is not (i) Measure the effectiveness of the electronic materials used for the training contemplated that the contractor‘s contractor’s affirmative action program; required by this section, as employment activities will be limited to those listed. (ii) Indicate any need for remedial records subject to the recordkeeping These procedures shall be designed to action; requirements of § 60–250.80. foster understanding, acceptance and (iii) Determine the degree to which (k) Data Collection Analysis. The support among the contractor’s the contractor’s objectives have been contractor shall document and maintain executive, management, supervisory attained; the following computations or and other employees and to encourage (iv) Determine whether known comparisons pertaining to applicants such persons to take the necessary protected veterans have had the and hires on an annual basis: actions to aid the contractor in meeting opportunity to participate in all (1) The raw number of priority this obligation. company sponsored educational, referrals of veterans protected by this (2) The contractor shall implement training, recreational and social part that the contractor received from and disseminate this policy internally as activities; applicable employment service delivery (v) Measure the contractor’s follows: system(s); compliance with the affirmative action (i) Include it in the contractor’s policy (2) The number of total referrals that program’s specific obligations; and manual; the contractor received from applicable (vi) Document the actions taken to employment service delivery system(s); (ii) Inform all employees and comply with the obligations of prospective employees of its (3) The ratio of priority referrals of paragraphs (i) through (v) above, and veterans to total referrals (referral ratio); commitment to engage in affirmative retain these documents as employment action to increase employment (4) The number of applicants who records subject to the recordkeeping self-identified as protected veterans opportunities for qualified protected requirements of § 60–250.80. veterans. The contractor shall schedule pursuant to § 60–250.42(a), or who are (2) Where the affirmative action otherwise known as protected veterans; meetings on an annual basis with all program is found to be deficient, the employees to discuss its affirmative (5) The total number of job openings contractor shall undertake necessary and the total number of jobs filled; action policies, explain contractor and action to bring the program into individual employee responsibilities (6) The ratio of jobs filled to job compliance. openings; under these policies, and identify (i) Responsibility for implementation. opportunities for advancement; (7) The total number of applicants for An official of the contractor shall be all jobs; (iii) Conduct meetings with executive, assigned responsibility for management, and supervisory personnel (8) The ratio of protected veteran implementation of the contractor’s applicants to all applicants (applicant to explain the intent of the policy and affirmative action activities under this individual responsibility for effective ratio); part. His or her identity shall appear on (9) The number of protected veteran implementation, making clear the chief all internal and external applicants hired; executive officer’s attitude; communications regarding the (10) The total number of applicants (iv) Discuss the policy thoroughly in company’s affirmative action program. hired; and any employee orientation and This official shall be given necessary top (11) The ratio of protected veterans management training programs; management support and staff to hired to all hires (hiring ratio). The (v) If the contractor is party to a manage the implementation of this number of hires shall include all collective bargaining agreement, it shall program. employees as defined in § 60–250.2(h). meet with union officials and/or (j) Training. In addition to the training employee representatives to inform set forth in paragraph (g)(2)(ii) of this § 60–250.45 Contractor established them of the contractor’s policy, and section, all personnel involved in the benchmarks for hiring. request their cooperation; recruitment, screening, selection, (a) Purpose: The purpose of (3) The contractor is encouraged to promotion, disciplinary, and related establishing benchmarks is to create a additionally implement and disseminate processes shall be trained to ensure that quantifiable method by which the this policy internally as follows: the commitments in the contractor’s contractor can measure its progress (i) If the contractor has a company affirmative action program are toward achieving equal employment newspaper, magazine, annual report, or implemented. This training shall opportunity for protected veterans. other paper or electronic publication include, but not be limited to, the (b) Hiring benchmarks, expressed as distributed to employees, it should benefits of employing protected the percentage of total hires that are publicize its affirmative action policy in veterans, appropriate sensitivity toward protected veterans that the contractor these publications, and include in these protected veteran applicants and will seek to hire, shall be established by publications, where appropriate, employees, and the legal responsibilities the contractor on an annual basis. In features on special disabled veteran of the contractor and its agents establishing these benchmarks, employees and articles on the regarding protected veterans generally contractors shall take into account the accomplishments of protected veterans, and special disabled veterans following information: with their consent. specifically, such as a reasonable (1) The average percentage of veterans (4) The contractor shall document accommodation for qualified special in the civilian labor force in the State(s) those activities it undertakes to comply disabled veterans and the related and where the contractor is located over the with the obligations of paragraph (g), responsibilities of contractors and preceding three years, as calculated by and retain these documents as protected veterans. The contractor shall the Bureau of Labor Statistics and employment records subject to the create contemporaneous records published on OFCCP Web site;

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(2) The number of veterans, over the of potential violations of this Part. The advertised nonconstruction contract or previous four quarters, who were desk audit is conducted at OFCCP state at the outset of negotiations for participants in the employment service offices; each negotiated contract, that if the delivery system in the State where the (ii) An on-site review, conducted at award, when let, should total $10 contractor is located, as tabulated by the the contractor’s establishment to million or more, the prospective Veterans’ Employment and Training investigate unresolved problem areas contractor and its known first-tier Service and published on OFCCP Web identified in the affirmative action subcontractors with subcontracts of $10 site; program and supporting documentation million or more will be subject to a (3) The referral ratio, applicant ratio, during the desk audit, to verify that the compliance evaluation before the award and hiring ratio for the previous year, as contractor has implemented the of the contract unless OFCCP has set forth in § 60–250.44(k); affirmative action program and has conducted an evaluation and found (4) The contractor’s recent complied with those regulatory them to be in compliance with Section assessments of the effectiveness of its obligations not required to be included 4212 within the preceding 24 months. external outreach and recruitment in the affirmative action program, and to The awarding agency will notify OFCCP efforts, as set forth in § 60–250.44(f)(3); examine potential instances or issues of and request appropriate action and and discrimination. An on-site review findings in accordance with this (5) Any other factors, including but normally will involve an examination of subsection. Within 15 days of the notice not limited to the nature of the the contractor’s personnel and OFCCP will inform the awarding agency contractor’s job openings and/or its employment policies, inspection and of its intention to conduct a pre-award location, which would tend to affect the copying of documents related to compliance evaluation. If OFCCP does availability of qualified protected employment actions, and interviews not inform the awarding agency within veterans. with employees, supervisors, managers, that period of its intention to conduct a (c) The contractor shall document the hiring officials; and pre-award compliance evaluation, hiring benchmark it has established (iii) Where necessary, an off-site clearance shall be presumed and the each year, detailing each of the factors analysis of information supplied by the awarding agency is authorized to that it considered in establishing the contractor or otherwise gathered during proceed with the award. If OFCCP hiring benchmark and the relative or pursuant to the on-site review; informs the awarding agency of its significance of each of these factors. The (2) Off-site review of records. An intention to conduct a pre-award contractor shall retain this document for analysis and evaluation of the compliance evaluation, OFCCP will be a period of five (5) years. affirmative action program (or any part allowed an additional 20 days after the thereof) and supporting documentation, date that it so informs the awarding Subpart D—General Enforcement And and other documents related to the agency to provide its conclusions. If Complaint Procedures contractor’s personnel policies and OFCCP does not provide the awarding employment actions that may be agency with its conclusions within that § 60–250.60 Compliance evaluations. relevant to a determination of whether period, clearance will be presumed and (a) OFCCP may conduct compliance the contractor has complied with the the awarding agency is authorized to evaluations to determine if the requirements of Section 4212 and its proceed with the award. contractor is taking affirmative action to regulations; employ, advance in employment and (3) Compliance check. A § 60–250.61 Complaint procedures. otherwise treat qualified individuals determination of whether the contractor (a) Place and time of filing. Any without discrimination based on their has maintained records consistent with applicant for employment with a status as a protected veteran in all § 60–250.80; OFCCP may request the contractor or any employee of a employment practices. A compliance documents be provided either on-site or contractor may, personally, or by an evaluation may consist of any one or off-site; or authorized representative, file a written any combination of the following (4) Focused review. A review complaint alleging a violation of the Act investigative procedures: restricted to one or more components of or the regulations in this part. The (1) Compliance review. A the contractor’s organization or one or complaint may allege individual or comprehensive analysis and evaluation more aspects of the contractor’s class-wide violation(s). Such complaint of the hiring and employment practices employment practices. must be filed within 300 days of the of the contractor, the written affirmative (b) Where deficiencies are found to date of the alleged violation, unless the action program, and the results of the exist, reasonable efforts shall be made to time for filing is extended by OFCCP for affirmative action efforts undertaken by secure compliance through conciliation good cause shown. Complaints may be the contractor. A compliance review and persuasion pursuant to § 60–250.62. submitted to OFCCP, 200 Constitution may proceed in three stages: (c) VETS–100 Report. During a Avenue, NW., Washington, DC 20210, (i) A desk audit of the written compliance evaluation, OFCCP may or to any OFCCP regional, district, or affirmative action program and verify whether the contractor has area office. Complaints may also be supporting documentation to determine complied with its obligation, pursuant submitted to the Veterans’ Employment whether all elements required by the to 41 CFR part 61–250, to file its annual and Training Service of the Department regulations in this part are included, Veterans’ Employment Report (VETS– of Labor directly, or through the Local whether the affirmative action program 100 Report) with the Veterans’ Veterans’ Employment Representative meets agency standards of Employment and Training Service (LVER) at the local employment service reasonableness, and whether the (VETS). If the contractor has not filed its office. Such parties will assist veterans affirmative action program and report, OFCCP will request a copy from in preparing complaints, promptly refer supporting documentation satisfy the contractor. If the contractor fails to such complaints to OFCCP, and agency standards of acceptability. provide a copy of the report to OFCCP, maintain a record of all complaints OFCCP may extend the temporal scope OFCCP will notify VETS. which they receive and forward. OFCCP of the desk audit beyond that set forth (d) Pre-award compliance shall inform the party forwarding the in the scheduling letter if OFCCP deems evaluations. Each agency will include in complaint of the progress and results of it necessary to carry out its investigation the invitation for bids for each formally its complaint investigation. The state

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employment service delivery system (d) Investigations. The Department of violated, the following procedures are shall cooperate with the Director in the Labor shall institute a prompt applicable: investigation of any complaint. investigation of each complaint. (1) A written notice shall be sent to (b) Contents of complaints.—(1) In (e) Resolution of matters. (1) If the the contractor setting forth the violation general. A complaint must be signed by complaint investigation finds no alleged and summarizing the supporting the complainant or his or her authorized violation of the Act or this part, or if the evidence. The contractor shall have representative and must contain the Director decides not to refer the matter 15 days from receipt of the notice to following information: to the Solicitor of Labor for enforcement respond, except in those cases in which (i) Name and address (including proceedings against the contractor OFCCP asserts that such a delay would telephone number) of the complainant; pursuant to § 60–250.65(a)(1), the result in irreparable injury to the (ii) Name and address of the complainant and contractor shall be so employment rights of affected contractor who committed the alleged notified. The Director, on his or her own employees or applicants. violation; initiative, may reconsider his or her (2) During the 15-day period the (iii) Documentation showing that the determination or the determination of contractor may demonstrate in writing individual is a protected veteran. Such any of his or her designated officers who that it has not violated its commitments. documentation must include a copy of have authority to issue Notifications of (b) In those cases in which OFCCP the veteran’s form DD–214, and, where Results of Investigation. asserts that a delay would result in applicable, a copy of the veteran’s (2) The Director will review all irreparable injury to the employment Benefits Award Letter, or similar determinations of no violation that rights of affected employees or Department of Veterans Affairs involve complaints that are not also applicants, enforcement proceedings certification, updated within one year cognizable under Title I of the may be initiated immediately without prior to the date the complaint is filed, Americans with Disabilities Act. proceeding through any other indicating the veteran’s level (by requirement contained in this chapter. (3) In cases where the Director (c) In any proceedings involving an percentage) of disability, and whether decides to reconsider the determination the veteran has been determined by the alleged violation of a conciliation of a Notification of Results of agreement OFCCP may seek Department of Veterans Affairs to have Investigation, the Director shall provide a serious employment handicap under enforcement of the agreement itself and prompt notification of his or her intent shall not be required to present proof of 38 U.S.C. 3106; to reconsider, which is effective upon (iv) A description of the act or acts the underlying violations resolved by issuance, and his or her final the agreement. considered to be a violation, including determination after reconsideration, to the pertinent dates (in the case of an the person claiming to be aggrieved, the § 60–250.64 Show cause notices. alleged continuing violation, the earliest person making the complaint on behalf When the Director has reasonable and most recent date that the alleged of such person, if any, and the cause to believe that the contractor has violation occurred should be stated); contractor. violated the Act or this part, he or she and (4) If the investigation finds a may issue a notice requiring the (v) Other pertinent information violation of the Act or this part, OFCCP contractor to show cause, within 30 available which will assist in the shall invite the contractor to participate days, why monitoring, enforcement investigation and resolution of the in conciliation discussions pursuant to proceedings or other appropriate action complaint, including the name of any § 60–250.62. to ensure compliance should not be known Federal agency with which the instituted. The issuance of such a notice employer has contracted. § 60–250.62 Conciliation agreements. is not a prerequisite to instituting (2) Third party complaints. A If a compliance evaluation, complaint enforcement proceedings (see § 60– complaint filed by an authorized investigation or other review by OFCCP 250.65). representative need not identify by finds a material violation of the Act or name the person on whose behalf it is this part, and if the contractor is willing § 60–250.65 Enforcement proceedings. filed. The person filing the complaint, to correct the violations and/or (a) General. (1) If a compliance however, shall provide OFCCP with the deficiencies, and if OFCCP determines evaluation, complaint investigation or name, address and telephone number of that settlement on that basis (rather than other review by OFCCP finds a violation the person on whose behalf it is made, referral for consideration of formal of the Act or this part, and the violation and the other information specified in enforcement) is appropriate, a written has not been corrected in accordance paragraph (b)(1) of this section. OFCCP conciliation agreement shall be with the conciliation procedures in this shall verify the authorization of such a required. The agreement shall provide part, or OFCCP determines that referral complaint by the person on whose for such remedial action as may be for consideration of formal enforcement behalf the complaint is made. Any such necessary to correct the violations and/ (rather than settlement) is appropriate, person may request that OFCCP keep or deficiencies noted, including, where OFCCP may refer the matter to the his or her identity confidential, and appropriate (but not necessarily limited Solicitor of Labor with a OFCCP will protect the individual’s to) such make whole remedies as back recommendation for the institution of confidentiality wherever that is possible pay and retroactive seniority. The enforcement proceedings to enjoin the given the facts and circumstances in the agreement shall also specify the time violations, to seek appropriate relief, complaint. period for completion of the remedial and to impose appropriate sanctions, or (c) Incomplete information. Where a action; the period shall be no longer any of the above in this sentence. complaint contains incomplete than the minimum period necessary to OFCCP may seek back pay and other information, OFCCP shall seek the complete the action. make whole relief for aggrieved needed information from the individuals identified during a complainant. If the information is not § 60–250.63 Violation of conciliation complaint investigation or compliance furnished to OFCCP within 60 days of agreements. evaluation. Such individuals need not the date of such request, the case may (a) When OFCCP believes that a have filed a complaint as a prerequisite be closed. conciliation agreement has been to OFCCP seeking such relief on their

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behalf. Interest on back pay shall be of the Act or this part subject to reinstatement. Before reaching a final calculated from the date of the loss and reinstatement pursuant to § 60–250.68. decision, the Secretary may issue such compounded quarterly at the percentage Debarment may be imposed for an additional orders respecting procedure rate established by the Internal Revenue indefinite period, or may be imposed for as he or she finds appropriate in the Service for the underpayment of taxes. a fixed period of not less than six circumstances, including an order (2) In addition to the administrative months but no more than three years. referring the matter to the Office of proceedings set forth in this section, the (d) Hearing opportunity. An Administrative Law Judges for an Director may, within the limitations of opportunity for a formal hearing shall be evidentiary hearing where there is a applicable law, seek appropriate judicial afforded to a contractor before the material factual dispute that cannot be action to enforce the contractual imposition of any sanction or penalty. resolved on the record before the provisions set forth in § 60–250.5, Secretary. including appropriate injunctive relief. § 60–250.67 Notification of agencies. (b) Hearing practice and procedure. The Director shall ensure that the § 60–250.69 Intimidation and interference. (1) In administrative enforcement heads of all agencies are notified of any (a) The contractor shall not harass, proceedings the contractor shall be debarments taken against any intimidate, threaten, coerce, or provided an opportunity for a formal contractor. discriminate against any individual hearing. All hearings conducted under because the individual has engaged in § 60–250.68 Reinstatement of ineligible or may engage in any of the following the Act and this part shall be governed contractors. by the Rules of Practice for activities: (a) Application for reinstatement. A Administrative Proceedings to Enforce (1) Filing a complaint; contractor debarred from further Equal Opportunity Under Executive (2) Assisting or participating in any contracts for an indefinite period under Order 11246 contained in 41 CFR part manner in an investigation, compliance the Act may request reinstatement in a 60–30 and the Rules of Evidence set out evaluation, hearing, or any other activity letter filed with the Director at any time related to the administration of the Act in the Rules of Practice and Procedure after the effective date of the debarment; or any other Federal, state or local law for Administrative Hearings Before the a contractor debarred for a fixed period requiring equal opportunity for Office of Administrative Law Judges may make such a request following the protected veterans; contained in 29 CFR part 18, subpart B: expiration of six months from the (3) Opposing any act or practice made Provided, That a final administrative effective date of the debarment. In unlawful by the Act or this part or any order shall be issued within one year connection with the reinstatement other Federal, state or local law from the date of the issuance of the proceedings, all debarred contractors requiring equal opportunity for recommended findings, conclusions and shall be required to show that they have protected veterans, or decision of the Administrative Law established and will carry out (4) Exercising any other right Judge, or the submission of exceptions employment policies and practices in protected by the Act or this part. and responses to exceptions to such compliance with the Act and this part. (b) The contractor shall ensure that all decision (if any), whichever is later. Additionally, in determining whether persons under its control do not engage (2) Complaints may be filed by the reinstatement is appropriate for a in such harassment, intimidation, Solicitor, the Associate Solicitor for contractor debarred for a fixed period, threats, coercion or discrimination. The Civil Rights, Regional Solicitors, and the Director also shall consider, among sanctions and penalties contained in Associate Regional Solicitors. this part may be exercised by the (3) For the purposes of hearings other factors, the severity of the Director against any contractor who pursuant to this part, references in 41 violation which resulted in the violates this obligation. CFR part 60–30 to ‘‘Executive Order debarment, the contractor’s attitude 11246’’ shall mean the Vietnam Era towards compliance, the contractor’s § 60–250.70 Disputed matters related to Veterans’ Readjustment Assistance Act past compliance history, and whether compliance with the Act. the contractor’s reinstatement would of 1974, as amended (38 U.S.C. 4212 The procedures set forth in the impede the effective enforcement of the (2001)); references to ‘‘equal opportunity regulations in this part govern all Act or this part. Before reaching a clause’’ shall mean the equal disputes relative to the contractor’s decision, the Director may conduct a opportunity clause published at § 60– compliance with the Act and this part. compliance evaluation of the contractor 250.5; and references to ‘‘regulations’’ Any disputes relating to issues other and may require the contractor to shall mean the regulations contained in than compliance, including contract supply additional information regarding this part. costs arising out of the contractor’s the request for reinstatement. The efforts to comply, shall be determined § 60–250.66 Sanctions and penalties. Director shall issue a written decision by the disputes clause of the contract. (a) Withholding progress payments. on the request. With the prior approval of the Director, (b) Petition for review. Within 30 days Subpart E—Ancillary Matters so much of the accrued payment due on of its receipt of a decision denying a the contract or any other contract request for reinstatement, the contractor § 60–250.80 Recordkeeping. between the Government contractor and may file a petition for review of the (a) General requirements. Any the Federal Government may be decision with the Secretary. The personnel or employment record made withheld as necessary to correct any petition shall set forth the grounds for or kept by the contractor shall be violations of the provisions of the Act or the contractor’s objections to the preserved by the contractor for a period this part. Director’s decision. The petition shall be of two years from the date of the making (b) Termination. A contract may be served on the Director and the Associate of the record or the personnel action canceled or terminated, in whole or in Solicitor for Civil Rights and shall involved, whichever occurs later. part, for failure to comply with the include the decision as an appendix. However, if the contractor has fewer provisions of the Act or this part. The Director may file a response within than 150 employees or does not have a (c) Debarment. A contractor may be 14 days to the petition. The Secretary Government contract of at least debarred from receiving future contracts shall issue the final agency decision $150,000, the minimum record retention for failure to comply with the provisions denying or granting the request for period will be one year from the date of

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the making of the record or the that the destruction or failure to to fill employment openings listed by personnel action involved, whichever preserve records results from contractors with such local offices occurs later. Such records include, but circumstances that are outside of the pursuant to the mandatory listing are not necessarily limited to, records contractor’s control. requirements of the equal opportunity relating to requests for reasonable clause, and shall give priority to § 60–250.81 Access to records. accommodation; the results of any protected veterans in making such physical examination; job Each contractor shall permit access referrals. advertisements and postings; during normal business hours to its (b) Local employment service offices applications and resumes; tests and test places of business for the purpose of shall contact employers to solicit the job results; interview notes; and other conducting on-site compliance orders described in paragraph (a) of this records having to do with hiring, evaluations and complaint section. The state employment security assignment, promotion, demotion, investigations and inspecting and agency shall provide OFCCP upon transfer, lay-off or termination, rates of copying such books, accounts, and request information pertinent to pay or other terms of compensation, and records, including electronic records, whether the contractor is in compliance selection for training or apprenticeship. and any other material OFCCP deems with the mandatory listing requirements In the case of involuntary termination of relevant to the matter under of the equal opportunity clause. an employee, the personnel records of investigation and pertinent to compliance with the Act or this part. Appendix A to Part 60–250—Guidelines the individual terminated shall be kept on a Contractor’s Duty To Provide for a period of two years from the date Contractors must also provide OFCCP access to these materials, including Reasonable Accommodation of the termination, except that electronic records, off-site for purposes contractors that have fewer than 150 The guidelines in this appendix are in of conducting compliance evaluations employees or that do not have a large part derived from, and are consistent and complaint investigations. Upon Government contract of at least with, the discussion regarding the duty to request, the contractor must provide provide reasonable accommodation $150,000 shall keep such records for a OFCCP information about all format(s), contained in the Interpretive Guidance on period of one year from the date of the including specific electronic formats, in Title I of the Americans with Disabilities Act termination. Where the contractor has which its records and other information (ADA) set out as an appendix to the received notice that a complaint of are available. The contractor must regulations issued by the Equal Employment discrimination has been filed, that a Opportunity Commission (EEOC) provide records and other information compliance evaluation has been implementing the ADA (29 CFR part 1630). in any available format requested by Although the following discussion is initiated, or that an enforcement action OFCCP. Information obtained in this has been commenced, the contractor intended to provide an independent ‘‘free- manner shall be used only in standing’’ source of guidance with respect to shall preserve all personnel records connection with the administration of the duty to provide reasonable relevant to the complaint, compliance the Act and in furtherance of the accommodation under this part, to the extent evaluation or action until final purposes of the Act. that the EEOC appendix provides additional disposition of the complaint, guidance which is consistent with the compliance evaluation or action. The § 60–250.82 Labor organizations and following discussion, it may be relied upon term personnel records relevant to the recruiting and training agencies. for purposes of this part as well. See § 60– complaint, compliance evaluation or (a) Whenever performance in 250.1(c). Contractors are obligated to provide action would include, for example, accordance with the equal opportunity reasonable accommodation and to take affirmative action. Reasonable personnel or employment records clause or any matter contained in the accommodation under Section 4212, like relating to the aggrieved person and to regulations in this part may necessitate reasonable accommodation required under all other employees holding positions a revision of a collective bargaining section 503 and the ADA, is a part of the similar to that held or sought by the agreement, the labor organizations nondiscrimination obligation. See EEOC aggrieved person, and application forms which are parties to such agreement appendix cited in this paragraph. Affirmative or test papers completed by an shall be given an adequate opportunity action is unique to Section 4212 and section unsuccessful applicant and by all other to present their views to OFCCP. 503, and includes actions above and beyond candidates for the same position as that (b) OFCCP shall use its best efforts, those required as a matter of directly or through contractors, nondiscrimination. An example of this is the for which the aggrieved person applied requirement discussed in paragraph 2 of this and was rejected. Records required by subcontractors, local officials, the appendix that a contractor shall make an §§ 60–250.44(f)(4), 60–250.44(k), 60– Department of Veterans Affairs, inquiry of a special disabled veteran who is 250.45(c), and Paragraph 5 of the equal vocational rehabilitation facilities, and having significant difficulty performing his opportunity clause in § 250.5(a) shall be all other available instrumentalities, to or her job. maintained by all contractors for a cause any labor organization, recruiting 1. A contractor is required to make period of five years from the date of the and training agency or other reasonable accommodations to the known making of the record. representative of workers who are physical or mental limitations of an ‘‘otherwise qualified’’ special disabled (b) Failure to preserve records. Failure employed by a contractor to cooperate with, and to assist in, the veteran, unless the contractor can to preserve complete and accurate demonstrate that the accommodation would records as required by this part implementation of the purposes of the impose an undue hardship on the operation constitutes noncompliance with the Act. of its business. As stated in § 60–250.2(r), a contractor’s obligations under the Act § 60–250.83 Rulings and interpretations. special disabled veteran is qualified if he or and this part. Where the contractor has she satisfies all the skill, experience, Rulings under or interpretations of the education and other job-related selection destroyed or failed to preserve records Act and this part shall be made by the as required by this section, there may be criteria, and can perform the essential Director. functions of the position with or without a presumption that the information reasonable accommodation. A contractor is destroyed or not preserved would have § 60–250.84 Responsibilities of local required to make a reasonable been unfavorable to the contractor: employment service offices. accommodation with respect to its Provided, That this presumption shall (a) Local employment service offices application process if the special disabled not apply where the contractor shows shall refer qualified protected veterans veteran is qualified with respect to that

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process. One is ‘‘otherwise qualified’’ if he or provide the accommodation. This inquiry headsets, mechanical page turners and raised she is qualified for a job, except that, because requires an analysis of the financial or lowered furniture. of a disability, he or she needs a reasonable relationship between the contractor and the 7. Other reasonable accommodations of accommodation to be able to perform the facility in order to determine what resources this type may include providing personal job’s essential functions. will be available to the facility in providing assistants such as a reader, interpreter or 2. Although the contractor would not be the accommodation. If the contractor can travel attendant, permitting the use of expected to accommodate disabilities of show that the cost of the accommodation accrued paid leave or providing additional which it is unaware, the contractor has an would impose an undue hardship, it would unpaid leave for necessary treatment. The affirmative obligation to provide a reasonable still be required to provide the contractor may also be required to make accommodation for applicants and accommodation if the funding is available existing facilities readily accessible to and employees who are known to be special from another source, e.g., the Department of usable by special disabled veterans— disabled veterans. As stated in § 60–250.42 Veterans Affairs or a state vocational including areas used by employees for (see also Appendix B of this part), the rehabilitation agency, or if Federal, state or purposes other than the performance of contractor is required to invite applicants local tax deductions or tax credits are essential job functions such as restrooms, who have been provided an offer of available to offset the cost of the break rooms, cafeterias, lounges, employment, before they are placed on the accommodation. In the absence of such auditoriums, libraries, parking lots and credit contractor’s payroll, to indicate whether they funding, the special disabled veteran must be unions. This type of accommodation will are a special disabled veteran who may be given the option of providing the enable employees to enjoy equal benefits and covered by the Act and wish to benefit under accommodation or of paying that portion of privileges of employment as are enjoyed by the contractor’s affirmative action program. the cost which constitutes the undue employees who do not have disabilities. That section further provides that the hardship on the operation of the business. 8. Another of the potential contractor must seek the advice of special 5. The definition for ‘‘reasonable accommodations listed in § 60–250.2(s) is job disabled veterans who ‘‘self-identify’’ in this accommodation’’ in § 60–250.2(s) lists a restructuring. This may involve reallocating way as to reasonable accommodation. number of examples of the most common or redistributing those nonessential, marginal Moreover, § 60–250.44(d) provides that if an types of accommodations that the contractor job functions which a qualified special employee who is a known special disabled may be required to provide. There are any disabled veteran cannot perform to another veteran is having significant difficulty number of specific accommodations that may position. Accordingly, if a clerical employee performing his or her job and it is reasonable be appropriate for particular situations. The who is a special disabled veteran is to conclude that the performance problem discussion in this appendix is not intended occasionally required to lift heavy boxes may be related to the disability, the to provide an exhaustive list of required containing files, but cannot do so because of contractor is required to confidentially accommodations (as no such list would be a disability, this task may be reassigned to inquire whether the problem is disability feasible); rather, it is intended to provide another employee. The contractor, however, related and if the employee is in need of a general guidance regarding the nature of the is not required to reallocate essential reasonable accommodation. obligation. The decision as to whether a functions, i.e., those functions that the 3. An accommodation is any change in the reasonable accommodation is appropriate individual who holds the job would have to work environment or in the way things are must be made on a case-by-case basis. The perform, with or without reasonable customarily done that enables a special contractor must consult with the special accommodation, in order to be considered disabled veteran to enjoy equal employment disabled veteran in deciding on the qualified for the position. For instance, the opportunities. Equal employment reasonable accommodation; frequently, the contractor which has a security guard opportunity means an opportunity to attain individual will know exactly what position which requires the incumbent to the same level of performance, or to enjoy the accommodation he or she will need to inspect identity cards would not have to same level of benefits and privileges of perform successfully in a particular job, and provide a blind special disabled veteran with employment, as are available to the average may suggest an accommodation which is an assistant to perform that duty; in such a similarly situated employee without a simpler and less expensive than the case, the assistant would be performing an disability. Thus, for example, an accommodation the contractor might have essential function of the job for the special accommodation made to assist an employee devised. Other resources to consult include disabled veteran. Job restructuring may also who is a special disabled veteran in the the appropriate state vocational rehabilitation involve allowing part-time or modified work performance of his or her job must be services agency, the Equal Employment schedules. For instance, flexible or adjusted adequate to enable the individual to perform Opportunity Commission (1–800–669–4000 work schedules could benefit special the essential functions of the position. The (voice), 1–800–669–6820 (TTY)), the Job disabled veterans who cannot work a accommodation, however, does not have to Accommodation Network (JAN) operated by standard schedule because of the need to be the ‘‘best’’ accommodation possible, so the Office of Disability Employment Policy in obtain medical treatment, or special disabled long as it is sufficient to meet the job-related the U.S. Department of Labor (1–800–526– veterans with mobility impairments who needs of the individual being accommodated. 7234 or 1–800–232–9675), private disability depend on a public transportation system There are three areas in which reasonable organizations (including those that serve that is not accessible during the hours of a accommodations may be necessary: (1) veterans), and other employers. standard schedule. Accommodations in the application process; 6. With respect to accommodations that 9. Reasonable accommodation may also (2) accommodations that enable employees can permit an employee who is a special include reassignment to a vacant position. In who are special disabled veterans to perform disabled veteran to perform essential general, reassignment should be considered the essential functions of the position held or functions successfully, a reasonable only when accommodation within the desired; and (3) accommodations that enable accommodation may require the contractor special disabled veteran’s current position employees who are special disabled veterans to, for instance, modify or acquire would pose an undue hardship. to enjoy equal benefits and privileges of equipment. For the visually-impaired such Reassignment is not required for applicants. employment as are enjoyed by employees accommodations may include providing However, in making hiring decisions, without disabilities. adaptive hardware and software for contractors are encouraged to consider 4. The term ‘‘undue hardship’’ refers to any computers, electronic visual aids, braille applicants who are known special disabled accommodation that would be unduly costly, devices, talking calculators, magnifiers, audio veterans for all available positions for which extensive, substantial, or disruptive, or that recordings and braille or large-print they may be qualified when the position(s) would fundamentally alter the nature or materials. For persons with hearing applied for is unavailable. Reassignment may operation of the contractor’s business. The impairments, reasonable accommodations not be used to limit, segregate, or otherwise contractor’s claim that the cost of a particular may include providing telephone handset discriminate against employees who are accommodation will impose an undue amplifiers, telephones compatible with special disabled veterans by forcing hardship requires a determination of which hearing aids and telecommunications devices reassignments to undesirable positions or to financial resources should be considered— for the deaf (TDDs). For persons with limited designated offices or facilities. Employers those of the contractor in its entirety or only physical dexterity, the obligation may require should reassign the individual to an those of the facility that will be required to the provision of goose neck telephone equivalent position in terms of pay, status,

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etc., if the individual is qualified, and if the compensation) under laws administered by SELF-IDENTIFICATION REQUEST.] As a position is vacant within a reasonable the Department of Veterans Affairs for a Government contractor subject to Section amount of time. A ‘‘reasonable amount of disability: 4212, we are required to submit a report • time’’ must be determined in light of the (A) Rated at 30 percent or more; or (VETS–100) to the United States Department • totality of the circumstances. (B) Rated at 10 or 20 percent in the case of Labor each year identifying the number of 10. The contractor may reassign an of a veteran who has been determined under our employees belonging to each ‘‘protected individual to a lower graded position if there 38 U.S.C. 3106 to have a serious employment ’’ are no accommodations that would enable handicap (defined as a significant veteran category. If you believe you belong the employee to remain in the current impairment of a veteran’s ability to prepare to any of the categories of protected veterans position and there are no vacant equivalent for, obtain, or retain employment consistent listed above, please indicate by checking the positions for which the individual is with such veteran’s abilities, aptitudes and appropriate box below. qualified with or without reasonable interests.); or I BELONG TO THE FOLLOWING • accommodation. The contractor may A person who was discharged or CLASSIFICATIONS OF PROTECTED maintain the reassigned special disabled released from active duty because of a VETERANS (CHOOSE ALL THAT APPLY): veteran at the salary of the higher graded service-connected disability. position, and must do so if it maintains the A ‘‘veteran of the Vietnam era’’ means a [ ] QUALIFIED SPECIAL DISABLED salary of reassigned employees who are not person who: VETERAN special disabled veterans. It should also be • Served on active duty for a period of [ ] VETERAN OF THE VIETNAM ERA noted that the contractor is not required to more than 180 days, and was discharged or [ ] RECENTLY SEPARATED VETERAN promote a special disabled veteran as an released therefrom with other than a [ ] ACTIVE WARTIME OR CAMPAIGN accommodation. dishonorable discharge, if any part of such BADGE VETERAN 11. With respect to the application process, active duty occurred: lllllllllllllllllllll reasonable accommodations may include the • In the Republic of Vietnam between following: (1) Providing information February 28, 1961, and May 7, 1975; or [ ] I am a protected veteran, but I choose regarding job vacancies in a form accessible • Between August 5, 1964, and May 7, not to self-identify the classifications to to special disabled veterans who are vision 1975, in all other cases; or which I belong. or hearing impaired, e.g., by making an • Was discharged or released from active [ ] I am NOT a protected veteran. announcement available in braille, in large duty for a service-connected disability if any [ ] I choose not to provide this information. print, or on audio tape, or by responding to part of such active duty was performed: If you are a special disabled veteran it job inquiries via TDDs; (2) providing readers, • In the Republic of Vietnam between would assist us if you tell us whether there interpreters and other similar assistance February 28, 1961, and May 7, 1975; or during the application, testing and interview • Between August 5, 1964, and May 7, are accommodations we could make that process; (3) appropriately adjusting or 1975, in all other cases. would enable you to perform the job properly modifying employment-related examinations, • A ‘‘recently separated veteran’’ means and safely, including special equipment, e.g., extending regular time deadlines, any veteran during the one-year period changes in the physical layout of the job, allowing a special disabled veteran who is beginning on the date of such veteran’s changes in the way the job is customarily blind or has a learning disorder such as discharge or release from active duty in the performed, provision of personal assistance dyslexia to provide oral answers for a written U.S. military, ground, naval, or air service. services or other accommodations. This • test, and permitting an applicant, regardless An ‘‘active duty wartime or campaign information will assist us in making of the nature of his or her ability, to ’’ badge veteran means a veteran who served reasonable accommodations for your demonstrate skills through alternative in the U.S. military, ground, naval or air disability. techniques and utilization of adapted tools, service during a war, or in a campaign or aids and devices; and (4) ensuring a special expedition for which a campaign badge has 3. You may inform us of your desire to disabled veteran with a mobility impairment been authorized under the laws administered benefit under the program at this time and/ full access to testing locations such that the by the Department of Defense. or at any time in the future. applicant’s test scores accurately reflect the 2. [THE FOLLOWING TEXT SHOULD BE 4. Submission of this information is applicant’s skills or aptitude rather than the USED WHEN EXTENDING THE ‘‘PRE– voluntary and refusal to provide it will not applicant’s mobility impairment. OFFER’’ INVITATION TO PROTECTED subject you to any adverse treatment. The VETERANS REQUIRED BY 41 CFR 60– information provided will be used only in Appendix B to Part 60–250—Sample 250.42(a). THE DEFINITIONS OF THE Invitation to Self-Identify ways that are not inconsistent with the SEPARATE CLASSIFICATIONS OF Vietnam Era Veterans’ Readjustment PROTECTED VETERANS SET FORTH IN [Sample Invitation to Self-Identify] Assistance Act of 1974, as amended. PARAGRAPH 1 MUST ACCOMPANY THIS 1. This employer is a Government SELF-IDENTIFICATION REQUEST.] If you 5. The information you submit will be kept contractor subject to the Vietnam Era believe you belong to any of the categories of confidential, except that (i) supervisors and Veterans’ Readjustment Assistance Act of protected veterans listed above, please managers may be informed regarding 1974, 38 U.S.C. 4212 (Section 4212), as indicate by checking the appropriate box restrictions on the work or duties of special amended, which requires Government below. As a Government contractor subject to disabled veterans, and regarding necessary contractors to take affirmative action to Section 4212, we request this information in accommodations; (ii) first aid and safety employ and advance in employment: (1) order to measure the effectiveness of the Qualified special disabled veterans; (2) personnel may be informed, when and to the outreach and positive recruitment efforts we extent appropriate, if you have a condition veterans of the Vietnam era; (3) recently undertake pursuant to Section 4212. separated veterans; and (4) active duty that might require emergency treatment; and wartime or campaign badge veterans. These [ ] I IDENTIFY AS ONE OR MORE OF THE (iii) Government officials engaged in classifications are defined as follows: CLASSIFICATIONS OF PROTECTED enforcing laws administered by the Office of VETERAN LISTED ABOVE • A ‘‘qualified special disabled veteran’’ Federal Contract Compliance Programs, or [ ] I AM NOT A PROTECTED VETERAN means someone who satisfies the requisite enforcing the Americans with Disabilities skill, experience, education and other job- [ ] I CHOOSE NOT TO PROVIDE THIS INFORMATION Act, may be informed. related requirements of the employment 6. [The contractor should here insert a brief position such veteran holds or desires, and [THE FOLLOWING TEXT SHOULD BE provision summarizing the relevant portion who, with or without reasonable USED WHEN EXTENDING THE ‘‘POST– accommodation, can perform the essential OFFER’’ INVITATION TO PROTECTED of its affirmative action program.] functions of such position, and also is one of VETERANS REQUIRED BY 41 CFR 60– the following: 250.42(b). THE DEFINITIONS OF THE • A veteran who is entitled to SEPARATE CLASSIFICATIONS OF compensation (or who but for the receipt of PROTECTED VETERANS SET FORTH IN military retired pay would be entitled to PARAGRAPH 1 MUST ACCOMPANY THIS

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PART 60–300—AFFIRMATIVE ACTION Authority: 29 U.S.C. 793; 38 U.S.C. 4211 greater or equal protection for the rights AND NONDISCRIMINATION and 4212; E.O. 11758 (3 CFR, 1971–1975 of disabled veterans, recently separated OBLIGATIONS OF FEDERAL Comp., p. 841). veterans, active duty wartime or campaign badge veterans, or Armed CONTRACTORS AND Subpart A—Preliminary Matters, Equal Forces service medal protected veterans SUBCONTRACTORS REGARDING Opportunity Clause DISABLED VETERANS, RECENTLY as compared to the protection afforded SEPARATED VETERANS, ACTIVE § 60–300.1 Purpose, applicability and by this part. It may be a defense to a DUTY WARTIME OR CAMPAIGN construction. charge of violation of this part that a BADGE VETERANS, AND ARMED (a) Purpose. The purpose of the challenged action is required or FORCES SERVICE MEDAL VETERANS regulations in this part is to set forth the necessitated by another Federal law or standards for compliance with 38 U.S.C. regulation, or that another Federal law Subpart A—Preliminary Matters, Equal or regulation prohibits an action Opportunity Clause 4212 (Section 4212), which prohibits discrimination against protected (including the provision of a particular Sec. veterans and requires Government reasonable accommodation) that would 60–300.1 Purpose, applicability and contractors and subcontractors to take otherwise be required by this part. construction. affirmative action to employ and 60–300.2 Definitions. § 60–300.2 Definitions. advance in employment qualified 60–300.3 [Reserved]. For the purpose of this part: protected veterans. Disabled veterans, 60–300.4 Coverage and waivers. (a) Act means the Vietnam Era recently separated veterans, active duty 60–300.5 Equal opportunity clause. Veterans’ Readjustment Assistance Act wartime or campaign badge veterans, Subpart B—Discrimination Prohibited of 1974, as amended, 38 U.S.C. 4212. and Armed Forces service medal (b) Active duty wartime or campaign 60–300.20 Covered employment activities. veterans are protected veterans under badge veteran means a veteran who 60–300.21 Prohibitions. Section 4212. 60–300.22 Direct threat defense. served on active duty in the U.S. (b) Applicability. This part applies to military, ground, naval or air service 60–300.23 Medical examinations and any Government contract or subcontract inquiries. during a war or in a campaign or of $100,000 or more, entered into or expedition for which a campaign badge 60–300.24 Drugs and alcohol. modified on or after December 1, 2003, 60–300.25 Health insurance, life insurance has been authorized, under the laws for the purchase, sale or use of personal and other benefit plans. administered by the Department of property or nonpersonal services Defense. Subpart C—Affirmative Action Program (including construction): Provided, that (c) Armed Forces service medal 60–300.40 Applicability of the affirmative subpart C of this part applies only as veteran means any veteran who, while action program requirement. described in Sec. 60–300.40(a). serving on active duty in the U.S. 60–300.41 Availability of affirmative action Compliance by the contractor with the military, ground, naval or air service, program. provisions of this part will not participated in a United States military 60–300.42 Invitation to self-identify. necessarily determine its compliance operation for which an Armed Forces 60–300.43 Affirmative action policy. with other statutes, and compliance service medal was awarded pursuant to 60–300.44 Required contents of affirmative with other statutes will not necessarily action programs. Executive Order 12985 (61 FR 1209). determine its compliance with this part. (d) Compliance evaluation means any 60–300.45 Contractor Established Any contractor or subcontractor whose Benchmarks for Hiring one or combination of actions OFCCP only contract(s) for the purchase, sale or may take to examine a Federal Subpart D—General Enforcement and use of personal property and contractor’s or subcontractor’s Complaint Procedures nonpersonal services (including compliance with one or more of the 60–300.60 Compliance evaluations. construction) was entered into before requirements of the Vietnam Era 60–300.61 Complaint procedures. December 1, 2003 (and not modified as Veterans’ Readjustment Assistance Act. 60–300.62 Conciliation agreements. described above) must follow part 60– (e) Contract means any Government 60–300.63 Violation of conciliation 250. Any contractor or subcontractor contract or subcontract. agreements. who has contracts for the purchase, sale (f) Contractor means, unless otherwise 60–300.64 Show cause notices. or use of personal property and indicated, a prime contractor or 60–300.65 Enforcement proceedings. nonpersonal services (including subcontractor holding a contract of 60–300.66 Sanctions and penalties. construction) that were entered into 60–300.67 Notification of agencies. $100,000 or more. 60–300.68 Reinstatement of ineligible before December 1, 2003 (and not (g) Direct threat means a significant contractors. modified as described above), and risk of substantial harm to the health or 60–300.69 Intimidation and interference. contracts that were entered into on or safety of the individual or others that 60–300.70 Disputed matters related to after December 1, 2003, must follow cannot be eliminated or reduced by compliance with the Act. both parts 60–250 and 60–300. reasonable accommodation. The (c) Construction—(1) In general. The determination that an individual poses Subpart E—Ancillary Matters Interpretive Guidance on Title I of the a direct threat shall be based on an 60–300.80 Recordkeeping. Americans with Disabilities Act (ADA) individualized assessment of the 60–300.81 Access to records. (42 U.S.C. 12101, et seq.) set out as an individual’s present ability to perform 60–300.82 Labor organizations and appendix to 29 CFR part 1630 issued safely the essential functions of the job. recruiting and training agencies. pursuant to Title I may be relied upon This assessment shall be based on a 60–300.83 Rulings and interpretations. for guidance in interpreting the parallel 60–300.84 Responsibilities of local reasonable medical judgment that relies employment service offices. provisions of this part. on the most current medical knowledge Appendix A to Part 60–300—Guidelines on (2) Relationship to other laws. This and/or on the best available objective a Contractor’s Duty To Provide part does not invalidate or limit the evidence. In determining whether an Reasonable Accommodation remedies, rights, and procedures under individual would pose a direct threat, Appendix B to Part 60–300—Sample any Federal law or the law of any state the factors to be considered include: Invitation To Self-Identify or political subdivision that provides (1) The duration of the risk;

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(2) The nature and severity of the (v) The terms of a collective recruitment and/or training sources. A potential harm; bargaining agreement; linkage agreement is to be used by (3) The likelihood that the potential (vi) The work experience of past contractors as a source of potential harm will occur; and incumbents in the job; and/or applicants for the covered groups the (4) The imminence of the potential (vii) The current work experience of contractor is interested in, as required harm. incumbents in similar jobs. by § 60–300.44(f). The contractor’s (h) Director means the Director, Office (n) Government means the representative that signs the linkage of Federal Contract Compliance Government of the United States of agreement should be the company Programs of the United States America. official responsible for the contractor’s Department of Labor, or his or her (o) Government contract means any affirmative action program and/or has designee. agreement or modification thereof hiring authority. (i) Disabled veteran means: between any contracting agency and any (q) Prime contractor means any (1) A veteran of the U.S. military, person for the purchase, sale or use of person holding a contract of $100,000 or ground, naval or air service who is personal property or nonpersonal more, and, for the purposes of subpart entitled to compensation (or who but for services (including construction). The D of this part, ‘‘General Enforcement and the receipt of military retired pay would term Government contract does not Complaint Procedures,’’ includes any be entitled to compensation) under laws include agreements in which the parties person who has held a contract subject administered by the Secretary of stand in the relationship of employer to the Act. Veterans Affairs, or and employee, and Federally assisted (r) Protected veteran means a veteran (2) A person who was discharged or contracts. who is protected under the non- released from active duty because of a (1) Construction, as used in the discrimination and affirmative action service-connected disability. definition of Government contract and provisions of the Act; specifically, a (j) [Reserved] subcontract of this section, means the veteran who may be classified as a (k) Employment service delivery construction, rehabilitation, alteration, ‘‘disabled veteran,’’ ‘‘recently separated system means a service delivery system conversion, extension, demolition, or veteran,’’ ‘‘active duty wartime or at which or through which labor repair of buildings, highways, or other campaign badge veteran,’’ and/or an exchange services, including changes or improvements to real ‘‘Armed Forces service medal veteran,’’ employment, training, and placement property, including facilities providing as defined by this section. services, are offered in accordance with utility services. The term also includes (s) Qualification standards means the the Wagner-Peyser Act. the supervision, inspection, and other personal and professional attributes (l) Equal opportunity clause means on-site functions incidental to the actual including the skill, experience, the contract provisions set forth in § 60– construction. education, physical, medical, safety and 300.5, ‘‘Equal opportunity clause.’’ (2) Contracting agency means any other requirements established by the (m) Essential functions—(1) In department, agency, establishment or contractor as requirements which an general. The term essential functions instrumentality of the United States, individual must meet in order to be means fundamental job duties of the including any wholly owned eligible for the position held or desired. employment position the disabled Government corporation, which enters (t) Qualified disabled veteran means a veteran holds or desires. The term into contracts. disabled veteran who has the ability to essential functions does not include the (3) Modification means any alteration perform the essential functions of the marginal functions of the position. in the terms and conditions of a employment position with or without (2) A job function may be considered contract, including supplemental reasonable accommodation. essential for any of several reasons, agreements, amendments and (u) Reasonable accommodation—(1) including, but not limited to, the extensions. The term reasonable accommodation following: (4) Nonpersonal services, as used in means: (i) The function may be essential the definition of Government contract (i) Modifications or adjustments to a because the reason the position exists is and subcontract of this section, job application process that enable a to perform that function; includes, but is not limited to, the qualified applicant who is a disabled (ii) The function may be essential following: Utility, construction, veteran to be considered for the position because of the limited number of transportation, research, insurance, and such applicant desires; 9 or employees available among whom the fund depository. (ii) Modifications or adjustments to performance of that job function can be (5) Person, as used in the definition of the work environment, or to the manner distributed; and/or Government contract and subcontract of or circumstances under which the (iii) The function may be highly this section, means any natural person, position held or desired is customarily specialized so that the incumbent in the corporation, partnership or joint performed, that enable a qualified position is hired for his or her expertise venture, unincorporated association, disabled veteran to perform the essential or ability to perform the particular state or local government, and any functions of that position; or function. agency, instrumentality, or subdivision (iii) Modifications or adjustments that (3) Evidence of whether a particular of such a government. enable the contractor’s employee who is function is essential includes, but is not (6) Personal property, as used in the a disabled veteran to enjoy equal limited to: definition of Government contract and benefits and privileges of employment (i) The contractor’s judgment as to subcontract of this section, includes which functions are essential; supplies and contracts for the use of real 9 A contractor’s duty to provide a reasonable accommodation with respect to applicants who are (ii) Written job descriptions prepared property (such as lease arrangements), disabled veterans is not limited to those who before advertising or interviewing unless the contract for the use of real ultimately demonstrate that they are qualified to applicants for the job; property itself constitutes real property perform the job in issue. Disabled veteran (iii) The amount of time spent on the (such as easements). applicants must be provided a reasonable accommodation with respect to the application job performing the function; (p) Linkage Agreement means an process if they are qualified with respect to that (iv) The consequences of not requiring agreement describing the connection process (e.g., if they present themselves at the the incumbent to perform the function; between contractors and appropriate correct location and time to fill out an application).

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as are enjoyed by the contractor’s other more and, for the purposes of subpart D under conditions other than similarly situated employees who are of this part, ‘‘General Enforcement and dishonorable. not disabled veterans. Complaint Procedures,’’ any person who (2) Reasonable accommodation may has held a subcontract subject to the § 60–300.3 [Reserved] include but is not limited to: Act. § 60–300.4 Coverage and waivers. (i) Making existing facilities used by (aa) TAP means the Department of employees readily accessible to and Defense’s Transition Assistance (a) General—(1) Contracts and usable by disabled veterans; and Program, or any successor programs subcontracts of $100,000 or more. (ii) Job restructuring; part-time or thereto. The TAP was designed to Contracts and subcontracts of $100,000 modified work schedules; reassignment smooth the transition of military or more are covered by this part. No to a vacant position; acquisition or personnel and family members leaving contracting agency or contractor shall modifications of equipment or devices; active duty via employment workshops procure supplies or services in less than appropriate adjustment or modifications and individualized employment usual quantities to avoid the of examinations, training materials, or assistance and training. applicability of the equal opportunity policies; the provision of qualified (bb) Undue hardship—(1) In general. clause. readers or interpreters; and other similar Undue hardship means, with respect to (2) Contracts for indefinite quantities. accommodations for disabled veterans. the provision of an accommodation, With respect to indefinite delivery-type (3) To determine the appropriate significant difficulty or expense contracts (including, but not limited to, reasonable accommodation it may be incurred by the contractor, when open end contracts, requirement-type necessary for the contractor to initiate considered in light of the factors set contracts, Federal Supply Schedule an informal, interactive process with the forth in paragraph (2) of this section. contracts, ‘‘call-type’’ contracts, and qualified disabled veteran in need of the purchase notice agreements), the equal 10 (2) Factors to be considered. In accommodation. This process should opportunity clause shall be included identify the precise limitations resulting determining whether an accommodation would impose an undue hardship on unless the contracting agency has reason from the disability and potential to believe that the amount to be ordered reasonable accommodations that could the contractor, factors to be considered include: in any year under such contract will be overcome those limitations. (Appendix less than $100,000. The applicability of A of this part provides guidance on a (i) The nature and net cost of the accommodation needed, taking into the equal opportunity clause shall be contractor’s duty to provide reasonable determined at the time of award for the accommodation.) consideration the availability of tax credits and deductions, and/or outside first year, and annually thereafter for (v) Recently separated veteran means succeeding years, if any. any veteran during the three-year period funding; Notwithstanding the above, the equal beginning on the date of such veteran’s (ii) The overall financial resources of opportunity clause shall be applied to discharge or release from active duty in the facility or facilities involved in the such contract whenever the amount of the U.S. military, ground, naval or air provision of the reasonable a single order is $100,000 or more. Once service. accommodation, the number of persons the equal opportunity clause is (w) Recruiting and training agency employed at such facility, and the effect determined to be applicable, the means any person who refers workers to on expenses and resources; contract shall continue to be subject to any contractor, or who provides or (iii) The overall financial resources of such clause for its duration, regardless supervises apprenticeship or training for the contractor, the overall size of the of the amounts ordered, or reasonably employment by any contractor. business of the contractor with respect (x) Secretary means the Secretary of to the number of its employees, and the expected to be ordered in any year. Labor, United States Department of number, type and location of its (3) Employment activities within the Labor, or his or her designee. facilities; United States. This part applies only to (y) Subcontract means any agreement (iv) The type of operation or employment activities within the or arrangement between a contractor operations of the contractor, including United States and not to employment and any person (in which the parties do the composition, structure and activities abroad. The term not stand in the relationship of an functions of the work force of such ‘‘employment activities within the employer and an employee): contractor, and the geographic United States’’ includes actual (1) For the purchase, sale or use of separateness and administrative or fiscal employment within the United States, personal property or nonpersonal relationship of the facility or facilities in and decisions of the contractor made services (including construction) which, question to the contractor; and within the United States pertaining to in whole or in part, is necessary to the (v) The impact of the accommodation the contractor’s applicants and performance of any one or more upon the operation of the facility, employees who are within the United contracts; or including the impact on the ability of States, regarding employment (2) Under which any portion of the other employees to perform their duties opportunities abroad (such as recruiting contractor’s obligation under any one or and the impact on the facility’s ability and hiring within the United States for more contracts is performed, to conduct business. employment abroad, or transfer of undertaken, or assumed. (cc) United States, as used in this part, persons employed in the United States (z) Subcontractor means any person shall include the several States, the to contractor establishments abroad). holding a subcontract of $100,000 or District of Columbia, the Virgin Islands, (4) Contracts with state or local the Commonwealth of Puerto Rico, governments. The requirements of the 10 Contractors must engage in such an interactive Guam, American Samoa, the process with a disabled veteran, whether or not a equal opportunity clause in any contract reasonable accommodation ultimately is identified Commonwealth of the Northern Mariana or subcontract with a state or local that will make the person a qualified individual. Islands, and Wake Island. government (or any agency, Contractors must engage in the interactive process (dd) Veteran means a person who instrumentality or subdivision thereof) because, until they have done so, they may be served in the active military, naval, or unable to determine whether a reasonable shall not be applicable to any agency, accommodation exists that will result in the person air service of the United States, and who instrumentality or subdivision of such being qualified. was discharged or released therefrom government which does not participate

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in work on or under the contract or EQUAL OPPORTUNITY FOR SECTION service or exchange will satisfy the subcontract. 4212 PROTECTED VETERANS 11 contractor’s listing obligation only if the (b) Waivers—(1) Specific contracts privately run job service or exchange 1. The contractor will not discriminate provides the information to the appropriate and classes of contracts. The Director against any employee or applicant for employment service delivery system in that may waive the application to any employment because he or she is a disabled manner and format in which the employment contract of the equal opportunity clause veteran, recently separated veteran, active service delivery system requires. in whole or part when he or she deems duty wartime or campaign badge veteran, or 3. Listing of employment openings with that special circumstances in the Armed Forces service medal veteran the appropriate employment service delivery national interest so require. The Director (hereinafter collectively referred to as system pursuant to this clause shall be made ‘‘protected veteran(s)’’) in regard to any at least concurrently with the use of any may also grant such waivers to groups position for which the employee or applicant or categories of contracts: Where it is in other recruitment source or effort and shall for employment is qualified. The contractor involve the normal obligations which attach the national interest; where it is found agrees to take affirmative action to employ, to the placing of a bona fide job order, impracticable to act upon each request advance in employment and otherwise treat including the acceptance of referrals of individually; and where such waiver qualified individuals without discrimination veterans and nonveterans. The listing of will substantially contribute to based on their status as a protected veteran employment openings does not require the convenience in administration of the in all employment practices, including the hiring of any particular job applicants or Act. When a waiver has been granted for following: from any particular group of job applicants, i. Recruitment, advertising, and job and nothing herein is intended to relieve the any class of contracts, the Director may application procedures. withdraw the waiver for a specific contractor from any requirements in ii. Hiring, upgrading, promotion, award of Executive orders or regulations regarding contract or group of contracts to be tenure, demotion, transfer, layoff, nondiscrimination in employment. awarded, when in his or her judgment termination, right of return from layoff and 4. Whenever a contractor, other than a state such action is necessary or appropriate rehiring. or local governmental contractor, becomes to achieve the purposes of the Act. The iii. Rates of pay or any other form of contractually bound to the listing provisions withdrawal shall not apply to contracts compensation and changes in compensation. in paragraphs 2 and 3 of this clause, it shall awarded prior to the withdrawal, except iv. Job assignments, job classifications, advise the employment service delivery organizational structures, position that in procurements entered into by system in each state where it has descriptions, lines of progression, and establishments that: (a) It is a Federal formal advertising, or the various forms seniority lists. contractor, so that the employment service of restricted formal advertising, such v. Leaves of absence, sick leave, or any delivery systems are able to identify them as other leave. withdrawal shall not apply unless the such; and (b) it desires priority referrals from vi. Fringe benefits available by virtue of withdrawal is made more than 10 the state of protected veterans for job employment, whether or not administered by calendar days before the date set for the openings at all locations within the state. The the contractor. opening of the bids. contractor shall also provide to the vii. Selection and financial support for employment service delivery system the (2) National security. Any training, including apprenticeship, and on- name and location of each hiring location requirement set forth in the regulations the-job training under 38 U.S.C. 3687, within the state and the contact information of this part shall not apply to any professional meetings, conferences, and other contract whenever the head of the related activities, and selection for leaves of for the contractor official responsible for contracting agency determines that such absence to pursue training. hiring at each location. In the event that the contractor uses any external job search contract is essential to the national viii. Activities sponsored by the contractor including social or recreational programs. organizations to assist in its hiring, the security and that its award without contractor shall also provide to the complying with such requirements is ix. Any other term, condition, or privilege of employment. employment service delivery system the necessary to the national security. Upon 2. The contractor agrees to immediately list contact information for the job search making such a determination, the head all employment openings which exist at the organization(s). The disclosures required by of the contracting agency will notify the time of the execution of this contract and this paragraph shall be updated on an annual Director in writing within 30 days. those which occur during the performance of basis. As long as the contractor is (3) Facilities not connected with this contract, including those not generated contractually bound to these provisions and has so advised the employment service contracts. The Director may waive the by this contract and including those occurring at an establishment of the delivery system, there is no need to advise requirements of the equal opportunity the employment service delivery system of clause with respect to any of a contractor other than the one where the contract is being performed, but excluding subsequent contracts. The contractor may contractor’s facilities which he or she those of independently operated corporate advise the employment service delivery finds to be in all respects separate and affiliates, with the appropriate employment system when it is no longer bound by this distinct from activities of the contractor service delivery system where the opening contract clause. related to the performance of the occurs. Listing employment openings with 5. The contractor shall maintain records on contract, provided that he or she also the state workforce agency job bank or with an annual basis of the number of priority finds that such a waiver will not the local employment service delivery system referrals of veterans protected by Section where the opening occurs will satisfy the 4212 that it receives from each employment interfere with or impede the effectuation service delivery system, the total number of of the Act. Such waivers shall be requirement to list jobs with the appropriate employment service delivery system. In order referrals it receives from each employment considered only upon the request of the to satisfy the listing requirement described service delivery system, and the ratio of contractor. herein, contractors must provide information priority referrals to total referrals. The about the job vacancy in the manner and contractor shall maintain these records for a § 60–300.5 Equal opportunity clause. format required by the appropriate period of five (5) years. (a) Government contracts. Each employment service delivery system to 6. The provisions of paragraphs 2 and 3 of contracting agency and each contractor permit that system to provide priority referral this clause do not apply to the listing of shall include the following equal of veterans protected by Section 4212 for that employment openings which occur and are opportunity clause in each of its job vacancy. Providing information on filled outside of the 50 states, the District of covered Government contracts or employment openings to a privately run job Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American subcontracts (and modifications, 11 The definitions set forth in 41 CFR 60–300.2 Samoa, the Commonwealth of the Northern renewals, or extensions thereof if not apply to the terms used throughout this Clause, and Mariana Islands, Wake Island, and the Trust included in the original contract): they are incorporated herein by reference. Territories of the Pacific Islands.

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7. As used in this clause: i. All employment contractor, a contractor will satisfy its under the Act. Such cooperation shall openings includes all positions except posting obligations by posting such notices in include insuring that the equal executive and senior management, those an electronic format, provided that the opportunity clause is included in all positions that will be filled from within the contractor provides computers that can covered Government contracts and that contractor’s organization, and positions access the electronic posting to such lasting three days or less. This term includes employees, or the contractor has actual contractors are fully informed of their full-time employment, temporary knowledge that such employees otherwise obligations under the Act and this part, employment of more than three days’ are able to access the electronically posted providing the Director with any duration, and part-time employment. notices. Electronic notices for employees information which comes to the ii. Executive and senior management must be posted in a conspicuous location and agency’s attention that a contractor is means: (1) Any employee (a) compensated on format on the company’s intranet or sent by not in compliance with the Act or this a salary basis at a rate of not less than $455 electronic mail to employees. An electronic part, responding to requests for per week (or $380 per week, if employed in posting must be used by the contractor to information from the Director, and American Samoa by employers other than the notify job applicants of their rights if the taking such actions for noncompliance Federal Government), exclusive of board, contractor utilizes an electronic application lodging or other facilities; (b) whose primary process. Such electronic applicant notice as are set forth in Sec. 60–300.66 as may duty is management of the enterprise in must be conspicuously stored with, or as part be ordered by the Secretary or the which the employee is employed or of a of, the electronic application. Director. customarily recognized department or 11. The contractor will notify each labor subdivision thereof; (c) who customarily and organization or representative of workers Subpart B—Discrimination Prohibited regularly directs the work of two or more with which it has a collective bargaining § 60–300.20 Covered employment other employees; and (d) who has the agreement or other contract understanding, activities. authority to hire or fire other employees or that the contractor is bound by the terms of whose suggestions and recommendations as Section 4212, and is committed to take The prohibition against to the hiring, firing, advancement, promotion affirmative action to employ and advance in discrimination in this part applies to the or any other change of status of other employment, and shall not discriminate following employment activities: employees are given particular weight; or (2) against, protected veterans. (a) Recruitment, advertising, and job any employee who owns at least a bona fide 12. The contractor will include the 20-percent equity interest in the enterprise in application procedures; provisions of this clause in every subcontract (b) Hiring, upgrading, promotion, which the employee is employed, regardless or purchase order of $100,000 or more, of whether the business is a corporate or unless exempted by the rules, regulations, or award of tenure, demotion, transfer, other type of organization, and who is orders of the Secretary issued pursuant to layoff, termination, right of return from actively engaged in its management. Section 4212 so that such provisions will be layoff, and rehiring; iii. Positions that will be filled from within binding upon each subcontractor or vendor. (c) Rates of pay or any other form of the contractor’s organization means The contractor will take such action with compensation and changes in employment openings for which no respect to any subcontract or purchase order compensation; consideration will be given to persons as the Director, Office of Federal Contract (d) Job assignments, job outside the contractor’s organization Compliance Programs, may direct to enforce classifications, organizational (including any affiliates, subsidiaries, and such provisions, including action for parent companies) and includes any structures, position descriptions, lines noncompliance. of progression, and seniority lists; openings which the contractor proposes to 13. The contractor must, in all solicitations fill from regularly established ‘‘recall’’ lists. or advertisements for employees placed by or (e) Leaves of absence, sick leave, or The exception does not apply to a particular on behalf of the contractor, state that all any other leave; opening once an employer decides to qualified applicants will receive (f) Fringe benefits available by virtue consider applicants outside of his or her own consideration for employment without regard of employment, whether or not organization. to their status as a protected veteran. administered by the contractor; 8. The contractor agrees to comply with the (g) Selection and financial support for rules, regulations, and relevant orders of the [End of Clause] training, including, apprenticeships, Secretary of Labor issued pursuant to the Act. (b) Subcontracts. Each contractor professional meetings, conferences and 9. In the event of the contractor’s shall include the equal opportunity noncompliance with the requirements of this other related activities, and selection for clause, actions for noncompliance may be clause in each of its subcontracts subject leaves of absence to pursue training; taken in accordance with the rules, to this part. (h) Activities sponsored by the regulations, and relevant orders of the (c) Adaption of language. Such contractor including social and Secretary of Labor issued pursuant to the Act. necessary changes in language may be recreational programs; and 10. The contractor agrees to post in made to the equal opportunity clause as (i) Any other term, condition, or conspicuous places, available to employees must be appropriate to identify properly privilege of employment. and applicants for employment, notices in a the parties and their undertakings. form to be prescribed by the Director, Office (d) Inclusion of the equal opportunity § 60–300.21 Prohibitions. of Federal Contract Compliance Programs, clause in the contract. It shall be The term discrimination includes, but provided by or through the contracting officer. Such notices shall state the rights of necessary to include the equal is not limited to, the acts described in applicants and employees as well as the opportunity clause verbatim in the this section and § 60–300.23. contractor’s obligation under the law to take contract. (a) Disparate treatment. It is unlawful affirmative action to employ and advance in (e) Incorporation by operation of the for the contractor to deny an employment qualified employees and Act. By operation of the Act, the equal employment opportunity or benefit or applicants who are protected veterans. The opportunity clause shall be considered otherwise to discriminate against a contractor must ensure that applicants or to be a part of every contract and qualified individual because of that employees who are disabled veterans are subcontract required by the Act and the individual’s status as a protected provided the notice in a form that is regulations in this part to include such veteran. accessible and understandable to the disabled veteran (e.g., providing Braille or a clause. (b) Limiting, segregating and large print versions of the notice, or posting (f) Duties of contracting agencies. classifying. Unless otherwise permitted the notice for visual accessibility to persons Each contracting agency shall cooperate by this part, it is unlawful for the in wheelchairs). With respect to employees with the Director and the Secretary in contractor to limit, segregate, or classify who do not work at a physical location of the the performance of their responsibilities a job applicant or employee in a way

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that adversely affects his or her demonstrate that the accommodation 4212 and are similarly inapplicable to employment opportunities or status on would impose an undue hardship on this part. the basis of that individual’s status as a the operation of its business. (h) Administration of tests. It is protected veteran. For example, the (2) It is unlawful for the contractor to unlawful for the contractor to fail to contractor may not segregate protected deny employment opportunities to an select and administer tests concerning veterans as a whole, or any applicant or employee who is a employment in the most effective classification of protected veterans, into qualified disabled veteran based on the manner to ensure that, when a test is separate work areas or into separate need of such contractor to make administered to a job applicant or lines of advancement. reasonable accommodation to such an employee who is a disabled veteran (c) Contractual or other individual’s physical or mental with a disability that impairs sensory, arrangements—(1) In general. It is impairments. manual, or speaking skills, the test unlawful for the contractor to (3) A qualified disabled veteran is not results accurately reflect the skills, participate in a contractual or other required to accept an accommodation, aptitude, or whatever other factor of the arrangement or relationship that has the aid, service, opportunity or benefit applicant or employee that the test effect of subjecting the contractor’s own which such qualified individual purports to measure, rather than qualified applicant or employee who is chooses not to accept. However, if such reflecting the impaired sensory, manual, a protected veteran to the individual rejects a reasonable or speaking skills of such employee or discrimination prohibited by this part. accommodation, aid, service, applicant, except where such skills are (2) Contractual or other arrangement opportunity or benefit that is necessary the factors that the test purports to ‘‘ defined. The phrase contractual or to enable the individual to perform the measure. ’’ other arrangement or relationship essential functions of the position held (i) Compensation. In offering includes, but is not limited to, a or desired, and cannot, as a result of that employment or promotions to protected relationship with: An employment or rejection, perform the essential veterans, it is unlawful for the referral agency; a labor organization, functions of the position, the individual contractor to reduce the amount of including a collective bargaining will not be considered a qualified compensation offered because of any agreement; an organization providing disabled veteran, unless the individual income based upon a disability-related fringe benefits to an employee of the subsequently provides and/or pays for a and/or military-service-related pension contractor; or an organization providing reasonable accommodation as described or other disability-related and/or training and apprenticeship programs. in paragraph 4 of Appendix A of this military-service-related benefit the (3) Application. This paragraph (c) part. applicant or employee receives from applies to the contractor, with respect to (g) Qualification standards, tests and another source. its own applicants or employees, other selection criteria—(1) In general. It whether the contractor offered the § 60–300.22 Direct threat defense. is unlawful for the contractor to use contract or initiated the relationship, or The contractor may use as a qualification standards, employment whether the contractor accepted the qualification standard the requirement tests or other selection criteria that contract or acceded to the relationship. that an individual be able to perform the screen out or tend to screen out The contractor is not liable for the essential functions of the position held individuals on the basis of their status actions of the other party or parties to or desired without posing a direct threat as protected veterans unless the the contract which only affect that other to the health or safety of the individual standard, test or other selection party’s employees or applicants. or others in the workplace. (See § 60– criterion, as used by the contractor, is (d) Standards, criteria or methods of 300.2(g) defining direct threat.). administration. It is unlawful for the shown to be job-related for the position contractor to use standards, criteria, or in question and is consistent with § 60–300.23 Medical examinations and methods of administration, that are not business necessity. Selection criteria inquiries. job-related and consistent with business that concern an essential function may (a) Prohibited medical examinations necessity, and that: not be used to exclude a disabled or inquiries. Except as stated in (1) Have the effect of discriminating veteran if that individual could satisfy paragraphs (b) and (c) of this section, it on the basis of status as a protected the criteria with provision of a is unlawful for the contractor to require veteran; or reasonable accommodation. Selection a medical examination of an applicant (2) Perpetuate the discrimination of criteria that exclude or tend to exclude or employee or to make inquiries as to others who are subject to common individuals on the basis of their status whether an applicant or employee is a administrative control. as protected veterans but concern only disabled veteran or as to the nature or (e) Relationship or association with a marginal functions of the job would not severity of such a veteran’s disability. protected veteran. It is unlawful for the be consistent with business necessity. (b) Permitted medical examinations contractor to exclude or deny equal jobs The contractor may not refuse to hire an and inquiries—(1) Acceptable pre- or benefits to, or otherwise discriminate applicant who is a disabled veteran employment inquiry. The contractor against, a qualified individual because because the applicant’s disability may make pre-employment inquiries of the known protected veteran status of prevents him or her from performing into the ability of an applicant to an individual with whom the qualified marginal functions. When considering a perform job-related functions, and/or individual is known to have a family, protected veteran for an employment may ask an applicant to describe or to business, social or other relationship or opportunity, the contractor may not rely demonstrate how, with or without association. on portions of such veteran’s military reasonable accommodation, the (f) Not making reasonable record, including his or her discharge applicant will be able to perform job- accommodation. (1) It is unlawful for papers, which are not relevant to the related functions. the contractor to fail to make reasonable qualification requirements of the (2) Employment entrance accommodation to the known physical opportunity in issue. examination. The contractor may or mental limitations of an applicant or (2) The Uniform Guidelines on require a medical examination (and/or employee who is a qualified disabled Employee Selection Procedures, 41 CFR inquiry) after making an offer of veteran, unless such contractor can part 60–3, do not apply to 38 U.S.C. employment to a job applicant and

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before the applicant begins his or her or history of any applicant or employee of drugs or for on-duty impairment by employment duties, and may condition shall not be used for any purpose alcohol; and remove from safety- an offer of employment on the results of inconsistent with this part. sensitive positions persons who test such examination (and/or inquiry), if all positive for illegal use of drugs or on- entering employees in the same job § 60–300.24 Drugs and alcohol. duty impairment by alcohol pursuant to category are subjected to such an (a) Specific activities permitted. The paragraph (b)(1) of this section. examination (and/or inquiry) regardless contractor: (1) May prohibit the illegal (3) Any information regarding the of their status as a disabled veteran. use of drugs and the use of alcohol at medical condition or history of any (3) Examination of employees. The the workplace by all employees; employee or applicant obtained from a contractor may require a medical (2) May require that employees not be test to determine the illegal use of drugs, examination (and/or inquiry) of an under the influence of alcohol or be except information regarding the illegal employee that is job-related and engaging in the illegal use of drugs at use of drugs, is subject to the consistent with business necessity. The the workplace; requirements of §§ 60–300.23(b)(5) and contractor may make inquiries into the (3) May require that all employees 60–300.23(d)(2). ability of an employee to perform job- behave in conformance with the requirements established under the § 60–300.25 Health insurance, life related functions. insurance and other benefit plans. (4) Other acceptable examinations Drug-Free Workplace Act of 1988 (41 and inquiries. The contractor may U.S.C. 701 et seq.); (a) An insurer, hospital, or medical conduct voluntary medical (4) May hold an employee who service company, health maintenance examinations and activities, including engages in the illegal use of drugs or organization, or any agent or entity that voluntary medical histories, which are who is an alcoholic to the same administers benefit plans, or similar part of an employee health program qualification standards for employment organizations may underwrite risks, available to employees at the work site. or job performance and behavior to classify risks, or administer such risks (5) Medical examinations conducted which the contractor holds its other that are based on or not inconsistent in accordance with paragraphs (b)(2) employees, even if any unsatisfactory with state law. and (b)(4) of this section do not have to performance or behavior is related to the (b) The contractor may establish, be job-related and consistent with employee’s drug use or alcoholism; sponsor, observe or administer the terms of a bona fide benefit plan that are based business necessity. However, if certain (5) May require that its employees on underwriting risks, classifying risks, criteria are used to screen out an employed in an industry subject to such or administering such risks that are applicant or applicants or an employee regulations comply with the standards based on or not inconsistent with state or employees who are disabled veterans established in the regulations (if any) of the Departments of Defense and law. as a result of such examinations or (c) The contractor may establish, inquiries, the contractor must Transportation, and of the Nuclear Regulatory Commission, and other sponsor, observe, or administer the demonstrate that the exclusionary terms of a bona fide benefit plan that is criteria are job-related and consistent Federal agencies regarding alcohol and the illegal use of drugs; and not subject to state laws that regulate with business necessity, and that insurance. performance of the essential job (6) May require that employees employed in sensitive positions comply (d) The contractor shall not deny a functions cannot be accomplished with qualified disabled veteran equal access reasonable accommodations as required with the regulations (if any) of the Departments of Defense and to insurance or subject a qualified in this part. disabled veteran to different terms or (c) Invitation to self-identify. The Transportation, and of the Nuclear Regulatory Commission, and other conditions of insurance based on contractor shall invite applicants to self- disability alone, if the disability does identify as being covered by the Act, as Federal agencies that apply to employment in sensitive positions not pose increased risks. specified in § 60–300.42. (e) The activities described in (d) Confidentiality and use of medical subject to such regulations. (b) Drug testing—(1) General policy. paragraphs (a), (b) and (c) of this section information. (1) Information obtained are permitted unless these activities are under this section regarding the medical For purposes of this part, a test to determine the illegal use of drugs is not used as a subterfuge to evade the condition or history of any applicant or purposes of this part. employee shall be collected and considered a medical examination. maintained on separate forms and in Thus, the administration of such drug Subpart C—Affirmative Action separate medical files and treated as a tests by the contractor to its job Program confidential medical record, except that: applicants or employees is not a (i) Supervisors and managers may be violation of Sec. 60–300.23. Nothing in § 60–300.40 Applicability of the affirmative informed regarding necessary this part shall be construed to action program requirement. restrictions on the work or duties of the encourage, prohibit, or authorize the (a) The requirements of this subpart applicant or employee and necessary contractor to conduct drug tests of job apply to every Government contractor accommodations; applicants or employees to determine that has 50 or more employees and a (ii) First aid and safety personnel may the illegal use of drugs or to make contract of $100,000 or more. be informed, when appropriate, if the employment decisions based on such (b) Contractors described in paragraph disability might require emergency test results. (a) of this section shall, within 120 days treatment; and (2) Transportation employees. of the commencement of a contract, (iii) Government officials engaged in Nothing in this part shall be construed prepare and maintain an affirmative enforcing the laws administered by to encourage, prohibit, or authorize the action program at each establishment. OFCCP, including this part, or enforcing otherwise lawful exercise by contractors The affirmative action program shall set the Americans with Disabilities Act, subject to the jurisdiction of the forth the contractor’s policies and shall be provided relevant information Department of Transportation of procedures in accordance with this part. on request. authority to test employees in, and This program may be integrated into or (2) Information obtained under this applicants for, positions involving kept separate from other affirmative section regarding the medical condition safety-sensitive duties for the illegal use action programs.

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(c) The affirmative action program invitations shall state that the statement on company bulletin boards. shall be reviewed and updated annually information is being requested on a The contractor must ensure that by the official designated by the voluntary basis, that it will be kept applicants and employees who are contractor pursuant to § 60–300.44(i). confidential, that refusal to provide it disabled veterans are provided the (d) The contractor shall submit the will not subject the applicant to any notice in a form that is accessible and affirmative action program within 30 adverse treatment, and that it will not be understandable to the disabled veteran days of a request from OFCCP, unless used in a manner inconsistent with the (e.g., providing Braille or large print the request provides for a different time. Act. (An acceptable form for such an versions of the notice, or posting the The contractor also shall make the invitation is set forth in Appendix B of notice for visual accessibility to persons affirmative action program promptly this part.) in wheelchairs). The policy statement available on-site upon OFCCP’s request. (d) If an applicant identifies himself shall indicate the chief executive or herself as a disabled veteran in the officer’s support for the contractor’s § 60–300.41 Availability of affirmative post-offer self-identification detailed in affirmative action program, provide for action program. paragraph (b) of this section, the an audit and reporting system (see The full affirmative action program contractor must inquire with the paragraph (h) of this section) and assign shall be available to any employee or applicant whether an accommodation is overall responsibility for the applicant for employment for inspection necessary, and if so, must engage in an implementation of affirmative action upon request. The location and hours interactive process with applicant activities required under this part (see during which the program may be regarding reasonable accommodation. paragraph (i) of this section). obtained shall be posted at each The contractor may make such inquiries Additionally, the policy shall state, establishment. In the event that the to the extent they are consistent with among other things, that the contractor contractor has employees who do not the Americans with Disabilities Act of will: Recruit, hire, train and promote work at a physical establishment, the 1990 (ADA), 42 U.S.C. 12101, (e.g., in persons in all job titles, and ensure that contractor shall inform such employees the context of asking applicants to all other personnel actions are about the availability of the affirmative describe or demonstrate how they administered, without regard to action program by other means. would perform the job). The contractor protected veteran status; and ensure that § 60–300.42 Invitation to self-identify. shall maintain a separate file in all employment decisions are based only on valid job requirements. The (a) Pre-offer. The contractor shall accordance with § 60–300.23(d) on persons who have self-identified as policy shall state that employees and invite applicants to inform the applicants shall not be subjected to contractor whether the applicant disabled veterans. (e) The contractor shall keep all harassment, intimidation, threats, believes that he or she is a protected information on self-identification coercion or discrimination because they veteran who may be covered by the Act. confidential. The contractor shall have engaged in or may engage in any This invitation may be included in the provide the information to OFCCP upon of the following activities: application materials for the position, request. This information may be used (1) Filing a complaint; but in any circumstance shall be only in accordance with this part. (2) Assisting or participating in an provided to applicants prior to making (f) Nothing in this section relieves the investigation, compliance evaluation, an offer of employment to a job contractor of its obligation to take hearing, or any other activity related to applicant. Additionally, the contractor affirmative action with respect to those the administration of the affirmative may invite disabled veterans to self- applicants or employees who are known action provisions of Section 4212 or any identify as such prior to making a job to the contractor to be protected other Federal, state or local law offer when: veterans. requiring equal opportunity for (1) The invitation is made when the (g) Nothing in this section relieves the protected veterans; contractor actually is undertaking (3) Opposing any act or practice made contractor from liability for affirmative action for disabled veterans unlawful by Section 4212 or its discrimination under the Act. at the pre-offer stage; or implementing regulations in this part or (2) The invitation is made pursuant to § 60–300.43 Affirmative action policy. any other Federal, state or local law a Federal, State, or local law requiring Under the affirmative action requiring equal opportunity for affirmative action for disabled veterans. obligations imposed by the Act, protected veterans; or (b) Post-offer. At any time after the contractors shall not discriminate (4) Exercising any other right offer of employment but before the against protected veterans, and shall protected by Section 4212 or its applicant begins his or her job duties, take affirmative action to employ and implementing regulations in this part. the contractor shall invite applicants to advance in employment qualified (b) Review of personnel processes. inform the contractor whether the protected veterans at all levels of The contractor shall ensure that its applicant believes that he or she is a employment, including the executive personnel processes provide for careful, disabled veteran, recently separated level. Such action shall apply to all thorough, and systematic consideration veteran, active duty wartime or employment activities set forth in § 60– of the job qualifications of applicants campaign badge veteran, or Armed 300.20. and employees who are known Forces service medal veteran who may protected veterans for job vacancies be covered by the Act. § 60–300.44 Required contents of filled either by hiring or promotion, and (c) The invitations referenced in affirmative action programs. for all training opportunities offered or paragraphs (a) and (b) of this section Acceptable affirmative action available. The contractor shall ensure shall state that a request to benefit under programs shall contain, but not that when a protected veteran is the affirmative action program may be necessarily be limited to, the following considered for employment made immediately and/or at any time in elements: opportunities, the contractor relies only the future. The invitations also shall (a) Policy statement. The contractor on that portion of the individual’s summarize the relevant portions of the shall include an equal opportunity military record, including his or her Act and the contractor’s affirmative policy statement in its affirmative action discharge papers, that is relevant to the action program. Furthermore, the program, and shall post the policy requirements of the opportunity in

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issue. The contractor shall ensure that for the position in question and are employee is in need of a reasonable its personnel processes do not consistent with business necessity. The accommodation. stereotype protected veterans in a contractor shall document the methods (e) Harassment. The contractor must manner which limits their access to all used to complete the annual review, the develop and implement procedures to jobs for which they are qualified. The results of the annual review, and any ensure that its employees are not contractor shall review such processes actions taken in response. These harassed because of their status as a on at least an annual basis and make documents shall be retained as protected veteran. any necessary modifications to ensure employment records subject to the (f) External dissemination of policy, that these obligations are carried out. A recordkeeping requirements of § 60– outreach and positive recruitment. description of the review and any 300.80. (1) Required outreach efforts. The necessary modifications to personnel (2) Whenever the contractor applies contractor shall undertake the outreach processes or development of new physical or mental qualification and positive recruitment activities listed processes shall be included in any standards in the selection of applicants below: affirmative action programs required or employees for employment or other (i) The contractor shall establish under this part. The contractor must change in employment status such as linkage agreements enlisting the design procedures that facilitate a promotion, demotion or training, to the assistance and support of the Local review of the implementation of this extent that qualification standards tend Veterans’ Employment Representative requirement by the contractor and the to screen out qualified disabled in the local employment service office Government. These procedures shall, at veterans, the standards shall be related nearest the contractor’s establishment; a minimum, include the following steps: to the specific job or jobs for which the and at least one of the following persons (1) For each applicant who is a individual is being considered and and organizations in recruiting and protected veteran, the contractor shall consistent with business necessity. The developing training opportunities for be able to identify: contractor has the burden to protected veterans to fulfill its (i) each vacancy for which the demonstrate that it has complied with commitment to provide meaningful applicant was considered; and the requirements of this paragraph employment opportunities to such (ii) each training program for which (c)(2). veterans: the applicant was considered. (A) The Department of Veterans (3) The contractor may use as a (2) For each employee who is a Affairs Regional Office nearest the defense to an allegation of a violation of protected veteran, the contractor shall contractor’s establishment; paragraph (c)(2) of this section that an be able to identify: (B) The veterans’ counselors and (i) each promotion for which the individual poses a direct threat to the coordinators (Vet-Reps) on college protected veteran was considered; and health or safety of the individual or campuses; (ii) each training program for which others in the workplace. (See § 60– (C) The service officers of the national the protected veteran was considered. 300.2(g) defining direct threat.) Once the veterans’ groups active in the area of the (3) In each case where an employee or contractor believes that a direct threat contractor’s establishment; applicant who is a protected veteran is exists, the contractor shall create a (D) Local veterans’ groups and rejected for employment, promotion, or statement of reasons supporting its veterans’ service centers near the training, the contractor shall prepare a belief, addressing each the criteria for contractor’s establishment; and statement of the reason as well as a ‘‘direct threat’’ listed in § 60–300.2(f). (E) The Department of Defense description of the accommodations This statement shall be treated as a Transition Assistance Program (TAP), or considered (for a rejected disabled confidential medical record in any subsequent program that, in whole veteran). The statement of the reason for accordance with § 60–300.23, and shall or in part, might replace TAP. rejection (if the reason is medically be retained as an employment record (ii) The contractor shall also consult related), and the description of the subject to the recordkeeping the Employer Resources section of the accommodations considered, shall be requirements of § 60–300.80. National Resource Directory (http:// treated as confidential medical records (d) Reasonable accommodation to www.nationalresourcedirectory.gov/ in accordance with § 60–300.23(d). physical and mental limitations. As is employment/employer_resources), or These materials shall be available to the provided in § 60–300.21(f), as a matter any future service that replaces or applicant or employee concerned upon of nondiscrimination the contractor complements it, and tablish a linkage request. must make reasonable accommodation agreement with one or more of the (4) Where applicants or employees are to the known physical or mental veterans’ service organizations listed on selected for hire, promotion, or training limitations of an otherwise qualified the directory, other than the agencies and the contractor undertakes any disabled veteran unless it can listed in (A) through (E) above, for such accommodation which makes it possible demonstrate that the accommodation purposes as advice, technical assistance, to place a disabled veteran on the job, would impose an undue hardship on and referral of potential employees. the contractor shall make a record the operation of its business. As a matter Technical assistance from the resources containing a description of the of affirmative action, if an employee described in this paragraph may consist accommodation. The record shall be who is known to be a disabled veteran of advice on proper placement, treated as a confidential medical record is having significant difficulty recruitment, training and in accordance with § 60–300.23(d). performing his or her job and it is accommodations contractors may (c) Physical and mental reasonable to conclude that the undertake, but no such resource qualifications. (1) The contractor shall performance problem may be related to providing technical assistance shall provide in its affirmative action the known disability, the contractor have authority to approve or disapprove program, and shall adhere to, a schedule shall confidentially notify the employee the acceptability of affirmative action for the annual review of all physical and of the performance problem and inquire programs. mental job qualification standards to whether the problem is related to the (iii) The contractor must send written ensure that, to the extent qualification employee’s disability; if the employee notification of company policy related standards tend to screen out qualified responds affirmatively, the contractor to its affirmative action efforts to all disabled veterans, they are job-related shall confidentially inquire whether the subcontractors, including

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subcontracting vendors and suppliers, evaluate the effectiveness of each effort individual responsibility for effective requesting appropriate action on their and the contractor’s conclusion as to implementation, making clear the chief part. whether each effort was effective. executive officer’s attitude; (2) Suggested outreach efforts. The Among these criteria shall be the data (iv) Discuss the policy thoroughly in contractor should consider taking the collected pursuant to paragraph (k) of any employee orientation and actions listed below to fulfill its this section for the current year and the management training programs; commitment to provide meaningful two most recent previous years. The (v) If the contractor is party to a employment opportunities to protected contractor’s conclusion as to the collective bargaining agreement, it shall veterans: effectiveness of its outreach efforts shall meet with union officials and/or (i) Formal briefing sessions should be be reasonable as determined by OFCCP employee representatives to inform held, preferably on company premises, in light of these regulations. If the them of the contractor’s policy, and with representatives from recruiting contractor concludes the totality of its request their cooperation; sources. Contractor facility tours, clear efforts were not effective in identifying (3) The contractor is encouraged to and concise explanations of current and and recruiting qualified protected additionally implement and disseminate future job openings, position veterans, it shall identify and this policy internally as follows: descriptions, worker specifications, implement alternative efforts listed in (i) If the contractor has a company explanations of the company’s selection paragraphs (f)(1) or (f)(2) of this section newspaper, magazine, annual report, or process, and recruiting literature should in order to fulfill its obligations. other paper or electronic publication be an integral part of the briefing. At any (4) Recordkeeping Obligation. The distributed to employees, it should such briefing sessions, the company contractor shall document all linkage publicize its affirmative action policy in official in charge of the contractor’s agreements and all other activities it these publications, and include in these affirmative action program should be in undertakes to comply with the publications, where appropriate, attendance when possible. Formal obligations of this paragraph, and retain features on disabled veteran employees arrangements should be made for these documents for a period of five (5) and articles on the accomplishments of referral of applicants, follow up with years. protected veterans, with their consent. sources, and feedback on disposition of (g) Internal dissemination of policy. (4) The contractor shall document applicants. (1) A strong outreach program will be those activities it undertakes to comply (ii) The contractor’s recruitment ineffective without adequate internal with the obligations of paragraph (g), efforts at all educational institutions support from supervisory and and retain these documents as should incorporate special efforts to management personnel and other employment records subject to the reach students who are protected employees. In order to assure greater recordkeeping requirements of § 60– veterans. employee cooperation and participation 300.80. (iii) An effort should be made to in the contractor’s efforts, the contractor (h) Audit and reporting system. participate in work-study programs with shall develop the internal procedures (1) The contractor shall design and Department of Veterans Affairs listed in paragraph (g)(2) of this section implement an audit and reporting rehabilitation facilities which specialize for communication of its obligation to system that will: in training or educating disabled engage in affirmative action efforts to (i) Measure the effectiveness of the veterans. employ and advance in employment contractor’s affirmative action program; (iv) Protected veterans should be qualified protected veterans. It is not (ii) Indicate any need for remedial made available for participation in contemplated that the contractor’s action; career days, youth motivation programs, activities will be limited to those listed. (iii) Determine the degree to which and related activities in their These procedures shall be designed to the contractor’s objectives have been communities. foster understanding, acceptance and attained; (v) The contractor should take any support among the contractor’s (iv) Determine whether known other positive steps it deems necessary executive, management, supervisory protected veterans have had the to attract qualified protected veterans and other employees and to encourage opportunity to participate in all not currently in the work force who such persons to take the necessary company sponsored educational, have requisite skills and can be actions to aid the contractor in meeting training, recreational and social recruited through affirmative action this obligation. activities; measures. These persons may be located (2) The contractor shall implement (v) Measure the contractor’s through the local chapters of and disseminate this policy internally as compliance with the affirmative action organizations of and for any of the follows: program’s specific obligations; and classifications of protected veterans. (i) Include it in the contractor’s policy (vi) Document the actions taken to (vi) The contractor, in making hiring manual; comply with the obligations of decisions, shall consider applicants who (ii) Inform all employees and paragraphs (i) through (v) above, and are known protected veterans for all prospective employees of its retain these documents as employment available positions for which they may commitment to engage in affirmative records subject to the recordkeeping be qualified when the position(s) action to increase employment requirements of § 60–300.80. applied for is unavailable. opportunities for qualified protected (2) Where the affirmative action (3) Assessment of External Outreach veterans. The contractor shall schedule program is found to be deficient, the and Recruitment Efforts. The contractor meetings on an annual basis with all contractor shall undertake necessary shall, on an annual basis, review the employees to discuss its affirmative action to bring the program into outreach and recruitment efforts it has action policies, explain contractor and compliance. taken over the previous twelve months individual employee responsibilities (i) Responsibility for implementation. to evaluate their effectiveness in under these policies, and identify An official of the contractor shall be identifying and recruiting qualified opportunities for advancement; assigned responsibility for protected veterans. The contractor shall (iii) Conduct meetings with executive, implementation of the contractor’s document each evaluation, including at management, and supervisory personnel affirmative action activities under this a minimum the criteria it used to to explain the intent of the policy and part. His or her identity shall appear on

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all internal and external (10) The total number of applicants without discrimination based on their communications regarding the hired; and status as a protected veteran in all company’s affirmative action program. (11) The ratio of protected veterans employment practices. A compliance This official shall be given necessary hired to all hires (hiring ratio). The evaluation may consist of any one or senior management support and staff to number of hires shall include all any combination of the following manage the implementation of this employees as defined in § 60–300.2. investigative procedures: program. (1) Compliance review. A (j) Training. In addition to the training § 60–300.45 Contractor established comprehensive analysis and evaluation set forth in paragraph (g)(2)(ii) of this benchmarks for hiring. of the hiring and employment practices section, all personnel involved in the (a) Purpose: The purpose of of the contractor, the written affirmative recruitment, screening, selection, establishing benchmarks is to create a action program, and the results of the promotion, disciplinary, and related quantifiable method by which the affirmative action efforts undertaken by processes shall be trained to ensure that contractor can measure its progress the contractor. A compliance review the commitments in the contractor’s toward achieving equal employment may proceed in three stages: affirmative action program are opportunity for protected veterans. (i) A desk audit of the written implemented. This training shall (b) Hiring benchmarks, expressed as affirmative action program and include, but not be limited to, the the percentage of total hires that are supporting documentation to determine benefits of employing protected protected veterans that the contractor whether all elements required by the veterans, appropriate sensitivity toward will seek to hire, shall be established by regulations in this part are included, protected veteran applicants and the contractor on an annual basis. In whether the affirmative action program employees, and the legal responsibilities establishing these benchmarks, meets agency standards of of the contractor and its agents contractors shall take into account the reasonableness, and whether the regarding protected veterans generally following information: affirmative action program and and disabled veterans specifically, such (1) The average percentage of veterans supporting documentation satisfy as reasonable accommodation for in the civilian labor force in the State(s) agency standards of acceptability. qualified disabled veterans and the where the contractor is located over the OFCCP may extend the temporal scope related rights and responsibilities of preceding three years, as calculated by of the desk audit beyond that set forth contractors and protected veterans. The the Bureau of Labor Statistics and in the scheduling letter if OFCCP deems contractor shall create contemporaneous published on the OFCCP Web site; it necessary to carry out its investigation records documenting the specific (2) The number of veterans, over the of potential violations of this Part. The subject matter(s) covered in the training, previous four quarters, who were desk audit is conducted at OFCCP who conducted the training, who participants in the employment service offices; received the training, and when the delivery system in the State where the (ii) An on-site review, conducted at the contractor’s establishment to training took place. The contractor shall contractor is located, as tabulated by the investigate unresolved problem areas retain these documents, and any written Veterans’ Employment and Training identified in the affirmative action or electronic materials used for the Service and published on the OFCCP program and supporting documentation training required by this section, as Web site; during the desk audit, to verify that the employment records subject to the (3) The referral ratio, applicant ratio, contractor has implemented the recordkeeping requirements of § 60– and hiring ratio for the previous year, as affirmative action program and has 300.80. set forth in § 60–300.44(k); (k) Data Collection Analysis. The (4) The contractor’s recent complied with those regulatory contractor shall document and maintain assessments of the effectiveness of its obligations not required to be included the following computations or external outreach and recruitment in the affirmative action program, and to comparisons pertaining to applicants efforts, as set forth in § 60–300.44(f)(3); examine potential instances or issues of and hires on an annual basis: and discrimination. An on-site review (1) The number of priority referrals of (5) Any other factors, including but normally will involve an examination of veterans protected by this part that the not limited to the nature of the the contractor’s personnel and contractor received from applicable contractor’s job openings and/or its employment policies, inspection and employment service delivery system(s); location, which would tend to affect the copying of documents related to (2) The number of total referrals that availability of qualified protected employment actions, and interviews the contractor received from applicable veterans. with employees, supervisors, managers, employment service delivery system(s); (c) The contractor shall document the hiring officials; and (3) The ratio of priority referrals of hiring benchmark it has established (iii) Where necessary, an off-site veterans to total referrals (referral ratio); each year, detailing each of the factors analysis of information supplied by the (4) The number of applicants who that it considered in establishing the contractor or otherwise gathered during self-identified as protected veterans hiring benchmark and the relative or pursuant to the on-site review; pursuant to § 60–300.42(a), or who are significance of each of these factors. The (2) Off-site review of records. An otherwise known as protected veterans; contractor shall retain this document for analysis and evaluation of the (5) The total number of job openings a period of five (5) years. affirmative action program (or any part and total number of jobs filled; thereof) and supporting documentation, (6) The ratio of jobs filled to job Subpart D—General Enforcement and and other documents related to the openings; Complaint Procedures contractor’s personnel policies and (7) The total number of applicants for employment actions that may be all jobs; § 60–300.60 Compliance evaluations. relevant to a determination of whether (8) The ratio of protected veteran (a) OFCCP may conduct compliance the contractor has complied with the applicants to all applicants (applicant evaluations to determine if the requirements of Section 4212 and its ratio); contractor is taking affirmative action to regulations; (9) The number of protected veteran employ, advance in employment and (3) Compliance check. A applicants hired; otherwise treat qualified individuals determination of whether the contractor

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has maintained records consistent with authorized representative, file a written and the other information specified in § 60–300.80; OFCCP may request the complaint alleging a violation of the Act paragraph (b)(1) of this section. OFCCP documents be provided either on-site or or the regulations in this part. The shall verify the authorization of such a off-site; or complaint may allege individual or complaint by the person on whose (4) Focused review. A review class-wide violation(s). Such complaint behalf the complaint is made. Any such restricted to one or more components of must be filed within 300 days of the person may request that OFCCP keep the contractor’s organization or one or date of the alleged violation, unless the his or her identity confidential, and more aspects of the contractor’s time for filing is extended by OFCCP for OFCCP will protect the individual’s employment practices. good cause shown. Complaints may be confidentiality wherever that is possible (b) Where deficiencies are found to submitted to OFCCP, 200 Constitution given the facts and circumstances in the exist, reasonable efforts shall be made to Avenue, NW., Washington, DC 20210, complaint. secure compliance through conciliation or to any OFCCP regional, district, or (c) Incomplete information. Where a and persuasion pursuant to § 60–300.62. area office. Complaints may also be complaint contains incomplete (c) Reporting Requirements. During a submitted to the Veterans’ Employment information, OFCCP shall seek the compliance evaluation, OFCCP may and Training Service of the Department needed information from the verify whether the contractor has of Labor directly, or through the Local complainant. If the information is not complied with applicable reporting Veterans’ Employment Representative furnished to OFCCP within 60 days of requirements required under regulations (LVER) at the local employment service the date of such request, the case may promulgated by the Veterans’ office. Such parties will assist veterans be closed. Employment and Training Service in preparing complaints, promptly refer (d) Investigations. The Department of (VETS). If the contractor has not such complaints to OFCCP, and Labor shall institute a prompt complied with any such reporting maintain a record of all complaints investigation of each complaint. requirement, OFCCP will notify VETS. which they receive and forward. OFCCP (e) Resolution of matters. (1) If the (d) Pre-award compliance shall inform the party forwarding the complaint investigation finds no evaluations. Each agency will include in complaint of the progress and results of violation of the Act or this part, or if the the invitation for bids for each formally its complaint investigation. The state Director decides not to refer the matter advertised nonconstruction contract or employment service delivery system to the Solicitor of Labor for enforcement state at the outset of negotiations for shall cooperate with the Director in the proceedings against the contractor each negotiated contract, that if the investigation of any complaint. pursuant to § 60–300.65(a)(1), the award, when let, should total $10 (b) Contents of complaints.—(1) In complainant and contractor shall be so million or more, the prospective general. A complaint must be signed by notified. The Director, on his or her own contractor and its known first-tier the complainant or his or her authorized initiative, may reconsider his or her subcontractors with subcontracts of $10 representative and must contain the determination or the determination of million or more will be subject to a following information: any of his or her designated officers who compliance evaluation before the award (i) Name and address (including have authority to issue Notifications of of the contract unless OFCCP has telephone number) of the complainant; Results of Investigation. conducted an evaluation and found (ii) Name and address of the (2) The Director will review all them to be in compliance with Section contractor who committed the alleged determinations of no violation that 4212 within the preceding 24 months. violation; involve complaints that are not also The awarding agency will notify OFCCP (iii) Documentation showing that the cognizable under Title I of the and request appropriate action and individual is a protected veteran. Such Americans with Disabilities Act. findings in accordance with this documentation must include a copy of (3) In cases where the Director subsection. Within 15 days of the notice the veteran’s form DD–214, and, where decides to reconsider the determination OFCCP will inform the awarding agency applicable, a copy of the veteran’s of a Notification of Results of of its intention to conduct a pre-award Benefits Award Letter, or similar Investigation, the Director shall provide compliance evaluation. If OFCCP does Department of Veterans Affairs prompt notification of his or her intent not inform the awarding agency within certification, updated within one year to reconsider, which is effective upon that period of its intention to conduct a prior to the date the complaint is filed; issuance, and his or her final pre-award compliance evaluation, (iv) A description of the act or acts determination after reconsideration, to clearance shall be presumed and the considered to be a violation, including the person claiming to be aggrieved, the awarding agency is authorized to the pertinent dates (in the case of an person making the complaint on behalf proceed with the award. If OFCCP alleged continuing violation, the earliest of such person, if any, and the informs the awarding agency of its and most recent date that the alleged contractor. intention to conduct a pre-award violation occurred should be stated); (4) If the investigation finds a compliance evaluation, OFCCP will be and violation of the Act or this part, OFCCP allowed an additional 20 days after the (v) Other pertinent information shall invite the contractor to participate date that it so informs the awarding available which will assist in the in conciliation discussions pursuant to agency to provide its conclusions. If investigation and resolution of the § 60–300.62. OFCCP does not provide the awarding complaint, including the name of any agency with its conclusions within that known Federal agency with which the § 60–300.62 Conciliation agreements. period, clearance will be presumed and employer has contracted. If a compliance evaluation, complaint the awarding agency is authorized to (2) Third party complaints. A investigation or other review by OFCCP proceed with the award. . complaint filed by an authorized finds a material violation of the Act or representative need not identify by this part, and if the contractor is willing § 60–300.61 Complaint procedures. name the person on whose behalf it is to correct the violations and/or (a) Place and time of filing. Any filed. The person filing the complaint, deficiencies, and if OFCCP determines applicant for employment with a however, shall provide OFCCP with the that settlement on that basis (rather than contractor or any employee of a name, address and telephone number of referral for consideration of formal contractor may, personally, or by an the person on whose behalf it is made, enforcement) is appropriate, a written

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conciliation agreement shall be with the conciliation procedures in this § 60–300.66 Sanctions and penalties. required. The agreement shall provide part, or OFCCP determines that referral (a) Withholding progress payments. for such remedial action as may be for consideration of formal enforcement With the prior approval of the Director, necessary to correct the violations and/ (rather than settlement) is appropriate, so much of the accrued payment due on or deficiencies noted, including, where OFCCP may refer the matter to the the contract or any other contract appropriate (but not necessarily limited Solicitor of Labor with a between the Government contractor and to) such make whole remedies as back recommendation for the institution of the Federal Government may be pay and retroactive seniority. The enforcement proceedings to enjoin the withheld as necessary to correct any agreement shall also specify the time violations, to seek appropriate relief, violations of the provisions of the Act or period for completion of the remedial and to impose appropriate sanctions, or this part. action; the period shall be no longer any of the above in this sentence. (b) Termination. A contract may be than the minimum period necessary to OFCCP may seek back pay and other canceled or terminated, in whole or in complete the action. make whole relief for aggrieved part, for failure to comply with the individuals identified during a provisions of the Act or this part. § 60–300.63 Violation of conciliation complaint investigation or compliance (c) Debarment. A contractor may be agreements. evaluation. Such individuals need not debarred from receiving future contracts (a) When OFCCP believes that a have filed a complaint as a prerequisite for failure to comply with the provisions conciliation agreement has been to OFCCP seeking such relief on their of the Act or this part subject to violated, the following procedures are behalf. Interest on back pay shall be reinstatement pursuant to § 60–300.68. applicable: calculated from the date of the loss and Debarment may be imposed for an (1) A written notice shall be sent to compounded quarterly at the percentage indefinite period, or may be imposed for the contractor setting forth the violation rate established by the Internal Revenue a fixed period of not less than six alleged and summarizing the supporting Service for the underpayment of taxes. months but no more than three years. evidence. The contractor shall have 15 (2) In addition to the administrative (d) Hearing opportunity. An days from receipt of the notice to proceedings set forth in this section, the opportunity for a formal hearing shall be respond, except in those cases in which Director may, within the limitations of afforded to a contractor before the OFCCP asserts that such a delay would applicable law, seek appropriate judicial imposition of any sanction or penalty. result in irreparable injury to the action to enforce the contractual employment rights of affected provisions set forth in § 60–300.5, § 60–300.67 Notification of agencies. employees or applicants. including appropriate injunctive relief. The Director shall ensure that the (2) During the 15-day period the (b) Hearing practice and procedure. heads of all agencies are notified of any contractor may demonstrate in writing (1) In administrative enforcement debarments taken against any that it has not violated its commitments. proceedings the contractor shall be contractor. (b) In those cases in which OFCCP provided an opportunity for a formal hearing. All hearings conducted under § 60–300.68 Reinstatement of ineligible asserts that a delay would result in contractors. irreparable injury to the employment the Act and this part shall be governed rights of affected employees or by the Rules of Practice for (a) Application for reinstatement. A applicants, enforcement proceedings Administrative Proceedings to Enforce contractor debarred from further may be initiated immediately without Equal Opportunity Under Executive contracts for an indefinite period under proceeding through any other Order 11246 contained in 41 CFR part the Act may request reinstatement in a requirement contained in this chapter. 60–30 and the Rules of Evidence set out letter filed with the Director at any time (c) In any proceedings involving an in the Rules of Practice and Procedure after the effective date of the debarment; alleged violation of a conciliation for Administrative Hearings Before the a contractor debarred for a fixed period agreement OFCCP may seek Office of Administrative Law Judges may make such a request following the enforcement of the agreement itself and contained in 29 CFR part 18, subpart B: expiration of six months from the shall not be required to present proof of Provided, That a final administrative effective date of the debarment. In the underlying violations resolved by order shall be issued within one year connection with the reinstatement the agreement. from the date of the issuance of the proceedings, all debarred contractors recommended findings, conclusions and shall be required to show that they have § 60–300.64 Show cause notices. decision of the Administrative Law established and will carry out When the Director has reasonable Judge, or the submission of exceptions employment policies and practices in cause to believe that the contractor has and responses to exceptions to such compliance with the Act and this part. violated the Act or this part, he or she decision (if any), whichever is later. Additionally, in determining whether may issue a notice requiring the (2) Complaints may be filed by the reinstatement is appropriate for a contractor to show cause, within 30 Solicitor, the Associate Solicitor for contractor debarred for a fixed period, days, why monitoring, enforcement Civil Rights and Labor-Management, the Director also shall consider, among proceedings or other appropriate action Regional Solicitors, and Associate other factors, the severity of the to ensure compliance should not be Regional Solicitors. violation which resulted in the instituted. The issuance of such a notice (3) For the purposes of hearings debarment, the contractor’s attitude is not a prerequisite to instituting pursuant to this part, references in 41 towards compliance, the contractor’s enforcement proceedings (see § 60– CFR part 60–30 to ‘‘Executive Order past compliance history, and whether 300.65). 11246’’ shall mean the Vietnam Era the contractor’s reinstatement would Veterans’ Readjustment Assistance Act impede the effective enforcement of the § 60–300.65 Enforcement proceedings. of 1974, as amended; references to Act or this part. Before reaching a (a) General. (1) If a compliance ‘‘equal opportunity clause’’ shall mean decision, the Director may conduct a evaluation, complaint investigation or the equal opportunity clause published compliance evaluation of the contractor other review by OFCCP finds a violation at § 60–300.5; and references to and may require the contractor to of the Act or this part, and the violation ‘‘regulations’’ shall mean the regulations supply additional information regarding has not been corrected in accordance contained in this part. the request for reinstatement. The

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Director shall issue a written decision efforts to comply, shall be determined opportunity clause in § 250.5(a) shall be on the request. by the disputes clause of the contract. maintained by all contractors for a (b) Petition for review. Within 30 days period of five years from the date of the of its receipt of a decision denying a Subpart E—Ancillary Matters making of the record. request for reinstatement, the contractor § 60–300.80 Recordkeeping. (b) Failure to preserve records. Failure may file a petition for review of the to preserve complete and accurate (a) General requirements. Any decision with the Secretary. The records as required by this part personnel or employment record made petition shall set forth the grounds for constitutes noncompliance with the or kept by the contractor shall be the contractor’s objections to the contractor’s obligations under the Act preserved by the contractor for a period Director’s decision. The petition shall be and this part. Where the contractor has of two years from the date of the making served on the Director and the Associate destroyed or failed to preserve records of the record or the personnel action Solicitor for Civil Rights and Labor- as required by this section, there may be involved, whichever occurs later. a presumption that the information Management and shall include the However, if the contractor has fewer destroyed or not preserved would have decision as an appendix. The Director than 150 employees or does not have a been unfavorable to the contractor: may file a response within 14 days to Government contract of at least Provided, That this presumption shall the petition. The Secretary shall issue $150,000, the minimum record retention the final agency decision denying or period will be one year from the date of not apply where the contractor shows granting the request for reinstatement. the making of the record or the that the destruction or failure to Before reaching a final decision, the personnel action involved, whichever preserve records results from Secretary may issue such additional occurs later. Such records include, but circumstances that are outside of the orders respecting procedure as he or she are not necessarily limited to, records contractor’s control. (c) The requirements of this section finds appropriate in the circumstances, relating to requests for reasonable shall apply only to records made or kept including an order referring the matter accommodation; the results of any on or after the date that the Office of to the Office of Administrative Law physical examination; job Judges for an evidentiary hearing where advertisements and postings; Management and Budget has cleared the there is a material factual dispute that applications and resumes; tests and test requirements. cannot be resolved on the record before results; interview notes; and other § 60–300.81 Access to records. the Secretary. records having to do with hiring, Each contractor shall permit access § 60–300.69 Intimidation and interference. assignment, promotion, demotion, during normal business hours to its transfer, lay-off or termination, rates of (a) The contractor shall not harass, places of business for the purpose of pay or other terms of compensation, and intimidate, threaten, coerce, or conducting on-site compliance selection for training or apprenticeship. discriminate against any individual evaluations and complaint In the case of involuntary termination of because the individual has engaged in investigations and inspecting and an employee, the personnel records of or may engage in any of the following copying such books, accounts, and the individual terminated shall be kept activities: records, including electronic records, for a period of two years from the date (1) Filing a complaint; and any other material OFCCP deems (2) Assisting or participating in any of the termination, except that relevant to the matter under manner in an investigation, compliance contractors that have fewer than 150 investigation and pertinent to evaluation, hearing, or any other activity employees or that do not have a compliance with the Act or this part. related to the administration of the Act Government contract of at least Contractors must also provide OFCCP or any other Federal, state or local law $150,000 shall keep such records for a access to these materials, including requiring equal opportunity for period of one year from the date of the electronic records, off-site for purposes protected veterans; termination. Where the contractor has of conducting compliance evaluations (3) Opposing any act or practice made received notice that a complaint of and complaint investigations. Upon unlawful by the Act or this part or any discrimination has been filed, that a request, the contractor must provide other Federal, state or local law compliance evaluation has been OFCCP information about all format(s), requiring equal opportunity for initiated, or that an enforcement action including specific electronic formats, in protected veterans, or has been commenced, the contractor which its records and other information (4) Exercising any other right shall preserve all personnel records are available. The contractor must protected by the Act or this part. relevant to the complaint, compliance provide records and other information (b) The contractor shall ensure that all evaluation or action until final in any available format requested by persons under its control do not engage disposition of the complaint, OFCCP. Information obtained in this in such harassment, intimidation, compliance evaluation or action. The manner shall be used only in threats, coercion or discrimination. The term personnel records relevant to the connection with the administration of sanctions and penalties contained in complaint, compliance evaluation or the Act and in furtherance of the this part may be exercised by the action would include, for example, purposes of the Act. Director against any contractor who personnel or employment records violates this obligation. relating to the aggrieved person and to § 60–300.82 Labor organizations and all other employees holding positions recruiting and training agencies. § 60–300.70 Disputed matters related to similar to that held or sought by the (a) Whenever performance in compliance with the Act. aggrieved person, and application forms accordance with the equal opportunity The procedures set forth in the or test papers completed by an clause or any matter contained in the regulations in this part govern all unsuccessful applicant and by all other regulations in this part may necessitate disputes relative to the contractor’s candidates for the same position as that a revision of a collective bargaining compliance with the Act and this part. for which the aggrieved person applied agreement, the labor organizations Any disputes relating to issues other and was rejected. Records required by which are parties to such agreement than compliance, including contract §§ 60–250.44(f)(4), 60–250.44(k), 60– shall be given an adequate opportunity costs arising out of the contractor’s 250.45(c), and Paragraph 5 of the equal to present their views to OFCCP.

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(b) OFCCP shall use its best efforts, those required as a matter of accommodations may be necessary: (1) directly or through contractors, nondiscrimination. An example of this is the Accommodations in the application process; subcontractors, local officials, the requirement discussed in paragraph 2 of this (2) accommodations that enable employees Department of Veterans Affairs, appendix that a contractor shall make an who are disabled veterans to perform the inquiry of a disabled veteran who is having essential functions of the position held or vocational rehabilitation facilities, and significant difficulty performing his or her desired; and (3) accommodations that enable all other available instrumentalities, to job. employees who are disabled veterans to cause any labor organization, recruiting 1. A contractor is required to make enjoy equal benefits and privileges of and training agency or other reasonable accommodations to the known employment as are enjoyed by employees representative of workers who are physical or mental limitations of an without disabilities. employed by a contractor to cooperate ‘‘otherwise qualified’’ disabled veteran, 4. The term ‘‘undue hardship’’ refers to any with, and to assist in, the unless the contractor can demonstrate that accommodation that would be unduly costly, extensive, substantial, or disruptive, or that implementation of the purposes of the the accommodation would impose an undue hardship on the operation of its business. As would fundamentally alter the nature or Act. stated in § 60–300.2(t), a disabled veteran is operation of the contractor’s business. The contractor’s claim that the cost of a particular § 60–300.83 Rulings and interpretations. qualified if he or she has the ability to perform the essential functions of the accommodation will impose an undue Rulings under or interpretations of the position with or without reasonable hardship requires a determination of which Act and this part shall be made by the accommodation. A contractor is required to financial resources should be considered— Director. make a reasonable accommodation with those of the contractor in its entirety or only respect to its application process if the those of the facility that will be required to § 60–300.84 Responsibilities of disabled veteran is qualified with respect to provide the accommodation. This inquiry appropriate employment service delivery that process. One is ‘‘otherwise qualified’’ if requires an analysis of the financial system. he or she is qualified for a job, except that, relationship between the contractor and the By statute, appropriate employment because of a disability, he or she needs a facility in order to determine what resources service delivery systems are required to reasonable accommodation to be able to will be available to the facility in providing refer qualified protected veterans to fill perform the job’s essential functions. the accommodation. If the contractor can show that the cost of the accommodation employment openings listed by 2. Although the contractor would not be expected to accommodate disabilities of would impose an undue hardship, it would contractors with such appropriate still be required to provide the employment delivery systems pursuant which it is unaware, the contractor has an affirmative obligation to provide a reasonable accommodation if the funding is available from another source, e.g., the Department of to the mandatory job listing accommodation for applicants and Veterans Affairs or a state vocational requirements of the equal opportunity employees who are known to be disabled rehabilitation agency, or if Federal, state or clause and are required to give priority veterans. As stated in § 60–300.42(a) (see also local tax deductions or tax credits are to protected veterans in making such Appendix B of this part), the contractor is available to offset the cost of the referrals. The employment service required to invite applicants who have been accommodation. In the absence of such delivery systems shall provide OFCCP, provided an offer of employment, before they funding, the disabled veteran must be given upon request, information pertinent to are placed on the contractor’s payroll, to the option of providing the accommodation whether the contractor is in compliance indicate whether they are a disabled veteran or of paying that portion of the cost which with the mandatory job listing who may be covered by the Act and wish to constitutes the undue hardship on the benefit under the contractor’s affirmative operation of the business. requirements of the equal opportunity action program. Section 60–300.42(d) further clause. 5. The definition for ‘‘reasonable provides that the contractor must seek the accommodation’’ in § 60–300.2(u) lists a Appendix A to Part 60–300—Guidelines advice of disabled veterans who ‘‘self- number of examples of the most common on a Contractor’s Duty To Provide identify’’ in this way as to reasonable types of accommodations that the contractor accommodation. Moreover, § 60–300.44(d) Reasonable Accommodation may be required to provide. There are any provides that if an employee who is a known number of specific accommodations that may The guidelines in this appendix are in disabled veteran is having significant be appropriate for particular situations. The large part derived from, and are consistent difficulty performing his or her job and it is discussion in this appendix is not intended with, the discussion regarding the duty to reasonable to conclude that the performance to provide an exhaustive list of required provide reasonable accommodation problem may be related to the disability, the accommodations (as no such list would be contained in the Interpretive Guidance on contractor is required to confidentially feasible); rather, it is intended to provide Title I of the Americans with Disabilities Act inquire whether the problem is disability general guidance regarding the nature of the (ADA) set out as an appendix to the related and if the employee is in need of a obligation. The decision as to whether a regulations issued by the Equal Employment reasonable accommodation. reasonable accommodation is appropriate Opportunity Commission (EEOC) 3. An accommodation is any change in the must be made on a case-by-case basis. The implementing the ADA (29 CFR part 1630). work environment or in the way things are contractor must consult with the disabled Although the following discussion is customarily done that enables a disabled veteran in deciding on the reasonable intended to provide an independent ‘‘free- veteran to enjoy equal employment accommodation; frequently, the individual standing’’ source of guidance with respect to opportunities. Equal employment will know exactly what accommodation he or the duty to provide reasonable opportunity means an opportunity to attain she will need to perform successfully in a accommodation under this part, to the extent the same level of performance, or to enjoy the particular job, and may suggest an that the EEOC appendix provides additional same level of benefits and privileges of accommodation which is simpler and less guidance which is consistent with the employment, as are available to the average expensive than the accommodation the following discussion, it may be relied upon similarly situated employee without a contractor might have devised. Other for purposes of this part as well. See § 60– disability. Thus, for example, an resources to consult include the appropriate 300.1(c). Contractors are obligated to provide accommodation made to assist an employee state vocational rehabilitation services reasonable accommodation and to take who is a disabled veteran in the performance agency, the Equal Employment Opportunity affirmative action. Reasonable of his or her job must be adequate to enable Commission (1–800–669–4000 (voice), 1– accommodation under Section 4212, like the individual to perform the essential 800–669–6820 (TTY)), the Job reasonable accommodation required under functions of the position. The Accommodation Network (JAN) operated by Section 503 and the ADA, is a part of the accommodation, however, does not have to the Office of Disability Employment Policy in nondiscrimination obligation. See EEOC be the ‘‘best’’ accommodation possible, so the U.S. Department of Labor (1–800–526– appendix cited in this paragraph. Affirmative long as it is sufficient to meet the job-related 7234 or 1–800–232–9675), private disability action is unique to Section 4212 and Section needs of the individual being accommodated. organizations (including those that serve 503, and includes actions above and beyond There are three areas in which reasonable veterans), and other employers.

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6. With respect to accommodations that general, reassignment should be considered separated veterans; (3) active duty wartime or can permit an employee who is a disabled only when accommodation within the campaign badge veterans; and (4) Armed veteran to perform essential functions disabled veteran’s current position would Forces service medal veterans. These successfully, a reasonable accommodation pose an undue hardship. Reassignment is not classifications are defined as follows: may require the contractor to, for instance, required for applicants. However, in making • A ‘‘qualified disabled veteran’’ means modify or acquire equipment. For the hiring decisions, contractors are encouraged someone who has the ability to perform the visually-impaired such accommodations may to consider applicants who are known essential functions of the employment include providing adaptive hardware and disabled veterans for all available positions position with or without reasonable software for computers, electronic visual for which they may be qualified when the accommodation, and also is one of the aids, braille devices, talking calculators, position(s) applied for is unavailable. following: magnifiers, audio recordings and braille or Reassignment may not be used to limit, • a veteran of the U.S. military, ground, large-print materials. For persons with segregate, or otherwise discriminate against naval or air service who is entitled to hearing impairments, reasonable employees who are disabled veterans by compensation (or who but for the receipt of accommodations may include providing forcing reassignments to undesirable military retired pay would be entitled to telephone handset amplifiers, telephones positions or to designated offices or facilities. compensation) under laws administered by compatible with hearing aids and Employers should reassign the individual to the Secretary of Veterans Affairs; or telecommunications devices for the deaf an equivalent position in terms of pay, status, • a person who was discharged or released (TDDs). For persons with limited physical etc., if the individual is qualified, and if the from active duty because of a service- dexterity, the obligation may require the position is vacant within a reasonable connected disability provision of goose neck telephone headsets, amount of time. A ‘‘reasonable amount of • A ‘‘recently separated veteran’’ means mechanical page turners and raised or time’’ must be determined in light of the any veteran during the three-year period lowered furniture. totality of the circumstances. beginning on the date of such veteran’s 7. Other reasonable accommodations of 10. The contractor may reassign an discharge or release from active duty in the this type may include providing personal individual to a lower graded position if there U.S. military, ground, naval, or air service. assistants such as a reader, interpreter or are no accommodations that would enable • An ‘‘active duty wartime or campaign travel attendant, permitting the use of the employee to remain in the current badge veteran’’ means a veteran who served accrued paid leave or providing additional position and there are no vacant equivalent in the U.S. military, ground, naval or air unpaid leave for necessary treatment. The positions for which the individual is service during a war, or in a campaign or contractor may also be required to make qualified with or without reasonable expedition for which a campaign badge has existing facilities readily accessible to and accommodation. The contractor may been authorized under the laws administered usable by disabled veterans—including areas maintain the reassigned disabled veteran at by the Department of Defense. used by employees for purposes other than the salary of the higher graded position, and • An ‘‘Armed forces service medal veteran’’ the performance of essential job functions must do so if it maintains the salary of means a veteran who, while serving on active such as restrooms, break rooms, cafeterias, reassigned employees who are not disabled duty in the U.S. military, ground, naval or air lounges, auditoriums, libraries, parking lots veterans. It should also be noted that the service, participated in a United States and credit unions. This type of contractor is not required to promote a military operation for which an Armed accommodation will enable employees to disabled veteran as an accommodation. Forces service medal was awarded pursuant enjoy equal benefits and privileges of 11. With respect to the application process, to Executive Order 12985. employment as are enjoyed by employees reasonable accommodations may include the 2. [THE FOLLOWING TEXT SHOULD BE who do not have disabilities. following: (1) Providing information USED WHEN EXTENDING THE ‘‘PRE– 8. Another of the potential regarding job vacancies in a form accessible OFFER’’ INVITATION TO PROTECTED accommodations listed in § 60–300.2(u) is job to disabled veterans who are vision or VETERANS REQUIRED BY 41 CFR 60– restructuring. This may involve reallocating hearing impaired, e.g., by making an 300.42(a). THE DEFINITIONS OF THE or redistributing those nonessential, marginal announcement available in braille, in large SEPARATE CLASSIFICATIONS OF job functions which a qualified disabled print, or on audio tape, or by responding to PROTECTED VETERANS SET FORTH IN veteran cannot perform to another position. job inquiries via TDDs; (2) providing readers, PARAGRAPH 1 MUST ACCOMPANY THIS Accordingly, if a clerical employee who is a interpreters and other similar assistance SELF–IDENTIFICATION REQUEST.] If you disabled veteran is occasionally required to during the application, testing and interview believe you belong to any of the categories of lift heavy boxes containing files, but cannot process; (3) appropriately adjusting or protected veterans listed above, please do so because of a disability, this task may modifying employment-related examinations, indicate by checking the appropriate box be reassigned to another employee. The e.g., extending regular time deadlines, below. As a Government contractor subject to contractor, however, is not required to allowing a disabled veteran who is blind or Section 4212, we request this information in reallocate essential functions, i.e., those has a learning disorder such as dyslexia to order to measure the effectiveness of the functions that the individual who holds the provide oral answers for a written test, and outreach and positive recruitment efforts we job would have to perform, with or without permitting an applicant, regardless of the undertake pursuant to Section 4212. reasonable accommodation, in order to be nature of his or her ability, to demonstrate [ ] I IDENTIFY AS ONE OR MORE OF THE considered qualified for the position. For skills through alternative techniques and instance, the contractor which has a security CLASSIFICATIONS OF PROTECTED utilization of adapted tools, aids and devices; VETERAN LISTED ABOVE guard position which requires the incumbent and (4) ensuring a disabled veteran with a to inspect identity cards would not have to [ ] I AM NOT A PROTECTED VETERAN mobility impairment full access to testing provide a blind disabled veteran with an [ ] I CHOOSE NOT TO PROVIDE THIS locations such that the applicant’s test scores assistant to perform that duty; in such a case, INFORMATION accurately reflect the applicant’s skills or the assistant would be performing an [THE FOLLOWING TEXT SHOULD BE aptitude rather than the applicant’s mobility essential function of the job for the disabled USED WHEN EXTENDING THE ‘‘POST– impairment. veteran. Job restructuring may also involve OFFER’’ INVITATION TO PROTECTED allowing part-time or modified work Appendix B to Part 60–300—Sample VETERANS REQUIRED BY 41 CFR 60– schedules. For instance, flexible or adjusted Invitation to Self-Identify 300.42(b). THE DEFINITIONS OF THE work schedules could benefit disabled SEPARATE CLASSIFICATIONS OF veterans who cannot work a standard [Sample Invitation to Self-Identify] PROTECTED VETERANS SET FORTH IN schedule because of the need to obtain 1. This employer is a Government PARAGRAPH 1 MUST ACCOMPANY THIS medical treatment, or disabled veterans with contractor subject to the Vietnam Era SELF–IDENTIFICATION REQUEST.] As a mobility impairments who depend on a Veterans’ Readjustment Assistance Act of Government contractor subject to Section public transportation system that is not 1974, 38 U.S.C. 4212 (Section 4212), as 4212, we are required to submit a report accessible during the hours of a standard amended, which requires Government (VETS–100A) to the United States schedule. contractors to take affirmative action to Department of Labor each year identifying 9. Reasonable accommodation may also employ and advance in employment: (1) the number of our employees belonging to include reassignment to a vacant position. In Qualified disabled veterans; (2) recently each ‘‘protected veteran’’ category. If you

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believe you belong to any of the categories of If you are a disabled veteran it would assist 5. The information you submit will be kept protected veterans listed above, please us if you tell us whether there are confidential, except that (i) supervisors and indicate by checking the appropriate box accommodations we could make that would managers may be informed regarding below. enable you to perform the job properly and restrictions on the work or duties of disabled safely, including special equipment, changes veterans, and regarding necessary I BELONG TO THE FOLLOWING in the physical layout of the job, changes in accommodations; (ii) first aid and safety CLASSIFICATIONS OF PROTECTED the way the job is customarily performed, personnel may be informed, when and to the VETERANS (CHOOSE ALL THAT APPLY): provision of personal assistance services or [ ] QUALIFIED DISABLED VETERAN other accommodations. This information will extent appropriate, if you have a condition [ ] RECENTLY SEPARATED VETERAN assist us in making reasonable that might require emergency treatment; and [ ] ACTIVE WARTIME OR CAMPAIGN accommodations for your disability. (iii) Government officials engaged in BADGE VETERAN 3. You may inform us of your desire to enforcing laws administered by the Office of [ ] ARMED FORCES SERVICE MEDAL benefit under the program at this time and/ Federal Contract Compliance Programs, or VETERAN or at any time in the future. enforcing the Americans with Disabilities lllllllllllllllllllll 4. Submission of this information is Act, may be informed. voluntary and refusal to provide it will not 6. [The contractor should here insert a brief [ ] I am a protected veteran, but I choose subject you to any adverse treatment. The provision summarizing the relevant portion not to self-identify the classifications to information provided will be used only in of its affirmative action program.] which I belong. ways that are not inconsistent with the [ ] I am NOT a protected veteran. Vietnam Era Veterans’ Readjustment [FR Doc. 2011–8693 Filed 4–25–11; 8:45 am] [ ] I choose not to provide this information. Assistance Act of 1974, as amended. BILLING CODE 4510–45–P

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Part III

Department of the Interior

Fish and Wildlife Service

50 CFR Parts 10 and 21 General Provisions; Revised List of Migratory Birds; Proposed Rule

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DEPARTMENT OF THE INTERIOR Background newly recognized as a result of recent taxonomic changes; (7) remove four What statutory authority does the Fish and Wildlife Service species not known to occur within the service have for this rulemaking? boundaries of the United States or its 50 CFR Parts 10 and 21 We have statutory authority and territories as a result of recent responsibility for enforcing the [Docket No. FWS–R9–MB–2010–0088; taxonomic changes; (8) change the 91200–1231–9BPP] Migratory Bird Treaty Act (MBTA) (16 common (English) names of nine U.S.C. 703–712), the Fish and Wildlife species to conform with accepted use; RIN 1018–AX48 Improvement Act of 1978 (16 U.S.C. and (9) change the scientific names of 742l), and the Fish and Wildlife Act of 36 species to conform to accepted use. General Provisions; Revised List of 1956 (16 U.S.C. 742a–j). The MBTA Migratory Birds The List of Migratory Birds (50 CFR implements Conventions between the 10.13) was last revised on March 1, 2010 AGENCY: Fish and Wildlife Service, United States and four neighboring (75 FR 9282). These amendments were Interior. countries for the protection of migratory necessitated by three published ACTION: Proposed rule. birds, as follows: supplements to the 7th (1998) edition of (1) Canada: Convention between the the American Ornithologists’ Union’s SUMMARY: We, the U.S. Fish and United States and Great Britain [on (AOU’s) Check-list of North American Wildlife Service, propose to revise the behalf of Canada] for the Protection of Birds (AOU 2008, AOU 2009, and AOU List of Migratory Birds by both adding Migratory Birds, August 16, 1916, 39 2010). and removing species. Reasons for the Stat. 1702 (T.S. No. 628); In addition, we propose to correct the (2) Mexico: Convention between the changes to the list include adding legal authorities citations at 50 CFR United States and Mexico for the species based on new taxonomy and 10.13(a). new evidence of occurrence in the Protection of Migratory Birds and Game We also would make a small change United States or U.S. territories, Mammals, February 7, 1936, 50 Stat. to a definition in 50 CFR 21.3. We removing species no longer known to 1311 (T.S. No. 912); propose to update the definition of occur within the United States, and (3) Japan: Convention between the ‘‘raptor’’ to also include the order changing names to conform to accepted Government of the United States of Accipitriformes to correspond to the use. The net increase of 19 species (23 America and the Government of Japan proposed changes in the List of added and 4 removed) brings the total for the Protection of Migratory Birds and Migratory Birds. number of species protected by the Birds in Danger of Extinction, and Their Migratory Bird Treaty Act (MBTA) to Environment, March 4, 1972, 25 U.S.T. What scientific authorities are used to 1,026. We regulate most aspects of the 3329 (T.I.A.S. No. 7990); and amend the list of migratory birds? (4) Russia: Convention between the taking, possession, transportation, sale, Although bird names (common and purchase, barter, exportation, and United States of America and the Union of Soviet Socialist Republics Concerning scientific) are relatively stable, staying importation of migratory birds. An current with standardized use is accurate and up-to-date list of species the Conservation of Migratory Birds and Their Environment (Russia), November necessary to avoid confusion in protected by the MBTA is essential for communications. In making our public notification and regulatory 19, 1976, 29 U.S.T. 4647 (T.I.A.S. No. 9073). determinations, we primarily relied on purposes. the American Ornithologists’ Union’s DATES: To ensure consideration of your What is the purpose of this rulemaking? Check-list of North American Birds comments, they must be received or Our purpose is to inform the public of (AOU 1998), as amended (AOU 1999, postmarked on or before July 25, 2011. the species protected by the MBTA and 2000, 2002, 2003, 2004, 2005, 2006, ADDRESSES: You may submit comments its implementing regulations. These 2007, 2008, 2009, and 2010), on matters by either one of the following methods: regulations are found in Title 50, Code of taxonomy, nomenclature, and the • Federal eRulemaking Portal: http:// of Federal Regulations (CFR), Parts 10, sequence of species and other higher www.regulations.gov. Follow the 20, and 21. We regulate most aspects of taxonomic categories (orders, families, instructions for submitting comments the taking, possession, transportation, subfamilies) for species that occur in on Docket No. FWS–R9–MB–2010– sale, purchase, barter, exportation, and North America. The AOU Checklist 0088. contains all bird species that have • importation of migratory birds. An U.S. Mail or hand delivery: Public accurate and up-to-date list of species occurred in North America from the Comments Processing, Attn: FWS–R9– protected by the MBTA is essential for Arctic through Panama, including the MB–2010–0088; Division of Policy and regulatory purposes. West Indies and the Hawaiian Islands, Directives Management; U.S. Fish and and includes distributional information Wildlife Service; 4401 North Fairfax Why is this amendment of the list of for each species, which specifies Drive, Suite 222; Arlington, VA 22203– migratory birds necessary? whether the species is known to occur 1610. The amendment is needed to: (1) Add in the United States. For the 39 species We will not accept e-mail or faxes. We five species previously overlooked from that occur outside the geographic area will post all comments on http:// a family protected under the MBTA; (2) covered by the Check-list (28 that occur www.regulations.gov. This generally correct the spelling of five species on in the Pacific island territories and 11 means that we will post any personal the alphabetized list; (3) correct the listed in the Japanese and/or Russian information that you provide. See the spelling of two species on the conventions that have not occurred in Public Comments section below for taxonomic list; (4) add 11 species based the AOU area), we relied primarily on more information. on new distributional records Clements (2007). Although we primarily FOR FURTHER INFORMATION CONTACT: documenting their natural occurrence in rely on the above checklists, when Terry Doyle, Wildlife Biologist, Division the United States since April 2007; (5) informed taxonomic opinion is of Migratory Bird Management, 703– add one species from a family now inconsistent or controversial, we 358–1799. protected under the MBTA as a result of evaluate available published and SUPPLEMENTARY INFORMATION: taxonomic changes; (6) add six species unpublished information and come to

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our own conclusion regarding the Fregatidae (frigatebirds), Sulidae Nesofregata fuliginosa (Polynesian validity of taxa. (boobys), Phalacrocoracidae Storm-Petrel), becomes Nesofregetta (cormorants), and Anhingidae fuliginosa; What criteria are used to identify (anhingas). In addition, the Order Thalleseus maximus (Royal Tern), individual species protected by the Accipitriformes was split from the becomes Thalasseus maximus; MBTA? Falconiformes and now include the Thalleseus sandvicensis (Sandwich A species qualifies for protection Families Cathartidae (vultures), Tern), becomes Thalasseus under the MBTA by meeting one or Pandionidae (Osprey), and Accipitridae sandvicensis; more of the following four criteria: (hawks and eagles). At the Family level, Phylloscopus siilatrix (Wood (1) It is covered by the Canadian the Ardeidae (herons and egrets) and Warbler), becomes Phylloscopus Convention of 1916, as amended in Threskiornithidae (ibis and spoonbills) sibilatrix; and 1996, by virtue of meeting the following were moved from the Ciconiiformes to Locustella lanceoloata (Lanceolated three criteria: (a) It belongs to a family the Pelecaniformes Order, the Warbler), becomes Locustella or group of species named in the Pandionidae (Osprey) were separated lanceolata. Canadian Convention, as amended; (b) from the Accipitridae (hawks and (3) Correct the spelling of two specimens, photographs, videotape eagles), and the Stercorariidae (jaegers scientific names on the taxonomic list: recordings, or audiotape recordings and skuas) were separated from the Nesofregetta fuiginosa (Polynesian provide convincing evidence of natural Laridae (gulls, terns, and skimmers). Storm-Petrel), becomes Nesofregetta occurrence in the United States or its The Polioptilidae (gnatcatchers), fuliginosa; and territories; and (c) the documentation of Phylloscopidae (Phylloscopus warblers), Tiaris olivacea (Yellow-faced such records has been recognized by the Acrocephalidae (Acrocephalus Grassquit), becomes Tiaris olivaceus. AOU or other competent scientific warblers), and Megaluridae (Locustella (4) Add 11 species based on review authorities. warblers) were separated from the and acceptance by AOU (since April (2) It is covered by the Mexican Sylviidae, and the Calcariidae 2007) of new distributional records Convention of 1936, as amended in (longspurs and snow buntings) were documenting their occurrence in the 1972, by virtue of meeting the following separated from the Emberizidae United States, Puerto Rico, or the U.S. three criteria: (a) It belongs to a family (buntings and sparrows). The euphonias Virgin Islands. These species belong to or group of species named in the were put into their own Subfamily families covered by the Canadian and/ Mexican Convention, as amended; (b) (Euphoniinae) and moved from the or Mexican Conventions, and all are specimens, photographs, videotape Thraupidae to the Fringillidae Family. considered to be of accidental or casual recordings, or audiotape recordings All species within these newly created occurrence. For each species, we list the provide convincing evidence of natural families continue to be protected under State in which it has been recorded plus occurrence in the United States or its the MBTA. In addition, the Wrentit was the relevant publication: territories; and (c) the documentation of moved from the Timaliidae (babblers) to Parkinson’s Petrel, Procellaria such records has been recognized by the the Sylviidae and is now in a family parkinsoni—California (AOU 2008); AOU or other competent scientific protected by the MBTA. Swinhoe’s Storm-Petrel, authorities. The amendments (23 additions, 4 Oceanodroma monorhis—North (3) It is listed in the annex to the removals, and 51 name changes) affect Carolina (AOU 2010); Japanese Convention of 1972, as a grand total of 78 species and result in Swallow-tailed Gull, Creagrus amended. a net addition of 19 species to the List furcatus—California (AOU 2008); (4) It is listed in the appendix to the of Migratory Birds, increasing the Brown Hawk-Owl, Ninox scutulata— Russian Convention of 1976. species total from 1,007 to 1,026. Of the Alaska (AOU 2009); In accordance with the Migratory Bird 23 species that we add to the list, 6 were White-crested Elaenia, Elaenia Treaty Reform Act of 2004 (MBTRA) previously covered under the MBTA as albiceps—Texas (AOU 2010); (Pub. L. 108–447, 118 Stat. 2809, 3071– subspecies of listed species. These Crowned Slaty Flycatcher, 72), we include all species native to the amendments can be logically arranged Empidonomus aurantioatrocristatus— United States or its territories, which are in the following 9 categories: Louisiana (AOU 2010); those that occur as a result of natural (1) Add five species from the family Sinaloa Wren, Thryothorus sinaloa— biological or ecological processes (see Muscicapidae, a family specifically Arizona (AOU 2010); 70 FR 12710, March 15, 2005). We do listed in the 1996 protocol amending the Pallas’s Leaf-Warbler, Phylloscopus not include nonnative species whose 1916 convention with Canada. The proregulus—Alaska (AOU 2008); occurrences in the United States are omission of these species on the Sedge Warbler, Acrocephalus solely the result of intentional or previous list was an oversight. All are schoenobaenus—Alaska (AOU 2009); unintentional human-assisted considered accidental or casual in Rufous-tailed Robin, Luscinia introduction(s). Alaska. The species and relevant AOU sibilans—Alaska (AOU 2010); and publication(s) are: Yellow-browed Bunting, Emberiza How do the proposed changes affect the chrysophrys—Alaska (AOU 2009). list of migratory birds? Mugimaki Flycatcher, Ficedula mugimaki (AOU 1987, 1997, 1998); (5) Add one species because of recent Several taxonomic changes were Taiga Flycatcher, Ficedula albicilla taxonomic changes transferring a made at the Order and Family level by (AOU 1982, 1983, 1998, 2006); species in a family formerly not the AOU since publication of the last Dark-sided Flycatcher, Muscicapa protected by the MBTA (Timaliidae) list. These changes affect the inclusion sibirica (AOU 1982, 1983, 1998, 2004); into a family protected under the MBTA and taxonomic order of species on this Asian Brown Flycatcher, Muscicapa (Sylviidae). We reference the AOU list. Specifically, the Orders dauurica (AOU 1987, 1989, 1998); and publication supporting the change: Phaethontiformes and Suliformes were Spotted Flycatcher, Muscicapa striata Wrentit, Chamaea fasciata (AOU split from the Pelecaniformes. (AOU 2004). 2010). Phaethontiformes now includes the (2) Correct the spelling of five (6) Add six species because of recent Family Phaethontidae (tropicbirds); scientific names on the alphabetized taxonomic changes in which taxa Suliformes now includes the Families list: formerly treated as subspecies have

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been determined to be distinct species. Blue Rock Thrush, Monticola Vermivora crissalis (Colima Warbler) Given that each of these species was solitarius, becomes Blue Rock-Thrush becomes Oreothlypis crissalis (AOU formerly treated as subspecies of a listed (Clements 2007); 2010); species, these additions will not change Clay-colored Robin, Turdus grayi, Vermivora luciae (Lucy’s Warbler) the protective status of any of these taxa, becomes Clay-colored Thrush (AOU becomes Oreothlypis luciae (AOU only the names by which they are 2008); 2010); known. In each case, we reference the White-throated Robin, Turdus Parula superciliosa (Crescent-chested AOU publication supporting the change: assimilis, becomes White-throated Warbler) becomes Oreothlypis Eastern Spot-billed Duck, Anas Thrush (AOU 2008); superciliosa (AOU 2010); zonorhyncha—formerly considered a Nelson’s Sharp-tailed Sparrow, Seiurus noveboracensis (Northern subspecies of Anas poecilorhyncha, Ammodramus nelsoni, becomes Waterthrush) becomes Parkesia Spot-billed Duck (AOU 2008); Nelson’s Sparrow (AOU 2009); and noveboracensis (AOU 2010); Black Scoter, Melanitta americana— Saltmarsh Sharp-tailed Sparrow, Seiurus motacilla (Louisiana formerly treated as a subspecies of Ammodramus caudacutus, becomes Waterthrush) becomes Parkesia Melanitta nigra, Common [Black] Scoter Saltmarsh Sparrow (AOU 2009). motacilla (AOU 2010); (AOU 2009); (9) Revise the scientific names of 36 Pipilo fuscus (Canyon Towhee) Mexican Whip-poor-will, species to conform to the most recent becomes Melozone fusca (AOU 2010); Caprimulgus arizonae— formerly nomenclatural treatment. These Pipilo crissalis (California Towhee) treated as a subspecies of Caprimulgus revisions do not change the protective becomes Melozone crissalis (AOU vociferus, Whip-poor-will (AOU 2010); status of any of these taxa, only the Pacific Wren, Troglodytes pacificus— 2010); names by which they are known. In Pipilo aberti (Abert’s Towhee) formerly treated as a subspecies of each case, we reference the AOU Troglodytes troglodytes, Eurasian becomes Melozone aberti (AOU 2010); publication documenting the name Aimophila carpalis (Rufous-winged [Winter] Wren (AOU 2010); change: Winter Wren, Troglodytes hiemalis— Sparrow) becomes Peucaea carpalis Larus philadelphia (Bonaparte’s Gull) (AOU 2010); formerly treated as a subspecies of becomes Chroicocephalus philadelphia Troglodytes troglodytes, Eurasian Aimophila botterii (Botteri’s Sparrow) (AOU 2008); becomes Peucaea botterii (AOU 2010); [Winter] Wren (AOU 2010); and Larus cirrocephalus (Gray-hooded Aimophila cassinii (Cassin’s Sparrow) Puerto Rican Oriole, Icterus Gull) becomes Chroicocephalus becomes Peucaea cassinii (AOU 2010); portoricensis— formerly treated as a cirrocephalus (AOU 2008); Aimophila aestivalis (Bachman’s subspecies of Icterus dominicensis, Larus ridibundus (Black-headed Gull) Sparrow) becomes Peucaea aestivalis Hispaniolan [Greater Antillean] Oriole becomes Chroicocephalus ridibundus (AOU 2010); (AOU 2010). (AOU 2008); (7) Remove four species based on Larus minutus (Little Gull) becomes Aimophila quinquestriata (Five- revised taxonomic treatments and Hydrocoloeus minutus (AOU 2008); striped Sparrow) becomes Amphispiza distributional evidence confirming that Larus atricilla (Laughing Gull) quinquestriata (AOU 2010); their known geographic ranges lie becomes Leucophaeus atricilla (AOU Carduelis flammea (Common entirely outside the political boundaries 2008); Redpoll) becomes Acanthis flammea of the United States and its territories. Larus pipixcan (Frankin’s Gull) (AOU 2009); In each case, we reference the AOU becomes Leucophaeus pipixcan (AOU Carduelis hornemanni (Hoary publication supporting these changes: 2008); Redpoll) becomes Acanthis hornemanni Spot-billed Duck, Anas Cyanocorax morio (Brown Jay) (AOU 2009); poecilorhyncha (AOU 2008); becomes Psilorhinus morio (AOU 2010); Carduelis spinus (Eurasian Siskin) Common [Black] Scoter, Melanitta becomes Spinus spinus (AOU 2009); nigra (AOU 2009); Poecile hudsonica (Boreal Chickadee) becomes Poecile hudsonicus (AOU Carduelis pinus (Pine Siskin) becomes Eurasian [Winter] Wren, Troglodytes Spinus pinus (AOU 2009); troglodytes (AOU 2010); and 2009); Carduelis psaltria (Lesser Goldfinch) Hispaniolan [Greater Antillean] Poecile cincta (Gray-headed becomes Spinus psaltria (AOU 2009); Oriole, Icterus dominicensis (AOU Chickadee) becomes Poecile cinctus 2010). (AOU 2009); Carduelis lawrencei (Lawrence’s (8) Revise the common (English) Calcarius mccownii (McCown’s Goldfinch) becomes Spinus lawrencei names of nine species to conform to the Longspur) becomes Rhynchophanes (AOU 2009); most recent nomenclatural treatment. mccownii (AOU 2010); Carduelis tristis (American Goldfinch) These revisions do not change the Vermivora pinus (Blue-winged becomes Spinus tristis (AOU 2009); and protective status of any of these taxa, Warbler) becomes Vermivora Carduelis sinica (Oriental Greenfinch) only the names by which they are cyanoptera (AOU 2010); becomes Chloris sinica (AOU 2009). known. In each case, we reference the Vermivora peregrina (Tennessee For ease of comparison, changes are published source for the name change: Warbler) becomes Oreothlypis peregrina summarized in the following table Greater Flamingo, Phoenicopterus (AOU 2010); (numbers reference the categories ruber, becomes American Flamingo Vermivora celata (Orange-crowned treated above). Species whose names (AOU 2008); Warbler) becomes Oreothlypis celata have been revised (categories 2, 8, and Greater Shearwater, Puffinus gravis, (AOU 2010); 9) appear in both the left-hand column becomes Great Shearwater (AOU 2010); Vermivora ruficapilla (Nashville (old name removed) and right-hand Whip-poor-will, Caprimulgus Warbler) becomes Oreothlypis column (new name added), as are vociferus, becomes Eastern Whip-poor- ruficapilla (AOU 2010); species that have been added based on will (AOU 2010); Vermivora virginiae (Virginia’s taxonomic splits (category 6) of Green Violet-ear, Colibri thalassinus, Warbler) becomes Oreothlypis virginiae extralimital species that have been becomes Green Violetear (AOU 2008); (AOU 2010); removed (category 7).

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Removed (taxonomically) Added (taxonomically)

Spot-billed Duck, Anas poecilorhyncha (7) ...... Eastern Spot-billed Duck, Anas zonorhyncha (6). Common [Black] Scoter, Melanitta nigra (7) ...... Black Scoter, Melanitta americana (6). Greater Flamingo, Phoenicopterus ruber (8) ...... American Flamingo, Phoenicopterus ruber (8). Parkinson’s Petrel, Procellaria parkinsoni (4). Greater Shearwater, Puffinus gravis (8) ...... Great Shearwater, Puffinus gravis (8). Polynesian Storm-Petrel, Nesofregata fuliginosa (2) ...... Polynesian Storm-Petrel, Nesofregetta fuliginosa (2). Polynesian Storm-Petrel, Nesofregetta fuiginosa (3) ...... Polynesian Storm-Petrel, Nesofregetta fuliginosa (3). Swinhoe’s Storm-Petrel, Oceanodroma monorhis (4). Swallow-tailed Gull, Creagrus furcatus (4). Bonaparte’s Gull, Larus philadelphia (9) ...... Bonaparte’s Gull, Chroicocephalus philadelphia (9). Gray-hooded Gull, Larus cirrocephalus (9) ...... Gray-hooded Gull, Chroicocephalus cirrocephalus (9). Black-headed Gull, Larus ridibundus (9) ...... Black-headed Gull, Chroicocephalus ridibundus (9). Little Gull, Larus minutus (9) ...... Little Gull, Hydrocoloeus minutus (9). Laughing Gull, Larus atricilla (9) ...... Laughing Gull, Leucophaeus atricilla (9). Frankin’s Gull, Larus pipixcan (9) ...... Frankin’s Gull, Leucophaeus pipixcan (9). Royal Tern, Thalleseus maximus (2) ...... Royal Tern, Thalasseus maximus (2). Sandwich Tern, Thalleseus sandvicensis (2) ...... Sandwich Tern, Thalasseus sandvicensis (2). Brown Hawk-Owl, Ninox scutulata (4). Whip-poor-will, Caprimulgus vociferus (8) ...... Eastern Whip-poor-will, Caprimulgus vociferus (8). Mexican Whip-poor-will, Caprimulgus arizonae (6). Green Violet-ear, Colibri thalassinus (8) ...... Green Violetear, Colibri thalassinus (8). White-crested Elaenia, Elaenia albiceps (4). Crowned Slaty Flycatcher, Empidonomus aurantioatrocristatus (4). Brown Jay, Cyanocorax morio (9) ...... Brown Jay, Psilorhinus morio (9). Boreal Chickadee, Poecile hudsonica (9) ...... Boreal Chickadee, Poecile hudsonicus (9). Gray-headed Chickadee, Poecile cincta (9) ...... Gray-headed Chickadee, Poecile cinctus (9). Sinaloa Wren, Thryothorus sinaloa (4). Pacific Wren, Troglodytes pacificus (6). Eurasian [Winter] Wren, Troglodytes troglodytes (7) ...... Winter Wren, Troglodytes hiemalis (6). Wood Warbler, Phylloscopus siilatrix (2) ...... Wood Warbler, Phylloscopus sibilatrix (2). Pallas’s Leaf-Warbler, Phylloscopus proregulus (4). Lanceolated Warbler, Locustella lanceoloata (2) ...... Lanceolated Warbler, Locustella lanceolata (2). Wrentit, Chamaea fasciata (5). Sedge Warbler, Acrocephalus schoenobaenus (4). Mugimaki Flycatcher, Ficedula mugimaki (1). Taiga Flycatcher, Ficedula albicilla (1). Dark-sided Flycatcher, Muscicapa sibirica (1). Asian Brown Flyctcher, Muscicapa dauurica (1). Spotted Flycatcher, Muscicapa striata (1). Blue Rock Thrush, Monticola solitarius (8) ...... Blue Rock-Thrush, Monticola solitarius (8). Rufous-tailed Robin, Luscinia sibilans (4). Clay-colored Robin, Turdus grayi (8) ...... Clay-colored Thrush, Turdus grayi (8). White-throated Robin, Turdus assimilis (8) ...... White-throated Thrush, Turdus assimilis (8). McCown’s Longspur, Calcarius mccownii (9) ...... McCown’s Longspur, Rhynchophanes mccownii (9). Blue-winged Warbler, Vermivora pinus (9) ...... Blue-winged Warbler, Vermivora cyanoptera (9). Tennessee Warbler, Vermivora peregrina (9) ...... Tennessee Warbler, Oreothlypis peregrina (9). Orange-crowned Warbler, Vermivora celata (9) ...... Orange-crowned Warbler, Oreothlypis celata (9). Nashville Warbler, Vermivora ruficapilla (9) ...... Nashville Warbler, Oreothlypis ruficapilla (9). Virginia’s Warbler, Vermivora virginiae (9) ...... Virginia’s Warbler, Oreothlypis virginiae (9). Colima Warbler, Vermivora crissalis (9) ...... Colima Warbler, Oreothlypis crissalis (9). Lucy’s Warbler, Vermivora luciae (9) ...... Lucy’s Warbler, Oreothlypis luciae (9). Crescent-chested Warbler, Parula superciliosa (9) ...... Crescent-chested Warbler, Oreothlypis superciliosa (9). Northern Waterthrush, Seiurus noveboracensis (9) ...... Northern Waterthrush, Parkesia noveboracensis (9). Louisiana Waterthrush, Seiurus motacilla (9) ...... Louisiana Waterthrush, Parkesia motacilla (9). Yellow-faced Grassquit, Tiaris olivacea (3) ...... Yellow-faced Grassquit, Tiaris olivaceus (3). Canyon Towhee, Pipilo fuscus (9) ...... Canyon Towhee, Melozone fusca (9). California Towhee, Pipilo crissalis (9) ...... California Towhee, Melozone crissalis (9). Abert’s Towhee, Pipilo aberti (9) ...... Abert’s Towhee, Melozone aberti (9). Rufous-winged Sparrow, Aimophila carpalis (9) ...... Rufous-winged Sparrow, Peucaea carpalis (9). Botteri’s Sparrow, Aimophila botterii (9) ...... Botteri’s Sparrow, Peucaea botterii (9). Cassin’s Sparrow, Aimophila cassinii (9) ...... Cassin’s Sparrow, Peucaea cassinii (9). Bachman’s Sparrow, Aimophila aestivalis (9) ...... Bachman’s Sparrow, Peucaea aestivalis (9). Five-striped Sparrow, Aimophila quinquestriata (9) ...... Five-striped Sparrow, Amphispiza quinquestriata (9). Nelson’s Sharp-tailed Sparrow, Ammodramus nelsoni (8) ...... Nelson’s Sparrow, Ammodramus nelsoni (8). Saltmarsh Sharp-tailed Sparrow, Ammodramus caudacutus (8) ...... Saltmarsh Sparrow, Ammodramus caudacutus (8). Yellow-browed Bunting, Emberiza chrysophrys (4). Hispaniolan [Greater Antillean] Oriole, Icterus dominicensis (7) ...... Puerto Rican Oriole, Icterus portoricensis (6). Common Redpoll, Carduelis flammea (9) ...... Common Redpoll, Acanthis flammea (9). Hoary Redpoll, Carduelis hornemanni (9) ...... Hoary Redpoll, Acanthis hornemanni (9). Eurasian Siskin, Carduelis spinus (9) ...... Eurasian Siskin, Spinus spinus (9). Pine Siskin, Carduelis pinus (9) ...... Pine Siskin, Spinus pinus (9). Lesser Goldfinch, Carduelis psaltria (9) ...... Lesser Goldfinch, Spinus psaltria (9). Lawrence’s Goldfinch, Carduelis lawrencei (9) ...... Lawrence’s Goldfinch, Spinus lawrencei (9). American Goldfinch, Carduelis tristis (9) ...... American Goldfinch, Spinus tristis (9).

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Removed (taxonomically) Added (taxonomically)

Oriental Greenfinch, Carduelis sinica (9) ...... Oriental Greenfinch, Chloris sinica (9).

How is the list of migratory birds World sparrows), Ploceidae (weavers), used in preparing this proposed rule, organized? Estrildidae (estrildid finches), and will be available for public inspection at The species are listed in two formats numerous other families not currently http://www.regulations.gov, or by to suit the needs of different segments represented in the United States or its appointment, during normal business of the public: alphabetically in 50 CFR territories. hours, at the U.S. Fish and Wildlife 10.13(c)(1) and taxonomically in 50 CFR (3) Native species that belong to Service (see FOR FURTHER INFORMATION families or groups represented in the 10.13(c)(2). In the alphabetical listing, CONTACT). You may obtain copies of our United States, but which are not species are listed by common (English) previous actions concerning this subject expressly mentioned by the Canadian, group names, with the scientific name by mail (see FOR FURTHER INFORMATION Mexican, or Russian Conventions, of each species following the English CONTACT) or by visiting the Federal including the Megapodiidae group name. This format, similar to that eRulemaking Portal at http:// (megapodes), Phasianidae (grouse, used in modern telephone directories, is www.regulations.gov. ptarmigan, and turkeys), most useful to members of the lay Odontophoridae (New World quail), Required Determinations public. In the taxonomic listing, species Burhinidae (thick-knees), Glareolidae are listed in phylogenetic sequence by Regulatory Planning and Review (pratincoles), Psittacidae (parrots), (Executive Order 12866) scientific name, with the English name Todidae (todies), Meliphagidae following the scientific name. To help (honeyeaters), Monarchidae (monarch The Office of Management and Budget clarify species relationships, we also list flycatchers [elepaios]), Zosteropidae (OMB) has determined that this the higher-level taxonomic categories of (white-eyes), and Coerebidae proposed rule is not significant under Order, Family, and Subfamily. This (bananaquit). It should be noted that Executive Order 12866. OMB bases its format follows the sequence adopted by this rule supersedes the 70 FR 12710 determination upon the following four the AOU (1998, 2010) and is most useful notice to the extent that they are criteria: to ornithologists and other scientists. inconsistent. Specifically, the 1996 (a) Whether the rule will have an annual effect of $100 million or more on What species are not protected by the amendment to the Canadian Convention the economy or adversely affect an Migratory Bird Treaty Act? included the family Muscicapidae (Old World flycatchers). Thus, all members economic sector, productivity, jobs, the The MBTA does not apply to: environment, or other units of the (1) Nonnative species introduced into of the Muscicapidae family are now included on this list. In addition, the government. the United States or its territories by (b) Whether the rule will create means of intentional or unintentional Wrentit is now considered a member of the Sylviidae family rather than the inconsistencies with other Federal human assistance that belong to families agencies’ actions. or groups covered by the Canadian, Timaliidae family and is now included on this list. (c) Whether the rule will materially Mexican, or Russian Conventions, in Partial lists of the species included in affect entitlements, grants, user fees, accordance with the MBTRA. See 70 FR categories 2 and 3 are available at loan programs, or the rights and 12710 (March 15, 2005) for a partial list http://www.fws.gov/migratorybirds/ obligations of their recipients. of nonnative, human-introduced bird RegulationsPolicies/mbta/ (d) Whether the rule raises novel legal species in this category. Note, though, MBTAProtectedNonprotected.html. or policy issues. that native species that are introduced into parts of the United States where Public Comments Regulatory Flexibility Act (5 U.S.C. 601 et seq.) they are not native are still protected We request comments or suggestions under the MBTA regardless of where on this proposed rule from any Under the Regulatory Flexibility Act they occur in the United States or its interested parties. You may submit your (5 U.S.C. 601 et seq., as amended by the territories. comments and materials concerning this Small Business Regulatory Enforcement (2) Nonnative, human-introduced proposed rule by one of the methods Fairness Act (SBREFA) of 1996 (Pub. L. species that belong to families or groups listed in the ADDRESSES section. We will 104–121)), whenever an agency is not covered by the Canadian, Mexican, not consider comments sent by e-mail or required to publish a notice of or Russian Conventions, including fax or to an address not listed in the rulemaking for any proposed or final Tinamidae (tinamous), Cracidae ADDRESSES section. rule, it must prepare and make available (chachalacas), Megapodiidae If you submit a comment via http:// for public comment a regulatory (megapodes), Phasianidae (grouse, www.regulations.gov, your entire flexibility analysis that describes the ptarmigan, and turkeys), Turnicidae comment—including any personal effect of the rule on small entities (i.e., (buttonquails), Odontophoridae (New identifying information—will be posted small businesses, small organizations, World quail), Pteroclididae on the Web site. If you submit a and small government jurisdictions). (sandgrouse), Psittacidae (parrots), hardcopy comment that includes However, no regulatory flexibility Dicruridae (drongos), Rhamphastidae personal identifying information, you analysis is required if the head of an (toucans), Musophagidae (turacos), may request at the top of your document agency certifies the rule does not have Bucerotidae (hornbills), Bucorvidae that we withhold this information from a significant economic impact on a (ground-hornbills), Pycnonotidae public review. However, we cannot substantial number of small entities. (bulbuls), Pittidae (pittas), Irenidae guarantee that we will be able to do so. SBREFA amended the Regulatory (fairy-bluebirds), Timaliidae (babblers), We will post all hardcopy comments on Flexibility Act to require Federal Zosteropidae (white-eyes), Sturnidae http://www.regulations.gov. agencies to provide the statement of the (starlings; except as listed in the Comments and materials we receive, factual basis for certifying that a rule Japanese Convention), Passeridae (Old as well as supporting documentation we will not have a significant economic

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impact on a substantial number of small significant economic impacts are regulations that significantly affect entities. We have examined this expected to result from the updating of energy supply, distribution, and use. proposed rule’s potential effects on the list of migratory bird species. Executive Order 13211 requires agencies small entities as required by the to prepare Statements of Energy Effects Civil Justice Reform Regulatory Flexibility Act, and have when undertaking certain actions. determined that this action would not In accordance with Executive Order Because this proposed rule only affects have a significant economic impact on 12988, the Office of the Solicitor has the listing of protected species in the a substantial number of small entities, determined that the proposed rule United States, it is not a significant because we are simply updating the list would not unduly burden the judicial regulatory action under Executive Order of migratory bird species protected system and meets the requirements of 12866, and does not significantly affect under the Conventions. Consequently, sections 3(a) and 3(b)(2) of the Order. energy supplies, distribution, or use. we certify that because this rule does Paperwork Reduction Act Therefore, this action is not a significant not have a significant economic effect energy action and no Statement of on a substantial number of small We examined this proposed rule Energy Effects is required. entities, a regulatory flexibility analysis under the Paperwork Reduction Act of References Cited is not required. 1995 (44 U.S.C. 3501 et seq.). There are This proposed rule is not a major rule no new information collection A complete list of all references cited under SBREFA (5 U.S.C. 804(2)). It requirements associated with this is available upon request (see FOR would not have a significant impact on proposed rule. We are not requiring any FURTHER INFORMATION CONTACT above). a substantial number of small entities. new permits, reports, or recordkeeping List of Subjects in 50 CFR Part 10 a. This proposed rule would not have in this proposed rule. an annual effect on the economy of $100 National Environmental Policy Act Exports, Fish, Imports, Law million or more. (NEPA) enforcement, Plants, Transportation, b. This proposed rule would not cause Wildlife. a major increase in costs or prices for Given that the revision of 50 CFR Proposed Regulation Promulgation consumers, individual industries, 10.13 is strictly administrative in nature Federal, State, or local government and will have no or minor For the reasons discussed in the agencies, or geographic regions. environmental effects, it is categorically preamble, we propose to amend title 50, c. This proposed rule will not have excluded from further NEPA chapter I, subchapter B, part 10 of the significant adverse effects on requirements (43 CFR 46.210(h)). Code of Federal Regulations, as follows: competition, employment, investment, Endangered Species Act (ESA) productivity, innovation, or the ability PART 10—[AMENDED] Seventy-five of the species on the of U.S.-based enterprises to compete 1. The authority citation for part 10 with foreign-based enterprises. proposed List of Migratory Birds are also designated as endangered or continues to read as follows: Unfunded Mandates Reform Act threatened in all or some portion of Authority: 18 U.S.C. 42; 16 U.S.C. 703– In accordance with the Unfunded their U.S. range under provisions of the 712; 16 U.S.C. 668a–d; 19 U.S.C. 1202; 16 Mandates Reform Act (2 U.S.C. 1501 et Endangered Species Act of 1973 (16 U.S.C. 1531–1543; 16 U.S.C. 1361–1384, U.S.C. 1531–44; 50 CFR 17.11). No legal 1401–1407; 16 U.S.C. 742a–742j–l; 16 U.S.C. seq.), we have determined the following: 3371–3378. a. This proposed rule would not complications arise from the dual listing ‘‘significantly or uniquely’’ affect small since the two lists are developed under 2. Revise § 10.13 to read as follows: separate authorities and for different governments. A small government § 10.13 List of Migratory Birds. agency plan is not required. Actions purposes. Because the rule is strictly under the proposed regulation would administrative in nature, it does not (a) Legal authority for this list. The not affect small government activities in require ESA consultation. legal authorities for this list are the Migratory Bird Treaty Act (MBTA; 16 any significant way. Government-to-Government b. This proposed rule would not U.S.C. 703–712), the Fish and Wildlife Relationship With Tribes produce a Federal mandate of $100 Improvement Act of 1978 (16 U.S.C. million or greater in any year; i.e., it is In accordance with the President’s 742l), and the Fish and Wildlife Act of not a ‘‘significant regulatory action’’ memorandum of April 29, 1994, 1956 (16 U.S.C. 742a–742j). The MBTA under the Unfunded Mandates Reform ‘‘Government-to-Government Relations implements Conventions between the Act. with Native American tribal United States and four neighboring Governments’’ (59 FR 22951), Executive countries for the protection of migratory Takings Order 13175, and 512 DM 2, we have birds, as follows: In accordance with Executive Order evaluated potential effects on Federally- (1) Canada: Convention between the 12630, the proposed rule would not recognized Indian tribes and have United States and Great Britain [on have significant takings implications. determined that there are no potential behalf of Canada] for the Protection of This proposed rule does not contain a effects. The revisions to existing Migratory Birds, August 16, 1916, 39 provision for taking of private property. regulations in this proposed rule are Stat. 1702 (T.S. No. 628), as amended; Therefore, a takings implication purely administrative in nature and (2) Mexico: Convention between the assessment is not required. would not interfere with the tribes’ United States and Mexico for the ability to manage themselves or their Protection of Migratory Birds and Game Federalism funds or to regulate migratory bird Mammals, February 7, 1936, 50 Stat. This proposed rule would not have activities on tribal lands. 1311 (T.S. No. 912), as amended; sufficient Federalism effects to warrant (3) Japan: Convention between the preparation of a Federalism assessment Energy Supply, Distribution, or Use Government of the United States of under Executive Order 13132. It would (Executive Order 13211) America and the Government of Japan not interfere with the States’ ability to On May 18, 2001, the President issued for the Protection of Migratory Birds and manage themselves or their funds. No Executive Order 13211 addressing Birds in Danger of Extinction, and Their

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Environment, March 4, 1972, 25 U.S.T. AUKLET, Cassin’s, Ptychoramphus Yellow-throated, Emberiza elegans 3329 (T.I.A.S. No. 7990); and aleuticus BUSHTIT, Psaltriparus minimus (4) Russia: Convention between the Crested, Aethia cristatella CANVASBACK, Aythya valisineria United States of America and the Union Least, Aethia pusilla CARACARA, Crested, Caracara of Soviet Socialist Republics Concerning Parakeet, Aethia psittacula cheriway the Conservation of Migratory Birds and Rhinoceros, Cerorhinca monocerata CARDINAL, Northern, Cardinalis Their Environment, November 19, 1976, Whiskered, Aethia pygmaea cardinalis 20 U.S.T. 4647 (T.I.A.S. No. 9073). AVOCET, American, Recurvirostra CARIB, Green-throated, Eulampis (b) Purpose of this list. The purpose americana holosericeus is to inform the public of the species BEAN-GOOSE, Taiga, Anser fabalis Purple-throated, Eulampis jugularis protected by regulations that enforce the Tundra, Anser serrirostris CATBIRD, Black, Melanoptila terms of the MBTA. These regulations, BEARDLESS-TYRANNULET, Northern, glabrirostris found in parts 10, 20, and 21 of this Camptostoma imberbe Gray, Dumetella carolinensis chapter, cover most aspects of the BECARD, Rose-throated, Pachyramphus CHAFFINCH, Common, Fringilla taking, possession, transportation, sale, aglaiae coelebs purchase, barter, exportation, and BITTERN, American, Botaurus CHAT, Yellow-breasted, Icteria virens importation of migratory birds. lentiginosus CHICKADEE, Black-capped, Poecile (c) What species are protected as Black, Ixobrychus flavicollis atricapillus migratory birds? Species protected as Least, Ixobrychus exilis Boreal, Poecile hudsonicus migratory birds are listed in two formats Schrenck’s, Ixobrychus eurhythmus Carolina, Poecile carolinensis to suit the varying needs of the user: Yellow, Ixobrychus sinensis Chestnut-backed, Poecile rufescens Alphabetically in paragraph (c)(1) of BLACK-HAWK, Common, Buteogallus Gray-headed, Poecile cinctus this section and taxonomically in anthracinus Mexican, Poecile sclateri paragraph (c)(2) of this section. BLACKBIRD, Brewer’s, Euphagus Mountain, Poecile gambeli Taxonomy and nomenclature generally cyanocephalus CHUCK-WILL’S-WIDOW, Caprimulgus follow the 7th edition of the American Red-winged, Agelaius phoeniceus carolinensis Ornithologists’ Union’s Check-list of Rusty, Euphagus carolinus CONDOR, California, Gymnogyps North American birds (1998, as Tawny-shouldered, Agelaius californianus amended through 2010). For species not humeralis COOT, American, Fulica americana treated by the AOU Check-list, we Tricolored, Agelaius tricolor Caribbean, Fulica caribaea generally follow The Clements Checklist Yellow-headed, Xanthocephalus Eurasian, Fulica atra Hawaiian, Fulica alai of Birds of the World (Clements 2007). xanthocephalus Yellow-shouldered, Agelaius CORMORANT, Brandt’s, Phalacrocorax (1) Alphabetical listing. Species are xanthomus penicillatus listed alphabetically by common BLUEBIRD, Eastern, Sialia sialis Double-crested, Phalacrocorax auritus (English) group names, with the Mountain, Sialia currucoides Great, Phalacrocorax carbo scientific name of each species Western, Sialia mexicana Little Pied, Phalacrocorax following the common name. BLUETAIL, Red-flanked, Tarsiger melanoleucos ACCENTOR, Siberian, Prunella cyanurus Neotropic, Phalacrocorax brasilianus montanella BLUETHROAT, Luscinia svecica Pelagic, Phalacrocorax pelagicus AKEKEE, Loxops caeruleirostris BOBOLINK, Dolichonyx oryzivorus Red-faced, Phalacrocorax urile AKEPA, Loxops coccineus BOOBY, Blue-footed, Sula nebouxii COWBIRD, Bronzed, Molothrus aeneus AKIALOA, Greater, Hemignathus Brown, Sula leucogaster Brown-headed, Molothrus ater ellisianus Masked, Sula dactylatra Shiny, Molothrus bonariensis AKIAPOLAAU, Hemignathus munroi Red-footed, Sula sula CRAKE, Corn, Crex crex AKIKIKI, Oreomystis bairdi BRAMBLING, Fringilla montifringilla Paint-billed, Neocrex erythrops AKOHEKOHE, Palmeria dolei BRANT, Branta bernicla Spotless, Porzana tabuensis ALAUAHIO, Maui, Paroreomyza BUFFLEHEAD, Bucephala albeola Yellow-breasted, Porzana flaviventer montana BULLFINCH, Eurasian, Pyrrhula CRANE, Common, Grus grus Oahu, Paroreomyza maculata pyrrhula Sandhill, Grus canadensis ALBATROSS, Black-browed, Puerto Rican, Loxigilla portoricensis Whooping, Grus americana Thalassarche melanophris BUNTING, Blue, Cyanocompsa CREEPER, Brown, Certhia americana Black-footed, Phoebastria nigripes parellina Hawaii, Oreomystis mana Laysan, Phoebastria immutabilis Gray, Emberiza variabilis CROSSBILL, Red, Loxia curvirostra Light-mantled, Phoebetria palpebrata Indigo, Passerina cyanea White-winged, Loxia leucoptera Short-tailed, Phoebastria albatrus Little, Emberiza pusilla CROW, American, Corvus Shy, Thalassarche cauta Lark, Calamospiza melanocorys brachyrhynchos Wandering, Diomedea exulans Lazuli, Passerina amoena Fish, Corvus ossifragus Yellow-nosed, Thalassarche McKay’s, Plectrophenax hyperboreus Hawaiian, Corvus hawaiiensis chlororhynchos Painted, Passerina ciris Mariana, Corvus kubaryi AMAKIHI, Hawaii, Hemignathus virens Pallas’s, Emberiza pallasi Northwestern, Corvus caurinus Kauai, Hemignathus kauaiensis Pine, Emberiza leucocephalos Tamaulipas, Corvus imparatus Oahu, Hemignathus flavus Reed, Emberiza schoeniclus White-necked, Corvus ANHINGA, Anhinga anhinga Rustic, Emberiza rustica leucognaphalus ANI, Groove-billed, Crotophaga Snow, Plectrophenax nivalis CUCKOO, Black-billed, Coccyzus sulcirostris Varied, Passerina versicolor erythropthalmus Smooth-billed, Crotophaga ani Yellow-breasted, Emberiza aureola Common, Cuculus canorus ANIANIAU, Magumma parva Yellow-browed, Emberiza Mangrove, Coccyzus minor APAPANE, Himatione sanguinea chrysophrys Oriental, Cuculus optatus

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Yellow-billed, Coccyzus americanus Purple, Carpodacus purpureus Marbled, Limosa fedoa CURLEW, Bristle-thighed, Numenius FLAMINGO, American, Phoenicopterus GOLDEN-PLOVER, American, Pluvialis tahitiensis ruber dominica Eskimo, Numenius borealis FLICKER, Gilded, Colaptes chrysoides European, Pluvialis apricaria Eurasian, Numenius arquata Northern, Colaptes auratus Pacific, Pluvialis fulva Far Eastern, Numenius FLYCATCHER, Acadian, Empidonax GOLDENEYE, Barrow’s, Bucephala madagascariensis virescens islandica Little, Numenius minutus Alder, Empidonax alnorum Common, Bucephala clangula Long-billed, Numenius americanus Ash-throated, Myiarchus cinerascens GOLDFINCH, American, Spinus tristis DICKCISSEL, Spiza americana Asian Brown, Muscicapa dauurica Lawrence’s, Spinus lawrencei DIPPER, American, Cinclus mexicanus Brown-crested, Myiarchus tyrannulus Lesser, Spinus psaltria DOTTEREL, Eurasian, Charadrius Buff-breasted, Empidonax fulvifrons GOOSE, Barnacle, Branta leucopsis morinellus Cordilleran, Empidonax occidentalis Canada, Branta canadensis (including DOVE, Inca, Columbina inca Crowned Slaty, Empidonomus Cackling Goose, Branta hutchinsii) Mourning, Zenaida macroura aurantioatrocristatus Emperor, Chen canagica White-tipped, Leptotila verreauxi Dark-sided, Muscicapa sibirica Greater White-fronted, Anser albifrons White-winged, Zenaida asiatica Dusky, Empidonax oberholseri Hawaiian, Branta sandvicensis Zenaida, Zenaida aurita Dusky-capped, Myiarchus tuberculifer Lesser White-fronted, Anser DOVEKIE, Alle alle Fork-tailed, Tyrannus savana erythropus DOWITCHER, Long-billed, Gray, Empidonax wrightii Ross’s, Chen rossii Limnodromus scolopaceus Gray-streaked, Muscicapa griseisticta Snow, Chen caerulescens Short-billed, Limnodromus griseus Great Crested, Myiarchus crinitus GOSHAWK, Northern, Accipiter gentilis DUCK, American Black, Anas rubripes Hammond’s, Empidonax hammondii GRACKLE, Boat-tailed, Quiscalus major Eastern Spot-billed, Anas La Sagra’s, Myiarchus sagrae Common, Quiscalus quiscula zonorhyncha Least, Empidonax minimus Great-tailed, Quiscalus mexicanus Falcated, Anas falcata Mugimaki, Ficedula mugimaki Greater Antillean, Quiscalus niger Harlequin, Histrionicus histrionicus Narcissus, Ficedula narcissina GRASSHOPPER-WARBLER, Hawaiian, Anas wyvilliana Nutting’s, Myiarchus nuttingi Middendorff’s, Locustella Laysan, Anas laysanensis Olive-sided, Contopus cooperi ochotensis Long-tailed, Clangula hyemalis Pacific-slope, Empidonax difficilis GRASSQUIT, Black-faced, Tiaris bicolor Masked, Nomonyx dominicus Piratic, Legatus leucophalus Yellow-faced, Tiaris olivaceus Mottled, Anas fulvigula Puerto Rican, Myiarchus antillarum GREBE, Clark’s, Aechmophorus clarkii Muscovy, Cairina moschata Scissor-tailed, Tyrannus forficatus Eared, Podiceps nigricollis Pacific Black, Anas superciliosa Social, Myiozetetes similis Horned, Podiceps auritus Ring-necked, Aythya collaris Spotted, Muscicapa striata Least, Tachybaptus dominicus Ruddy, Oxyura jamaicensis Sulphur-bellied, Myiodynastes Pied-billed, Podilymbus podiceps Tufted, Aythya fuligula luteiventris Red-necked, Podiceps grisegena Wood, Aix sponsa Taiga, Ficedula albicilla Western, Aechmophorus occidentalis DUNLIN, Calidris alpina Tufted, Mitrephanes phaeocercus GREENFINCH, Oriental, Chloris sinica EAGLE, Bald, Haliaeetus leucocephalus Variegated, Empidonomus varius GREENSHANK, Common, Tringa Golden, Aquila chrysaetos Vermilion, Pyrocephalus rubinus nebularia White-tailed, Haliaeetus albicilla Willow, Empidonax traillii Nordmann’s, Tringa guttifer EGRET, Cattle, Bubulcus ibis Yellow-bellied, Empidonax GROSBEAK, Black-headed, Pheucticus Chinese, Egretta eulophotes flaviventris melanocephalus Great, Ardea alba FOREST-FALCON, Collared, Micrastur Blue, Passerina caerulea Intermediate, Mesophoyx intermedia semitorquatus Crimson-collared, Rhodothraupis Little, Egretta garzetta FRIGATEBIRD, Great, Fregata minor celaeno Reddish, Egretta rufescens Lesser, Fregata ariel Evening, Coccothraustes vespertinus Snowy, Egretta thula Magnificent, Fregata magnificens Pine, Pinicola enucleator EIDER, Common, Somateria mollissima FROG-HAWK, Gray, Accipiter soloensis Rose-breasted, Pheucticus King, Somateria spectabilis FRUIT-DOVE, Crimson-crowned, ludovicianus Spectacled, Somateria fischeri Ptilinopus porphyraceus Yellow, Pheucticus chrysopeplus Steller’s, Polysticta stelleri Many-colored, Ptilinopus perousii GROUND-DOVE, Common, Columbina ELAENIA, Caribbean, Elaenia martinica Mariana, Ptilinopus roseicapilla passerina Greenish, Myiopagis viridicata FULMAR, Northern, Fulmarus glacialis Friendly, Gallicolumba stairi White-crested, Elaenia albiceps GADWALL, Anas strepera Ruddy, Columbina talpacoti EMERALD, Puerto Rican, Chlorostilbon GALLINULE, Azure, Porphyrio White-throated, Gallicolumba maugaeus flavirostris xanthonura EUPHONIA, Antillean, Euphonia Purple, Porphyrio martinica GUILLEMOT, Black, Cepphus grylle musica GANNET, Northern, Morus bassanus Pigeon, Cepphus columba FALCON, Aplomado, Falco femoralis GARGANEY, Anas querquedula GULL, Belcher’s, Larus belcheri Peregrine, Falco peregrinus GNATCATCHER, Black-capped, Black-headed, Chroicocephalus Prairie, Falco mexicanus Polioptila nigriceps ridibundus Red-footed, Flaco vespertinus Black-tailed, Polioptila melanura Black-tailed, Larus crassirostris FIELDFARE, Turdus pilaris Blue-gray, Polioptila caerulea Bonaparte’s, Chroicocephalus FINCH, Cassin’s, Carpodacus cassinii California, Polioptila californica philadelphia House, Carpodacus mexicanus GODWIT, Bar-tailed, Limosa lapponica California, Larus californicus Laysan, Telespiza cantans Black-tailed, Limosa limosa Franklin’s, Leucophaeus pipixcan Nihoa, Telespiza ultima Hudsonian, Limosa haemastica Glaucous, Larus hyperboreus

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Glaucous-winged, Larus glaucescens Costa’s, Calypte costae Sky, Alauda arvensis Gray-hooded, Chroicocephalus Lucifer, Calothorax lucifer LEAF-WARBLER, Pallas’s, Phylloscopus cirrocephalus Magnificent, Eugenes fulgens proregulus Great Black-backed, Larus marinus Ruby-throated, Archilochus colubris LIMPKIN, Aramus guarauna Heermann’s, Larus heermanni Rufous, Selasphorus rufus LIZARD-CUCKOO, Puerto Rican, Herring, Larus argentatus Violet-crowned, Amazilia violiceps Coccyzus vieilloti Iceland, Larus glaucoides White-eared, Hylocharis leucotis LONGSPUR, Chestnut-collared, Ivory, Pagophila eburnea Xantus’s, Hylocharis xantusii Calcarius ornatus Kelp, Larus dominicanus IBIS, Glossy, Plegadis falcinellus Lapland, Calcarius lapponicus Laughing, Leucophaeus atricilla Scarlet, Eudocimus ruber McCown’s, Rhynchophanes mccownii Lesser Black-backed, Larus fuscus White, Eudocimus albus Smith’s, Calcarius pictus Little, Hydrocoloeus minutus White-faced, Plegadis chihi LOON, Arctic, Gavia arctica Mew, Larus canus IIWI, Vestiaria coccinea Common, Gavia immer Ring-billed, Larus delawarensis IMPERIAL-PIGEON, Pacific, Ducula Pacific, Gavia pacifica Ross’s, Rhodostethia rosea pacifica Red-throated, Gavia stellata Sabine’s, Xema sabini JABIRU, Jabiru mycteria Yellow-billed, Gavia adamsii Slaty-backed, Larus schistisagus JACANA, Northern, Jacana spinosa MAGPIE, Black-billed, Pica hudsonia Swallow-tailed, Creagrus furcatus JAEGER, Long-tailed, Stercorarius Yellow-billed, Pica nuttalli Thayer’s, Larus thayeri longicaudus MALLARD, Anas platyrhynchos Western, Larus occidentalis Parasitic, Stercorarius parasiticus MANGO, Antillean, Anthracothorax Yellow-footed, Larus livens Pomarine, Stercorarius pomarinus dominicus Yellow-legged, Larus michahellis JAY, Blue, Cyanocitta cristata Green, Anthracothorax viridis GYRFALCON, Falco rusticolus Brown, Psilorhinus morio Green-breasted, Anthracothorax HARRIER, Northern, Circus cyaneus Gray, Perisoreus canadensis prevostii HAWFINCH, Coccothraustes Green, Cyanocorax yncas MARTIN, Brown-chested, Progne tapera coccothraustes Mexican, Aphelocoma ultramarina Caribbean, Progne dominicensis HAWK, Broad-winged, Buteo Pinyon, Gymnorhinus cyanocephalus Cuban, Progne cryptoleuca platypterus Steller’s, Cyanocitta stelleri Gray-breasted, Progne chalybea Cooper’s, Accipiter cooperii JUNCO, Dark-eyed, Junco hyemalis Purple, Progne subis Crane, Geranospiza caerulescens Yellow-eyed, Junco phaeonotus Southern, Progne elegans Ferruginous, Buteo regalis KAKAWAHIE, Paroreomyza flammea MEADOWLARK, Eastern, Sturnella Gray, Buteo nitidus KAMAO, Myadestes myadestinus magna Harris’s, Parabuteo unicinctus KESTREL, American, Falco sparverius Western, Sturnella neglecta Hawaiian, Buteo solitarius Eurasian, Falco tinnunculus MERGANSER, Common, Mergus Red-shouldered, Buteo lineatus KILLDEER, Charadrius vociferus merganser Red-tailed, Buteo jamaicensis KINGBIRD, Cassin’s, Tyrannus Hooded, Lophodytes cucullatus Roadside, Buteo magnirostris vociferans Red-breasted, Mergus serrator Rough-legged, Buteo lagopus Couch’s, Tyrannus couchii MERLIN, Falco columbarius Sharp-shinned, Accipiter striatus Eastern, Tyrannus tyrannus MILLERBIRD, Acrocephalus familiaris Short-tailed, Buteo brachyurus Gray, Tyrannus dominicensis MOCKINGBIRD, Bahama, Mimus Swainson’s, Buteo swainsoni Loggerhead, Tyrannus caudifasciatus gundlachii White-tailed, Buteo albicaudatus Thick-billed, Tyrannus crassirostris Blue, Melanotis caerulescens Zone-tailed, Buteo albonotatus Tropical, Tyrannus melancholicus Northern, Mimus polyglottos HAWK-CUCKOO, Hodgson’s, Cuculus Western, Tyrannus verticalis MOORHEN, Common, Gallinula fugax KINGFISHER, Belted, Megaceryle chloropus HAWK-OWL, Brown, Ninox scutulata alcyon MURRE, Common, Uria aalge HERON, Gray, Ardea cinerea Collared, Todirhamphus chloris Thick-billed, Uria lomvia Great Blue, Ardea herodias Green, Chloroceryle americana MURRELET, Ancient, Green, Butorides virescens Micronesian, Todirhamphus Synthliboramphus antiquus Little Blue, Egretta caerulea cinnamominus Craveri’s, Synthliboramphus craveri Tricolored, Egretta tricolor Ringed, Megaceryle torquata Kittlitz’s, Brachyramphus brevirostris HOBBY, Eurasian, Falco subbuteo KINGLET, Golden-crowned, Regulus Long-billed, Brachyramphus perdix HOOPOE, Eurasian, Upupa epops satrapa Marbled, Brachyramphus marmoratus HOUSE-MARTIN, Common, Delichon Ruby-crowned, Regulus calendula Xantus’s, Synthliboramphus urbicum KISKADEE, Great, Pitangus sulphuratus hypoleucus HUMMINGBIRD, Allen’s, Selasphorus KITE, Black, Milvus migrans NEEDLETAIL, White-throated, sasin Hook-billed, Chondrohierax Hirundapus caudacutus Anna’s, Calypte anna uncinatus NIGHT-HERON, Black-crowned, Antillean Crested, Orthorhyncus Mississippi, Ictinia mississippiensis Nycticorax nycticorax cristatus Snail, Rostrhamus sociabilis Japanese, Gorsachius goisagi Berylline, Amazilia beryllina Swallow-tailed, Elanoides forficatus Malayan, Gorsachius melanolophus Black-chinned, Archilochus alexandri White-tailed, Elanus leucurus Yellow-crowned, Nyctanassa violacea Blue-throated, Lampornis clemenciae KITTIWAKE, Black-legged, Rissa NIGHTHAWK, Antillean, Chordeiles Broad-billed, Cynanthus latirostris tridactyla gundlachii Broad-tailed, Selasphorus platycercus Red-legged, Rissa brevirostris Common, Chordeiles minor Buff-bellied, Amazilia yucatanensis KNOT, Great, Calidris tenuirostris Lesser, Chordeiles acutipennis Bumblebee, Atthis heloisa Red, Calidris canutus NIGHTINGALE-THRUSH, Black- Calliope, Stellula calliope LAPWING, Northern, Vanellus vanellus headed, Catharus mexicanus Cinnamon, Amazilia rutila LARK, Horned, Eremophila alpestris Orange-billed, Catharus

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aurantiirostris Bonin, Pterodroma hypoleuca Northern, Glaucidium gnoma NIGHTJAR, Buff-collared, Caprimulgus Bulwer’s, Bulweria bulwerii PYRRHULOXIA, Cardinalis sinuatus ridgwayi Cook’s, Pterodroma cookii QUAIL-DOVE, Bridled, Geotrygon Gray, Caprimulgus indicus Gould’s, Pterodroma leucoptera mystacea Puerto Rican, Caprimulgus Great-winged, Pterodroma macroptera Key West, Geotrygon chrysia noctitherus Hawaiian, Pterodroma sandwichensis Ruddy, Geotrygon montana NODDY, Black, Anous minutus Herald, Pterodroma arminjoniana QUETZEL, Eared, Euptilotis neoxenus Blue-gray, Procelsterna cerulea Jouanin’s, Bulweria fallax RAIL, Black, Laterallus jamaicensis Brown, Anous stolidus Juan Fernandez, Pterodroma externa Buff-banded, Gallirallus philippensis NUKUPUU, Hemignathus lucidus Kermadec, Pterodroma neglecta Clapper, Rallus longirostris NUTCRACKER, Clark’s, Nucifraga Mottled, Pterodroma inexpectata Guam, Gallirallus owstoni columbiana Murphy’s, Pterodroma ultima King, Rallus elegans NUTHATCH, Brown-headed, Sitta Parkinson’s, Procellaria parkinsoni Spotted, Pardirallus maculatus pusilla Phoenix, Pterodroma alba Virginia, Rallus limicola Pygmy, Sitta pygmaea Stejneger’s, Pterodroma longirostris Yellow, Coturnicops noveboracensis Red-breasted, Sitta canadensis Tahiti, Pterodroma rostrata RAVEN, Chihuahuan, Corvus White-breasted, Sitta carolinensis White-necked, Pterodroma cervicalis cryptoleucus OLOMAO, Myadestes lanaiensis PEWEE, Cuban, Contopus caribaeus Common, Corvus corax OMAO, Myadestes obscurus Greater, Contopus pertinax RAZORBILL, Alca torda ORIOLE, Altamira, Icterus gularis Hispaniolan, Contopus hispaniolensis REDHEAD, Aythya americana Audubon’s, Icterus graduacauda Lesser Antillean, Contopus latirostris REDPOLL, Common, Acanthis flammea Baltimore, Icterus galbula PHAINOPEPLA, Phainopepla nitens Hoary, Acanthis hornemanni Black-vented, Icterus wagleri PHALAROPE, Red, Phalaropus REDSHANK, Spotted, Tringa erythropus Bullock’s, Icterus bullockii fulicarius REDSTART, American, Setophaga Hooded, Icterus cucullatus Red-necked, Phalaropus lobatus ruticilla Orchard, Icterus spurius Wilson’s, Phalaropus tricolor Painted, Myioborus pictus Puerto Rican, Icterus portoricensis PHOEBE, Black, Sayornis nigricans Slate-throated, Myioborus miniatus Scott’s, Icterus parisorum Eastern, Sayornis phoebe REED-WARBLER, Nightingale, Streak-backed, Icterus pustulatus Say’s, Sayornis saya Acrocephalus luscinia OSPREY, Pandion haliaetus PIGEON, Band-tailed, Patagioenas REEF-EGRET, Pacific, Egretta sacra OU, Psittirostra psittacea fasciata REEF-HERON, Western, Egretta gularis OVENBIRD, Seiurus aurocapilla Plain, Patagioenas inornata ROADRUNNER, Greater, Geococcyx OWL, Barn, Tyto alba Red-billed, Patagioenas flavirostris californianus Barred, Strix varia Scaly-naped, Patagioenas squamosa ROBIN, American, Turdus migratorius Boreal, Aegolius funereus White-crowned, Patagioenas Rufous-backed, Turdus rufopalliatus Burrowing, Athene cunicularia leucocephala Rufous-tailed, Luscinia sibilans Elf, Micrathene whitneyi PINTAIL, Northern, Anas acuta Siberian Blue, Luscinia cyane Flammulated, Otus flammeolus White-cheeked, Anas bahamensis ROCK-THRUSH, Blue, Monticola Great Gray, Strix nebulosa PIPIT, American, Anthus rubescens solitarius Great Horned, Bubo virginianus Olive-backed, Anthus hodgsoni ROSEFINCH, Common, Carpodacus Long-eared, Asio otus Pechora, Anthus gustavi erythrinus Mottled, Ciccaba virgata Red-throated, Anthus cervinus ROSY-FINCH, Black, Leucosticte atrata Northern Hawk, Surnia ulula Sprague’s, Anthus spragueii Brown-capped, Leucosticte australis Northern Saw-whet, Aegolius Tree, Anthus trivialis Gray-crowned, Leucosticte tephrocotis acadicus PLOVER, Black-bellied, Pluvialis RUBYTHROAT, Siberian, Luscinia Short-eared, Asio flammeus squatarola calliope Snowy, Bubo scandiacus Collared, Charadrius collaris RUFF, Philomachus pugnax Spotted, Strix occidentalis Common Ringed, Charadrius SANDERLING, Calidris alba Stygian, Asio stygius hiaticula SANDPIPER, Baird’s, Calidris bairdii OYSTERCATCHER, American, Little Ringed, Charadrius dubius Broad-billed, Limicola falcinellus Haematopus palliatus Mountain, Charadrius montanus Buff-breasted, Tryngites subruficollis Black, Haematopus bachmani Piping, Charadrius melodus Common, Actitis hypoleucos Eurasian, Haematopus ostralegus Semipalmated, Charadrius Curlew, Calidris ferruginea PALILA, Loxioides bailleui semipalmatus Green, Tringa ochropus PALM-SWIFT, Antillean, Tachornis Snowy, Charadrius alexandrinus Least, Calidris minutilla phoenicobia Wilson’s, Charadrius wilsonia Marsh, Tringa stagnatilis PARROTBILL, Maui, Pseudonestor POCHARD, Baer’s, Aythya baeri Pectoral, Calidris melanotos xanthophrys Common, Aythya ferina Purple, Calidris maritima PARULA, Northern, Parula americana POND-HERON, Chinese, Ardeola Rock, Calidris ptilocnemis Tropical, Parula pitiayumi bacchus Semipalmated, Calidris pusilla PAURAQUE, Common, Nyctidromus POORWILL, Common, Phalaenoptilus Sharp-tailed, Calidris acuminata albicollis nuttallii Solitary, Tringa solitaria PELICAN, American White, Pelecanus POO-ULI, Melamprosops phaeosoma Spoon-billed, Eurynorhynchus erythrorhynchos PUAIOHI, Myadestes palmeri pygmeus Brown, Pelecanus occidentalis PUFFIN, Atlantic, Fratercula arctica Spotted, Actitis macularius PETREL, Bermuda, Pterodroma cahow Horned, Fratercula corniculata Stilt, Calidris himantopus Black-capped, Pterodroma hasitata Tufted, Fratercula cirrhata Terek, Xenus cinereus Black-winged, Pterodroma PYGMY-OWL, Ferruginous, Glaucidium Upland, Bartramia longicauda nigripennis brasilianum Western, Calidris mauri

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White-rumped, Calidris fuscicollis Bachman’s, Peucaea aestivalis Ringed, Oceanodroma hornbyi Wood, Tringa glareola Baird’s, Ammodramus bairdii Swinhoe’s, Oceanodroma monorhis SAND-PLOVER, Greater, Charadrius Black-chinned, Spizella atrogularis Tristram’s, Oceanodroma tristrami leschenaultii Black-throated, Amphispiza bilineata Wedge-rumped, Oceanodroma tethys Lesser, Charadrius mongolus Botteri’s, Peucaea botterii White-faced, Pelagodroma marina SAPSUCKER, Red-breasted, Brewer’s, Spizella breweri White-bellied, Fregetta grallaria Sphyrapicus ruber Cassin’s, Peucaea cassinii Wilson’s, Oceanites oceanicus Red-naped, Sphyrapicus nuchalis Chipping, Spizella passerina SURFBIRD, Aphriza virgata Williamson’s, Sphyrapicus thyroideus Clay-colored, Spizella pallida SWALLOW, Bahama, Tachycineta Yellow-bellied, Sphyrapicus varius Field, Spizella pusilla cyaneoviridis SCAUP, Greater, Aythya marila Five-striped, Amphispiza Bank, Riparia riparia Lesser, Aythya affinis quinquestriata Barn, Hirundo rustica SCOPS-OWL, Oriental, Otus sunia Fox, Passerella iliaca Cave, Petrochelidon fulva SCOTER, Black, Melanitta americana Golden-crowned, Zonotrichia Cliff, Petrochelidon pyrrhonota Surf, Melanitta perspicillata atricapilla Mangrove, Tachycineta albilinea White-winged, Melanitta fusca Grasshopper, Ammodramus Northern Rough-winged, SCREECH-OWL, Eastern, Megascops savannarum Stelgidopteryx serripennis asio Harris’s, Zonotrichia querula Tree, Tachycineta bicolor Puerto Rican, Megascops nudipes Henslow’s, Ammodramus henslowii Violet-green, Tachycineta thalassina Western, Megascops kennicottii Lark, Chondestes grammacus SWAMPHEN, Purple, Porphyrio Whiskered, Megascops trichopsis Le Conte’s, Ammodramus leconteii porphyrio SCRUB-JAY, Florida, Aphelocoma Lincoln’s, Melospiza lincolnii SWAN, Trumpeter, Cygnus buccinator coerulescens Nelson’s, Ammodramus nelsoni Tundra, Cygnus columbianus Island, Aphelocoma insularis Olive, Arremonops rufivirgatus Whooper, Cygnus cygnus Western, Aphelocoma californica Rufous-crowned, Aimophila ruficeps SWIFT, Alpine, Apus melba SEA-EAGLE, Steller’s, Haliaeetus Rufous-winged, Peucaea carpalis Black, Cypseloides niger pelagicus Sage, Amphispiza belli Chimney, Chaetura pelagica SEEDEATER, White-collared, Saltmarsh, Ammodramus caudacutus Common, Apus apus Sporophila torqueola Savannah, Passerculus sandwichensis Fork-tailed, Apus pacificus SHEARWATER, Audubon’s, Puffinus Seaside, Ammodramus maritimus Short-tailed, Chaetura brachyura lherminieri Song, Melospiza melodia Vaux’s, Chaetura vauxi Black-vented, Puffinus opisthomelas Swamp, Melospiza georgiana White-collared, Streptoprocne zonaris Buller’s, Puffinus bulleri Vesper, Pooecetes gramineus White-throated, Aeronautes saxatalis Cape Verde, Calonectris edwardsii White-crowned, Zonotrichia SWIFTLET, Mariana, Aerodramus Christmas, Puffinus nativitatis leucophrys bartschi Cory’s, Calonectris diomedea White-throated, Zonotrichia albicollis White-rumped, Aerodramus Flesh-footed, Puffinus carneipes Worthen’s, Spizella wortheni spodiopygius Great, Puffinus gravis SPARROWHAWK, Japanese, Accipiter TANAGER, Flame-colored, Piranga Little, Puffinus assimilis gularis bidentata Manx, Puffinus puffinus SPINDALIS, Puerto Rican, Spindalis Hepatic, Piranga flava Pink-footed, Puffinus creatopus portoricensis Puerto Rican, Nesospingus Short-tailed, Puffinus tenuirostris Western, Spindalis zena speculiferus Sooty, Puffinus griseus SPOONBILL, Roseate, Platalea ajaja Scarlet, Piranga olivacea Streaked, Calonectris leucomelas STARLING, Chestnut-cheeked, Sturnus Summer, Piranga rubra Townsend’s, Puffinus auricularis philippensis Western, Piranga ludoviciana Wedge-tailed, Puffinus pacificus White-cheeked, Sturnus cineraceus TATTLER, Gray-tailed, Tringa brevipes SHOVELER, Northern, Anas clypeata STARTHROAT, Plain-capped, Wandering, Tringa incana SHRIKE, Brown, Lanius cristatus Heliomaster constantii TEAL, Baikal, Anas formosa Loggerhead, Lanius ludovicianus STILT, Black-necked, Himantopus Blue-winged, Anas discors Northern, Lanius excubitor mexicanus Cinnamon, Anas cyanoptera SILKY-FLYCATCHER, Gray, Ptilogonys Black-winged, Himantopus Green-winged, Anas crecca cinereus himantopus TERN, Aleutian, Onychoprion aleuticus SISKIN, Eurasian, Spinus spinus STINT, Little, Calidris minuta Arctic, Sterna paradisaea Pine, Spinus pinus Long-toed, Calidris subminuta Black, Chlidonias niger SKIMMER, Black, Rynchops niger Red-necked, Calidris ruficollis Black-naped, Sterna sumatrana SKUA, Great, Stercorarius skua Temminck’s, Calidris temminckii Bridled, Onychoprion anaethetus South Polar, Stercorarius STONECHAT, Saxicola torquatus Caspian, Hydroprogne caspia maccormicki STORK, Wood, Mycteria americana Common, Sterna hirundo SMEW, Mergellus albellus STORM-PETREL, Ashy, Oceanodroma Elegant, Thalasseus elegans SNIPE, Common, Gallinago gallinago homochroa Forster’s, Sterna forsteri Jack, Lymnocryptes minimus Band-rumped, Oceanodroma castro Gray-backed, Onychoprion lunatus Pin-tailed, Gallinago stenura Black, Oceanodroma melania Great Crested, Thalasseus bergii Swinhoe’s, Gallinago megala Black-bellied, Fregetta tropica Gull-billed, Gelochelidon nilotica Wilson’s, Gallinago delicata Fork-tailed, Oceanodroma furcata Large-billed, Phaetusa simplex SOLITAIRE, Townsend’s, Myadestes Leach’s, Oceanodroma leucorhoa Least, Sternula antillarum townsendi Least, Oceanodroma microsoma Little, Sternula albifrons SORA, Porzana carolina Matsudaira’s, Oceanodroma Roseate, Sterna dougallii SPARROW, American Tree, Spizella matsudairae Royal, Thalesseus maximus arborea Polynesian, Nesofregetta fuliginosa Sandwich, Thalesseus sandvicensis

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Sooty, Onychoprion fuscatus Yucatan, Vireo magister vermivorum Whiskered, Chlidonias hybrida VULTURE, Black, Coragyps atratus Yellow, Dendroica petechia White, Gygis alba Turkey, Cathartes aura Yellow-browed, Phylloscopus White-winged, Chlidonias WAGTAIL, Citrine, Motacilla citreola inornatus leucopterus Eastern Yellow, Motacilla Yellow-rumped, Dendroica coronata THRASHER, Bendire’s, Toxostoma tschutschensis Yellow-throated, Dendroica dominica bendirei Gray, Motacilla cinerea WATERTHRUSH, Louisiana, Parkesia Brown, Toxostoma rufum White, Motacilla alba motacilla California, Toxostoma redivivum WARBLER, Adelaide’s, Dendroica Northern, Parkesia noveboracensis Crissal, Toxostoma crissale adelaidae WAXWING, Bohemian, Bombycilla Curve-billed, Toxostoma curvirostre Arctic, Phylloscopus borealis garrulus Le Conte’s, Toxostoma lecontei Bachman’s, Vermivora bachmanii Cedar, Bombycilla cedrorum Long-billed, Toxostoma longirostre Bay-breasted, Dendroica castanea WHEATEAR, Northern, Oenanthe Pearly-eyed, Margarops fuscatus Black-and-white, Mniotilta varia oenanthe Sage, Oreoscoptes montanus Black-throated Blue, Dendroica WHIMBREL, Numenius phaeopus THRUSH, Aztec, Ridgwayia pinicola caerulescens WHIP-POOR-WILL, Eastern, Bicknell’s, Catharus bicknelli Black-throated Gray, Dendroica Caprimulgus vociferus Clay-colored, Turdus grayi nigrescens Mexican, Caprimulgus arizonae Dusky, Turdus naumanni Black-throated Green, Dendroica WHISTLING-DUCK, Black-bellied, Eyebrowed, Turdus obscurus virens Dendrocygna autumnalis Gray-cheeked, Catharus minimus Blackburnian, Dendroica fusca Fulvous, Dendrocygna bicolor Hermit, Catharus guttatus Blackpoll, Dendroica striata West Indian, Dendrocygna arborea Red-legged, Turdus plumbeus Blue-winged, Vermivora cyanoptera WHITETHROAT, Lesser, Sylvia curruca Swainson’s, Catharus ustulatus Canada, Wilsonia canadensis WIGEON, American, Anas americana Varied, Ixoreus naevius Cape May, Dendroica tigrina Eurasian, Anas penelope White-throated, Turdus assimilis Cerulean, Dendroica cerulea WILLET, Tringa semipalmata Wood, Hylocichla mustelina Chestnut-sided, Dendroica WOOD-PEWEE, Eastern, Contopus TITMOUSE, Black-crested, Baeolophus pensylvanica virens atricristatus Colima, Oreothlypis crissalis Western, Contopus sordidulus Bridled, Baeolophus wollweberi Connecticut, Oporornis agilis WOODCOCK, American, Scolopax Juniper, Baeolophus ridgwayi Crescent-chested, Oreothlypis minor Oak, Baeolophus inornatus superciliosa Eurasian, Scolopax rusticola Tufted, Baeolophus bicolor Dusky, Phylloscopus fuscatus WOODPECKER, Acorn, Melanerpes TITYRA, Masked, Tityra semifasciata Elfin-woods, Dendroica angelae formicivorus TOWHEE, Abert’s, Melozone aberti Fan-tailed, Euthlypis lachrymosa American Three-toed, Picoides California, Melozone crissalis Golden-cheeked, Dendroica dorsalis Canyon, Melozone fusca chrysoparia Arizona, Picoides arizonae Eastern, Pipilo erythrophthalmus Golden-crowned, Basileuterus Black-backed, Picoides arcticus Green-tailed, Pipilo chlorurus culicivorus Downy, Picoides pubescens Spotted, Pipilo maculatus Golden-winged, Vermivora Gila, Melanerpes uropygialis TROGON, Elegant, Trogon elegans chrysoptera Golden-fronted, Melanerpes aurifrons TROPICBIRD, Red-billed, Phaethon Grace’s, Dendroica graciae Great Spotted, Dendrocopos major aethereus Hermit, Dendroica occidentalis Hairy, Picoides villosus Red-tailed, Phaethon rubricauda Hooded, Wilsonia citrina Ivory-billed, Campephilus principalis White-tailed, Phaethon lepturus Kentucky, Oporornis formosus Ladder-backed, Picoides scalaris TURNSTONE, Black, Arenaria Kirtland’s, Dendroica kirtlandii Lewis’s, Melanerpes lewis melanocephala Lanceolated, Locustella lanceolata Nuttall’s, Picoides nuttallii Ruddy, Arenaria interpres Lucy’s, Oreothlypis luciae Pileated, Dryocopus pileatus TURTLE-DOVE, Oriental, Streptopelia MacGillivray’s, Oporornis tolmiei Puerto Rican, Melanerpes orientalis Magnolia, Dendroica magnolia portoricensis VEERY, Catharus fuscescens Mourning, Oporornis philadelphia Red-bellied, Melanerpes carolinus VERDIN, Auriparus flaviceps Nashville, Oreothlypis ruficapilla Red-cockaded, Picoides borealis VIOLETEAR, Green, Colibri thalassinus Olive, Peucedramus taeniatus Red-headed, Melanerpes VIREO, Bell’s, Vireo bellii Orange-crowned, Oreothlypis celata erythrocephalus Black-capped, Vireo atricapillus Palm, Dendroica palmarum White-headed, Picoides albolarvatus Black-whiskered, Vireo altiloquus Pine, Dendroica pinus WOODSTAR, Bahama, Calliphlox Blue-headed, Vireo solitarius Prairie, Dendroica discolor evelynae Cassin’s, Vireo cassinii Prothonotary, Protonotaria citrea WREN, Bewick’s Thryomanes bewickii Gray, Vireo vicinior Red-faced, Cardellina rubrifrons Cactus, Campylorhynchus Hutton’s, Vireo huttoni Rufous-capped, Basileuterus rufifrons brunneicapillus Philadelphia, Vireo philadelphicus Sedge, Acrocephalus schoenobaenus Canyon, Catherpes mexicanus Plumbeous, Vireo plumbeus Swainson’s, Limnothlypis swainsonii Carolina, Thryothorus ludovicianus Puerto Rican, Vireo latimeri Tennessee, Oreothlypis peregrina House, Troglodytes aedon Red-eyed, Vireo olivaceus Townsend’s, Dendroica townsendi Marsh, Cistothorus palustris Thick-billed, Vireo crassirostris Virginia’s, Oreothlypis virginiae Pacific, Troglodytes pacificus Warbling, Vireo gilvus Willow, Phylloscopus trochilus Rock, Salpinctes obsoletus White-eyed, Vireo griseus Wilson’s, Wilsonia pusilla Sedge, Cistothorus platensis Yellow-green, Vireo flavoviridis Wood, Phylloscopus sibilatrix Sinaloa, Thryothorus sinaloa Yellow-throated, Vireo flavifrons Worm-eating, Helmitheros Winter, Troglodytes hiemalis

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WRENTIT, Chamaea fasciata Anas crecca, Green-winged Teal Albatross WRYNECK, Eurasian, Jynx torquilla Aythya valisineria, Canvasback Phoebastria albatrus, Short-tailed YELLOWLEGS, Greater, Tringa Aythya americana, Redhead Albatross melanoleuca Aythya ferina, Common Pochard Family PROCELLARIIDAE Lesser, Tringa flavipes Aythya baeri, Baer’s Pochard Fulmarus glacialis, Northern Fulmar YELLOWTHROAT, Common, Aythya collaris, Ring-necked Duck Pterodroma macroptera, Great-winged Geothlypis trichas Aythya fuligula, Tufted Duck Petrel Gray-crowned, Geothlypis Aythya marila, Greater Scaup Pterodroma neglecta, Kermadec Petrel poliocephala Aythya affinis, Lesser Scaup Pterodroma arminjoniana, Herald (2) Taxonomic listing. Species are Polysticta stelleri, Steller’s Eider Petrel listed in phylogenetic sequence by Somateria fischeri, Spectacled Eider Pterodroma ultima, Murphy’s Petrel scientific name, with the common Somateria spectabilis, King Eider Pterodroma inexpectata, Mottled (English) name following the Somateria mollissima, Common Eider Petrel scientific name. To help clarify Histrionicus histrionicus, Harlequin Pterodroma cahow, Bermuda Petrel species relationships, we also list Duck Pterodroma hasitata, Black-capped the higher-level taxonomic Melanitta perspicillata, Surf Scoter Petrel categories of Order, Family, and Melanitta fusca, White-winged Scoter Pterodroma externa, Juan Fernandez Subfamily. Melanitta americana, Black Scoter Petrel Order ANSERIFORMES Clangula hyemalis, Long-tailed Duck Pterodroma sandwichensis, Hawaiian Family ANATIDAE Bucephala albeola, Bufflehead Petrel Subfamily DENDROCYGNINAE Bucephala clangula, Common Pterodroma cervicalis, White-necked Dendrocygna autumnalis, Black- Goldeneye Petrel bellied Whistling-Duck Bucephala islandica, Barrow’s Pterodroma hypoleuca, Bonin Petrel Dendrocygna arborea, West Indian Goldeneye Pterodroma nigripennis, Black- Whistling-Duck Mergellus albellus, Smew winged Petrel Dendrocygna bicolor, Fulvous Lophodytes cucullatus, Hooded Pterodroma cookii, Cook’s Petrel Whistling-Duck Merganser Pterodroma longirostris, Stejneger’s Subfamily ANSERINAE Mergus merganser, Common Petrel Anser fabalis, Taiga Bean-Goose Merganser Pterodroma alba, Phoenix Petrel Anser serrirostris, Tundra Bean-Goose Mergus serrator, Red-breasted Pterodroma leucoptera, Gould’s Petrel Anser albifrons, Greater White-fronted Merganser Pterodroma rostrata, Tahiti Petrel Goose Nomonyx dominicus, Masked Duck Bulweria bulwerii, Bulwer’s Petrel Anser erythropus, Lesser White- Oxyura jamaicensis, Ruddy Duck Bulweria fallax, Jouanin’s Petrel fronted Goose Order GAVIIFORMES Procellaria parkinsoni, Parkinson’s Chen canagica, Emperor Goose Family GAVIIDAE Petrel Chen caerulescens, Snow Goose Gavia stellata, Red-throated Loon Calonectris leucomelas, Streaked Chen rossii, Ross’s Goose Gavia arctica, Arctic Loon Shearwater Branta bernicla, Brant Gavia pacifica, Pacific Loon Calonectris diomedea, Cory’s Branta leucopsis, Barnacle Goose Gavia immer, Common Loon Shearwater Branta canadensis, Canada Goose Gavia adamsii, Yellow-billed Loon Calonectris edwardsii, Cape Verde (including Branta hutchinsii, Order PODICIPEDIFORMES Shearwater Cackling Goose) Family PODICIPEDIDAE Puffinus creatopus, Pink-footed Branta sandvicensis, Hawaiian Goose Tachybaptus dominicus, Least Grebe Shearwater Cygnus buccinator, Trumpeter Swan Podilymbus podiceps, Pied-billed Puffinus carneipes, Flesh-footed Cygnus columbianus, Tundra Swan Grebe Shearwater Cygnus cygnus, Whooper Swan Podiceps auritus, Horned Grebe Puffinus gravis, Great Shearwater Subfamily ANATINAE Podiceps grisegena, Red-necked Grebe Puffinus pacificus, Wedge-tailed Cairina moschata, Muscovy Duck Podiceps nigricollis, Eared Grebe Shearwater Aix sponsa, Wood Duck Aechmophorus occidentalis, Western Puffinus bulleri, Buller’s Shearwater Anas strepera, Gadwall Grebe Puffinus griseus, Sooty Shearwater Anas falcata, Falcated Duck Aechmophorus clarkii, Clark’s Grebe Puffinus tenuirostris, Short-tailed Anas penelope, Eurasian Wigeon Order PHOENICOPTERIFORMES Shearwater Anas americana, American Wigeon Family PHOENICOPTERIDAE Puffinus nativitatis, Christmas Anas rubripes, American Black Duck Phoenicopterus ruber, American Shearwater Anas platyrhynchos, Mallard Flamingo Puffinus puffinus, Manx Shearwater Anas fulvigula, Mottled Duck Order PROCELLARIIFORMES Puffinus auricularis, Townsend’s Anas wyvilliana, Hawaiian Duck Family DIOMEDEIDAE Shearwater Anas laysanensis, Laysan Duck Thalassarche chlororhynchos, Puffinus opisthomelas, Black-vented Anas zonorhyncha, Eastern Spot- Yellow-nosed Albatross Shearwater billed Duck Thalassarche cauta, Shy Albatross Puffinus lherminieri, Audubon’s Anas superciliosa, Pacific Black Duck Thalassarche melanophris, Black- Shearwater Anas discors, Blue-winged Teal browed Albatross Puffinus assimilis, Little Shearwater Anas cyanoptera, Cinnamon Teal Phoebetria palpebrata, Light-mantled Family HYDROBATIDAE Anas clypeata, Northern Shoveler Albatross Oceanites oceanicus, Wilson’s Storm- Anas bahamensis, White-cheeked Diomedea exulans, Wandering Petrel Pintail Albatross Pelagodroma marina, White-faced Anas acuta, Northern Pintail Phoebastria immutabilis, Laysan Storm-Petrel Anas querquedula, Garganey Albatross Fregetta tropica, Black-bellied Storm- Anas formosa, Baikal Teal Phoebastria nigripes, Black-footed Petrel

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Fregetta grallaria, White-bellied White Pelican Accipiter gularis, Japanese Storm-Petrel Pelecanus occidentalis, Brown Sparrowhawk Nesofregetta fuliginosa, Polynesian Pelican Accipiter striatus, Sharp-shinned Storm-Petrel Family ARDEIDAE Hawk Oceanodroma furcata, Fork-tailed Botaurus lentiginosus, American Accipiter cooperii, Cooper’s Hawk Storm-Petrel Bittern Accipiter gentilis, Northern Goshawk Oceanodroma hornbyi, Ringed Storm- Ixobrychus sinensis, Yellow Bittern Geranospiza caerulescens, Crane Petrel Ixobrychus exilis, Least Bittern Hawk Oceanodroma monorhis, Swinhoe’s Ixobrychus eurhythmus, Schrenck’s Buteogallus anthracinus, Common Storm-Petrel Bittern Black-Hawk Oceanodroma leucorhoa, Leach’s Ixobrychus flavicollis, Black Bittern Parabuteo unicinctus, Harris’s Hawk Storm-Petrel Ardea herodias, Great Blue Heron Buteo magnirostris, Roadside Hawk Oceanodroma homochroa, Ashy Ardea cinerea, Gray Heron Buteo lineatus, Red-shouldered Hawk Storm-Petrel Ardea alba, Great Egret Buteo platypterus, Broad-winged Oceanodroma castro, Band-rumped Mesophoyx intermedia, Intermediate Hawk Storm-Petrel Egret Buteo nitidus, Gray Hawk Oceanodroma tethys, Wedge-rumped Egretta eulophotes, Chinese Egret Buteo brachyurus, Short-tailed Hawk Storm-Petrel Egretta garzetta, Little Egret Buteo swainsoni, Swainson’s Hawk Oceanodroma matsudairae, Egretta sacra, Pacific Reef-Egret Buteo albicaudatus, White-tailed Matsudaira’s Storm-Petrel Egretta gularis, Western Reef-Heron Hawk Oceanodroma melania, Black Storm- Egretta thula, Snowy Egret Buteo albonotatus, Zone-tailed Hawk Petrel Egretta caerulea, Little Blue Heron Buteo solitarius, Hawaiian Hawk Oceanodroma tristrami, Tristram’s Egretta tricolor, Tricolored Heron Buteo jamaicensis, Red-tailed Hawk Storm-Petrel Egretta rufescens, Reddish Egret Buteo regalis, Ferruginous Hawk Oceanodroma microsoma, Least Bubulcus ibis, Cattle Egret Buteo lagopus, Rough-legged Hawk Storm-Petrel Ardeola bacchus, Chinese Pond- Aquila chrysaetos, Golden Eagle Order PHAETHONTIFORMES Heron Order FALCONIFORMES Family PHAETHONTIDAE Butorides virescens, Green Heron Family FALCONIDAE Phaethon lepturus, White-tailed Nycticorax nycticorax, Black-crowned Subfamily MICRASTURINAE Tropicbird Night-Heron Micrastur semitorquatus, Collared Phaethon aethereus, Red-billed Nyctanassa violacea, Yellow-crowned Forest-Falcon Tropicbird Night-Heron Subfamily CARACARINAE Phaethon rubricauda, Red-tailed Gorsachius goisagi, Japanese Night- Caracara cheriway, Crested Caracara Tropicbird Heron Subfamily FALCONINAE Order CICONIIFORMES Gorsachius melanolophus, Malayan Falco tinnunculus, Eurasian Kestrel Family CICONIIDAE Night-Heron Falco sparverius, American Kestrel Jabiru mycteria, Jabiru Family THRESKIORNITHIDAE Falco vespertinus, Red-footed Falcon Mycteria americana, Wood Stork Subfamily THRESKIORNITHINAE Falco columbarius, Merlin Order SULIFORMES Eudocimus albus, White Ibis Falco subbuteo, Eurasian Hobby Family FREGATIDAE Eudocimus ruber, Scarlet Ibis Falco femoralis, Aplomado Falcon Fregata magnificens, Magnificent Plegadis falcinellus, Glossy Ibis Falco rusticolus, Gyrfalcon Frigatebird Plegadis chihi, White-faced Ibis Falco peregrinus, Peregrine Falcon Fregata minor, Great Frigatebird Subfamily PLATALEINAE Falco mexicanus, Prairie Falcon Fregata ariel, Lesser Frigatebird Platalea ajaja, Roseate Spoonbill Order GRUIFORMES Family SULIDAE Order ACCIPITRIFORMES Family RALLIDAE Sula dactylatra, Masked Booby Family CATHARTIDAE Coturnicops noveboracensis, Yellow Sula nebouxii, Blue-footed Booby Coragyps atratus, Black Vulture Rail Sula leucogaster, Brown Booby Cathartes aura, Turkey Vulture Laterallus jamaicensis, Black Rail Sula sula, Red-footed Booby Gymnogyps californianus, California Gallirallus philippensis, Buff-banded Morus bassanus, Northern Gannet Condor Rail Family PHALACROCORACIDAE Family PANDIONIDAE Gallirallus owstoni, Guam Rail Phalacrocorax penicillatus, Brandt’s Pandion haliaetus, Osprey Crex crex, Corn Crake Cormorant Family ACCIPITRIDAE Rallus longirostris, Clapper Rail Phalacrocorax brasilianus, Neotropic Chondrohierax uncinatus, Hook- Rallus elegans, King Rail Cormorant billed Kite Rallus limicola, Virginia Rail Phalacrocorax auritus, Double-crested Elanoides forficatus, Swallow-tailed Porzana carolina, Sora Cormorant Kite Porzana tabuensis, Spotless Crake Phalacrocorax carbo, Great Cormorant Elanus leucurus, White-tailed Kite Porzana flaviventer, Yellow-breasted Phalacrocorax urile, Red-faced Rostrhamus sociabilis, Snail Kite Crake Cormorant Ictinia mississippiensis, Mississippi Neocrex erythrops, Paint-billed Crake Phalacrocorax pelagicus, Pelagic Kite Pardirallus maculatus, Spotted Rail Cormorant Milvus migrans, Black Kite Porphyrio porphyrio, Purple Phalacrocorax melanoleucos, Little Haliaeetus leucocephalus, Bald Eagle Swamphen Pied Cormorant Haliaeetus albicilla, White-tailed Porphyrio martinica, Purple Gallinule Family ANHINGIDAE Eagle Porphyrio flavirostris, Azure Gallinule Anhinga anhinga, Anhinga Haliaeetus pelagicus, Steller’s Sea- Gallinula chloropus, Common Order PELECANIFORMES Eagle Moorhen Family PELECANIDAE Circus cyaneus, Northern Harrier Fulica atra, Eurasian Coot Pelecanus erythrorhynchos, American Accipiter soloensis, Gray Frog-Hawk Fulica alai, Hawaiian Coot

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Fulica americana, American Coot Tringa nebularia, Common Scolopax rusticola, Eurasian Fulica caribaea, Caribbean Coot Greenshank Woodcock Family ARAMIDAE Tringa guttifer, Nordmann’s Scolopax minor, American Woodcock Aramus guarauna, Limpkin Greenshank Subfamily PHALAROPODINAE Family GRUIDAE Tringa semipalmata, Willet Phalaropus tricolor, Wilson’s Grus canadensis, Sandhill Crane Tringa flavipes, Lesser Yellowlegs Phalarope Grus grus, Common Crane Tringa stagnatilis, Marsh Sandpiper Phalaropus lobatus, Red-necked Grus americana, Whooping Crane Tringa glareola, Wood Sandpiper Phalarope Order CHARADRIIFORMES Bartramia longicauda, Upland Phalaropus fulicarius, Red Phalarope Family CHARADRIIDAE Sandpiper Family LARIDAE Subfamily VANELLINAE Numenius minutus, Little Curlew Subfamily LARINAE Vanellus vanellus, Northern Lapwing Numenius borealis, Eskimo Curlew Creagrus furcatus, Swallow-tailed Subfamily CHARADRIINAE Numenius phaeopus, Whimbrel Gull Pluvialis squatarola, Black-bellied Numenius tahitiensis, Bristle-thighed Rissa tridactyla, Black-legged Plover Curlew Kittiwake Pluvialis apricaria, European Golden- Numenius madagascariensis, Far Rissa brevirostris, Red-legged Plover Eastern Curlew Kittiwake Pluvialis dominica, American Golden- Numenius arquata, Eurasian Curlew Pagophila eburnea, Ivory Gull Plover Numenius americanus, Long-billed Xema sabini, Sabine’s Gull Pluvialis fulva, Pacific Golden-Plover Curlew Chroicocephalus philadelphia, Charadrius mongolus, Lesser Sand- Limosa limosa, Black-tailed Godwit Bonaparte’s Gull Plover Limosa haemastica, Hudsonian Chroicocephalus cirrocephalus, Gray- Charadrius leschenaultii, Greater Godwit hooded Gull Sand-Plover Limosa lapponica, Bar-tailed Godwit Chroicocephalus ridibundus, Black- Charadrius collaris, Collared Plover Limosa fedoa, Marbled Godwit headed Gull Charadrius alexandrinus, Snowy Arenaria interpres, Ruddy Turnstone Hydrocoloeus minutus, Little Gull Plover Arenaria melanocephala, Black Rhodostethia rosea, Ross’s Gull Charadrius wilsonia, Wilson’s Plover Turnstone Leucophaeus atricilla, Laughing Gull Charadrius hiaticula, Common Aphriza virgata, Surfbird Leucophaeus pipixcan, Franklin’s Ringed Plover Calidris tenuirostris, Great Knot Gull Charadrius semipalmatus, Calidris canutus, Red Knot Larus belcheri, Belcher’s Gull Semipalmated Plover Calidris alba, Sanderling Larus crassirostris, Black-tailed Gull Charadrius melodus, Piping Plover Calidris pusilla, Semipalmated Larus heermanni, Heermann’s Gull Charadrius dubius, Little Ringed Sandpiper Larus canus, Mew Gull Plover Calidris mauri, Western Sandpiper Larus delawarensis, Ring-billed Gull Charadrius vociferus, Killdeer Calidris ruficollis, Red-necked Stint Larus occidentalis, Western Gull Charadrius montanus, Mountain Calidris minuta, Little Stint Larus livens, Yellow-footed Gull Plover Calidris temminckii, Temminck’s Larus californicus, California Gull Charadrius morinellus, Eurasian Stint Larus argentatus, Herring Gull Dotterel Calidris subminuta, Long-toed Stint Larus michahellis, Yellow-legged Gull Family HAEMATOPODIDAE Calidris minutilla, Least Sandpiper Larus thayeri, Thayer’s Gull Haematopus ostralegus, Eurasian Calidris fuscicollis, White-rumped Larus glaucoides, Iceland Gull Oystercatcher Sandpiper Larus fuscus, Lesser Black-backed Haematopus palliatus, American Calidris bairdii, Baird’s Sandpiper Gull Oystercatcher Calidris melanotos, Pectoral Larus schistisagus, Slaty-backed Gull Haematopus bachmani, Black Sandpiper Larus glaucescens, Glaucous-winged Oystercatcher Calidris acuminata, Sharp-tailed Gull Family RECURVIROSTRIDAE Sandpiper Larus hyperboreus, Glaucous Gull Himantopus himantopus, Black- Calidris maritima, Purple Sandpiper Larus marinus, Great Black-backed winged Stilt Calidris ptilocnemis, Rock Sandpiper Gull Himantopus mexicanus, Black- Calidris alpina, Dunlin Larus dominicanus, Kelp Gull necked Stilt Calidris ferruginea, Curlew Sandpiper Subfamily STERNINAE Recurvirostra americana, American Calidris himantopus, Stilt Sandpiper Anous stolidus, Brown Noddy Avocet Eurynorhynchus pygmeus, Spoon- Anous minutus, Black Noddy Family JACANIDAE billed Sandpiper Procelsterna cerulea, Blue-gray Jacana spinosa, Northern Jacana Limicola falcinellus, Broad-billed Noddy Family SCOLOPACIDAE Sandpiper Gygis alba, White Tern Subfamily SCOLOPACINAE Tryngites subruficollis, Buff-breasted Onychoprion fuscatus, Sooty Tern Xenus cinereus, Terek Sandpiper Sandpiper Onychoprion lunatus, Gray-backed Actitis hypoleucos, Common Philomachus pugnax, Ruff Tern Sandpiper Limnodromus griseus, Short-billed Onychoprion anaethetus, Bridled Actitis macularius, Spotted Sandpiper Dowitcher Tern Tringa ochropus, Green Sandpiper Limnodromus scolopaceus, Long- Onychoprion aleuticus, Aleutian Tern Tringa solitaria, Solitary Sandpiper billed Dowitcher Sternula albifrons, Little Tern Tringa brevipes, Gray-tailed Tattler Lymnocryptes minimus, Jack Snipe Sternula antillarum, Least Tern Tringa incana, Wandering Tattler Gallinago delicata, Wilson’s Snipe Phaetusa simplex, Large-billed Tern Tringa erythropus, Spotted Redshank Gallinago gallinago, Common Snipe Gelochelidon nilotica, Gull-billed Tringa melanoleuca, Greater Gallinago stenura, Pin-tailed Snipe Tern Yellowlegs Gallinago megala, Swinhoe’s Snipe Hydroprogne caspia, Caspian Tern

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Chlidonias niger, Black Tern Zenaida asiatica, White-winged Dove Micrathene whitneyi, Elf Owl Chlidonias leucopterus, White- Zenaida aurita, Zenaida Dove Athene cunicularia, Burrowing Owl winged Tern Zenaida macroura, Mourning Dove Ciccaba virgata, Mottled Owl Chlidonias hybridus, Whiskered Tern Columbina inca, Inca Dove Strix occidentalis, Spotted Owl Sterna dougallii, Roseate Tern Columbina passerina, Common Strix varia, Barred Owl Sterna sumatrana, Black-naped Tern Ground-Dove Strix nebulosa, Great Gray Owl Sterna hirundo, Common Tern Columbina talpacoti, Ruddy Ground- Asio otus, Long-eared Owl Sterna paradisaea, Arctic Tern Dove Asio stygius, Stygian Owl Sterna forsteri, Forster’s Tern Leptotila verreauxi, White-tipped Asio flammeus, Short-eared Owl Thalasseus maximus, Royal Tern Dove Aegolius funereus, Boreal Owl Thalasseus bergii, Great Crested Tern Geotrygon chrysia, Key West Quail- Aegolius acadicus, Northern Saw- Thalasseus sandvicensis, Sandwich Dove whet Owl Tern Geotrygon mystacea, Bridled Quail- Ninox scutulata, Brown Hawk-Owl Thalasseus elegans, Elegant Tern Dove Order CAPRIMULGIFORMES Subfamily RYNCHOPINAE Geotrygon montana, Ruddy Quail- Family CAPRIMULGIDAE Rynchops niger, Black Skimmer Dove Subfamily CHORDEILINAE Family STERCORARIIDAE Gallicolumba xanthonura, White- Chordeiles acutipennis, Lesser Stercorarius skua, Great Skua throated Ground-Dove Nighthawk Stercorarius maccormicki, South Gallicolumba stairi, Friendly Ground- Chordeiles minor, Common Polar Skua Dove Nighthawk Stercorarius pomarinus, Pomarine Ptilinopus perousii, Many-colored Chordeiles gundlachii, Antillean Jaeger Fruit-Dove Nighthawk Stercorarius parasiticus, Parasitic Ptilinopus porphyraceus, Crimson- Subfamily CAPRIMULGINAE Jaeger crowned Fruit-Dove Nyctidromus albicollis, Common Stercorarius longicaudus, Long-tailed Ptilinopus roseicapilla, Mariana Fruit- Pauraque Jaeger Dove Phalaenoptilus nuttallii, Common Family ALCIDAE Ducula pacifica, Pacific Imperial- Poorwill Alle alle, Dovekie Pigeon Caprimulgus carolinensis, Chuck- Uria aalge, Common Murre Order CUCULIFORMES will’s-widow Uria lomvia, Thick-billed Murre Family CUCULIDAE Caprimulgus ridgwayi, Buff-collared Alca torda, Razorbill Subfamily CUCULINAE Nightjar Cepphus grylle, Black Guillemot Cuculus fugax, Hodgson’s Hawk- Caprimulgus vociferus, Eastern Whip- Cepphus columba, Pigeon Guillemot Cuckoo poor-will Brachyramphus perdix, Long-billed Cuculus canorus, Common Cuckoo Caprimulgus arizonae, Mexican Murrelet Cuculus optatus, Oriental Cuckoo Whip-poor-will Brachyramphus marmoratus, Marbled Coccyzus americanus, Yellow-billed Caprimulgus noctitherus, Puerto Murrelet Cuckoo Rican Nightjar Brachyramphus brevirostris, Kittlitz’s Coccyzus minor, Mangrove Cuckoo Caprimulgus indicus, Gray Nightjar Murrelet Coccyzus erythropthalmus, Black- Order APODIFORMES Synthliboramphus hypoleucus, billed Cuckoo Family APODIDAE Xantus’s Murrelet Coccyzus vieilloti, Puerto Rican Subfamily CYPSELOIDINAE Synthliboramphus craveri, Craveri’s Lizard-Cuckoo Cypseloides niger, Black Swift Murrelet Subfamily NEOMORPHINAE Streptoprocne zonaris, White-collared Synthliboramphus antiquus, Ancient Geococcyx californianus, Greater Swift Murrelet Roadrunner Subfamily CHAETURINAE Ptychoramphus aleuticus, Cassin’s Subfamily CROTOPHAGINAE Chaetura pelagica, Chimney Swift Auklet Crotophaga ani, Smooth-billed Ani Chaetura vauxi, Vaux’s Swift Aethia psittacula, Parakeet Auklet Crotophaga sulcirostris, Groove-billed Chaetura brachyura, Short-tailed Aethia pusilla, Least Auklet Ani Swift Aethia pygmaea, Whiskered Auklet Order STRIGIFORMES Hirundapus caudacutus, White- Aethia cristatella, Crested Auklet Family TYTONIDAE throated Needletail Cerorhinca monocerata, Rhinoceros Tyto alba, Barn Owl Aerodramus spodiopygius, White- Auklet Family STRIGIDAE rumped Swiftlet Fratercula arctica, Atlantic Puffin Otus flammeolus, Flammulated Owl Aerodramus bartschi, Mariana Fratercula corniculata, Horned Puffin Otus sunia, Oriental Scops-Owl Swiftlet Fratercula cirrhata, Tufted Puffin Megascops kennicottii, Western Subfamily APODINAE Order COLUMBIFORMES Screech-Owl Apus apus, Common Swift Family COLUMBIDAE Megascops asio, Eastern Screech-Owl Apus pacificus, Fork-tailed Swift Patagioenas squamosa, Scaly-naped Megascops trichopsis, Whiskered Apus melba, Alpine Swift Pigeon Screech-Owl Aeronautes saxatalis, White-throated Patagioenas leucocephala, White- Megascops nudipes, Puerto Rican Swift crowned Pigeon Screech-Owl Tachornis phoenicobia, Antillean Patagioenas flavirostris, Red-billed Bubo virginianus, Great Horned Owl Palm-Swift Pigeon Bubo scandiacus, Snowy Owl Family TROCHILIDAE Patagioenas inornata, Plain Pigeon Surnia ulula, Northern Hawk Owl Subfamily TROCHILINAE Patagioenas fasciata, Band-tailed Glaucidium gnoma, Northern Pygmy- Colibri thalassinus, Green Violetear Pigeon Owl Anthracothorax prevostii, Green- Streptopelia orientalis, Oriental Glaucidium brasilianum, Ferruginous breasted Mango Turtle-Dove Pygmy-Owl Anthracothorax dominicus, Antillean

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Mango Chloroceryle americana, Green Contopus pertinax, Greater Pewee Anthracothorax viridis, Green Mango Kingfisher Contopus sordidulus, Western Wood- Eulampis jugularis, Purple-throated Order PICIFORMES Pewee Carib Family PICIDAE Contopus virens, Eastern Wood-Pewee Eulampis holosericeus, Green- Subfamily JYNGINAE Contopus caribaeus, Cuban Pewee throated Carib Jynx torquilla, Eurasian Wryneck Contopus hispaniolensis, Hispaniolan Orthorhyncus cristatus, Antillean Subfamily PICINAE Pewee Crested Hummingbird Melanerpes lewis, Lewis’s Contopus latirostris, Lesser Antillean Chlorostilbon maugaeus, Puerto Rican Woodpecker Pewee Emerald Melanerpes portoricensis, Puerto Empidonax flaviventris, Yellow- Cynanthus latirostris, Broad-billed Rican Woodpecker bellied Flycatcher Hummingbird Melanerpes erythrocephalus, Red- Empidonax virescens, Acadian Hylocharis leucotis, White-eared headed Woodpecker Flycatcher Hummingbird Melanerpes formicivorus, Acorn Empidonax alnorum, Alder Hylocharis xantusii, Xantus’s Woodpecker Flycatcher Hummingbird Melanerpes uropygialis, Gila Empidonax traillii, Willow Flycatcher Amazilia beryllina, Berylline Woodpecker Empidonax minimus, Least Hummingbird Melanerpes aurifrons, Golden-fronted Flycatcher Amazilia yucatanensis, Buff-bellied Woodpecker Empidonax hammondii, Hammond’s Hummingbird Melanerpes carolinus, Red-bellied Flycatcher Amazilia rutila, Cinnamon Woodpecker Empidonax wrightii, Gray Flycatcher Hummingbird Sphyrapicus thyroideus, Williamson’s Empidonax oberholseri, Dusky Amazilia violiceps, Violet-crowned Sapsucker Flycatcher Hummingbird Sphyrapicus varius, Yellow-bellied Empidonax difficilis, Pacific-slope Lampornis clemenciae, Blue-throated Sapsucker Flycatcher Hummingbird Sphyrapicus nuchalis, Red-naped Empidonax occidentalis, Cordilleran Eugenes fulgens, Magnificent Sapsucker Flycatcher Hummingbird Sphyrapicus ruber, Red-breasted Empidonax fulvifrons, Buff-breasted Heliomaster constantii, Plain-capped Sapsucker Flycatcher Starthroat Dendrocopos major, Great Spotted Sayornis nigricans, Black Phoebe Calliphlox evelynae, Bahama Woodpecker Sayornis phoebe, Eastern Phoebe Woodstar Picoides scalaris, Ladder-backed Sayornis saya, Say’s Phoebe Calothorax lucifer, Lucifer Woodpecker Pyrocephalus rubinus, Vermilion Hummingbird Picoides nuttallii, Nuttall’s Flycatcher Archilochus colubris, Ruby-throated Woodpecker Subfamily TYRANNINAE Hummingbird Picoides pubescens, Downy Myiarchus tuberculifer, Dusky-capped Archilochus alexandri, Black-chinned Woodpecker Flycatcher Hummingbird Picoides villosus, Hairy Woodpecker Myiarchus cinerascens, Ash-throated Calypte anna, Anna’s Hummingbird Picoides arizonae, Arizona Flycatcher Calypte costae, Costa’s Hummingbird Woodpecker Myiarchus nuttingi, Nutting’s Stellula calliope, Calliope Picoides borealis, Red-cockaded Flycatcher Hummingbird Woodpecker Myiarchus crinitus, Great Crested Atthis heloisa, Bumblebee Picoides albolarvatus, White-headed Flycatcher Hummingbird Woodpecker Myiarchus tyrannulus, Brown-crested Selasphorus platycercus, Broad-tailed Picoides dorsalis, American Three- Flycatcher Hummingbird toed Woodpecker Myiarchus sagrae, La Sagra’s Selasphorus rufus, Rufous Picoides arcticus, Black-backed Flycatcher Hummingbird Woodpecker Myiarchus antillarum, Puerto Rican Selasphorus sasin, Allen’s Colaptes auratus, Northern Flicker Flycatcher Hummingbird Colaptes chrysoides, Gilded Flicker Pitangus sulphuratus, Great Kiskadee Order TROGONIFORMES Dryocopus pileatus, Pileated Myiozetetes similis, Social Flycatcher Family TROGONIDAE Woodpecker Myiodynastes luteiventris, Sulphur- Subfamily TROGONINAE Campephilus principalis, Ivory-billed bellied Flycatcher Trogon elegans, Elegant Trogon Woodpecker Legatus leucophalus, Piratic Euptilotis neoxenus, Eared Quetzel Order PASSERIFORMES Flycatcher Order UPUPIFORMES Family TYRANNIDAE Empidonomus varius, Variegated Family UPUPIDAE Subfamily ELAENIINAE Flycatcher Upupa epops, Eurasian Hoopoe Camptostoma imberbe, Northern Empidonomus aurantioatrocristatus, Order CORACIIFORMES Beardless-Tyrannulet Crowned Slaty Flycatcher Family ALCEDINIDAE Myiopagis viridicata, Greenish Tyrannus melancholicus, Tropical Subfamily HALCYONINAE Elaenia Kingbird Todirhamphus cinnamominus, Elaenia martinica, Caribbean Elaenia Tyrannus couchii, Couch’s Kingbird Micronesian Kingfisher Elaenia albiceps, White-crested Tyrannus vociferans, Cassin’s Todirhamphus chloris, Collared Eleania Kingbird Kingfisher Subfamily FLUVICOLINAE Tyrannus crassirostris, Thick-billed Subfamily CERYLINAE Mitrephanes phaeocercus, Tufted Kingbird Megaceryle torquata, Ringed Flycatcher Tyrannus verticalis, Western Kingbird Kingfisher Contopus cooperi, Olive-sided Tyrannus tyrannus, Eastern Kingbird Megaceryle alcyon, Belted Kingfisher Flycatcher Tyrannus dominicensis, Gray

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Kingbird Alauda arvensis, Sky Lark Thryothorus ludovicianus, Carolina Tyrannus caudifasciatus, Loggerhead Eremophila alpestris, Horned Lark Wren Kingbird Family HIRUNDINIDAE Thryomanes bewickii, Bewick’s Wren Tyrannus forficatus, Scissor-tailed Subfamily HIRUNDININAE Troglodytes aedon, House Wren Flycatcher Progne subis, Purple Martin Troglodytes pacificus, Pacific Wren Tyrannus savana, Fork-tailed Progne cryptoleuca, Cuban Martin Troglodytes hiemalis, Winter Wren Flycatcher Progne dominicensis, Caribbean Cistothorus platensis, Sedge Wren Pachyramphus aglaiae, Rose-throated Martin Cistothorus palustris, Marsh Wren Becard Progne chalybea, Gray-breasted Family POLIOPTILIDAE Tityra semifasciata, Masked Tityra Martin Polioptila caerulea, Blue-gray Family LANIIDAE Progne elegans, Southern Martin Gnatcatcher Lanius cristatus, Brown Shrike Progne tapera, Brown-chested Martin Polioptila californica, California Lanius ludovicianus, Loggerhead Tachycineta bicolor, Tree Swallow Gnatcatcher Shrike Tachycineta albilinea, Mangrove Polioptila melanura, Black-tailed Lanius excubitor, Northern Shrike Swallow Gnatcatcher Family VIREONIDAE Tachycineta thalassina, Violet-green Polioptila nigriceps, Black-capped Vireo griseus, White-eyed Vireo Swallow Gnatcatcher Vireo crassirostris, Thick-billed Vireo Tachycineta cyaneoviridis, Bahama Family CINCLIDAE Vireo latimeri, Puerto Rican Vireo Swallow Cinclus mexicanus, American Dipper Vireo bellii, Bell’s Vireo Stelgidopteryx serripennis, Northern Family REGULIDAE Vireo atricapillus, Black-capped Vireo Rough-winged Swallow Regulus satrapa, Golden-crowned Vireo vicinior, Gray Vireo Riparia riparia, Bank Swallow Kinglet Vireo flavifrons, Yellow-throated Petrochelidon pyrrhonota, Cliff Regulus calendula, Ruby-crowned Vireo Swallow Kinglet Vireo plumbeus, Plumbeous Vireo Petrochelidon fulva, Cave Swallow Family PHYLLOSCOPIDAE Vireo cassinii, Cassin’s Vireo Hirundo rustica, Barn Swallow Phylloscopus trochilus, Willow Vireo solitarius, Blue-headed Vireo Delichon urbicum, Common House- Warbler Vireo huttoni, Hutton’s Vireo Martin Phylloscopus sibilatrix, Wood Vireo gilvus, Warbling Vireo Family PARIDAE Warbler Vireo philadelphicus, Philadelphia Poecile carolinensis, Carolina Phylloscopus fuscatus, Dusky Warbler Vireo Chickadee Phylloscopus proregulus, Pallas’s Vireo olivaceus, Red-eyed Vireo Poecile atricapillus, Black-capped Leaf-Warbler Vireo flavoviridis, Yellow-green Vireo Chickadee Phylloscopus inornatus, Yellow- Vireo altiloquus, Black-whiskered Poecile gambeli, Mountain Chickadee browed Warbler Vireo Poecile sclateri, Mexican Chickadee Phylloscopus borealis, Arctic Warbler Vireo magister, Yucatan Vireo Poecile rufescens, Chestnut-backed Family SYLVIIDAE Family CORVIDAE Chickadee Sylvia curruca, Lesser Whitethroat Perisoreus canadensis, Gray Jay Poecile hudsonicus, Boreal Chickadee Chamaea fasciata, Wrentit Psilorhinus morio, Brown Jay Poecile cinctus, Gray-headed Family ACROCEPHALIDAE Cyanocorax yncas, Green Jay Chickadee Acrocephalus luscinia, Nightingale Gymnorhinus cyanocephalus, Pinyon Baeolophus wollweberi, Bridled Reed-Warbler Jay Titmouse Acrocephalus familiaris, Millerbird Cyanocitta stelleri, Steller’s Jay Baeolophus inornatus, Oak Titmouse Acrocephalus schoenobaenus, Sedge Cyanocitta cristata, Blue Jay Baeolophus ridgwayi, Juniper Warbler Aphelocoma coerulescens, Florida Titmouse Family MEGALURIDAE Scrub-Jay Baeolophus bicolor, Tufted Titmouse Locustella ochotensis, Middendorff’s Aphelocoma insularis, Island Scrub- Baeolophus atricristatus, Black- Grasshopper-Warbler Jay crested Titmouse Locustella lanceolata, Lanceolated Aphelocoma californica, Western Family REMIZIDAE Warbler Scrub-Jay Auriparus flaviceps, Verdin Family MUSCICAPIDAE Aphelocoma ultramarina, Mexican Family AEGITHALIDAE Ficedula narcissina, Narcissus Jay Psaltriparus minimus, Bushtit Flycatcher Nucifraga columbiana, Clark’s Family SITTIDAE Ficedula mugimaki, Mugimaki Nutcracker Subfamily SITTINAE Flycatcher Pica hudsonia, Black-billed Magpie Sitta canadensis, Red-breasted Ficedula albicilla, Taiga Flycatcher Pica nuttalli, Yellow-billed Magpie Nuthatch Muscicapa sibirica, Dark-sided Corvus kubaryi, Mariana Crow Sitta carolinensis, White-breasted Flycatcher Corvus brachyrhynchos, American Nuthatch Muscicapa griseisticta, Gray-streaked Crow Sitta pygmaea, Pygmy Nuthatch Flycatcher Corvus caurinus, Northwestern Crow Sitta pusilla, Brown-headed Nuthatch Muscicapa dauurica, Asian Brown Corvus leucognaphalus, White- Family CERTHIIDAE Flycatcher necked Crow Subfamily CERTHIINAE Muscicapa striata, Spotted Flycatcher Corvus imparatus, Tamaulipas Crow Certhia americana, Brown Creeper Family TURDIDAE Corvus ossifragus, Fish Crow Family TROGLODYTIDAE Monticola solitarius, Blue Rock- Corvus hawaiiensis, Hawaiian Crow Campylorhynchus brunneicapillus, Thrush Corvus cryptoleucus, Chihuahuan Cactus Wren Luscinia sibilans, Rufous-tailed Robin Raven Salpinctes obsoletus, Rock Wren Luscinia calliope, Siberian Rubythroat Corvus corax, Common Raven Catherpes mexicanus, Canyon Wren Luscinia svecica, Bluethroat Family ALAUDIDAE Thryothorus sinaloa, Sinaloa Wren Luscinia cyane, Siberian Blue Robin

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Tarsiger cyanurus, Red-flanked Family PRUNELLIDAE Dendroica nigrescens, Black-throated Bluetail Prunella montanella, Siberian Gray Warbler Oenanthe oenanthe, Northern Accentor Dendroica chrysoparia, Golden- Wheatear Family MOTACILLIDAE cheeked Warbler Saxicola torquatus, Stonechat Motacilla tschutschensis, Eastern Dendroica virens, Black-throated Sialia sialis, Eastern Bluebird Yellow Wagtail Green Warbler Sialia mexicana, Western Bluebird Motacilla citreola, Citrine Wagtail Dendroica townsendi, Townsend’s Sialia currucoides, Mountain Motacilla cinerea, Gray Wagtail Warbler Bluebird Motacilla alba, White Wagtail Dendroica occidentalis, Hermit Myadestes townsendi, Townsend’s Anthus trivialis, Tree Pipit Warbler Solitaire Anthus hodgsoni, Olive-backed Pipit Dendroica fusca, Blackburnian Myadestes myadestinus, Kamao Anthus gustavi, Pechora Pipit Warbler Myadestes lanaiensis, Olomao Anthus cervinus, Red-throated Pipit Dendroica dominica, Yellow-throated Myadestes obscurus, Omao Anthus rubescens, American Pipit Warbler Myadestes palmeri, Puaiohi Anthus spragueii, Sprague’s Pipit Dendroica graciae, Grace’s Warbler Catharus aurantiirostris, Orange- Family BOMBYCILLIDAE Dendroica adelaidae, Adelaide’s billed Nightingale-Thrush Bombycilla garrulus, Bohemian Warbler Catharus mexicanus, Black-headed Waxwing Dendroica pinus, Pine Warbler Nightingale-Thrush Bombycilla cedrorum, Cedar Dendroica kirtlandii, Kirtland’s Catharus fuscescens, Veery Waxwing Warbler Catharus minimus, Gray-cheeked Family PTILOGONATIDAE Dendroica discolor, Prairie Warbler Thrush Ptilogonys cinereus, Gray Silky- Dendroica palmarum, Palm Warbler Catharus bicknelli, Bicknell’s Thrush flycatcher Dendroica castanea, Bay-breasted Catharus ustulatus, Swainson’s Phainopepla nitens, Phainopepla Warbler Thrush Family PEUCEDRAMIDAE Dendroica striata, Blackpoll Warbler Catharus guttatus, Hermit Thrush Peucedramus taeniatus, Olive Dendroica cerulea, Cerulean Warbler Hylocichla mustelina, Wood Thrush Warbler Dendroica angelae, Elfin-woods Turdus obscurus, Eyebrowed Thrush Family CALCARIIDAE Warbler Turdus naumanni, Dusky Thrush Calcarius lapponicus, Lapland Mniotilta varia, Black-and-white Turdus pilaris, Fieldfare Longspur Warbler Turdus grayi, Clay-colored Thrush Calcarius ornatus, Chestnut-collared Setophaga ruticilla, American Turdus assimilis, White-throated Longspur Redstart Thrush Calcarius pictus, Smith’s Longspur Protonotaria citrea, Prothonotary Turdus rufopalliatus, Rufous-backed Rhynchophanes mccownii, McCown’s Warbler Robin Longspur Helmitheros vermivorum, Worm- Turdus migratorius, American Robin Plectrophenax nivalis, Snow Bunting eating Warbler Turdus plumbeus, Red-legged Thrush Plectrophenax hyperboreus, McKay’s Limnothlypis swainsonii, Swainson’s Ixoreus naevius, Varied Thrush Bunting Warbler Ridgwayia pinicola, Aztec Thrush Family PARULIDAE Seiurus aurocapilla, Ovenbird Family MIMIDAE Vermivora bachmanii, Bachman’s Parkesia noveboracensis, Northern Dumetella carolinensis, Gray Catbird Warbler Waterthrush Melanoptila glabrirostris, Black Vermivora cyanoptera, Blue-winged Parkesia motacilla, Louisiana Catbird Warbler Waterthrush Mimus polyglottos, Northern Vermivora chrysoptera, Golden- Oporornis formosus, Kentucky Mockingbird winged Warbler Warbler Mimus gundlachii, Bahama Oreothlypis peregrina, Tennessee Oporornis agilis, Connecticut Warbler Mockingbird Warbler Oporornis philadelphia, Mourning Oreoscoptes montanus, Sage Thrasher Oreothlypis celata, Orange-crowned Warbler Toxostoma rufum, Brown Thrasher Warbler Oporornis tolmiei, MacGillivray’s Toxostoma longirostre, Long-billed Oreothlypis ruficapilla, Nashville Warbler Thrasher Warbler Geothlypis trichas, Common Toxostoma bendirei, Bendire’s Oreothlypis virginiae, Virginia’s Yellowthroat Thrasher Warbler Geothlypis poliocephala, Gray- Toxostoma curvirostre, Curve-billed Oreothlypis crissalis, Colima Warbler crowned Yellowthroat Thrasher Oreothlypis luciae, Lucy’s Warbler Wilsonia citrina, Hooded Warbler Toxostoma redivivum, California Oreothlypis superciliosa, Crescent- Wilsonia pusilla, Wilson’s Warbler Thrasher chested Warbler Wilsonia canadensis, Canada Warbler Toxostoma crissale, Crissal Thrasher Parula americana, Northern Parula Cardellina rubrifrons, Red-faced Toxostoma lecontei, Le Conte’s Parula pitiayumi, Tropical Parula Warbler Thrasher Dendroica petechia, Yellow Warbler Myioborus pictus, Painted Redstart Melanotis caerulescens, Blue Dendroica pensylvanica, Chestnut- Myioborus miniatus, Slate-throated Mockingbird sided Warbler Redstart Margarops fuscatus, Pearly-eyed Dendroica magnolia, Magnolia Euthlypis lachrymosa, Fan-tailed Thrasher Warbler Warbler Family STURNIDAE Dendroica tigrina, Cape May Warbler Basileuterus culicivorus, Golden- Sturnus philippensis, Chestnut- Dendroica caerulescens, Black- crowned Warbler cheeked Starling throated Blue Warbler Basileuterus rufifrons, Rufous-capped Sturnus cineraceus, White-cheeked Dendroica coronata, Yellow-rumped Warbler Starling Warbler Icteria virens, Yellow-breasted Chat

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Family THRAUPIDAE Sparrow Quiscalus mexicanus, Great-tailed Nesospingus speculiferus, Puerto Melospiza georgiana, Swamp Sparrow Grackle Rican Tanager Zonotrichia albicollis, White-throated Quiscalus niger, Greater Antillean Spindalis zena, Western Spindalis Sparrow Grackle Spindalis portoricensis, Puerto Rican Zonotrichia querula, Harris’s Sparrow Molothrus bonariensis, Shiny Spindalis Zonotrichia leucophrys, White- Cowbird Family EMBERIZIDAE crowned Sparrow Molothrus aeneus, Bronzed Cowbird Sporophila torqueola, White-collared Zonotrichia atricapilla, Golden- Molothrus ater, Brown-headed Seedeater crowned Sparrow Cowbird Tiaris olivaceus, Yellow-faced Junco hyemalis, Dark-eyed Junco Icterus portoricensis, Puerto Rican Grassquit Junco phaeonotus, Yellow-eyed Junco Oriole Tiaris bicolor, Black-faced Grassquit Emberiza leucocephalos, Pine Icterus wagleri, Black-vented Oriole Loxigilla portoricensis, Puerto Rican Bunting Icterus spurius, Orchard Oriole Bullfinch Emberiza chrysophrys, Yellow- Icterus cucullatus, Hooded Oriole Arremonops rufivirgatus, Olive browed Bunting Icterus pustulatus, Streak-backed Sparrow Emberiza pusilla, Little Bunting Oriole Pipilo chlorurus, Green-tailed Towhee Emberiza rustica, Rustic Bunting Icterus bullockii, Bullock’s Oriole Pipilo maculatus, Spotted Towhee Emberiza elegans, Yellow-throated Icterus gularis, Altamira Oriole Pipilo erythrophthalmus, Eastern Bunting Icterus graduacauda, Audubon’s Towhee Emberiza aureola, Yellow-breasted Oriole Aimophila ruficeps, Rufous-crowned Bunting Icterus galbula, Baltimore Oriole Sparrow Emberiza variabilis, Gray Bunting Icterus parisorum, Scott’s Oriole Melozone fusca, Canyon Towhee Emberiza pallasi, Pallas’s Bunting Family FRINGILLIDAE Melozone crissalis, California Towhee Emberiza schoeniclus, Reed Bunting Subfamily FRINGILLINAE Melozone aberti, Abert’s Towhee Family CARDINALIDAE Fringilla coelebs, Common Chaffinch Peucaea carpalis, Rufous-winged Piranga flava, Hepatic Tanager Fringilla montifringilla, Brambling Sparrow Piranga rubra, Summer Tanager Subfamily EUPHONIINAE Peucaea botterii, Botteri’s Sparrow Piranga olivacea, Scarlet Tanager Euphonia musica, Antillean Euphonia Peucaea cassinii, Cassin’s Sparrow Piranga ludoviciana, Western Tanager Subfamily CARDUELINAE Peucaea aestivalis, Bachman’s Piranga bidentata, Flame-colored Leucosticte tephrocotis, Gray-crowned Sparrow Tanager Rosy-Finch Spizella arborea, American Tree Rhodothraupis celaeno, Crimson- Leucosticte atrata, Black Rosy-Finch Sparrow collared Grosbeak Leucosticte australis, Brown-capped Spizella passerina, Chipping Sparrow Cardinalis cardinalis, Northern Rosy-Finch Spizella pallida, Clay-colored Cardinal Pinicola enucleator, Pine Grosbeak Sparrow Cardinalis sinuatus, Pyrrhuloxia Carpodacus erythrinus, Common Spizella breweri, Brewer’s Sparrow Pheucticus chrysopeplus, Yellow Rosefinch Spizella pusilla, Field Sparrow Grosbeak Carpodacus purpureus, Purple Finch Spizella wortheni, Worthen’s Sparrow Pheucticus ludovicianus, Rose- Carpodacus cassinii, Cassin’s Finch Spizella atrogularis, Black-chinned breasted Grosbeak Carpodacus mexicanus, House Finch Sparrow Pheucticus melanocephalus, Black- Loxia curvirostra, Red Crossbill Pooecetes gramineus, Vesper Sparrow headed Grosbeak Loxia leucoptera, White-winged Chondestes grammacus, Lark Sparrow Cyanocompsa parellina, Blue Bunting Crossbill Amphispiza quinquestriata, Five- Passerina caerulea, Blue Grosbeak Acanthis flammea, Common Redpoll striped Sparrow Passerina amoena, Lazuli Bunting Acanthis hornemanni, Hoary Redpoll Amphispiza bilineata, Black-throated Passerina cyanea, Indigo Bunting Spinus spinus, Eurasian Siskin Sparrow Passerina versicolor, Varied Bunting Spinus pinus, Pine Siskin Amphispiza belli, Sage Sparrow Passerina ciris, Painted Bunting Spinus psaltria, Lesser Goldfinch Calamospiza melanocorys, Lark Spiza americana, Dickcissel Spinus lawrencei, Lawrence’s Bunting Family ICTERIDAE Goldfinch Passerculus sandwichensis, Savannah Dolichonyx oryzivorus, Bobolink Spinus tristis, American Goldfinch Sparrow Agelaius phoeniceus, Red-winged Chloris sinica, Oriental Greenfinch Ammodramus savannarum, Blackbird Pyrrhula pyrrhula, Eurasian Bullfinch Grasshopper Sparrow Agelaius tricolor, Tricolored Coccothraustes vespertinus, Evening Ammodramus bairdii, Baird’s Blackbird Grosbeak Sparrow Agelaius humeralis, Tawny- Coccothraustes coccothraustes, Ammodramus henslowii, Henslow’s shouldered Blackbird Hawfinch Sparrow Agelaius xanthomus, Yellow- Subfamily DREPANIDINAE Ammodramus leconteii, Le Conte’s shouldered Blackbird Telespiza cantans, Laysan Finch Sparrow Sturnella magna, Eastern Meadowlark Telespiza ultima, Nihoa Finch Ammodramus nelsoni, Nelson’s Sturnella neglecta, Western Psittirostra psittacea, Ou Sparrow Meadowlark Loxioides bailleui, Palila Ammodramus caudacutus, Saltmarsh Xanthocephalus xanthocephalus, Pseudonestor xanthophrys, Maui Sparrow Yellow-headed Blackbird Parrotbill Ammodramus maritimus, Seaside Euphagus carolinus, Rusty Blackbird Hemignathus virens, Hawaii Amakihi Sparrow Euphagus cyanocephalus, Brewer’s Hemignathus flavus, Oahu Amakihi Passerella iliaca, Fox Sparrow Blackbird Hemignathus kauaiensis, Kauai Melospiza melodia, Song Sparrow Quiscalus quiscula, Common Grackle Amakihi Melospiza lincolnii, Lincoln’s Quiscalus major, Boat-tailed Grackle Hemignathus ellisianus, Greater

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Akialoa Vestiaria coccinea, Iiwi § 21.3 [Amended] Hemignathus lucidus, Nukupuu Palmeria dolei, Akohekohe 4. Amend § 21.3, the definition of Hemignathus munroi, Akiapolaau ‘‘Raptor’’, by adding the words ‘‘the Himatione sanguinea, Apapane Magumma parva, Anianiau Order Accipitriformes,’’ immediately Oreomystis bairdi, Akikiki Melamprosops phaeosoma, Poo-uli before the words ‘‘the Order Oreomystis mana, Hawaii Creeper Falconiformes’’. Paroreomyza maculata, Oahu PART 21—[AMENDED] Alauahio Dated: April 6, 2011. Paroreomyza flammea, Kakawahie 3. The authority citation for part 21 is Will Shafroth, Paroreomyza montana, Maui revised to read as follows: Acting Assistant Secretary for Fish and Wildlife and Parks. Alauahio Authority Migratory Bird Treaty Act, 65 Loxops caeruleirostris, Akekee Pub. L. No. 65–186, 40 Stat. 755 (1918) (16 [FR Doc. 2011–9448 Filed 4–25–11; 8:45 am] Loxops coccineus, Akepa U.S.C. 703–12), as amended. BILLING CODE 4310–55–P

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Reader Aids Federal Register Vol. 76, No. 80 Tuesday, April 26, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING APRIL

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 1 CFR 7 CFR Executive orders and proclamations 741–6000 304...... 18635 12...... 22785 The United States Government Manual 741–6000 46...... 20217 2 CFR Other Services 210...... 22603, 22785 Electronic and on-line services (voice) 741–6020 Proposed Rules: 215...... 22603, 22785 Privacy Act Compilation 741–6064 Ch. III ...... 20568 220...... 22603, 22785 Public Laws Update Service (numbers, dates, etc.) 741–6043 Ch. IX...... 22058 225...... 22603, 22785 TTY for the deaf-and-hard-of-hearing 741–6086 Ch. XXX...... 20568 226...... 22603, 22785 245...... 22785 3 CFR 253...... 18861 ELECTRONIC RESEARCH Proclamations: 301...... 21613 World Wide Web 8641...... 18629 622...... 19683 Full text of the daily Federal Register, CFR and other publications 8642...... 18631 624...... 19683 is located at: www.fdsys.gov. 8643...... 18633 625...... 19683 Federal Register information and research tools, including Public 8644...... 19259 916...... 21615 Inspection List, indexes, and links to GPO Access are located at: 8645...... 19261 917...... 21615 www.ofr.gov. 8646...... 19262 924...... 21618 E-mail 8647...... 19265 925...... 21620 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8648...... 19899 946...... 18001 an open e-mail service that provides subscribers with a digital 8649...... 20215 989...... 18003 form of the Federal Register Table of Contents. The digital form 8650...... 20829 1217...... 22752 of the Federal Register Table of Contents includes HTML and 8651...... 20831 1465...... 19683 PDF links to the full text of each document. 8652...... 20833 1470...... 19683 To join or leave, go to http://listserv.access.gpo.gov and select 8653...... 21221 4280...... 21110, 22608 8654...... 21223 Online mailing list archives, FEDREGTOC-L, Join or leave the list Proposed Rules: 8655...... 21999 (or change settings); then follow the instructions. Ch. I ...... 22058 8656...... 22001 PENS (Public Law Electronic Notification Service) is an e-mail Ch. II ...... 22058 service that notifies subscribers of recently enacted laws. Executive Orders: Ch. III ...... 22058 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 12824 (amended by 301...... 18419 and select Join or leave the list (or change settings); then follow 13569) ...... 19891 319...... 18419 the instructions. 12835 (amended by Ch. IV...... 22058 FEDREGTOC-L and PENS are mailing lists only. We cannot 13569) ...... 19891 Ch. V...... 22058 respond to specific inquiries. 12859 (amended by Ch. VI...... 22058 Reference questions. Send questions and comments about the 13569) ...... 19891 Ch. VII...... 22058 Federal Register system to: [email protected] 13507 (revoked by 1217...... 22757 The Federal Register staff cannot interpret specific documents or 13569) ...... 19891 1260...... 18422 13532 (amended by regulations. Ch. XIV ...... 22058 13569) ...... 19891 Reminders. Effective January 1, 2009, the Reminders, including 1463...... 19710 13569...... 19891 Rules Going Into Effect and Comments Due Next Week, no longer Ch. XV ...... 22058 13570...... 22291 appear in the Reader Aids section of the Federal Register. This Ch. XVI ...... 22058 information can be found online at http://www.regulations.gov. Administrative Orders: Ch. XVII ...... 22058 CFR Checklist. Effective January 1, 2009, the CFR Checklist no Memorandums: Ch. XVIII ...... 22058 longer appears in the Federal Register. This information can be Memorandum of April 1942...... 22631 found online at http://bookstore.gpo.gov/. 6, 2011 ...... 19893 Ch. XX ...... 22058 Memorandum of April Ch. XXVI...... 22058 FEDERAL REGISTER PAGES AND DATE, APRIL 14, 2011 ...... 22003 Ch. XXVII...... 22058 Notices: Ch. XXVIII...... 22058 18001–18346...... 1 22785–23168...... 25 Notice of April 7, Ch. XXIX...... 22058 18347–18630...... 4 23169–23448...... 26 2011 ...... 19897 18631–18860...... 5 Ch. XXX...... 22058 18861–19264...... 6 5 CFR Ch. XXXI...... 22058 Ch. XXXII...... 22058 19265–19682...... 7 4401...... 19901 Ch. XXXIII...... 22058 19683–19898...... 8 Ch. LXX ...... 22293 19899–20214...... 11 Ch. XXXIV ...... 22058 Proposed Rules: Ch. XXXV ...... 22058 20215–20488...... 12 Ch. XXIII ...... 18954 20489–20834...... 13 Ch. XXXVI ...... 22058 Ch. XXIV...... 18954 Ch. XXXVII ...... 22058 20835–21220...... 14 Ch. XLII...... 18104 Ch. XXXVIII ...... 22058 21221–21612...... 15 Ch. XLV ...... 20568 Ch. XLI...... 22058 21613–21804...... 18 Ch. LXXIII ...... 22058 21805–21998...... 19 Ch. XLII...... 22058 21999–22292...... 20 6 CFR 22293–22602...... 21 Proposed Rules: 8 CFR 22603–22784...... 22 5...... 18954 274a...... 21225

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9 CFR 22311, 22316, 22319, 23169 Proposed Rules: 790...... 18832 61...... 19267 56...... 22295 404...... 20282 2520...... 18649 71 ...... 18040, 18041, 18378, 91...... 18347 416...... 20282 4022...... 21252 20233, 20835, 22009, 22010, 145...... 22295 Ch. IV...... 18104 4042...... 18388 22011, 22012, 22013, 22014, 146...... 22295 Ch. V...... 18104 4044...... 18869 22015, 22016 147...... 22295 Ch. VI...... 18104 Proposed Rules: 95...... 21622 201...... 18348 Ch. VII...... 18104 Ch. II ...... 18104 97 ...... 18379, 18382, 21232, 391...... 20220 Ch. IX...... 18104 Ch. IV...... 18104 21234 590...... 20220 Ch. V...... 18104 244...... 23110 21 CFR 592...... 20220 Ch. XVII ...... 18104 250...... 23110 179...... 20509 Proposed Rules: Ch. XXV...... 18104 253...... 23110 520...... 18648 Ch. I ...... 22058 2520...... 19285 259...... 23110 522...... 22610 11...... 20569 Ch. XL...... 18134 399...... 23110 610...... 20513 Ch. II ...... 22058 866...... 22322 30 CFR Ch. III ...... 22058 Proposed Rules: 33...... 18130 878...... 20840, 22805 Proposed Rules: 10 CFR 39 ...... 18454, 18664, 18957, 884...... 21237 Ch. I ...... 18104 18960, 18964, 19278, 19710, 1314...... 20518 26...... 22802 104...... 18467 19714, 19716, 19719, 19721, 430...... 19902, 22454 Proposed Rules: 938...... 18467 19724, 20894, 20898, 21675, 431...... 21580 Ch. I...... 20568, 20588 21815, 21820, 21822, 22059, 31 CFR 835...... 20489 1...... 20901 22828, 22830, 23218 7...... 20901 306...... 18062 Proposed Rules: 71 ...... 19281, 20279, 20280, 11...... 19192, 19238 Ch. II ...... 18965 356...... 18062 20281, 21266, 21268, 21269, 16...... 20575, 20901 26...... 23208 357...... 18062 21825, 21826, 21827, 21828, 101...... 19192, 19238 429...... 21813 363...... 18062 21830, 21831, 21832 312...... 20575 430 ...... 18105, 18425, 19913, Proposed Rules: 121...... 21270 511...... 20575 20090, 22324 538...... 22339 139...... 20570 812...... 20575 431 ...... 18127, 18428, 21673 560...... 22339 Ch. III ...... 18954 15 CFR 22 CFR 32 CFR Ch. X...... 18954 730...... 21628 62...... 23177 311...... 22612, 22613 12 CFR 744...... 21628 Proposed Rules: 321...... 22807 774...... 22017 213...... 18349 120...... 20590 322...... 22614, 22615 Proposed Rules: 226...... 18354, 22948 124...... 20590 323...... 22808 806...... 19282 563e...... 20490 701...... 22616 23 CFR 706...... 22322 717...... 18365 16 CFR 748...... 18365 1340...... 18042 Proposed Rules: 305...... 20233 83...... 22848 965...... 18367 25 CFR 966...... 18367 306...... 19684 223...... 22849 969...... 18367 1217...... 22019, 22030 Proposed Rules: 33 CFR 987...... 18367 1303...... 18645 Ch. I ...... 20287 1270...... 18367 1610...... 22608 Ch. III ...... 18457 100...... 22033, 23185 Proposed Rules: Proposed Rules: Ch. V...... 20568 110...... 20524, 21633 1224...... 19914 117 ...... 19910, 19911, 20843, 42...... 21169 26 CFR 48...... 22633 1500...... 19926 21253, 21636, 23185, 23187, 1 ...... 19268, 19907, 20524 23188 Ch. II ...... 22662 17 CFR 204...... 20892 300...... 21805 165 ...... 18389, 18391, 18394, 217...... 20892 Ch. I ...... 20835 301 ...... 18059, 18385, 22611 18395, 18398, 18869, 19698, 230...... 20892 240...... 20506 Proposed Rules: 20530, 20532, 20843, 21253, 234...... 18445 Proposed Rules: 1 ...... 20593, 20595, 22064, 21637, 22033, 22035, 22809, 236...... 21169 Ch. I ...... 23221 22336 22812, 23189 252...... 22648 Ch. II ...... 23221 31...... 20595, 22064 167...... 23191, 23193 327...... 21256 46...... 22833 301...... 18134 Proposed Rules: 329...... 21265 229...... 18966 100...... 19926, 20595 27 CFR 330...... 21265 240...... 18966 110...... 20287 372...... 21169 248...... 21169 19...... 19908 165 ...... 18669, 18672, 18674, 30...... 19908 19290, 20287, 21677, 22064, 381...... 22648 18 CFR 563h...... 21169 Proposed Rules: 23227 741...... 21169 40...... 23171 9...... 22338 751...... 21169 358...... 20838 34 CFR 1232...... 21169 Proposed Rules: 28 CFR 600...... 20534 Ch. I ...... 18954 0...... 21239 602...... 20534 13 CFR 40...... 23222 51...... 21239 603...... 20534 109...... 18007 284...... 20571 94...... 19909 668...... 20534 120...... 18376 682...... 20534 19 CFR 29 CFR 685...... 20534 14 CFR 101...... 22804 4...... 18832 686...... 20534 23...... 19903 Proposed Rules: 516...... 18832 690...... 20534 27...... 20490 4...... 18132 531...... 18832 691...... 20534 39 ...... 18020, 18022, 18024, 24...... 18132 553...... 18832 Proposed Rules: 18029, 18031, 18033, 18038, 351...... 23225 778...... 18832 99...... 19726 18376, 18865, 20229, 20231, 779...... 18832 20493, 20496, 20498, 20501, 20 CFR 780...... 18832 36 CFR 20503, 22005, 22007, 22296, 404...... 18383, 19692 785...... 18832 Proposed Rules: 22298, 22302, 22305, 22308, 416...... 18383, 19692 786...... 18832 Ch. II ...... 22058

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294...... 21272 Proposed Rules: 47 CFR 32...... 18497 Ch. 50 ...... 18104 73 ...... 18415, 18942, 19275, 37...... 22070, 23236 37 CFR Ch. 60 ...... 18104 19276, 20248, 20249 42...... 23236 1...... 18400 Ch. 61 ...... 18104 74...... 18942 45...... 18497 Proposed Rules: Ch. 109 ...... 18954 300...... 18652 49...... 18497 60-250...... 23358 Ch. I ...... 22854 Proposed Rules: 52 ...... 18497, 22070, 23236 60-300...... 23358 1...... 18990 1 ...... 18137, 18476, 18490, 53...... 18497, 23236 370...... 21833 18679, 20297, 22340 204...... 21847 382...... 21833 42 CFR 6...... 20297 212...... 21847 5...... 20867 7...... 20297 213...... 21849 39 CFR 413...... 18930 8...... 20297 236...... 21851 245...... 21852 3020...... 22618 417...... 21432 17...... 18679 422...... 21432 22...... 18679 252...... 21847 Proposed Rules: Ch. 3 ...... 20568 3050...... 20906 423...... 21432 24...... 18679 433...... 21950 25...... 18679 Ch. 4 ...... 22058 40 CFR Proposed Rules: 27...... 18679 Ch. 9 ...... 18954 Ch. I ...... 20568 64...... 18490 Ch. 29 ...... 18104 51...... 18870 5...... 22070 73...... 18497 52 ...... 18650, 18870, 18893, Ch. IV...... 20568 80...... 18679 20237, 20239, 20242, 20846, 49 CFR 87...... 18679 20850, 20853, 21639, 21807, 424...... 18472 90...... 18679 8...... 19707 22036, 22038, 22814, 22817, 425...... 19528 441...... 21311 40...... 18072 23196 48 CFR 213...... 18073 60...... 18408 Ch. V...... 20568 Ch. 1 ...... 18304 393...... 20867 62...... 22822 1...... 18324 541...... 20251 63...... 18064, 22566 43 CFR 2...... 18304 1503...... 22625 75...... 18415, 20536 2090...... 23198 4...... 18304 Proposed Rules: 80...... 18066 2800...... 23198 6...... 18304 384...... 19023 85...... 19830 Proposed Rules: 13...... 18304 385...... 20611 86...... 19830 2090...... 23230 14...... 18304 390...... 20611 98...... 22825 2800...... 23230 15...... 18304 395...... 20611 112...... 18894, 21652 18...... 18304 544...... 20298 158...... 22044 44 CFR 19...... 18304 571...... 23254, 23255 161...... 22044 64...... 18934 26...... 18304 180 ...... 18895, 18899, 18906, 65 ...... 18938, 20551, 20553, 33...... 18304 50 CFR 18915, 19701, 20537, 20542, 20554, 20556, 21660, 21662, 36...... 18304 22045, 22620 22054 42...... 18304 17...... 18087, 20558 268...... 18921 67...... 21664 52...... 18304 218...... 20257 271...... 18927 Proposed Rules: 53 ...... 18072, 18304, 18322 224...... 20870 300...... 18066, 20546 67 ...... 19005, 19007, 19018, 202...... 21809, 21810 226...... 20180 1042...... 20550 20606, 21693, 21695 204...... 21809 300...... 19708 Proposed Rules: 209...... 21812 622...... 18416, 23205 50...... 22665 45 CFR 212...... 21810 635...... 18417, 18653 52 ...... 19292, 19662, 19739, 648 ...... 18661, 19276, 23042, 2553...... 20243 234...... 21810 20291, 20293, 20296, 20598, 252...... 21809, 21812 23076, 23206 Proposed Rules: 20602, 20906, 20907, 20910, 604...... 20249 679 ...... 18663, 19912, 20890, Ch. II ...... 20568 21682, 21691, 21835 637...... 20249 22057 Ch. III ...... 20568 62...... 22861 652...... 20249 Proposed Rules: Ch. IV...... 20568 63...... 21692 10...... 23428 Ch. X...... 20568 Proposed Rules: 122...... 22174 2...... 18497, 23236 17 ...... 18138, 18684, 18701, Ch. XIII...... 20568 125...... 22174 3...... 23236 19304, 20464, 20613, 20911, 1355...... 18677 158...... 21294 4...... 22070, 23236 20918, 23256, 23265 1356...... 18677 168...... 18995 7...... 23236 20...... 19876 1357...... 18677 174...... 22067 8...... 22070 21...... 23428 180...... 19001, 22067 9...... 23236 223...... 20302 46 CFR 268...... 19003 11...... 23236 224...... 20302 271...... 19004 115...... 19275 12...... 23236 300...... 18706 281...... 21299 170...... 19275 13...... 23236 600...... 22342 300...... 18136, 20605 176...... 19275 14...... 23236 622...... 22345 355...... 21299 178...... 19275 15...... 23236 635...... 18504 520...... 19706 16...... 23236 648 ...... 18505, 19305, 19929, 41 CFR 532...... 19706 17...... 22070 22350 300...... 18326 Proposed Rules: 18...... 23236 660...... 18706, 18709 302...... 18326 502...... 19022 31...... 18497 665...... 19028

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in ‘‘slip law’’ (individual 2011 (Apr. 14, 2011; 125 Stat. enacted public laws. To pamphlet) form from the 36) subscribe, go to http:// LIST OF PUBLIC LAWS Superintendent of Documents, H.R. 1473/P.L. 112–10 listserv.gsa.gov/archives/ U.S. Government Printing This is a continuing list of Department of Defense and publaws-l.html Office, Washington, DC 20402 public bills from the current Full-Year Continuing (phone, 202–512–1808). The session of Congress which Appropriations Act, 2011 (Apr. text will also be made Note: This service is strictly have become Federal laws. It 15, 2011; 125 Stat. 38) available on the Internet from for E-mail notification of new may be used in conjunction Last List April 13, 2011 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/ 6043. This list is also index.html. Some laws may PENS cannot respond to available online at http:// not yet be available. Public Laws Electronic specific inquiries sent to this Notification Service address. www.archives.gov/federal- H.R. 4/P.L. 112–9 register/laws.html. (PENS) Comprehensive 1099 The text of laws is not Taxpayer Protection and published in the Federal Repayment of Exchange PENS is a free electronic mail Register but may be ordered Subsidy Overpayments Act of notification service of newly

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